Western Perceptions of the Shari'a

A discussion on the origins of Islamic Jurisprudence

The development of the nation-state in 18th and 19th century Europe radically changed the idea of governance and its derivation of authority. The advent of the French and American revolutions opened the floodgates for a monumental shift away from religious authority and towards self-governance, ushering into Europe a revolutionary new idea: nationalism. For the first time in European history, a group of people who shared a collective, cultural memory and values began to identify as such, willingly giving up part of their freedoms to be governed. However, this development in the West was not the first of its kind. Just 4,000 kilometers east of the heart of the French Revolution, the origins of Islam birthed a unique type of governance that emerged around ten centuries earlier than the rise of the modern nation-state: the Shari’a. The way governance is dealt with in Islamic law is inherently religious, yet it delicately explains the sources of morality and ethical action through religious reasoning rather than through the lens of sovereignty. While the development of nationalism did not reach the Arab world until after its spread through the West, both the Shari’a and the nation-state are unique forms of governance with the former expanding upon legal thinking in order to offer guidance on how to live life peacefully and morally.

Islamic law traces its origins to the seventh century, where early versions of the law began as study circles which later evolved into doctrinal legal schools called madhhabs. Early Islamic scholars studied the Quran and began to question the legal applications of their actions within their own lives. The origins of the Shari’a are rooted in education and critical reasoning, as scholars spurred debate among themselves in order to arrive closer to God’s true will. As such, different faqihs, or scholars, perceived their own versions of the Shari’a, and four core madhhabs developed in Sunni Islam: Hanafi, Maliki, Shafi’i, and Hanbali. A jurist belonging to one of these four schools would explore the others, deriving his or her own opinion of the law. Much like the modern state, fruitful debate and multiple interpretations were vital in finding a sense of morality. Regarding the madhhab, Hallaq explains that the “knowledge and production of legal doctrine began in these circles – nowhere else.”^[1] Governance in early Islam had a level of depth not seen in the West until much later. Qadis, or Islamic jurists, would hear cases and deliver opinions from their own interpretations, and faqihs would offer differing opinions still. Early Islamic jurisprudence also was not institutionalized until much later, but its origins are sourced from a collective desire to learn rather than a political or religious means of control. Governance took the form of education–a search for the will of the divine sovereign. Much like the modern state, there were judges, jurists, theologians, and the actions of individuals were starkly categorical. Living a peaceful life is at the heart of this type of governance, and while the modern state arose much later and provided an institutionalized response to governance and law, governance on the basis of the Shari’a was established around mutual education rather than suspect, morally dubious political entities.

Governance in the context of the Shari’a acknowledges the importance of reasoning and one’s innate sense of morality, yet both the Shari’a and the modern state delicately toe the line between legality and morality. Governance requires an organization of power in such a way that people willingly consent to be governed oftentimes in exchange for protection or general welfare. Once again discussed in his introductory work, Wael B. Hallaq writes, “The aim of the reasoning jurist was to establish a legal norm… [the state] is not in the least interested in what individuals do outside of its spheres of influence and concern.”^[2] The Shari’a recognizes five norms: obligatory, recommended, neutral, disliked, and forbidden. Every action regarding the law can be categorized into one of these aforementioned groups. Just as the priority for the modern state is to preserve its “sphere of influence,” Islamic law focuses on the ideas of promoting morality in all aspects of life, not just those categorized as public or general. The discussion of morality with respect to the Shari’a often evokes God’s will. Hallaq strikes at the core of morality and ethical thinking, mentioning that actions must serve a purpose that engages His will. Western political philosophers like John Locke often preached about humanity’s ability to self-govern through qualities of natural, ethical reasoning. However, Hallaq emphasizes that the human mind “must be exercised for good causes,” alluding to many of the similar traits Locke had with regard to the state.^[3] The law is the enforcement of the sovereign will in both the Shari’a and the state, but the source of this will stems from a religious, divine sovereign and elected officials or monarchs, respectively. Both forms of sovereignty are valid and meet the requirements of governance; however, the Shari’a goes further to dictate how one should act morally and outside of the scope of the public domain.

Both the Shari’a and the modern state are forms of governance, yet the fundamental differences between the two embolden and morph the boundaries of the law and its application in daily life. The modern nation-state is inherently institutionalized and integrated with a political and social understanding of governance. The governance with respect to Islamic law is learning-based; it consists of a naturally developed community of scholars and experts of the law, each driven by understanding God’s will. However, the cultural misinterpretations of many in the West have led to much misunderstanding regarding the true nature of Islamic law. Plagued by the imperialist tendencies of their western neighbors, Arab nations that adopted the Shari’a continue to see their form of governance belittled to a means of social interventionism. Despite having roots in education and collective understanding, Islamic law is used as a political playing field in which western nations constantly find excuses for interventionist acts disguised as the spread of a falsified liberal hegemony. Nonetheless, the origins of the Shari’a and its true meaning is a form of governance deriving legal authority from a divine sovereign. The true nature of God’s will be forever unknown, but the passion for learning and becoming closer to that will is central to the development of the Islamic legal system and its ability to offer guidance on living a good, peaceful life.

Sources (Chicago)

Hallaq, Wael B. An Introduction to Islamic Law. Cambridge University Press, 2011.