Diversity and Sharia
By Dr. Adis Duderija, New Age Islam
University of Melbourne, Islamic Studies
Shari'ah is one of the most important key-concepts in Islamic Weltanschauung.
Shari'ah can be defined in a number of different ways: etymologically, Qur’anically or jurisprudentially (i.e. as the term is being /has been used in Islamic jurisprudence) but its most fundamental meaning , found in all of the above approaches to its definition, is linked to the notion of Tawheed which describes the vertical , ontological relationship between the Creator and the creation. God is The Sovereign, The Ultimate Judge, Originator of everything in the universe and Master of the Day of Judgment ( Qur'an , 1:3) .The Creator is 'above what people ascribe to Him" , a phrase often repeated in the Qur'an. God, Qur'an tells us, has laid out different Pathways (Shari’ah in the qur'anical sense) for different nations and tribes /communities so they can get to know one another and compete in goodness. The source of all these Pathways is One and True God to which all of these pathways lead (etymological meaning of Shari’ah). God is , in the words of Prof. Ramadan , the Ultimate Reference found throughout the universe for humans who are "in need for Him “and this perpetual searching for God is a way towards discovering God .Shari'ah ,a s Prof. El-Fadl asserts, retains in itself this idealistic , divine element that humans ought to strive for but can never achieve. In other words human can never reach the Source but it is essential, nevertheless, that they follow a path that can bring them closer to It. Humans can never claim to have completely embodied God's Will and Intention and that human's understanding of Shari'ah (i.e. fiqh) can never be equated with it. This divorcing of human understanding form the Divine, although at superficial level might seem odd and un-pragmatic, is , upon deeper reflection, essential in terms of ensuring that human perception, discernment, knowledge and perception of the Divine is never put on the equal footing with the Divine as to justify unjust human actions claimed to be done In the Name of God with God Himself. As such Shari'ah can be defined, in banking terms, as some kind of insurance policy of God against ungodly human conduct and behaviour
As it can be seen from the above the notion of Shari'ah denotes something Transcendent, abstract, Divine, beyond the reach of humans but something that they should aspire to. This premise of supremacy of Shari'ah in regulating human affairs has been accepted by all Muslim generations although, of course, it was given its edified form differently. With the development and consolidation of "catholic" dogma Shari'ah was increasingly seen as being embodied in legal principles extrapolated over the years by legal experts (Fiqah) on whose basis positive law was derived. This frequent association between Shari'ah and its jurisprudentic dimension resulted in the fact that Shari'ah was almost exclusively thought of, by Muslims as well as non-Muslims, as Divine Law found in the numerous books on Fiqh/Islamic jurisprudence with the exception of perhaps some Sufi-oriented Muslim scholars who, to a large extent, upheld the notion of Shari’ah being distinctly different from its human understanding, termed Fiqh. Modern Muslim scholars such as Rahman, Soroush, El-Fadl, Moosa, Esack and Barlas, conscious of the fundamental importance of this principle, have maintained that a clear distinction between normative and historical, religion and religious knowledge , thus between Shari'ah and Fiqh is to be made as to not fall in the trap of the previous and many in the current generations who have often blurred the lines between Shari'ah and Fiqh and "monopolised the Word/s of God" , to use El-Fadl's phrase.
The above was elaborated to a finer point because of the fact that when the issue of diversity and Shari’ah is being considered it is imperative to make the distinction between the divinely Shari’ah and the numerous human constructions of it as the initial stating premise.
Another very important question with reference to diversity is that of the nature of sources and the scope of Shari’ah. Shari’ah, as outlined and adopted by the Islamic tradition, consists of belief/faith, law , ethics/morality/ and mysticism. These disciplines in turn are based on the two fundamental sources of shari'ah namely Qur'an and Sunnah. Post-classical (200 AH onwards) Islamic tradition framed Shari’ah within certain epistemological parameters and derived its norms based on Qur'an and Sunnah using particular methodological tools. This resulted in Shari’ah (or better said Fiqh) penetrating and determining every detail of a life of a believer, private or public so much so that many Non-Muslims , scholars of Islam or not , have talked about the all comprehensive nature of Shari'ah that allows little room for adaptation in light of new circumstances and accommodation for diversity of human experience culturally, socially, politically even economically and technologically. How true are these assertions?.
