Defining Islamic Statehood

Measuring and Indexing Contemporary Muslim States

Imam Feisal Abdul Rauf

• Publisher: Palgrave Macmillan
• Year: 2015
• Print ISBN: 9781137446817, 9781137446800
• eBook ISBN: 9781137446824
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

This groundbreaking book offers in-depth analysis of the modern Islamic state, applying a quantitative measurement of how Muslim majority nations meet the definition. Content for the book was developed through extensive debate among a panel of distinguished Sunni and Shia Muslim scholars over seven years.

Part I

Defining an Islamic State and Rule of Law

1

Shariah and the Objectives of Islamic Law

What is Shariah?

The word Shariah in Arabic is a verbal noun stemming from the root sh.r.’, meaning to initiate, introduce, or ordain. It refers to the sum total of God’s shar’, His revealed law and the eternal set of values He ordained for human beings to acknowledge as the basis of their law. Shariah, literally meaning a path leading to water, is figuratively the path trod by all humans to attain God’s grace and reward in the hereafter.

In the Qur’an, God does not consider His major commandments to be unique to the Prophet Muhammad and his community.¹ Rather, they are universal commandments revealed throughout history. Thus in its widest and most inclusive sense, the term Shariah refers to the Divine Ordinances, the set of laws ordained by God the Lawgiver (Shaari’) for all of humankind, as declared in verse 42:13:

He [God] has ordained (shara`a) for you of religion (din) what He commended unto Noah, and that which We have revealed to you (Muhammad), and that which We commended unto Abraham and Moses and Jesus – to establish religion (an ’aqimu-din)² and not to be divided therein.

The Shariah revealed through the Prophet Muhammad therefore comprises the same essential contents of the message given by God to the other prophets mentioned in this verse, namely Noah, Abraham, Moses, and Jesus. In this sense, it is the common denominator of the whole cluster of laws and guidelines that God revealed to at least these five Messengers. It is that “eternal Divine Law that carries and embodies the Divine Intent for humankind.”³ Kamali pointed out that the Shariah by name occurs only once in the Qur’an, in a Meccan sura (45:18), where the text reads: “Thus have We put you on the right way (shari`atin) of the Command (amr). So follow it and follow not the whimsical desire (hawa) of those who have no knowledge.” “Because there was no Shariah in existence at that time,” he clarifies, “this reference to Shariah can be considered a reference to Islam itself, not to a legal system as such.” Despite that, today we think of religion and law as separate entities, the fact that the word din in the Qur’an can be translated as both religion and law gives weight to the notion that in reality these are not two separate entities. When we say that there is only one Shariah, and that it is immutable, this immutability belongs to this eternal Divine Intent.

Muslims use the term Shariah – meaning their shari`ah – in several ways. In the narrowest sense, Muslims define it as the Divine Intent as crystallized in the rules, ordinances, prescriptions, and prohibitions revealed in the Qur’an and amplified by the teachings of the Prophet Muhammad: the Hadith or the Sunnah. As Kamali explained, “When Muslims mention Shariah, we basically mean all of the ayat al-ahkam [the legislative verses] in the Qur’an – the injunctions – not the history or parables. These ayat al-ahkam, around 250 in number, are only about four percent of the entire Qur’an; and in the body of the Hadith, it is said that about 1,200 are ahadith al-ahkam.”

Muslims have also used the term Shariah in a looser sense, where the Shariah refers to everything that is encompassed within the expression “Islamic law.” This includes all the laws Muslims have lived under throughout history, ranging from laws derived from non-Islamic sources to laws that were subject to differences of opinion and context. In this sense, when we ask whether the Shariah can evolve we are not asking if the Divine Intent can change. Rather, we are asking whether our understanding of the most fundamental principles of the Shariah, which express the unchanging Divine Intent, can result in different corresponding manifestations based on changing contexts.

What results from this human endeavor to understand the Shariah and translate the Divine Intent into practical law is called fiqh (jurisprudence), from the Arabic verb faqiha, to understand. Fiqh (jurisprudence) is the science that results from human exertion of effort (ijtihad) to derive legal rules acquired from four main sources: the Qur’an and the Sunnah, the primary “closed” and finalized sources, and by consensus and analogical deduction, the secondary and “open” sources. Subsidiary sources include government legislation and judicial preference (istihsan, the jurist’s mandate to find what the best interests are in a given situation) so long as these do not contradict the primary “closed” sources. Fiqh is the result of human intellectual effort, called ijtihad, directed toward attaining this understanding of the Shariah. Ijtihad, the method and the process of deducing law from the above sources, is also the action by which laws can be enacted with a particular context in mind. The differing schools of law (madhhab, pl. madhahib) are differences of fiqh, not of Shariah. Thus certain aspects of the Shariah may look different in different times and places, and yet each and all are equally valid and display the impulse of one Shariah. As Ghazi shared, “There will always be diversity in unity. There are no specific requirements from the Shariah that each society must be identical in all respects.”

