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October 22, 2012

Good Governance Between Fiqh and Sharia


[This is the second in a series of my notes on the International Institute of Islamic Thought conference on Good Governance in Islam: Classical and Contemporary Approaches held in Herndon, VA. These notes have only been lightly edited and represent my perception of the discussion. The proceedings will be published by IIIT at a later time. Responsibility for any errors in the notes is mine alone. Names of participants (other than mine) in the general discussion have been omitted by request of the organizers.]

“Good Governance Between Fiqh and Sharia”

Dr. Mahmoud Ayoub, Professor of Religion and Christian Muslim Relations

We have two material sources of Islamic law and morality: Qur’an (divine aspect of the divine-human relationship) and sunnah (human aspect, guided by divine will and intervention). The Islamic project begins with the selection of bu Bakr as the Prophet’s successor in the saqîfah of Bani Sa`ida. The two sources together comprise the Sharia, a word that appears rarely in the Qur’an. In one place the Prophet is commanded to follow the Sharia. The application of the Sharia in real life becomes the dîn. Sharia was originally used as the way of the camels to the watering place, or even the bank of a river. It is enshrined in the Qur’an and sunnah and is immutable.

When Sharia is legislated by God himself it becomes dîn, a subordination of human will to the divine will. Part of it is the five pillars. Islam is the human edifice of the Ummah Muslimmah. Of the five pillars salat and zakat are most often mentioned together, but the details are not given in the Qur’an. Sharia is coded into Islamic law through the science of fiqh. The acquision of fiqh is more about dîn than Sharia, about the mutable aspect of the law. Sharia is immutable, but it is flexible. Those seek it must resort to ijtihad or qiyas, and its implantation depends on ijma, consensus of the community.

Essential to Sharia is the establishment of justice. Perhaps Sharia suffers through fiqh. Fiqh began as kalâm, theological discourse. One of the earliest examples is the Fiqh al-Akbar of Abu Hanifa in which he says that it is possible for a human to accept faith through the Persian language a well as the Arabic language of the Qur’an, and prayer, and Islamic scholarship. Later fiqh became the fiqh of the fuqaha, the reduction of Sharia into a code that differs in details, in ijma and qiyas but not in the usûl al fiqh.

A later development is usûl ud-dîn, a mixture of law and theology dealing with heresies or bid`a in the ummah as well as the orthodoxy of al-Ashari. Human authority is derived from divine will. This is what made at-Tabari call his history the History of Prophets (or messengers) and Kings. In my view we must reject the Western accusation that after the 11th c. Islamic jurisprudence became static. It was never static, but when fiqh (jurisprudence) became qanûn (law), it became almost impenetrable. We need a new fiqh based on the Sharia, flexible and applicable today, that takes into account scientific discoveries in genetic and elsewhere.

Another 20th c. development that began with the abolition of the caliphate was Rishad Rida’s view that in the absence of a Caliph, a group could rule the state until a qualified candidate appears. (He included membership in the clan of the Quraish among the qualifications). I believe Khomeini relied on Rida as well as Iranian thinkers in his formulation. The model of caliphate we have to go on is the first four caliphs, although even this period has its problems.

Ad-dawla ma`thûma is the notion of a divinely protected state from Muhammad through the twelfth imam. While the existence of the imam is necessary for the good of the world, I would argue the Shia have pushed the imam out of world. I think Ali ruled not as a Shia imam but as a Muslim caliph. Mohammad Mahdi Shams-ud-Din, a Lebanese Shia would agree, saying neither the ideal Sunni nor Shia state is capable of realization at this time and the ummah should practice wilâyya on its own people, which may be interpreted to lead to a kind of Islamic democracy. Ijma is central to Islamic law but is the most difficult legal source to define or argue. The Shia view is that if a member of the ummah is liable to error than the community is liable to error. Our differences are real, but surmountable. We need to strive for one ummah.

I am not a faqih. I am just a student of Islamic thought.

Chair: Dr. Hisham Altalib

Discussant: Dr. Yahya Michot

The idea that the Sharia is the way is extremely important. Islam is between the West and the East, and in dealing with Buddhism and Hinduism it will be easier to take Sharia as the way rather than as a body of laws. The latter is introducing Judaism into Islam, while introducing permissiveness is to introduce Christianity into Islam. When I am asked what authority I give to the fuquha I say the same that I give to guidebooks when I enter a strange territory. The essence of the Sharia is an imperative of an ethical nature.