The answer to this question will largely depend upon the definition of nature of Qur'an and Sunnah and the interpretational models used to deduce principles based on them.
It is outside of the scope of this written discourse to analyze even briefly the evolution of principles in Islamic legal theory whose basis were particular understandings of the nature of Qur’anic revelation and concept of Sunnah. Generally speaking during the classical period Qur'an and Sunnah were given more epistemological space and methodological freedom of interpretation which has been increasingly lost with the (perceived) need for more standardization and uniformity in the post-classical period. The case of the changes in the attitude towards legal doctrine exemplified by the schools of law from ancient to post-classical (classification found Ya'akov's Development of Legal Thought in Hanafi Texts) indicates this phenomenon very well. Yasin demonstrated lucidly how Malik's (died second part of second century AH) ,who has been given the title of the founder of one of the ancient schools of Law bearing his name , definition, nature and methodological usage of Qur'an and Sunnah was markedly different methodologically from later authorities who died in the third and fourth centuries AH. Ancient schools of law, especially early Maliki and Hanafi, separated for example the concept of Sunnah from Hadith,and allowed a greater scope for local custom ('urf) and non-textual sources of law such as opinion (ra'y), public interest (maslaha), maqasid or aims of Shari’ah and reason ('aql )in legal theory prior to the onslaught of traditionalist legal doctrine as espoused by Shafi'I. The mechanisms for adaptation and diversity that had a dominant role in early Islamic jurisprudence was retained but significantly epistemologically diluted in the post-classical period of Schools of Law ( madhahib)but did not entirely succumb to the traditionalist impetus.
Nevertheless history testifies to the fact that Islam was able to adopt itself in many different cultures across much of Asia, Africa and some part of Europe and still retain its fundamental characteristics.
Recent neo-Salafi movement-like movements, whose ideological roots go back to the methodologically and epistemologically most constraining interpretation of Qur'an and Sunnah have been, for various reasons, significantly influencing Muslims both in predominantly Muslim and non-Muslim societies where Muslims are residing. This approach to Shari'ah does not celebrate diversity and is essentially imposing Arab culture and customs, (mistakenly) taken as part of Qur'anic or Sunnaic Message, onto non-Arab Muslims.
However, as Prof. Ramadan rightly asserts that Shari'ah, if understood in the proper context and based on sound methodology, does have mechanisms which allow it to not only allow for diversity within Muslim point of reference but also outside it as outlined at the beginning of the essay.
In conclusion the question of diversity, may it be religious, cultural, social or political,
and Shari’ah, like many other questions fundamental to Muslims of today ( e.g. gender equality, form of government, human and minority rights, international cooperation, pluralism , multiculturalism and civilisational/cultural exchange) depends upon the approaches ones takes when engaging in the interpretation of its sources , the underlying assumptions and premises relating to the nature of these sources and the reading of the historical legacy/history of Muslims.
References:
Al-Fadl, Speaking in God's Name, One world 2001
Barlas, A., Believing Women in Islam, University of Texas Press, 2002
Dutton, Y., The Origins of Islamic Law-The Qur'an, the Muwatta and Madinian 'Amal, Routlege-Courzon, London, 2002
Soroush, A.K., Reason, Faith and Democracy in Islam, Oxford University Press 2000.
Ramadan, T. To be a European Muslim, The Islamic Foundation, Leicester1999
Western Muslims and Future of Islam
A research associate at the University of Melbourne Dr. Adis Duderija writes regular columns for New Age Islam. He recently published a book: Constructing a Religiously Ideal "Believer" and "Woman" in Islam: Neo-traditional Salafi and Progressive Muslims' Methods of Interpretation (Palgrave Series in Islamic Theology, Law, and History.
URL: https://newageislam.com/islamic-sharia-laws/diversity-sharia/d/6997