Post 36
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:
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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.
