Unpacking Shari'a toward an Islamic Reformation

Shari’a

     Ibn Khaldun (1332 – 1406 CE) the great Tunisian historian, widely recognized even today as the founder of ilm al-umran, the science of social organization or sociology, is renowned for The Muqaddimah, an introduction to a comprehensive history of the world. He is also acknowledged for his examination of leadership and group dynamics and the need for asabiyya, variously translated as social cohesion, social solidarity, and esprit de corps for the success of a tribe, social group, or a state. The goal of Ibn Khaldun’s ilm al-umran according to sociologist, Fuad Baali in State, Society, and Urbanism: Ibn Khaldun’s Sociological Thought, “is to formulate accurate laws of society and social change” (1988, p. 15). These laws, although they may not necessarily be rigid, are designed to create the stability to manage social events to follow consistent, well-defined patterns and sequences.

     In the translation from the Arabic of The Muqaddimah by Franz Rosenthal, Ibn Khaldun identifies three kinds of human souls. There are those with limited faculties of spiritual perception who rely on their senses, imagination, and memory to achieve their life’s purposes. There are others who are introspective and intuitive, relying on the faculty of spiritual intellection, such as the saints. Finally, there are the prophets who rise above corporeal and spiritual humanity to the angelic realms. They have the faculty to listen to Divine speech:

God freed them from the lets and hindrances of the body, by which they were afflicted as human beings. He did this by means of ‘ismah (infallibility) and straightforwardness, which He implanted in them and which gave them that particular outlook, and by means of a desire for divine worship which He centred in them and which converges from all sides towards that goal. They thus move toward the angelic, sloughing off humanity at will, by virtue of their natural constitution, and not with the help of any acquired faculty or craft. (Ibn, Khaldun., Rosenthal & Dawood, 1978, p. 78)

     In order to understand the powerful influence of the Prophet of Islam, his traditions and the Qur’anic laws which were revealed through him, it is essential to understand this high spiritual station in the imaginal realms. The Prophet himself always claimed he was just a man, but his words and actions were not always his own. Hence, when we discuss the sacred laws, the shari’a and the prophetic traditions, the sunna, it is important to bear in mind how Muslims respond to ideas that might seem to challenge these established sources for their weltanschauung. This is especially significant because the shari’a as a religious law is understood by many Muslims as not confined to matters of this world, as Ibn Khaldun explains:

Political laws consider only worldly interests. On the other hand, the intention the Lawgiver has concerning mankind is their welfare in the other world. Therefore, it is necessary, as required by the religious law, to cause the mass to act in accordance with the religious laws in all their affairs touching both this world and the other world. The authority to do so was possessed by the representatives of the religious law, the prophets; then by those who took their place, the caliphs. (Ibn, Khaldun., Rosenthal & Dawood, 1978, p. 155)

     It is important to note here, that there were no codified shari’a laws from the early days of the Medina of the Prophet in 622 CE to the final days of the Caliphate of Ali in 661 CE. Decisions were made based on the Qur’an and the judgment of the Prophet and his closest companions, and then by the four rightly-guided Caliphs. Does this mean then that the Islam of the Prophet and the Caliphate of the four rightly guided Caliphs did not have a body of shari’a laws? That is historically accurate, which is why a return to the Caliphate is both an illusion and delusional. Shari’a laws were a formulation that evolved over a period of two hundred years after the umma was orphaned by the Prophet in 632 CE and his four immediate successors. The four Sunni schools of law evolved from approximately 765 CE to 855 CE. Shi’a Muslims claim that their Imams were always their absolute lawgivers but the Ja‘fari school was founded by the Shi’a Imam Jafar al-Sadiq (699 - 765 CE). Two of the founders of the Sunni school of law, Abu Hanifa and Malik ibn Anas, were students of Jafar al-Sadiq.

     Shari’a itself comprises two components: the acts of worship (‘ibadat), which include the five pillars of Islam and religious rituals such as purification, wu’du, and funeral rites etc.), and the laws governing human relationships (mu’amalat) which include marriage, divorce, inheritance, commerce, taxation, and war. In an illuminating text edited by Amanat and Griffel titled Sharia: Islamic Law in the Contemporary Context, Griffel expounds on the wider parameters of shari’a:

However, Shari’a goes beyond what in the West would be considered legal discourse, for it extends to matters concerning proprieties of clothing, conduct between spouses, filial piety, behavior at funerals, and other questions that Westerners would treat not as legal, but as moral issues or mere etiquette. At the same time, Shari’a also provides answers to the most vital moral questions of the contemporary world, such as the legitimacy of violence or torture, just war, suicide and self-sacrifice, or the means of combating justice. (2007, p. 1) 

