08 October 2012

"Emerging Voices in Islamic Jurisprudence"

Written by 
Egyptian Islamic scholar Yusuf al-Qaradawi, returned to Cairo today to deliver a sermon to the crowd during Friday prayers in Tahrir Square, Friday, Feb. 18. Khalil Hamra/AP Egyptian Islamic scholar Yusuf al-Qaradawi, returned to Cairo today to deliver a sermon to the crowd during Friday prayers in Tahrir Square, Friday, Feb. 18. Khalil Hamra/AP http://www.csmonitor.com/World/Middle-East/2011/0218/Egypt-revolution-unfinished-Qaradawi-tells-Tahrir-masses

If you want to get a feel for the warm, glowing power of the word “Sharia” for Muslims, simply go to Psalm 119, a 176-verse acrostic using the Hebrew alphabet to extol the beauty of God’s law. As King David pens it, the “law” revealed to Moses and the subsequent rules and regulations found in the five books of the Torah is synonymous with God’s “word,” his “statutes,” his “precepts,” and the like.

For Muslims, the Sharia as found in the Qur’an and the righteous model (Sunna) of the Prophet keeps believers on the straight path that leads to prosperity in this world and the next. For Jews, and especially in Rabbinic Judaism – which was already developing in Jesus’ day, God’s law alone could keep his people on the path of upright living and fill their hearts with joy:

 

“Your word is a lamp to my feet and a light for my path.

I have taken an oath and confirmed it, that I will follow your righteous laws.

I have suffered much; preserve my life, O Lord, according to your word.

Accept, O Lord, the willing praise of my mouth, and teach me your laws.

Though I constantly take my life in my hands, I will not forget your law.

The wicked have set a snare for me, but I have not strayed from your precepts.

Your statutes are my heritage forever; they are the joy of my heart.

My heart is set on keeping your decrees to the very end” (Psalm 119, “Nun” NIV).

 

This embrace of “God’s law” is quite similar to the Islamic psyche, with the main difference that for Muslims it is mediated through the prophetic ministry of Muhammad, the “seal of the prophets.” For a quick introduction see my previous blogs, “Shari’a Conspiracy Theories,” and “Shari’a: Can It Be Outlawed?”

Further, God’s law for Muslims is focused on two areas of human life: the rituals of worship, which keep a person in right relationship with God (al-‘ibadat); and the rules that govern human interactions (al-mu‘amalat). The Five Pillars come under the first category, though the five main schools of Islamic law often disagree about its finer points. Some of the rulings in the second category come from clear texts in both Qur’an and Sunna (like the rules of inheritance and the so-called “fixed penalties” like the cutting off of hands for thieves and the stoning of adulterers, or the ban on charging interest on loans).

That phrase “clear texts” is laden with meaning and centuries of consensus among Muslim scholars/jurists (the ulama, who wielded considerable power historically and often as a counterweight to the political rulers, the sultans). But the situation is starting to evolve, partly because of normal debating in the age of globalization and the Internet, and partly because of geopolitics in a post 9/11 world.


The October 2012 Conference “Emerging Voices in Islamic Jurisprudence”

I write this piece on the heels of a conference I attended last week in St. Paul, MN, sponsored by the Hamline University Law School and its Journal of Law and Religion (JLR). I was presenting a paper on the media-savvy and immensely popular 86-year-old jurist from Egypt and Qatar, Yusuf al-Qaradawi. You can read my 20-minute presentation in “Resources.”

The title of that paper ("Shaykh Yusuf al-Qaradawi: Standard-Bearer of the 'New Purposive Fiqh'") points to an increasingly popular methodology in Islamic law called “The Objectives of Sharia” (Arabic: Maqasid al-Shari’a). As it turned out, at least four other papers in the two-day conference referenced this recent trend and it often came up too in the question-and-answer sessions. But first, a very brief overview of the conference.

