By Tariq al-Jamil

This article is part of an ongoing series that examines what Shari’ah is, how the media often get it wrong, and how it’s being used to create fear of Islam and Muslims and to justify continued military defense of “American values.”

There are multiple levels of historical misinformation that fuel the manifold misuses of the term “Shari’ah” in today’s popular media. Journalists and politicians have been quick, either consciously or in ignorance, to pander to the crude association of the term “Shari’ah” with the worst examples of violent and repressive acts undertaken by governments in places where Muslims predominate.  This categorical equation of the Shari’ah with violence, repression, and stagnation — and hence antithetical, or at the very least incompatible, with American notions of freedom, justice, and democracy — is now ubiquitous in the U.S. press and popular imagination.

The politicization of the term “Shari’ah” by ideologically driven groups is not limited to the United States and Europe but rather its uses have been equally fraught in the modern Muslim world. In the wake of colonialism, Muslim “reformers” sought to simplify what appeared to them as a complicated and specialized Islamic legal tradition. Shari’ah’s plurality of legal opinions and flexible methodology impeded governmental efficiency and was seen as ineffective for meeting the needs of modern civil societies. Consequently, to confront the challenges posed by European imperialism and internal social uncertainty, modern Muslim “reformers” argued for individual interpretation of Islamic law — and its sources for derivation — as a way to create a uniform body of law.

This form of egalitarianism not only removed the need for traditional training in Islamic law, but it also initiated projection of particular insecurities and political agendas onto Islamic law theory and practice by new lay interpreters without the inherent divergence of opinions presupposed by traditional methods. Ultimately, the so-called 20th-century reformers facillitated an epistemological shift in popular discourse: the Shari’ah came to be understood as a system for coercive action and implementation of narrowly defined regulations instead of its former multi-faceted and nuanced system for contemplating and approximating (given the limits of human intellect) the divine perspective on human moral, social, and ritual norms via employment of jurisprudential methods. In this sense many political opposition groups in the Muslim world share an ossified notion of the Shari’ah with Islam’s unlearned critics and detractors in the United States.

Pointing out the perverse similarities between the conceptions of the Shari’ah offered by Americans who would oppose the construction of a mosque in the vicinity of Ground Zero in New York City and Muslim men who would invoke the Shari’ah to prevent women from attending school in Afghanistan is not to imply that Islamic law has ceased to be a living and dynamic part of Muslim societies around the world. The Shari’ah continues to play an essential role in shaping the lives of Muslims.

In its earliest and most basic sense the word Shari’ah itself means “path to the water hole.” It is a rich metaphor for the most comprehensive way of life as ordained by God. What could be more vital to the basic sustenance of human beings than water? Shari’ah is a term of vast-ranging implications; its multivalent meanings can not be understood outside of the conscious process with which human beings are charged to discover God’s overarching perspective on human acts within specific times and geographical locations.

At its core the Shari’ah represents a Muslim’s efforts to construct a system of social and moral regulation based upon interpretation of Islamic textual sources. Islam’s primary source of religious knowledge, the Qur’an, contains very few verses that can be taken to carry explicit legal implications. Given this dearth of legal material in the Qur’an, jurists confronting social dilemmas must then turn to what the Prophet said, did, or approved of in the actions of others (sunnah) as recorded in hadith literature. Without direct reference to the issue in question — or rather, where the application of the Prophetic statement is not self-evident in verifiable hadith narratives — the jurist must engage in speculative reasoning based on the Qur’an and sunnah in order to reach the closest approximation of which humans are capable of expressing the law of God.

In short, from the human perspective the Shari’ah itself is inherently aspirational; it is the product of legislation, of which God is the ultimate subject. Given the obvious limits of human reason to approach God’s prescribed “path” with certainty, Islamic jurists for over a millennium have utilized jurisprudence and its requisite methodology (fiqh) for the construction of positive law. If Shari’ah can be understood as law in which God is the ultimate subject, fiqh can be understood as the positive law (civil and criminal laws applied and enforced by governments and/or nation-states to societies as a systematic legal code) that regulates human affairs in Muslim societies. This is no small distinction. It follows that the Shari’ah by definition is at best articulated as a hypothesis concerning divine prerogatives and the qualified jurist is necessarily fallible in his or her ability to formulate the ideal law of God.

A diverse range of formulations by jurists must be tolerated, according to the Shari’ah, and in theory all can be contingently correct. The practice of juristic diversity and the culture of juristic disputations is not only justified, but an inevitable outcome of the epistemological impossibility of an individual or institution encompassing the wisdom of God. It is this important dimension of fluidity and flexibility in Islamic law that has continued to allow jurists to construct positive law that both responds to the particular needs of their local communities and simultaneously reflects its values.

One of the major problems in addressing the misuses of the Shari’ah by both Muslim jurists and ill-informed, ideologically motivated media detractors lies precisely in the failure to recognize the degree to which the quest to locate and explore the Shari’ah is a reflection of a given Muslim community’s values, the particularity of its social and political circumstances. Problems arise when contemporary Muslim extremist interpreters reduce the Shari’ah to a system of laws that supersede reflection on universal human values and moral considerations (and for that matter, Divine prerogative itself). The time-and-circumstance specific dimension of Islamic law is compromised in order to provide a set of determinate legal proscriptions that specify the way to act in virtually all situations.  The Shari’ah thus becomes an instrument of control and coercion rather than a mechanism for approaching God’s justice and wisdom.

Newt Gingrich

While the transparency of the opportunistic enmity expressed toward the Shari’ah by Newt Gingrich and others is a scapegoating attempt to further their ideological agenda, contemporary Muslim extremist interpreters have employed the Shari’ah for perhaps equally nefarious purposes. When Muslim jurists relinquish the responsibility to utilize the Shari’ah to develop positive law, law concerned with the cultivation of moral and ethical values that edify human beings and address the complicated realities and diverse experiences of contemporary Muslims, it is only Muslims who ultimately suffer. This of course is not to lay blame on Muslim extremists for the vitriolic and xenophobia attacks against the Shari’ah in the US public sphere, but rather to highlight the common set of assumptions and insecurities that are projected onto the shari’ah to fuel opportunism and despotism.

In the hands of a skilled and sophisticated jurist, Islamic law maintains boundless possibilities for contributing to the lives of human beings. American and European critics who are quick to point to the so-called stagnation and backwardness of the Shari’ah (and therefore predominantly Muslim countries and societies) seldom address the sophisticated approaches contemporary Muslim jurists have taken on a range of bio-ethical issues, from organ transplants to gender reassignment surgery, to cloning and artificial insemination. Nor is the semi-autonomous role that traditional Muslim jurists have played as critical intermediaries between governments and rulers recognized as a significant counterpoint to contemporary hegemonic state bureaucracies.

The paranoia, and fear-mongering in the United States and Europe either consciously or unconsciously misrepresents the Shari’ah to avoid a critical confrontation with what motivates and drives such intolerance: the exploitation and subjugation of Muslims as a symbolic act of power to combat increasing insecurities about a world perceived to be spiralling out of the control of its self-appointed defenders. In this respect, through the lens of both non-Muslim xenophobes and narrow-minded Muslim extremists, the Shari’ah is symbolically used to express the very worst fears and insecurities of its interpreters. In both cases, it is ultimately everyday Muslims who are victims of these ideological wars.

Tariq al-Jamil is Assistant Professor of Religion and Islamic Studies at Swarthmore College. His current research focuses on Shi‘ism and inter-communal violence, religious dissimulation, and the transmission of knowledge in medieval Islam. He is currently completing a monograph on Sunni-Shi‘i relations in Baghdad during the 13th and 14th centuries.