Thursday, 4 June 2015

Three books on Shariah law

The first book that I want to cover in this post is Shariah: The Islamic Law by Abdur Rahman I. Doi.  This is a detailed textbook of the principles and rules of traditional Sunni Shariah.  Such textbooks seem to be rather unusual in the English language.

Shariah has four sources, two primary and two secondary.  The primary, divine sources are the Qur'an, which contains around 500 "legal" verses; and the Sunnah, or traditions relating to the life of Muhammad, which are much more numerous.  The secondary, man-made sources fill in the gaps in the Qur'an and the Sunnah.  They are ijma, or the consensus of legal experts; and qiyas, or analogical reasoning.  The sacred primary source texts are not unambiguous and self-interpreting, and this opens the way to differences of scholarly opinion.  The best known example of this is the four classical legal schools of Sunni Islam.

For a system of sacred law, the provisions of Shariah are very this-worldly.  It does lay down rules about religious activities like praying and almsgiving, but most of Doi's book is given over to seemingly secular issues like money, kinship and crime.  From this perspective, Shariah is essentially the tribal law code of 7th century Arabians, given special authority and permanence by being attributed to the great god Allah.  It is this divine permanence that causes the problems.  Shariah has such a bad reputation today among Western liberals because it attempts to preserve the customs of a semi-civilised early mediaeval society in a world of aeroplanes and ipads.  It is able to do this because it can claim to be rooted in the literal word of deity.

The more severe aspects of Shariah are well known, and Doi does not attempt to gloss over them.  There are the hudud punishments, involving death and amputation, which are imposed for certain specific criminal offences.  For Doi, these are justified by their effect in keeping crime low.  Gender roles are expressly prescribed and the sexes are segregated.  Women are subordinate to men.  A woman is entitled to be maintained financially by her husband, but she cannot normally get married or divorced at will.  She is permitted to work (with her husband's permission), but this is not encouraged.  In some cases, she may be subject to corporal punishment from her husband.

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A more Western-friendly presentation of Shariah is found in Shari'ah Law: An Introduction by Mohammad Hashim Kamali.  Kamali argues that law and legalism do not form the true heart of Islam - although they are characteristic of extreme Islamist political movements.  He seeks to depict Shariah as moderate, flexible and pragmatic. 

Kamali explains that Shariah comes in essence from the two primary divine sources, the Qur'an and the Sunnah, and that the endeavours of legal scholarship are subordinate to these.  It follows that man-made legal doctrines (fiqh) may be revised, at least where they do not command ijma or general agreement.  This revision is accomplished by means of new efforts at legal reasoning, or ijtihad.  For example:
Some of the fiqhi positions relating to women's rights and their participation in the affairs of government... call for fresh ijtihad that should adequately reflect the higher objectives of Islam on equality and justice as well as greater sensitivity to the altered socio-economic conditions of women in the present-day world.
Kamali's stance is contrary to the tendency of traditional Shariah scholars to regard ijtihad as a temporary phenomenon that was confined to the early years of Islam - all the legal thinking worth doing was done long ago.  According to Kamali, a broad swathe of Shariah is open to ijtihad, especially the provisions regarding this-worldly matters.  He notes, for example, that the death penalty for apostasy rests on a single hadith of questionable meaning; and that the Qur'anic verses which are said to require hudud punishments actually give the offender a chance to repent.  He even deals favourably with the seemingly radical notion of departing from clear statements in the Qur'an.  He finds precedents for this in Muslim history, and notes that there have been historical disagreements among scholars about the relative emphasis to be placed on the letter and the spirit of the sacred text.

In political terms, Kamali argues for a middle way between an Islamic state and Western secularism, on the model of Malaysia.  He nods to the well-worn observation that Islam recognises no distinction between church and state.  But he argues that the this-worldly aspect of the Shariah indicates that it can be seen as a functional code of civil laws rather than an exercise in pure theocracy.

Inevitably, this reformism has its limits.  When it comes to the word of God and his Prophet, pushing the boundaries of what is and isn't allowed can be a difficult business.  This is why at times the book reflects a more conservative position:
The Qur'anic ruling on the essentials of the faith, the specified shares in inheritance, and the prescribed penalties (hudud) are all definitive; their validity may not be disputed; everyone is bound to follow them and they are basically not open to interpretation and legal reasoning (ijtihad).
In sum, Kamali describes what Shariah might, just might, possibly look like in a few decades - and we can hope that his work is prescient.  But one suspects that he is some distance ahead of most of his brother Muslims.

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The interface between Shariah and modern state power is the prime concern of Wael Hallaq's An Introduction to Islamic Law.  Hallaq mounts something of an apologia for Shariah.  His argument is that Shariah in its traditional form was an essentially benign system; and that it has taken on oppressive characteristics in modern Muslim societies because it has been changed into something new and different by the advent of colonialism and the nation state.

Hallaq describes how Shariah grew out of the practices of traditional, pre-state communities.  The judge (qadi) was more of a general magistrate than a legal expert.  There were legal scholars (muftis), but there were no professional advocates and litigation was oriented towards compromise.  The system existed close to grassroots level and was embedded in the lives of the ordinary people.  Shariah law was not legislated by state authorities.  Rather, it comprised a flexible, pluralistic framework of social norms, which Muslim rulers merely supplemented with their own edicts.  In time, this all changed.  The system became rigid and centralised.  These developments began under the Ottomans, but they really got going with the advent of European imperialism.  Shariah was first codified by state authority in British India, and it came to be implemented there in an inflexible form.

By the 20th century, the twin forces of imperialism and modernisation had succeded in mostly reducing the reach of Shariah in Muslim lands to the domain of personal and family law - a situation which largely continues today.  Hallaq claims that modern attempts to codify these aspects of Shariah, such as the 1917 Ottoman Law of Family Rights, were carried out in a defective and heavy-handed manner, under the influence of social developments linked to colonialism.  This led to Muslim societies moving not forwards but backwards.  Notably, women ended up with fewer rights than they had had under what Hallaq argues were the more flexible rules of traditional patriarchy.

Seen from this perspective, the unenviable position of women under modern Shariah is not a sign of the essential misogyny of Islam.  Rather, it is the end-point of a long series of developments conditioned by European colonialism and the clumsy intrusion of the modern state into traditional social ecosystems.  Islamist political movements have not reversed these developments: they have embraced them.  The most self-consciously Islamising society of the modern era - Iran under the Ayatollahs - has been shaped less by old-style grassroots Shariah than by influences deriving from statism, modernity and the West.  Khomeini's theory of state power owed less to Muhammad than to Mussolini.

Hallaq's case is well argued, but it is less than wholly convincing.  It may well be that Shariah has grown more inflexible and oppressive as it has changed from the customary law of traditional societies to the legislated law-code of nation states.  But Shariah in its classical form was not especially benign, even when compared to the laws of other pre-modern societies, such as those of Christian Europe.  Hallaq is effectively reduced to pleading mitigating circumstances.  Yes, women's testimony was worth half that of men - but women did have direct access to the courts.  Yes, husbands could divorce their wives at will - but they usually didn't because it was expensive and burdensome.  Yes, you could be stoned for adultery and mutilated for theft - but only if a list of conditions was satisfied.

Hallaq does frankly acknowledge one thing - that Shariah finds its ultimate source in religious revelations which are not required to pass any criterion of utilitarian merit.  His book therefore ends up offering no real challenge to the central planks of the Western critique of Shariah - that it is unduly harsh in its strictures; and that, being divine, it is unusually difficult to reform.