Shariah: A Semantic Oxymoron?

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© Shutterstock | alexskopje

The rise of ISIS (also known as Islamic State of Iraq and Syria), an Islamist terrorist group that pledged allegiance to Al-Qaeda in 2004 and proclaimed itself to be a worldwide caliphate last year in June, vowing to establish a so-called Islamic State governed by Shariah law in Iraq and beyond coupled with the surge of other extremist groups such as Boko Haram in Nigeria and Al Shabab in Somalia, has brought complex questions regarding Shariah to the forefront. In contemporary discourses and nomenclature, Shariah has been perceived as inter alia, dogmatic and misogynistic, propagating a radical and violent ideology. These claims have been cemented by an increasing number of extremist Muslims donning suicide vests, and Muslim countries like Saudi Arabia denying women the right to even drive. Against this backdrop, along with moderate Muslims hailing Islam as a religion of peace, it begs the question: are such depictions of Shariah a genuine reflection of Islamic teachings? Perhaps these manifestations of the divine law are motivated by other factors masquerading as religion.

The term Shariah’s etymological roots reveal how the practice of Shariah has fallen far short of the term’s meaning in letter and spirit. According to the Hans Wehr Arabic to English Dictionary, the term Shariah is derived from the Arabic verb shara’a and is connected to the notion of ‘spiritual law’ as ordained in the Holy Qur’an.[2] Defined literally, however, the term means ‘the path leading to the water.’ In this sense, it is symbolic of a source of spiritual life and rejuvenation. Tracing the historical development of Shariah, Abdullah Ahmed An-Na’im notes that, “…the origins, nature, and context of the development of Shariah was itself conditioned by the historical context of early Islamic societies of the Middle East.”[3] As An-Na’im goes on to explain, the four Sunni schools of thought: Hanafi, Maliki, Shafi and Hanbali, emerged from a practice common among communities living in the first few centuries of Islam, which would refer questions to their preferred scholar (someone who was deemed well-versed in the interpretation of the text of the Holy Qur’an and Sunnah [the traditions of the Holy Prophet Muhammadsa]) for guidance. Consequently, the four Sunni schools were named after each of their founding fathers and continue to exert territorial influence across the Muslim world today.

Therefore, the mutation of the concept of Shariah in various schools of jurisprudence began as early as the third century of Islam, and continues today within the ever-expanding body of Islamic sects adding insult to injury, the manner in which Shariah has been fashioned and implemented in most constitutions in the Muslim world, being largely used as a political ploy, exemplifies how its lexical richness has been reduced to a mere oxymoron. Blanket impositions of Shariah at the constitutional helm, making it either “a” or “the” source of all legislation with no consideration to whose version of Shariah is being espoused, overlooks the grass roots where there might exist scores of varying interpretations of Shariah, which lend no allegiance to the form of Islamic law enforced.[4] Such constitutional clauses (in Middle East and South Asian constitutions) call for a single, universally accepted version of Shariah to be enforced, whereas in reality no such definition exists. These questions of Islamic relativism were clearly manifested in the drafting of the Iraqi constitution, post Saddam Hussein. It has been reported that the “debates regarding the wording of the shariah provision were among some of the most contentious of the entire constitution-writing process, not so much due to substantive disagreements, but more due to different interpretations of Islam among different people.”[5] Moreover, constitutional implementations of Shariah have also revealed how the divine law has undergone a process of politicisation and has become a tool whereby partisan agendas maybe levied upon people in the guise of religion. This was vividly epitomised by Pakistan’s Hudood Ordinances in the seventies that effectively imported the Islamic law on adultery into rape.[6]

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© Shutterstock | picturepartners