It was a unique occasion, in that law professors made up a good third of the audience and law students, with some undergrads mixed in, composed another third. The others were either presenters or family and friends. In my experience this is unusual, because people specialized in other areas of law were coming for a short, intensive seminar on Islamic law. For this reason a glossary of Arabic technical terms was distributed and we presenters were told to adapt our papers to this kind of audience. Though we did not always succeed in doing this, the feedback was mostly positive.

In a sense, such a conference is a rite of passage for the discipline of Islamic law in the United States. A journal that for decades has specialized in law and religion was investing an impressive amount of time and money to bring together specialists with the purpose of devoting a couple of issues to these papers. Especially at a time when some presidential campaign rhetoric derides the Sharia as a plot for Muslims to take over the US, this effort stands out as a voice of sanity and a noble academic initiative to study what is so precious to one-fifth of humanity.

That said, some well-known scholars of Islamic law were present and, what is remarkable, many young scholars still working on their doctorates also contributed. Specialists were flown in from several countries, including Norway, Finland, the UK and Turkey. Additionally, several papers approached issues of religious law from other disciplinary angles, such as comparative law, history, religious studies, and anthropology.

One presentation that stood out for me was that by anthropologist John Bowen (St. Louis University), who after over three decades of writing about Indonesia and more recently France, England and North America, unpacked his recent fieldwork in a sharia court attached to a London mosque. These proceedings deal almost exclusively with divorce and, though they have no legal impact on British courts, they nevertheless play an important role in the life of mostly South Asian immigrants.

Another highlight for me was the banquet the Journal of Law and Religion put on for the participants honoring William Graham, an Islamicist and long time member of the JLR editorial staff, with the Lifetime Achievement Award. Graham joined the faculty of Harvard University in 1973 and has continued to lead and initiate several ventures. Since 2002 he has been Dean of the Harvard Divinity School. I was struck above all by the humility, kindness and wisdom this man exudes.

I leave you with two more short vignettes. The very first panel had two bright young Muslim scholars whose debate back and forth I found especially exciting. Rumee Ahmed is assistant professor at the University of British Columbia and author of Narratives of Islamic Legal Theory (Oxford U. Press, 2012). He offered a brilliant argument about the failure of Muslim jurists so far to integrate the best of classical Islamic legal theory with modern sensibilities. The implication was that a clean break with some of the tenets of classical jurisprudence had to made, and only then was progress in revitalizing Islamic law possible.

The other scholar was Anver Emon, founding editor of the journal Middle East Law and Governance and associate professor at the Faculty of Law, University of Toronto. His latest book is Religious Pluralism and Islamic Law (Oxford U. Press, 2012). I remember listening to their conversation before about 200 people and thinking how fascinating it was to witness such creative minds.

Finally, Ahmed’s wife, Ayesha S. Chaudhry, also teaches at the University of British Columbia, but besides being trained in classical Islamic studies also teaches gender studies at UBC’s Institute for Race, Gender, Sexuality and Social Justice. Both she and the famous Muslim feminist from the UK, Ziba Mir Hosseini, participated in a couple of panels on Islamic feminism that left the audience gripped by the thought of such bold rethinking of the classical gender roles in Islamic societies. Have a look at Hosseini’s Musawah Global Movement for Equality and Justice in the Muslim Family.


Brief comments on “The Objectives of Sharia”

Some readers have already perused the “Resources” of this website know that I have available two previously published papers on this topic ("A Turn in 20th-Century Islamic Legal Theory," and "Objectives of Sharia and Human Rights"). Another one was a chapter in a book that gathered the papers of a conference in 2005 on Sharia at Yale University. I presented the thoughts on this topic of Morocco’s leading independence movement, Allal al-Fasi (“Allal al-Fasi: Shari’a as Blueprint for a Righteous Global Citizenship?” in Shari’a: Islamic Law in the Contemporary Context, eds. Abbas Madanat and Frank Griffel, Stanford U. Press, 2009). I have verbally promised to translate al-Fasi’s major work on the Sharia's objectives for a series at Yale University Press.

