Many people, if not most, have a completely wrong idea about sharia. Those many or most include both Christians and Muslims. Christians can possibly forgiven for not understanding it correctly, since Muslims have given us a wrong impression and thus led us astray. We tend to think of it as a set of strict rules that are the same everywhere in every period and every culture.
The following article shows how wrong this is. It is pliant, fluid, depending on the when and where. So, enjoy this read from "Reasoning with God: Reclaiming Shari'ah in the Modern Age" – by Khaled Abou El Fadl.
t was sent to me by the people who operate and circulate the Friday Nasiha at www.fridaynasiha.com. I love their weekly circulars. They breathe an air of rationality and generosity, the complete opposite from that presented by the fundamentalists and militants.
So, here goes:
The ultimate point of Shariah is to serve the well-being or achieve the welfare of people (tahqiq masalih al-ibad). The word Shariah, which many have very often erroneously equated with Islamic law, means the "way of God" and the pathway of goodness, and the objective of Shariah is not necessarily the compliance with the commands of God for their own sake. Such compliance is a means to an end—the serving of the physical and spiritual welfare and well-being of people. Muslim jurists reasoned that if law will be made to serve the well-being of people while at the same time avoiding the pitfalls of the tyranny of human whim or unfettered reason, divine guidance or direction is necessary and indispensable. Significantly, in Islamic legal theory, God communicates God's way (the Shariah) through what is known as the dalil (pl. adilla). The dalil means the indicator, mark, guide, or evidence, and in Islamic legal theory, it is a fundamental building block of the search for the divine will and guidance. As a sign of God's mercy and compassion, God created or enunciated numerous indicators serving as guidance to human goodness, well-being (al-hasan wa al-maruf), and ultimately, the divine will. Moreover, God ordained that human beings exert a persistent effort in investigating the divine indicators, or the evidence of God's Will (badhl al-juhd fi talab al-dalil), so that the objectives of Shariah may be fulfilled.
Not surprisingly, the nature of the dalil became one of the formidable and formative debates of early Islamic jurisprudence. The most obvious type of indicator is an authoritative text (sing. nass Sharii or pl. al-nusus al-Shariyya), such as the Quran, but Muslim jurists also recognized that God's wisdom is manifested through a vast matrix of indicators found in God's physical and metaphysical creation. Hence, other than texts, God's signs or indicators could manifest themselves through reason and rationality (aql and raiy), intuitions (fitra), and human custom and practice (urf and ada).
In Islamic jurisprudence, the diversity and complexity of the divine indicators are considered part of the functionality and suitability of Islamic law for all times and places. The fact that the indicators are not typically precise, deterministic, or unidimensional allows jurists to read the indicators in light of the demands of time and place. So, for example, it is often noted that one of the founding fathers of Islamic jurisprudence, al-Shafi (d. 204/ 820) had one set of legal opinions that he thought properly applied in Iraq but changed his positions and rulings when he moved to Egypt to account for the changed circumstances and social differences between the two regions. The same idea is embodied by the Islamic legal maxim: “It may not be denied that laws will change with the change of circumstances” (la yunkar taghayyur al-ahkam bi taghayyur al-zaman wa al-ahwal).
One of the most important aspects of the epistemological paradigm on which Islamic jurisprudence was built was the presumption that on most matters the divine will is unattainable, and even if attainable, no person or institution has the authority to claim certitude in realizing this Will. This is why the classical jurists rarely spoke in terms of legal certainties (yaqin and qat). Rather, as is apparent in the linguistic practices of the classical juristic culture, Muslim jurists for the most part spoke in terms of probabilities or in terms of the preponderance of evidence and belief (ghalabat al-zann). As the influential classical jurist al-Juwayni (d. 478/ 1085) stated: "If we were charged with finding [the truth] we would not have been forgiven for failing to find it." Muslim jurists emphasized that only God possesses perfect knowledge— human knowledge in legal matters is tentative or even speculative; it must rely on the weighing of competing factors and the assertion of judgment based on an assessment of the balance of evidence on any given matter. Nevertheless, this philosophy did not mean that Muslim jurists accepted legal relativism or even indeterminism in Shariah. Shariah was considered to be the immutable, unchangeable, and objectively perfect divine truth. Human understanding of Shariah, however, was subjective, partial, and subject to error and change.
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