Silhouettes of Shari’a – Part 1: Herding Classical Cats

A herd of cats (and friends)!

The wave of political Islamophobia that many hoped had reached its crescendo in the 2010 election appears to be alive and thriving. Vitriolic bloggers like Pamela Geller and Frank Gaffney and their political allies like Michelle Bachmann and Steve King continue to craft elaborate conspiracy theories about how Islam and American Muslims are undermining American security and social values.  (It’s not my purpose here to bother refuting these folks.  I recommend Loonwatch or Islamophobia Today for coverage of Islamophobia.)  One of the most “successful” initiatives to come out of this movement has been the push for anti-shari’a legislation in more than 20 states, which would forbid courts from considering Islamic Law in any cases whatsoever. Although the Oklahoma referendum of 2010, one of the most publicized examples, passed a popular vote, it was ruled unconstitutional and attempts to re-route the proposal through the Oklahoma Senate this year have so far failed.

At issue are a few cases in which judges have considered Islamic Law in inheritance and divorce situations where circumstances were ambiguous or where civil laws had holes (some examples). There have been no cases where shari’a concepts were used to replace or override American civil laws. But the proposed legislation could have sweeping consequences that might render contracts void simply for referring to Islam. So, if I borrow ten bucks from you and promise to pay you back eleven, that’s allowed, but if the contract suggests this was done according to principles of Islamic finance, the courts may have to refuse to uphold it. Most brained-Americans have no problems dismissing such proposals as loony, but these debates have not actually improved the general public’s understanding of what shari’a actually is, effectively ceding much of the definitional power to the loons.

To make matters worse, we are constantly hearing about threatening shari’a abroad, whether it’s the Taliban’s draconian approach to public order, the stoning of adulterers in Saudi Arabia, or the political influence of “Islamist” groups like the Muslim Brotherhood on the Arab Spring. Although I do not wish to diminish our sense the horror at what life is like under the Taliban nor do I wish to campaign for the Muslim Brotherhood, we are often given the idea that these otherwise disparate phenomena are part of some aggregated global conspiracy akin to the Communist Threat in the 50’s and 60’s (itself of dubious aggregated-ness). The logic seems to be that shari’a is shari’a is shari’a. But it may not be – and I won’t even have to redefine “is” to attempt to persuade you. Shari’a means vastly different things to different people in different places, and as a society – in policy, journalism, or education – we won’t really be able to grasp the real situations of those people and places until we beef-up and complicate our collective one-dimensional understanding of shari’a.

Unfortunately, most media outlets have failed at getting a nuanced presentation of shari’a to the public. I chalk this up to the “wikification” of journalism dealing with “other” cultures/people, or in a more academic sense, the notion that “origin equals essence,” which is particularly pervasive in coverage of the Islamic world. Providing a textbook definition of a term or its historical origin, no matter how accurate, crowd-sourced, or hyperlink-referenced, often falls short of providing the needed context for deeper understanding. So, for example, we had countless articles about the sectarian violence in Iraq telling us about the disagreements in early Islam over the succession to the Prophet Muhammad or maybe some doctrines on the Hidden Imam. But the Iraqis were no more fighting about the honor of ‘Ali than the Irish Troubles were about papal infallibility or transubstantiation. A few more responsible journalists delved into Saddam’s policies regarding the Iraqi Shi’a, but hardly any brought in 19th-20th century migration patterns, demographic shifts, tribal dynamics, or other factors in the tensions. As a result, the American public, policy-makers, and military could just throw up their hands and say, “They’ve been fighting over irrational dogma for thousands of years. There’s no solution.” (One finds this argument for inaction in discussions of the Israeli-Palestinian crisis. Contrary to popular perception, Muslims and Jews have not been fighting in the Holy Land for hundreds/thousands of years. But examining current problems or asking who has an interest in keeping the conflict going takes too much risk and effort, apparently. But that is grist for another mill.)

What I propose to do here is contribute in some small way to a more nuanced treatment of shari’a. A universal definition won’t suffice (although we can start with that), because shari’a means different things to different people in different places, and we can’t even begin to understand the debate in this country, or in Egypt, or in Afghanistan without taking into account local attitudes and circumstances. In a series of posts, I want to present a few sketches of Islamic Law in context. After introducing an overview of classical shari’a, I’ll discuss the idea of shari’a in an American Muslim context. I plan to follow-up with posts about “Islamism” as a set of ideologies and the role of shari’a in local village contexts.

FOUNDATIONS: REACHING TOWARDS GOD’S WILL

Shari’a, literally “path”, is usually translated as Islamic Law, and it is that, at least. But one is often left with a sense that there’s some document out there that contains some kind of fixed code. Islam in Arabic means “submission (to God’s will)” and shari’a is simply the set of answers to the question, “Well, how are we supposed to do that?” As in the other Abrahamic faiths, human beings from the Islamic viewpoint are imperfect while God alone is perfect. Only God fully understands Himself, but even though human beings must fall short of that perfection, they are nevertheless meant to reach for it, to embrace goodness to the best of their capabilities. But because of human imperfection, the existence of multiple interpretations or priorities is deemed inevitable – and perhaps even necessary.