In certain parts of the Muslim world, the imposition of Shariah law has led to dangerous consequences, with religious minorities being routinely marginalised and persecuted. This was evident in the Pakistani Supreme Court case of Zaheeruddin versus The State, which concerned the vires of Ordinance XX (that was promulgated under the military dictatorship of General Zia-ul-Haq and criminalised certain activities of a minority Muslim sect deemed heretical by mainstream Muslims, who refer to themselves as Ahmadis).[7] Justice Abdul Qadeer Chaudhry, who delivered the majority judgment, invoked the law on trademarks and copyrights to claim that since “certain religious terms [were] peculiar to Islam” they could be protected “by the state from being used by other religious communities.”[8,9] Malaysia, too, has shown a drift towards Islamisation notwithstanding its otherwise multicultural outlook, with the Malaysian Court of Appeal in 2013 precluding the Catholic newspaper The Herald from using the term Allah to denote God in its newsletter, arguing that the term belonged exclusively to the Muslim faith.[10]

The state of the Muslim world championing the cause of Shariah is paradoxical on many levels, with Shariah being reduced to a political tool to legitimise unjust and authoritarian governments with no concession being made to cater for the conundrum of relativity that confounds Shariah law today, and with a propensity exhibited by radical Islamist clerics to monopolising a singular and violent interpretation. The result is effectively theological anarchy. Most profoundly, the situation is paradoxical because it runs contrary to the essence and spirit of Shariah as ordained in the Holy Qur’an. The reduction of Shariah to a mere political gizmo to sanctify despotic regimes and the development of a pernicious ideology by Islamic fundamentalists, starkly contrasts to the Qur’anic teachings of justice, as the cornerstone of government. Justice has, as Khaled Abou El Fadl, professor of law at the University of California School Of Law, writes, played “a central role in the Quranic discourse.”[10] The Qur’anic injunctions on the dispensation of justice envision the formation of an impartial and egalitarian arrangement of social and political institutions.[12]
Notably, the Holy Qur’an endorses the values of diversity and social cooperation, which are vital for implementing justice in society. The Holy Qur’an actually speaks of diversity and difference as a merciful gift to mankind, stating as Fadl expounds that, “the reality of human diversity is part of the divine wisdom and an intentional purpose of creation: ‘If thy Lord had so willed, He could have made mankind one people . . . (11:118).’”[13] Most significantly, the Holy Qur’an states that God grouped people into various tribes and nations so that they “may know one another.[14] Jurists have reasoned that the provision “may know one another” points to the notions of social cooperation and cohesion in order to establish a just society.[15]

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© Shutterstock | corund

An implementation of Shariah per force is also paradoxical from the perspective of what Shariah denotes for the lives of billions of Muslims. A sizable chunk of Shariah deals with inherently personal matters including worship (ibadah) and behaviours of morals and manners (adab) and beliefs (i’tiqadat). These matters constitute a universe in themselves and form part of an inherently private sphere of individual life that no religious police (particularly the state) should ever enforce. Such matters are then privy to the realm of being between God and man – yet self-appointed fatwa-givers claim to have appropriated the divine charge of enforcing such norms. Such authority was denied even to the Prophet Muhammadsa himself, God proclaiming that he was but an “admonisher” who had “no authority to compel” people.[16,17] This is in line with the general principle of the Qur’anic message that there is “no compulsion” in matters of faith.[18]

Indeed, it is with the pursuit of justice coupled with a commitment to safeguarding the individual rights of all people, that the process of crafting a constitutional framework in the Muslim world should be perceived. Paradoxically, in jurisprudential theory, the purpose of Shariah is to protect the welfare of people and places an obligation on the government to fulfill the necessities (daruriyyat), needs (hajiyyat), and luxuries (kamaliyyat or tahsiniyyat) of all its subjects in descending order of importance.[19]
Governments in Muslim countries today present the antithesis of the jurisprudential obligations that an application of Shariah warrants. A genuine commitment to the implementation of Shariah in light of the justice it exhorts would entail political, social, economic and religious equality across denominations. A partial and blanket enforcement of Muslim law on non-adherents makes a travesty of justice and of Shariah itself. For the establishment of peace in Muslim-majority countries today, the growth of the increasingly pernicious ideology among Muslim jurists as the true warders of religion, must be tackled. Preserving the sanctity of Shariah in modern times despite this ideology, presents the most formidable challenge today.