Discussant: Dr. Imad ad Dean Ahmad

We must always bear context in mind when we seek to understand the relationship between Shariah and fiqh. Shariah is “path” and fiqh is a map of the path. In other words, the former is an objective reality and the latter is the human effort to articulate that reality.

Michot: We should not ashamed to be spiritual Bedouins because Bedouins are free people. All the basic terminology in Islam means path or way.

Ayoub: How does ummah come from path? For Sharia to be fruitfully applied it has to be consonant with the wasatiyyah (middle way) of Islam. The Sharia may resemble human `adl, but it is not coincident with human `adl. My plea is for the ummah to work towards a new fiqh that suits our situation in the world. We are doing it ad hoc but we need to do it more systematically.

General Discussion

Given the Western sensitivity to the word law, Sharia should instead be translated as ethics, which may have implications for law.

I translate Sharia as a set of moral imperatives and social etiquette. We must recover the creativity that allowed Muslims to create the most universal civilization.

Ahmad: I do not think “imperatives” solves the problem, since it leaves open the challenge of “imposing the Shariah.” Consider a map showing a 500 foot drop. But the Qur’an says: let those who will follow the path and let those who won’t…. Also Eastern in Michot’s observation related not to Abrahamic faiths but but Buddhist and Hindu thought. Taoism is named for the Path!

Ayoub: We have been mistranslating the word shepherd and sheep. It doesn’t necessarily mean shepherd at all. It is closer to guide or protector. The law is more than halal and haram. It is the five principles.

The law punishes and the Sharia includes rahma (mercy) as well as hudûd.

Good governance is how to serve the people. Fiqh means understanding and we need to understand the Sharia. How can you help politicians create laws that will serve society?

The Qur’anic discourse can be categorized in a few major subjects, nature, history, ethics, and laws. We need to address the great issues of the ummah. Is Islamic studies limited to a study of classical or contemporary Muslim scholars?

We are talking about a multiple discourse. The important voices are scientists and jurists. For example, the discovery of the role of DNA in infractions of the Sharia are of interest to us. Students of the history of fiqh can make contributions, because we must build on what we have. I do not agree with those who say we must abandon the tradition and start from scratch. The tradition is rich. I think fiqh-al-`aqaliyât of Dr. Jabir is a step in that direction, as is Qaradawi’s work on whether you can say “Happy Christmas” to a Christian.

Hudûd are punishments according to the fuquha.

Saying “apply the Sharia” is an empty statement. Intermediate statements are necessary. The phrase dawlat-al-Islamiyya is only about a century old.

When did fiqh become different from muttakammil? Many scholars say “I am not a faqih” and them make a statement about what the fiqh states. If you are not a faqih, what is your definition of a faqih?

I think all of us distinguish between dirasatul-islam and dirasatul-Islamiyya. The latter is the pursuit of self-improvement as in al-Ghazali’s Ayuh-al-Walad (O My Son!).

How can your vision of a new fiqh be realized? The state is reality, even if one imposed upon on us, and has influence on us; so how can we develop a new fiqh without it?

Hadûd is the counterargument. It proves that not every sin is a crime and not every obligation is state-enforce. Hadûd limits the punishments as well as the crimes. Akhlâq may mean virtuous rather than ethical.

Dawla is used by both the classical sources and in the Qur’an to mean authority. Dawla-Islam (as opposed to dawla-Islamiyya) is an old concept. Lughat and istilahiyy are two terms for Sharia, but when we consider Sharia to be what is in the book of God and the practice of the Prophet we have a system we can apply flexibly. Khamr and ridda are condemned in the Qur’an but there is no punishment. This is good because it gives no straight-jacket interpretation. Hudûd means moral limits, not punishments.

Ahmad: Your question contains its own answer. You said these punishments are the understanding of the Sharia. Hudûd are limits on punishments. Wishing a Christian a Merry Christmas is no more unIslamic than wishing a Muslim a happy mawlat-an-Nabi, but what about wishing a Christian a joyous Easter?