There is no centralized doctrinal institution in Islam – no Vatican or even a Southern Baptist Convention. As in Rabbinic Judaism, doctrine and law are studied and debated by scholars educated in the religious texts. One occasionally finds practical consensus on some issues, but there is no universally-recognized institution to enforce consensus on the community. A certain doctrinal position comes to prominence based on the strength of the argument and/or the perceived authority and authenticity of the scholar, past or present. In Islam, the religious scholars are collectively known as the ‘ulama’. Nearly all attempts of historical Muslim governments to herd the scholarly cats into a hierarchical church have failed. This did not lead to the modern concept of a separation of church and state, but it did result in political and religious institutions in Islamic history that were rarely completely under the thumb of the other type.

That being said, much Islamic legal scholarship ended up coalescing around schools of thought defined by slightly varying methods and traditions. In many ways, what makes the Sunnis Sunnis (literally “followers of the Prophet’s example” – although Shi’is claim to do the same thing. It’s kind of like claiming to be more “orthodox” than your rival.) was the gradual mutual-recognition of four of the legal schools with broad geographical or scholarly adherence. They “agreed to disagree.” Many contemporary Muslim scholars even suggest that in the absence of caliphs and the hidden-ness of the Shi’i Imam (for Twelver Shi’is, anyway), the differences between Sunni and Shi’i legal doctrines are no greater than those between the Sunni schools. Doctrinal and theoretical ecumenism, however, doesn’t automatically translate into social or political reconciliation.

So where do scholars look to figure out God’s will? Obviously, the first source would be the Qur’an, which for Muslims is the unadulterated Word of God transmitted through the mouth of Muhammad. The Qur’an itself typically speaks of God in the first person, unlike the third person perspective found in most of the Bible. However, the explicitly legal material in the Qur’an is very limited. While there are some straight-forward do’s and don’t’s, most of the Qur’an is interested in broader themes of the nature of God, humanity, prophets, and the good society. It is generally closer to Isaiah or Amos in tone and content than to Leviticus. And there is nothing at all laying out the ideal shape of political or legal institutions, other than exhortations to justice and fairness. Countries that claim to use the Qur’an as the basis for their constitutions can only do so in the most vague and symbolic sense.

While lending more certainty to some legal positions, the Qur’an doesn’t provide the breadth or quantity of legal material to divine all facets of God’s will. So a second accepted source derives from the question, “What would Muhammad do?” For Muslims, the Prophet was not divine, but he was uniquely touched and guided by God, so emulating him is a good bet for aligning oneself on God’s path. This led to the emergence of originally oral reports about the Prophet’s words and deeds, the hadith. While there are several written collections of hadith that enjoy general acceptance among many Muslims, the hadith do not form a closed canon, unlike the Qur’an. There are hundreds of thousands of these individual prophetic “sound bites” on topics ranging from dental hygiene to the proper conduct of war and peace. And Muslim scholars, from the outset, realized that these reports vary in accuracy and authenticity. Traditionally, one would interrogate the reliability of the oral transmitters, but there are other ways to weed out the weak hadith from the reliable. But scholars often differ wildly about the validity or even the interpretation of individual hadith, even if thy agree on the methodology of verification. This, by itself, leads to vastly divergent understandings of Islamic Law.

Scholars traditionally draw on some additional sources, but disagreements over which ones can be used were what created the boundaries between the legal schools. Many use some form of rational argument, such as analogy, but this is tempered by a fear of presuming to put imperfect human rationales in the mouth of God. Certain forms of scholarly consensus and local tradition may also influence the shape of Islamic Law in a particular region or case.

In short, there is no fixed shari’a code but rather a set of contested procedures based on sources that themselves might be contested. This doesn’t mean, however, that shari’a is just willy-nilly and can be whatever an individual says it is. Legal scholars earn the respect of believers and build up their authority through a sense of rigor and meticulousness. The ‘ulama’ who “show their work” and explain their process are more likely to have their positions supported by their colleagues.

QADI SHACK: TRYING FOR THE SWEET SPOT

What might happen if you go out on the green without your qadi

So that’s where shari’a comes from, but how does it work and what does it do? Depending on the situation, the shari’a becomes relevant in expanding circles from the personal, to the social, to the truly legal.

While many believers would say that shari’a is a comprehensive way of life, in practice the daily activities one pursues may reference it to greater or lesser degrees. There are recommended procedures for dental hygiene, for example, but most Muslims don’t have the sense that it’s a mortal sin to skip flossing with an aromatic twig. Likewise, what channel to watch or which gas station to use are probably not situations most would want or need to filter through a religious lens. Still, the most common application of shari’a is personal discipline: how to pray, how to treat others, how to cultivate moral purity. There generally has not been a mechanism for enforcement of these matters, other than one’s own sense of religious merit or social pressure (which can, admittedly, be very great).