     Shari’a in Arabic translates as the path to the watering hole. As with the word fitra, it appears only once in the Qur’an in Q 45:18: “[O Muhammad,] We have set thee on a way [shari’a] by which the purpose [of faith] may be fulfilled.”  Its formulation was based on four sources of jurisprudence: (1) The Qur’an; (2) the Sunna or practices and traditions of the Prophet based on the corpus of hadiths; (3) qiyas which is a hermeneutic method done by legal analogy; and (4) ijma or the consensus of legal scholars. So, with the Qur’an we have the presence of nur, Light; with the sunna we have the principle of emulation, taqlid; and with qiyas we rely on the intellect ‘aql. We might argue that with the notion of ijma, consensus, we also have a collective form of khalifa, collective responsibility or guardianship for the collective imaginal realm. In fact, an essential aspect of the legal analogy and consensus decision was to determine what laws were for the public welfare or public interest, maslaha, the plural for the word masalih. Bernard Weiss explains in The Spirit of Islamic Law how the jurists determined and identified the purpose of specific laws:

The purposes of the law in the light of which causes were thus identified related to vital human interests (masalih). Human beings, it was thought, know very well what these human interests are. It is a knowledge that arises out of experience and reflection upon the human condition. Five interests are paramount and universal: religion, life, offspring (lineage), property and rationality. Through experience humans discover that when these interests are well served they enjoy maximal happiness; otherwise, unhappiness and hardship follow. (1998, p. 78)   

     World-renowned Professor of Islamic Law at McGill University, Wael B. Hallaq closely echoes this understanding of the five underlying universal principles of shari’a in An Introduction to Islamic Law: “If the feature of public interest in a case can be shown to be indubitably connected with the five universals, then reasoning must proceed in accordance with maslaha. The condition of universality is also intended to ensure that human interests of the Muslim community at large are served” (2009, p. 27). But in today’s pluralistic context, we struggle with the relevance and application of shari’a laws to the postcolonial Diaspora of Muslims worldwide, which has caused and continues to create much consternation in Europe and Canada. There are some very apparent conflicts between the contrasting public interests served, the most notable being the one between the principle of the freedom of religion and the specific laws that pertain to the expression of that faith, shari’a, and the laws of the state.

     The significance of the lack of a codified shari’a in the early days of Islam is captured in, what are − especially for the postmodern mind − two very disturbing events, whose historicity may now be difficult to ascertain in their exactitude. The first one is reported as a Prophetic hadith in a text titled Islamic Law: The Sharia from Muhammad’s Time to the Present by Janin and Kahlmeyer. It addresses the question of illicit sexual relations by a married man. This “hadith tells us that a man named Ma’iz confessed four times to Muhammad that he had had illegal sex. Rather simply condemning Ma’iz to be stoned to death, Muhammad patiently questioned him and suggested various legal defenses he could use to save his life” (2007, p. 45). The Prophet clarified whether Ma’iz was insane or drunk and then assessed whether Ma’iz had had full sexual intercourse with the woman. In each instance, Ma’iz confessed that he had knowingly had illicit sexual intercourse with her. The authors cite part of the hadith: “Then the Prophet asked, ‘What do you intend with these words?’  He answered, ‘That you purify me.’ Then [Muhammad] ordered him to be stoned” (p. 45).  Did this hadith establish the precedent for stoning in Dar al-Islam? Was a precedent also established for an insanity plea? If so, how would a person know if he or she were in fact insane? Would another prophet, Jesus or for that matter, David, have forgiven him and asked him to sin no more? Was he hoping for absolution with his open confession to the Prophet? 

     The other equally disturbing account, again specifically for the postmodern mind, is reported by Scott Kugle in Homosexuality in Islam. It appears that after the Prophet departed for the Gardens of Paradise and beyond, the renowned commander, Khalid ibn al-Walid wrote to the Caliph Abu Bakr in Medina,

announcing ‘that he had found a man in some outlying region who does the deed of the Tribe of Lot.’ Abu Bakr gathered the leading companions of the Prophet. They debated the issue, because none of them knew of a precedent for such a phenomenon. The Prophet had left no example to follow, and none of them quoted any hadith transmitting the Prophet’s teaching or advice. (2010, p. 99)

‘Ali, the son-in-law of the Prophet and the first Imam of the Shi’a, asserted that the Qur’anic story of the raining down of burning stones on the people of Lot meant that an appropriate consequence for such conduct was to punish the man by burning him. A consensus, ijma, was reached and the punishment was executed. As an authenticated historical report, capital punishment for homosexual conduct is now being used as legal precedent in the Islamic Republic of Iran. Kugle confirms this in one of his footnotes:

Since the Islamic Revolution in 1978, Iran has had a state policy of executing gay men, which its jurist rulers justify through the Ja‘fari legal school. Though Shi’i Iranians are usually quick to distinguish themselves from their Sunni neighbors, in the case of execution of gay men the Iranian legal requirements parallel the Hanbali legal school’s. (2010, p. 296)

