What Sharia looks like in the Islamic world

Many modern discussions on Islam, particularly in the light of the various reformist and Islamist tendencies of the past two centuries, refer to or even focus on the role and the significance of shari‘a for contemporary Muslim individuals and societies. More often than not, however, participants in these debates, both Muslim and non-Muslim, tend to assume that shari‘a is a more or less a set of fixed laws, directly derived from the Qoran and the hadith, and that it has largely remained unchanged through the ages.

The present collection of articles, which resulted from a workshop at Yale University in February 2003, successfully undertakes to challenge this one-dimensional view. Traditional though the terminology of many modern Muslim authors and jurists is, their approach to shari‘a and their understanding of classical concepts often thoroughly differ from their colleagues of previous centuries and thus become far more modern than they themselves would be ready to admit.

In his introduction, Frank Griffel provides a masterly overview both of the classical idea of shari‘a as “a practice and a process of deriving law and of adjudicating disputes” (p. 4) and its transformations in modern times. On the one hand, Islamic law was increasingly differentiated into religious and secular branches since the 19th century, and jurisdiction in large parts of the Muslim world was reformed, i.e. secularized, under colonialist influence. On the other hand, many modern shari‘a theorists, such as ‘Abd al-Qadir ‘Awda or Sayyid Qutb, who graduated from an educational system that was secularized, too, lacked the formal training of traditional jurists and were cut off from the classical legal discourse where “texts always refer to previous texts” (p. 4).

Their nearly inevitable pick-and-choose approach not only meant that they understood shari‘a as a codified set of rules – which it historically never was – but also shifted connotations of central terms. A case in point is Qutb’s interpretation of the Arabic verb hakama as “to rule,” in stark opposition to its classical exclusive sense, “to judge.”

The effects of these transformations on matters such as dealing with apostasy or adultery were – and are – enormous.

The nine articles which follow can be roughly divided into four clusters. The first consists of three contributions which focus on some of the theoretical foundations that form the leitmotif of most modern debates on shari‘a.

Gudrun Kr‰mer traces the place of values in general and of justice in particular in Islamic thought. From the classical notion of justice as “equivalent to behavior conforming to God’s law” (p. 25), the interpretation of modern authors shifted towards a value debate, where justice is seen as “the supreme and overarching value of Islam” (p. 28) and finally “superior to any other kind of justice” (p. 30) – without, however, doing away with basic inequalities in Muslim societies, e.g. in gender issues.

Frank Griffel inquires into the relationship between shari‘a and natural law, a category that had largely been unknown in classical thought as an explicit concept. Modern authors, such as Sayyid Qutb and Abu’l-A‘la al-Mawdudi take the classical notion of fitra, which was understood as the natural monotheistic disposition of every human being, and interpret it as more or less identical with natural law, which is then taken to be identical with shari‘a itself.

The third article of this part, Felicitas Opwis’ treatment of the concept of maslaha (usually rendered as “public interest”), is in a way the central essay of the volume, as it is referred to in most other chapters. Although maslaha was not one of the classical four sources of Islamic law, it early on acquired an important position, when, starting in the 11th century, scholars such as al-Ghazali defined it “as a method to extend the law in those cases to which no textual evidence directly applies” (p. 67), although the practical extent to which it was applied varied considerably. For reformist thinkers of the 19th and 20th century, maslaha has developed to become a central – albeit again not unanimous – tool for legal change.

After these theoretical essays, the two articles that form the second cluster address two individual scholars and their respective approach to shari‘a. David L. Johnston deals with ‘Allal al-Fasi, one of the leading intellectuals and politicians of the Moroccan independence. His ideas about shari‘a heavily draw on the notions fitra and maslaha, and aim at establishing Islam as a kind of global identity.

As to Noah Feldman, he focuses on one of the most prominent and influential contemporary Muslim scholars, Yusuf al-Qaradawi, and especially looks into the latter’s view on the compatibility of Islam and democracy. The non-Islamic origin of democracy notwithstanding, al-Qaradawi answers in the affirmative – provided that Islam is the state religion and shari‘a the basis of all legislation.

The third part consists of three articles that are devoted to the case of Iran and developments within Shiite Islam. Abbas Amanat traces the background of Khomeini’s theory of the guardianship of the jurist (vilayat-e faqih) and its corollary, the blind emulation (taqlid) on the part of the ordinary believers. Although the concept of vilaya in Shiite Islam is very old, it never had the political implications with which it was endowed by Khomeini. In combination with the honorary title imam which was for the first time in Shiite history used for a scholar, this amounted to a veritable intellectual revolution in the garb of traditional terminology.

Shahrough Akhavi examines the role of social contract theories for modern Shiite thought. While this concept, like in Sunnite Islam, did not play any noticeable role in pre-modern history, 20th century writings, especially Khomeini’s political theory and its critics, are concerned with discussions about civil society and social contract.

Said Amir Arjomand, finally, in a brief, but succinct chapter analyzes the tradition of constitutionalist thought in Iran and its tensions with shari‘a with regard to the mutual delimitation of secular and religious jurisdiction, particularly in the case of the post-1979 constitution of the Islamic Republic.

The last part of the book consists of the chapter by Anna W¸rth on the practical dimension of applied shari‘a. Her article which is based on fieldwork in a family court in Sanaa, Yemen, is a fine example of how Islamic law is applied today in practice, and of the room for maneuver that is left to the judges to solve cases also in the form of out-of-court settlements.

All in all, the essays presented in this carefully edited volume are an excellent introduction to key concepts and legal developments which go far beyond Islamic law proper. The number of inaccuracies is negligible (several times, the date of the death of Ayatollah Borujerdi is erroneously given as 1962, instead of 1961), and the only real pity is that all notes are deferred to the end, which involves a lot of turning the pages. But apart from this trifle, the book is warmly recommended to anyone interested in modern Islamic intellectual and legal history.

Reviewed by

Rainer Brunner

CNRS, Paris