About the author: Ayesha Mahmood Malik is a Contributing Editor of “islawmix” – a project incubated at the Berkman Center for Internet and Society at Harvard University and aimed at bringing clarity to Islamic law in the news. She is also the Law & Human Rights Section Deputy Editor at The Review of Religions. Her writings have appeared in the Oxford Human Rights Hub Blog, the Cambridge Review of International Affairs Blog and the Harvard Human Rights Journal Online. She holds an LLB (Hons) from the University of London and an LLM from Harvard Law School.

 

Endnotes

  1. Ayesha Malik, BRISMES Annual Conference 2015, British Society for Middle Eastern Studies, http://brismes2015.com/panel-2g-gods-chosen-peoples-historical-perspectives-on-islam-and-liberation/.
  2. New World Encyclopedia contributors, Shariah, New World Encyclopedia, (Aug 29, 2008), http://www.newworldencyclopedia.org/entry/Shariah.
  3. Abdullah Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law 52-62 (1990), cited in Abdullah Ahmed An-Na’im, Islamic Foundations of Religious Human Rights 337, 342 (1996) chapter in Religious Human Rights in Global Perspective (J. Witte, Jr. and J.D. van der Vyver eds.) (1996).
  4. For an analysis of such provisions, see e.g., Clark B. Lombardi, Constitutional Provisions Making Shariah ‘A’ or ‘The’ Chief Source of Legislation: Where did they come from? What do they mean? Do they matter?” 28 American University International Law Review 733 (2013).
  5. Ashley S. Deeks & Matthew D. Burton, Iraq’s Constitution: A Drafting History, 40 Cornell International Law Journal. 1, 5-6 (2007), cited in Lombardi, supra note 16 at 764, n. 107.
  6. See e.g. Martin Lau, Twenty-five Years of Hudood Ordinances – A Review, 64 Wash. & Lee L. Rev. 1291 (2007). Of the most controversial of these Ordinances was the Zina Ordinance that effectively criminalised all sexual intercourse outside a legally valid marriage. In particular as Lau notes that, “By creating the new offenses of adultery and fornication, the Zina Ordinance caught women who had suffered rape in an insidious legal trap. A rape victim who pressed charges risked prosecution for extra-marital sex,” id at 1297.
  7. Zaheeruddin versus The State, 1993 SCMR 1718.
  8. Martin Lau, The case of Zaheer-ud-din v. The State and its impact on the fundamental right to freedom of religion, Cimel Yearbook Vol. 1: Islam and Fundamental Rights in Pakistan, https://www.soas.ac.uk/cimel/materials/intro.html.
  9. Id.
  10. See generally, Ayesha Malik, “Malaysia’s Dangerous Path Towards ‘Allah,’” Oxford Human Rights Hub Blog (Dec 19, 2013), http://ohrh.law.ox.ac.uk/malaysias-dangerous-path-towards-allah/.
  11. Khaled Abou El Fadl, “Islam and the Challenge of Democracy,” Boston Review (April 1, 2003), http://bostonreview.net/archives/BR28.2/abou.html.
  12. For some examples on general Qur’anic commandments on justice, see e.g. Chapter 5, Verse 9, Chapter 4, Verse 136 and Chapter 16, Verse 91.
  13. Fadl, supra note 10.
  14. Holy Qur’an, Surah Al-Hujurat, Verse 14.
  15. Fadl, supra note 10.
  16. Holy Qur’an, Surah Al-Fajr, Verse 22.
  17. Id.
  18. Holy Qur’an, Surah Al-Baqarah, Verse 257.
  19. Fadl, supra note 10.