Author: Alia Hogben
Source: Whig Standard Column
It is disturbing when concepts and words are misconstrued not only by non-Muslims but by Muslims themselves. For example, the powerful concept of Sharia is used in contradictory ways which leads to misunderstandings.
The exact definition of sharia is that it is a well-trodden path leading to the source of water, that is, a path towards God. A scholar, Asifa Quraishi Landes describes it as “a body of Quran based guidance that points Muslims toward living an Islamic life…it is divine and philosophical.”
Another scholar, M.S. Mahmassani defines sharia as “a bundle of moral ethical principles and a value system which provide tools to guide humanity.” Khaled Abou El Fadl writes that “God’s law as an abstraction is called the sharia, while the concrete understanding and implementation of this Will is the fiqh.”
These are two distinct terms – Sharia and fiqh or jurisprudence – one is the ethical principles regarding moral guidance, while fiqh is the human understanding of these Quranic principles. The development of a legal framework was the work of male scholars from all parts of the then Muslim world.
Because fiqh/ jurisprudence was developed over a number of centuries, 8th– 9th CE, it is not a uniform codified set of laws but is a mixture of laws. This legal framework includes family laws, as well as criminal and other laws.
Of the 6,000 or so verses in the Quran, about 80 verses deal with legal matters, and it is reasonable to look into how these have created an entire legal system. As a scholar notes, the Quran is not a legal or constitutional document, as less than 3%of the text deals with legal matters.
I know the other source of information for the legal system is the practices of the Prophet Mohammad which were recorded years after his death. Most are accepted but some of these Hadeeth and Sunna are controversial.
What are the ethical principles on which the Sharia is based? Some of the objectives of Sharia are justice, morality, prevention of hardship of people and preventing oppression. It also includes the five pillars of Muslim practice – belief in one God; prayers; fasting; charity and the pilgrimage.
Though there are many scholars who are trying to create changes in the practices of Muslims, I know that some Muslims will disagree with me about making a clear distinction between sharia and fiqh or jurisprudence.
Ask any Muslim if they believe in sharia, not fiqh, and I am sure all of us will reply in the affirmative. That is because sharia is rightly understood as God’s divine teachings. But conflicts arise when sharia is then seen as a system of laws, without differentiating what is human or what is divine.
For example, in April 2013, there was a PEW survey of 39 countries to assess what Muslims were thinking. Many of the Muslims stated that they want sharia to be the law of their land, but they were divided as to what this really means.
This is understandable because it is part of the confusion amongst Muslims about fiqh and sharia, because far too often people conflate sharia with fiqh. The alternative of secular laws is viewed as “western” and thus not acceptable to traditionalists. However there are some scholars, such as Mahmassami and An Naim, who believe that secularism is essential for the practice of Islam.
I think that unless fiqh, man-made interpretations and sharia, which are divine principles, are clearly distinguished and separated, Muslims will continue to face obstacles to create changes or reform laws, such as family laws. No Muslim wants to ignore sharia but would be open to reconsidering the rules of jurisprudence.
Sadly, I think blurring the difference is done for a number of purposes. One is to insist that the conservative interpretations are correct; another is to frighten people by insisting that any change will be anti- Islamic; and thirdly to ensure the patriarchal system is maintained and women are persuaded that patriarchy is good for them.
Unless we Muslims openly discuss the distinction between sharia and fiqh, we cannot advance any new thinking to change matters such as the position of women or the unfairness of some aspects of Muslim family laws.
There are international women’s groups who are struggling to change these laws but the hostility directed at them from our conservative, traditional brethren is crippling.
It is in jurisprudence that the punishments for apostasy and adultery are so awful; these are not in the Quran.
So believe in sharia as divine guidance and fiqh as man-made and capable of change and reform, and let us move forward as thinking Muslims!