Some of these issues might get a little murky, however, so some believers will appeal to muftis, legal scholars whose legal opinions on personal conduct have come to be respected. Some countries have had “national” muftis, who render opinions on larger social problems, but most muftis these days are essentially dealing with “Dear Abby” questions on relationships and manners. A mufti’s answer is known as a fatwa, a non-binding opinion.

When most Americans hear the word fatwa, they immediately think of the Ayatollah Khomeini’s famous fatwa calling for the death of Salman Rushdie for denigrating the Prophet in The Satanic Verses (and/or for providing a deeply scathing caricature of Khomeini himself in the novel). But fatwa does not mean a death sentence, a least not literally. Khomeini opined that it would be morally virtuous for someone to kill Rushdie; he did not order the state or security forces to carry out a legal execution. The effective difference probably doesn’t make Rushdie feel any safer. But my point is to show that a fatwa does not call upon state enforcement and relies instead on the reputation and authority of the scholar in the eyes of the believer.

As I suggested above, however, most fatwas are fairly mundane. In the modern setting, it has not become uncommon for conferences or organizations of scholars to issue joint fatwas on things like bioethics, political situations, or ritual reforms. But even in these cases, compliance with these fatwas is left largely to the believer.  The Fiqh Council of North America is one such organization that issues such joint religious recommendations, although they are not in a position to enforce compliance or even universal regard, as exemplified by the furor over their recommendation to calculate the beginning and end of the fasting month of Ramadan by astronomical calculations instead of the naked eye viewing of the new moon.

Historically and in some modern Muslim countries there are shari’a courts, whose function is to deal with concrete disputes or even criminal cases. The judge, or qadi, can count on the state, who is usually his employer, to enforce his ruling. The jurisdiction of such courts has varied widely in different societies historically. In medieval times, qadis could count on an entire bureaucracy of market inspectors, professional witnesses (public character witnesses cum notaries), and maybe even police or others who would mete out the demanded punishments.

However, the jurisdiction of the qadi was never total in any society, limited or superseded by the decisions of the ruler’s own court. As time went on, the scope of shari’a courts generally shrank in the face of increasingly complex bureaucracies designed to maintain justice and order over legally, religiously, and ethnically diverse populations, such as was found in the Ottoman or Mughal Empires. Even before the rise of European colonialism and the imposition of European legal systems in many places in the Islamic world, shari’a courts had found themselves dealing with fewer types of cases.

Most contemporary Muslim-majority nations, if they implement shari’a at all (and many do not), have limited the enforceable jurisdiction of shari’a to family law: marriage, divorce, inheritance, etc. Of course, it is exactly these matters where gender inequities in traditional understandings of Islamic Law stand out. Saudi Arabia and the once-and-maybe-future Taliban regime are among the few that have determined criminal or contract law according to their interpretations of shari’a, not without bending the law here and there to suit the needs of the regime. Even Iran has a complex hybrid legal system that blends secular and religious legal principles and institutions, and thus only partly makes use of shari’a. Others have limited shari’a‘s effective scope but occasionally indulge in a public spectacle such as a stoning or hand-removal to deflect criticism from the otherwise un-Islamic behavior of a given regime. Although still too many, perhaps, the cases of the death penalty for adultery in Muslim-majority countries are surely far fewer than occasions of adultery.

This state of affairs is exactly what some “Islamists” would like to change, although what those changes would look like are another source of contention. My next post will look at the question of shari’a in the U.S., where we can throw most of what I said in this post out the window. But as I hope to have shown, even classical “textbook” shari’a refuses to conform to an unchanging, monolithic code – even less so when you toss modern politics and society into the mix.

SOME REFERENCES

The information in this post comes mostly from my experience teaching about Islamic Law, but I wanted to share a few very useful sources for those who want a taste of classical Islamic Law, and particularly those who are interested in learning about the culture of debate and flexibility that characterized pre-modern Islamic jurisprudence.  Two very thorough overviews can be found in N. J. Coulson’s An Introduction to Islamic Law and Wael Hallaq’s A History of Islamic Legal Theory (Hallaq’s substantial body of scholarship on Islamic Law is worth checking out).  For a glance at Islamic tradition legal institutions in practice (such as what qadis and muftis do in a village setting), I find Brinkley Messick’s The Calligraphic State to be a great work that blends history and textual studies with living ethnography.  A good case study of the role of shari’a courts in shaping family law in contemporary Iran and Morocco is Ziba Mir-Hosseini’s Marriage on Trial: A Study of Islamic Family Law.  I’d also recommend the works of Khaled Abou el-Fadl, about whom I will be speaking more in my next post.

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