As the conversation among our scholars began, it was clear that the attempt to understand the eternal Divine Intent and its relation to a particular context was not something that simply pertained to scholars of the past, leaving us to create national legislation only from what had been determined through the ijtihad of a different time and place. “We cannot think of the Shariah in a simple black-and-white form,” Kamali insisted. The Shariah is “not just listed and given to us,” he shared. “Rather it is a vast developed legacy that has been and continues to be developed over time, taking into account the conditions of societies and the people living there.” In this light, the task of our group of scholars is to “bring the theory close to current reality and make it understandable to people in light of the contemporary generation’s expectations and the world in which we live.” He emphasized, “We are not going back to the first century.”

Larijani echoed that sentiment, saying that “We need some ijtihad ... The future is not a Xerox copy of the past, and we must make room for some innovation.” Indeed, as Auda said to the group, “To define a contemporary ‘Islamic’ state will require a great deal of ijtihad.”

Can Shariah evolve?

Many contemporary Muslims believe that every commandment, no matter how minor, no matter how culturally contextual, is eternally applicable to all contexts. This notion, however, is powerfully contradicted by historical judicial practice.

We know on the authority of the Qur’an itself that God has historically amended His own commandments from one prophet to another, from one era to another. As Jesus says in the Qur’an“(I have come) confirming what was before me of the Torah, and to make lawful for you some of what was forbidden to you.”⁴ The fundamental spiritual teachings remain constant throughout all of God’s revelations to mankind – what Jesus called the two greatest commandments, to love God and to love your neighbor as yourself (Matthew 22:34–39), upon which, Jesus adds, hang all the law and all the prophets. Islamic jurisprudence and law is built upon these two commandments, with the first commandment referring to what Muslim jurists call `ibadat (laws pertaining to acts of worship) and the second commandment referring to mu`amalat (laws pertaining to worldly affairs). It is the practical and social manifestations of those eternal spiritual teachings that change according to the exigencies and requirements of the age.

Not only has God’s revelation progressively evolved from era to era, but even within the Islamic religious dispensation, laws have been adjusted according to the needs of the time. In the Qur’an God says that He has abrogated certain verses and replaced them with similar or better ones (2:106), demonstrating on the authority of God that context plays a central role in the determination of law and the application of commandments. Indeed the Prophet Muhammad was known to have given different advice for similar questions because the context required different approaches. After the death of the Prophet, we know that his second successor, Caliph Umar al-Khattab (the Prophet’s father-in-law), who ruled during ten of the first dozen years after the Prophet’s death and established very significant precedents in Muslim history, suspended the Qur’anic mandate of paying people to support their conversion to Islam. (Known as mu’allafati qulubuhum – and mentioned in Quran 9:60 – this practice was in many cases meant to compensate them for their losses in leaving behind their homes, property, and livelihoods in Mecca when they joined the Prophet and his faith in Medina). Caliph Umar even suspended the penalty for theft in a time of famine because, he decided, the need to feed oneself in order to survive trumped the sin of theft.

Muslim jurists regard it as possible to revise or reverse precedent based on legal argument or to interpret the context of a Qur’anic or prophetic ruling to determine applicability to modern times, and even to permanently suspend a Qur’anic ruling as Caliph Umar did. That we may do. But no Muslim can argue that the Qur’an or the Hadith was mistaken and therefore needs revision. As divine revelation, Muslims will never tamper with the Qur’an or change any part of it. But from the very earliest times Muslim jurists recognized the importance of context in interpreting, applying, or temporarily or even indefinitely suspending a Qur’anic commandment. This provides us with a powerful rationale to reconsider punishments of the Shariah penal code, certainly in the West where Muslims have to abide by Western law, but also in societies with Muslim majorities.⁵

So, are all earlier prescriptions of Shariah valid for today? Our predecessors delved into Divine Intent; they recognized justice as the supreme objective of Shariah and interpreted laws in that light. The challenge for our scholars today is to do what our predecessors did in their era, namely to produce a juristic understanding of Islamic law that is relevant to the modern day context.

Islamic law: any law that is not un-Islamic

Just as law for a contemporary Islamic state cannot just be a mere replica of past legislation, it likewise does not need to be limited to the kind of laws one finds in classical books of Islamic jurisprudence, since new concerns have arisen in modern times. Some Muslims deem laws not mentioned within the Islamic legal tradition as “not Shariah,” and therefore as “necessarily un-Islamic.” The extension of this thinking, observed Tun Abdul Hamid, is the “tendency to treat all laws made by parliament, as well as whatever common law is developed by courts, as ‘secular’ and therefore de facto ‘un-Islamic.’ This means that they should not be allowed to exist in an Islamic state.”

Rather than continuing such distinctions based on sources of law, Tun Abdul Hamid advocated for an approach that harmonizes traditional Islamic law with secular or civil law. In this light, Tun Abdul Hamid defines Islamic law as “any law that is not un-Islamic.” Of the five classifications of behavior within Islamic law, fard (obligatory), mustahabb (recommended), mubah (neutral), makruh (discouraged), and haram (forbidden), only one of them is forbidden, while t...

Table of contents

• Cover
• Title
• Introduction
• Part I  Defining an Islamic State and Rule of |Law
• Part II  Developing an Index of Measuring Nations
• Part III  Sharia Index Project Scholars Speak on Key Challenges in Islamic |Governance
• Glossary
• Notes
• Bibliography
• Index