Populations have been traumatized for tens of years and there are some things on which the fuquha should remain silent. If you want to be followed by your sheep, first start feeding them and they will follow you.

Can the privatization of religion be an issue in a state based on Sharia? How do we introduce tawhid as an element of good governance?

In a verse in the Qur’an shar`a  refers to following different ways. I do not believe the Sharia to be a body of laws, so when someone asks to “implement the Sharia,” I ask when was it ever imposed? You have Sudan’s Shaikh Taha who wanted to throw out the Medinan verses of the Qur’an, and the other hand you have people you want to cut off people’s hands. I think we should not apply the Shariah but be guided by it.

We have to address the linguistic divide between English and Arabic. Ethics in English has no religious connotation.

Perhaps OIC could be empowered to be a means of communication between the Muslim and the outside world. Fiqh grew out of people’s consciousness. People insisted on living by the rules of God and not the opinions of men. When we talk about applying the Sharia we are talking about a dialog of understanding and diplomacy. Fiqh’s ancient stage developed as Islam was becoming a world power, but it quickly became a world power.

Ahmad: I believe Sharia is like gravity. It is meant to be obeyed, not imposed. And like gravity, our understanding of its nature may change dramatically over the centuries even while our faith in its reality remains steady. Man has believed in gravity from time immemorial, but our explanation for it changed from Aristotle’s “the natural place for earthly matter” to Newton’s “the mutual attraction between any two particles with mass” to Einstein’s “the curvature of space,” to a consequence of the Higgs’ boson, tantalizingly called the  “God particle.”

Higgs was a Jewish atheist. He called it the God particle because he didn’t believe it exists.

The law of protecting life, religion, livelihood, family, etc. are the laws of protection. The man who wrote most understandably on maqâsid ash-shariah (ash-Shatabi) was a Maliki probably influenced by the Maliki notion of maslaha (public interest). This is the most important modern concept we have hit upon. I hope it is not overused and abused.

Maqâsid is more about public order than law in its own right. It is about the value system of the society applying the law. Any system aimed at these purposes can achieve them even if not based on Islam, and would be Islamic to the degree that it is achieved. Thus some countries not claiming Islam are more Islamic in this respect than others claiming Islam. Perhaps one country doesn’t ban alcohol, but alcohol use there is less than another that professes to ban it.

If we find homosexuality is genetic rather than a choice, will the maqasid ash-shariah be invoked to change the traditional treatment of homosexuality? We have a precedent in the traditional discussion of transgender issues and the Islamic right to companionship, etc.

There has to be harmony between the maqâsid and the letter of the text. I see no way to change the definition of family, but not to discriminate against people because they have a genetic predisposition is also part of Islam.

I want to know how to expand this methodology. The maqâsid form a guideline. You have a fiqhi rule that harms the dîn.

I have a problem with what I am hearing. The Islamic state will not be judged on the Day of Judgment. We will be. If we need an Islamic state to live according to Islam then none of us is living according to Islam in any nation on earth today.

What if violation of the law harms society? We have forgotten to bring maslaha into the conversation. If we are going to tolerate homosexuals, was Allah wrong to punish the people of Lut?

Ibn Taymiyyah explains it is better to disobey than to innovate because when you innovate you lose your awareness that you are changing the norm. There are many circumstances where the fuqaha are better to remain silent if they know they will go unheard. When enjoining good and forbidding evil yields more evil, it is wrong to do it. A fatwa can neither be made into a universal rule nor ignored. Those are two extremes to be avoided. About homosexuals, he says if it is in the public square implement the hudûd, if not, then he let them wash after the act so they can pray; the rest is between them and God.

Make a distinction between applying Sharia and good laws in different countries. God holds responsible not only individuals, but nations.

Ahmad: Why can’t we say they pursue the maqâsid ash-sharia regardless of whether they are inspired by Islamic texts or not. It easier to practice Islam here than in any Muslim majority country. Punishment of Qawm Lut (the people of Lot) was not for their genetic predisposition but for public actions including threatening rape of the guests of Lut. In that respect I second the proposed distinction between redefinition of the family and compassion towards those with a genetic condition that limits their ability to do certain things. In Iran sex change operations are provided to those who seek the in order to avoid homosexual activity.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute

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