Originally published in: Huffington Post
Author: Sherman A. Jackson
Arthur F. Thurnau Professor of Arabic and Islamic Studies, University of Michigan
Posted: September 11, 2010
As for change, the rules of shariah are divided into two categories: religious observances (prayer, fasting, etc.) and civil-criminal matters (marriage, sales, adultery, jihad, etc.). While religious observances are relatively static and fixed, the rules on civil-criminal matters are subject to change in accordance with circumstances. Here, in fact, we come to a fourth important feature of shariah: in addition to interpreting scripture in order to apply it to reality, shariah also includes the attempt to process reality to determine how scripture, Prophetic teaching and the cumulative tradition of deliberation would have one respond to it. In this capacity, shariah may end up sanctioning, or even including, all kinds of ideas and institutions that were not dictated by scripture. For example, there were no domes, schools of fiqh or minarets in the Prophet's Arabia. Likewise, the fact that there was no democracy or "human rights" does not automatically render these "un-Islamic." In short, shariah includes the attempt to proffer God-conscious responses to an ever-changing reality. And in this capacity, many of its rules are subject to change with changes in the circumstances to which it seeks to respond.
Having said all of this, shariah is not just "rules." While the common translation, "Islamic law," is not entirely wrong, it is under-inclusive, for shariah includes scores of moral and ethical principles, from honoring one's parents to helping the poor to being good to one's neighbor. Moreover, most of the "rules" of shariah carry no prescribed earthly sanctions at all. The prescriptions covering ablution or eating pork or how to dress are just as much a part of shariah as are those governing sale, divorce or jihad. Yet there are no earthly punishments prescribed for those who violate these dictates. Like the bulk of shariah's "rules," reward and punishment in these areas are the preserve of God in the Afterlife.
Unfortunately, many Americans have been led to believe that shariah equals not only rules but criminal punishments -- floggings, for example. Three quick points: First, criminal sanctions constitute a tiny sliver of shariah. Of the 1,081 pages of the two-volume Arabic text from which I studied shariah, only 60 pages were devoted directly to criminal sanctions! (Jihad, incidentally, took up only 19.) Second, the criminal sanctions of shariah did not emerge as the property or instrument of the Muslim state but functioned in fact to impose limits on the use of state power. Third, the punishments for criminal behavior cannot be separated from the evidentiary rules -- equally shariah! -- that provide for their application (e.g., multiple eye-witnesses). In practical terms, in other words, short of confession, rules on such things as adultery or fornication function almost entirely as moral exhortations. God-consciousness spawned by shariah, not fear of being punished, sustains these ideals. Of course, many Americans will object that such issues should not be subject to any rules or religious exhortations at all. But given some of our increasingly worrisome realities (out-of-wedlock births, etc.), perhaps this would make for fruitful conversation.
Why does shariah matter? It matters for Muslims because it represents the ideals that define a properly constituted Islamic existence. Islam without shariah would be Islam without Islamic ideals. While most non-Muslim Americans may think of Islam without shariah as simply Islam without rules or criminal sanctions, for Muslims Islam without shariah would also mean Islam without prescriptions on ablution, prayer, alms, sales, diet, filial piety, civics, etc. While the discourse in America around shariah will probably continue to succumb to the self-serving tendency to "compare my ideals with your realities," shariah itself will continue to inspire Muslims, especially in their personal lives, to strive, with hope and humility, to narrow the gap between the unacceptable "is" and the ever-elusive "ought."
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- Hussam Ayloush
- Hussam has been a lifelong human rights activist who is passionate about promoting democratic societies, in the US and worldwide, in which all people, including immigrants, workers, minorities, and the poor enjoy freedom, justice, economic justice, respect, and equality. Mr. Ayloush frequently lectures on Islam, media relations, civil rights, hate crimes and international affairs. He has consistently appeared in local, national, and international media. Full biography at: http://hussamayloush.blogspot.com/2006/08/biography-of-hussam-ayloush.html