De-mystifying Shari’a and Islamic law: a timely initiative

In this article from the Spring 2008 issue of Directions Shaheen Sardar Ali (University of Warwick) outlines some key aspects of the Islamic legal tradition, which underpin the work of UKCLE’s Islamic law curriculum development project.

You can also hear Shaheen talking about Shari’a and UK law in a Warwick podcast from 11 February 2008.

In February 2008 Britain was in the grip of an intense controversy over the lecture of the Archbishop of Canterbury, Dr Rowan Williams, entitled ‘Islam and English law’. The Archbishop has been accused of encouraging introduction of Shari’a into the English legal system undermining its Christian foundations and ethos. Further, that such a possibility would inevitably lead Britain towards accepting a legal culture of flogging, stoning and chopping of limbs as part of its criminal justice system.

What is the Shari’a? Does it imply a draconian set of laws, discriminating against women, non-Muslims and minorities, which would undermine coveted principles of the English legal system, including the rule of law, justice, democracy and human rights? Or are misunderstandings about Shari’a, Islam and Muslims simply apprehensions stemming from incomplete, or incoherent, knowledge and misinformation on the subject? And finally, are these misconceptions the result of cultural articulations of Muslim immigrant communities rather than a religious tradition?

Irrespective of the contributory factors in this unfortunate situation, providing space for an informed discourse through courses, training, teaching and learning materials is imperative and critical to inter-community and inter-faith harmony. An important and challenging initiative to address some of the above issues is UKCLE’s Islamic law curriculum development project. For instance, what is the Shari’a, what is the difference between Shari’a, Siyasa Shari’a and Islamic law? What do we mean by Muslim sects and sub-sects, and how does this reflect in law and jurisprudence and impact on lives of Muslims in Muslim and non-Muslim countries? Is there space within the Islamic legal tradition for British Muslims to comply with requirements of the Shari’a as well as the English legal system without compromising either set of norms? Is it ‘Islamically’ permissible for a Muslim to register marriage under the English laws? Are decrees of divorce handed down from an English court ‘Islamic’, without the husband pronouncing the talaq? In the materials developed for the project the authors attempt to clarify and place some of these concepts in the wider context of the Islamic legal tradition.

Shari’a is the overarching umbrella of rules, regulations, values and normative framework covering all aspects and spheres of life for Muslims. It constitutes the Divine injunctions of God (the Qur’an), Divinely inspired Sunna (words and deeds of the Prophet Muhammad) as well as the human articulation and understanding of these sources. As I have quoted elsewhere (Ali, 2000), Parwez brings out the true essence of the breadth and reach of Shari’a when he describes it thus: “The Shari’a refers to a straight and clear path and also a watering place where both humans and animals come to drink water, provided the source of water is a flowing stream or spring”. Stagnant, standing water is not and cannot be Shari’a, which, as we have seen, is not confined to the written law in the western sense but goes much further, encompassing the social, political, moral and ethical. More importantly, it possesses a dynamic and evolutionary nature, and thus bodes well for Muslims seeking guidance when making non-Muslim countries their home.

The second misconception of the Islamic religious and legal tradition is that it is monolithic and unitary. Nothing could be further from the truth, as evidenced by the range of sources of the Islamic legal tradition and juristic techniques and schools of juristic thought in Islam. Primary sources of law comprise the Qur’an and Sunna; secondary sources include Ijma (consensus of opinion) and Qiyas (analogical deduction). In addition to these sources of law, there exist a range of juristic techniques such as Ijtihad, the literal meaning of which is ‘striving hard’, and strenuousness denotes exercising independent juristic reasoning to provide answers when the Qur’an and Sunna are silent on a particular issue, and Taqlid or duty to follow by accepting someone’s intellectual authority. Ikhtilaf or the ‘unity in diversity’ doctrine enabling jurists of various schools of Muslim thought as well as practitioners to arrive at positions that were as varied as the ‘colours of the rainbow (Coulson, 1994).

One of the most dynamic concepts in Islamic jurisprudence is Takhayyur, meaning the process of selection. As a term of jurisprudence it has been used to consider possible alternatives from a range of juristic opinions on a particular point of law and with the intention to seek less restrictive legal principles in application to issues arising. Talfiq, translated literally as a ‘patchwork’, implies the process whereby Muslim jurists constructed legal rules by the combination and fusion of opinions derived from different schools of thought on a particular issue. Maslaha (the public good or in the public interest) ,or masalihu’l-mursala wa’listislah, is a doctrine propounded by Imam Malik. There is evidence that qadis and jurists in Muslim history have employed this concept to override problems arising out of adherence to strict doctrine enshrined in the classical legal texts. Darura, (necessity/duress) is a technique applied where it becomes imperative to make prohibited things and situations, permissible. Last but certainly not least, is custom or ‘urf as a source of law also termed, ta’amul or ‘adat. At times controversial, this source of law and juristic technique plays an important role in the growth of the Islamic legal tradition, as it speaks to the commonly held beliefs and convictions of communities.

The above discussion outlines some of the mechanisms employed by Muslim jurists to explore avenues of legal expression within an environment tolerant of divergence and difference. Muslim jurisprudence has the capacity to be inclusive and afford multiple spaces for divergent opinions, without appropriating a ‘superior location’ for any single school of thought and belief. It is this aspect of the Islamic legal tradition that the authors of the manuals in the project aim to share with members of the legal profession and law students, with a view to transfer skills of understanding this important legal system and utilise this knowledge in their dealings with Muslim clients within Britain and elsewhere. Likewise, we hope that the Departments of Social Services, Health, Education and the Home Office, as well as Communities and Local Government, will draw upon these materials to understand better Islamic legal norms, and the extent to which these are compatible with the English legal system.

References

• Ali S (2000) Gender and human rights in Islam and international law: equal before Allah, unequal before man The Hague: Kluwer Law International
• Coulson (1994) A history of Islamic law Edinburgh: University Press (p86)
• Parwez G (1960) Lughat-ul-Quran Lahore (p941 cited in Ali, 2000)

Last Modified: 9 July 2010