God willing, I'll write more on this topic, but suffice it to say here that when Sunnism as a religious movement began coalescing around the views of Abu-l Hasan al-Ash‘ari in the 10th century BCE (this consensus on law and theology, Ash’arism, is still official Sunni doctrine today), it was a middle position between the rationalism of the Mu‘tazilites and the conservativism and textualism of the Ahl al-Hadith ("People of the Hadith," i.e., those who follow the Prophet's words and deeds").

You can think of the latter as being best represented by Ibn Hanbal, who at great personal cost stood up to Caliph al-Ma’mun in the 830s and refused to teach that the Qur’an was created and that the anthropomorphisms in the Qur’an (verses referring to God’s hands, fingers; God sitting on a throne, etc.) were merely figures of speech. Whatever the sacred texts say – whether Qur’an or Sunna – they have to be taken literally, whether you can explain them rationally or not. Period.

As I mentioned above, the consensus among the four Sunni schools of law and the Shi’i Ja‘afari school is that any specific command in these texts is meant for all time and places – so it’s not amenable to ijtihad, the effort a top legal scholar invests in bringing all his knowledge to bear on finding a new ruling for a new situation.

This is still the official position of all the various associations of Islamic jurists today, including of course, the influential Egyptian-Qatari scholar Yusuf al-Qaradawi, who is president of both the International Association of Muslim Scholars and the European Council for Fatwa and Research.

You can read the details in my presentation. Here I just want to state what I think is a dilemma for him and the majority of other jurists: on the one hand they assert that humans can know many of the reasons behind the legal injunctions of the texts – some in the area of worship (‘ibadat), but most all of them in the area of human transactions (mu‘amalat). This is handy in the sociopolitical realm, for the texts say virtually noting about politics and constitutional law.

So Yusuf al-Qaradawi, frail as he is in his mid-eighties, flew from Qatar to Egypt days after the outbreak of the “25 January Revolution” to lead the Friday prayers in Tahrir Square on February 18, 2011, before a crowd some estimated at one million. All this he did in the name of the ethical values of freedom from oppression, the right of people to self-determination, and basically, democracy. He called for national unity, particularly between Christians and Muslims and made it clear from the beginning that the protesters were acting on their God-given rights to overthrow the yoke of dictatorship and seek freedom, justice, a fairly elected government, and equality of all before the law.

On the other hand, these objective values, common to all humanity and taught by all the world’s religions, can be seen by many to clash with the specific texts related to the penal code and family law, as I stated earlier. Some jurists and scholars have moved beyond and stated that those texts were revealed for a particular time and a particular place. In order to understand them today, we have to look at the ethical principles as taught more generally in the texts and apply those in today’s context, which has changed drastically since Late Antiquity.

Hence Qaradawi's dilemma: those values he trumpets so loudly in the sociopolitical sphere are trumped for him when it comes to gender issues and penal law. Since God is the author, he reasons, those texts apply to all times and climes.


Summing up

I started this blog by stating what a feeling of warmth and comfort the word “Sharia” brings to Muslims in general. For them it doesn’t conjure up in their minds what it tends to for many westerners: images of people’s arms cut off, others stoned to death, women virtually helpless to initiate a divorce, or inheriting only half of what their brothers inherit, or having their testimony in court worth only half that of a man.

No, your average Muslim (certainly in the west, but many other places as well) assumes this is something of the past and thinks only of prayer at home or in the mosque, family celebrations at Ramadan, charity given to the poor, the lifetime dream of a pilgrimage to the holy city of Mecca, and a host of other very pleasant markers in their proud identity as Muslims.

In fact, the concept of “sharia” is a moving target, whether for Muslims or non-Muslims; and like Jews, Muslims take great pleasure in arguing about the finer points of religious law among themselves. More than anything, as I hope to show in future blogs, “the times they are a changin” – especially in the way Muslims see themselves following God’s will in a pluralistic global society. The Minnesota conference dramatically underlined that fact. But too, Muslims’ lively debates among themselves in the US and the post-revolutionary bantering about a new constitution in Egypt are just two examples of how these arguments are evolving in different contexts.