     It is not at all clear from these two accounts whether there was any consensual sex involved. The Prophet did not clarify with the man who confessed his deed of zina (fornication, extramarital sex) whether he had been coercive or physically aggressive, or what motivated his action. It is also unclear that the homosexual acts which were reported to Abu Bakr were consensual. Both incidents could well have been serious acts of rape. Nevertheless, these kinds of fatal consequences for the sexual impulses, often pathological, of the human species seem to be beyond the pale in the postmodern period, but the jurists of the classical age of Islam would have drawn on them for precedent. They are still very much a part of the moral and legal landscape in the Dar al-Islam of today.  We can well imagine the neurosis, guilt, and shame that result from illicit sexual contact in societies where gender segregation is designed to prevent such activities. But it is precisely this gender segregation that is also often the cause for illicit homosexual activity between heterosexual men or worse still, sexual abuse of women by men.

     This brings us then to the question of the intention, niyya, of the shari’a and the niyya of those who are subject to or feel oppressed by shari’a laws and obligations. Since these include acts of worship, no Muslim is really immune from the shari’a. What is important to appreciate psychologically is that the intention of shari’a for the medieval jurists was to formulate a body of laws and principles that reflected the human expression of the Divine Will for the umma. Paul Powers expounds on the notion of intent exceptionally well in an edited publication of his doctoral dissertation at the Divinity School at the University of Chicago, Intent in Islamic Law: Motive and Meaning in Medieval Sunnī Fiqh:

Because Islamic law is, theoretically speaking, primarily a hermeneutic enterprise devoted to understanding and applying the meaning of a revealed text - or, more accurately, two revealed ‘texts’, the Qur’an and the Prophet’s sunna - the work of the jurists involved a search for the authorial intent of God in producing those texts. While it was certain from the start that God had revealed His will regarding the detailed behavior of humans in these texts, their exact meaning was not always obvious. The task, then, was to search diligently for those meanings. Jurists described their work not as legislation but as ‘discovery’ (kashf or iktishaf). (2006, pp. 12-13)

   As we have noted there were many references in the Qur’an to past societies and civilizations, or umam, that had been destroyed because they had failed in one way or another to live in alignment with the Will of Allah. A structure of laws and principles was formulated to prevent or avoid such destruction. This ideal societal structure identified several sets of Divine categorizations of human acts. One of these sets comprises the following five categories: (1) obligatory acts such as the five pillars of Islam; (2) recommended acts such as providing for self and the family or service to others; (3) neutral acts such as art, music and creative self-expression; (4) disapproved acts such as neglecting our parents; and (5) forbidden acts such as theft and premarital or extramarital sex. A second set of categories has to do with validity and invalidity. For example, no prayer in Islam is considered valid or performed correctly without a recitation of al-Fatiha. Who can claim the religious authority to invalidate the prayers of another human soul?  We saw in the last chapter, how according to Rumi’s poem about the Shepherd in prayer, Moses was berated by the One for creating separation. Invalidating the prayer of another Muslim, or even non-Muslim, for that matter, is clearly an example of the violation of personal spiritual boundaries by a jurist, not to mention the human rights of the “Other”.

     Another example of an invalid act is described by Weiss in The Spirit of Islamic Law: “Or if a man and a woman enter into a marriage in a manner that does not conform to the basic requirements of a marriage contract, the couple may not be considered to be truly married, and sexual intercourse between them will be illicit” (1998, p. 22). So if there was some technical violation or noncompliance in the above marriage contract, sexual intercourse would be deemed an act of disobedience toward God and hence a sin. There have been cases with Muslims in France and elsewhere where women have had hymen-replacement surgery and these marriages were considered invalid because, on discovery, the women had misrepresented themselves as virgins. Sexual intercourse during such invalid marriages is hence considered sinful.  Sin, from the perspective of orthodox Sunni Islam, then becomes a violation of the moral code in a society founded upon a moral absolutism reflecting the Transpersonal Will. But the intent of this moral code has always been to be faithful to the words of the revelation in Q 7:157, per Asad:

those who shall follow the [last] Apostle, the unlettered Prophet whom they shall find described in the Torah that is with them, and [later on] in the Gospel: [the Prophet] who will enjoin upon them the doing of what is right and forbid them the doing of what is wrong, and make lawful to them the good things of life and forbid them the bad things, and lift from them their burdens and the shackles that were upon them [aforetime]. Those, therefore who shall believe in him, and honour him, and succour him, and follow the light that has been bestowed from on high through him - it is they that shall attain to a happy state. (Asad & Moustafa, 2003, pp. 257-258) 

~ Excerpted from the doctoral dissertation of Jalaledin Ebrahim, LMFT, PhD.
You can read or download the entire chapter on Shari'a and the Social & Political Psychology of Islam at www.academia.edu