LESSON 15
SHARÎ`ASharî`a is nothing other than the laws contained in the Qur'ân and adîth, which are taken as divinely revealed. These texts, however, do not cover every contingency, and different interpretations gave rise to different schools of law. Legal science, in the sense of human interpretation of Sharî`a, is called fiqh. It applies Sharî`a to new cases through qiyâs (solving new cases in the light of previous cases which have a common ground) and ijmâ` (consensus). According to ash-Shâfi`î, only interpretations about which all are in agreement bind as God's will; other laws are a matter of conjecture. Such a principle, we might think, opens the door for all kinds of diversity, but soon after ash-Shâfi`î's time the principle of ijmâ` (consensus or agreement) was invoked to tolerate only those differences which were in circulation among the four schools at the time of ash-Shâfi`î. No new opinions contradicting these positions would be allowed. Within such limits the scope of human reason in applying Sharî`a by analogical reasoning (qiyâs) or more generally by ijtihâd (the "effort" of one's own judgement) quickly spent itself, and by the early 10th century jurists recognized that the "door of ijtihâd was closed". Ijmâ` thereby became the all-inclusive authority in Islam. It guaranteed the authenticity of the Qur'ân as the word of God and the authenticity of Tradition or Hadîth, and set limits to the variations of opinion in Islamic law and theology. Islamic law became fixed and unchanging.
Sharî`a covers all aspects of life. Later lessons will take up the "five pillars". Now we turn to the norms governing Islamic society. These have been systematized in the medieval works of al-Mâwardî and at-Turtûshî, which were the basis of the political thought of Usman Dan Fodiye, the founder of the Sokoto caliphate, and continue to influence Muslim thinking everywhere.
Traditional Sunnî Islam has emphasized God's absolute power and freedom and concluded that his law does not command or forbid something because it is good or evil, but it is good or evil because God's law has declared it so. Since there is no other legitimate law than Sharî`a, there is no distinction of the spiritual and temporal orders and it is nonsense to say, "Give to God what is God's and to Caesar what is Caesar's." This is why fundamentalists fight against secular codes of law. In some countries, like Nigeria, they find Christians their opponents; in other countries, like Algeria and Egypt, their opponents are other Muslims. The latter argue that Sharî`a should be viewed as a set of general principles, and not as an encyclopaedia of answers to every detail of society. They also say that certain Qur'ânic injunctions were only meant for the specific circumstances of seventh century Arabia, and not for all times and all places, as the fundamentalists hold.
Even though Muslims give allegiance to a head of state to coordinate the workings of Sharî`a in society, that does not dispense them from their own personal responsibility to enforce good behaviour and deter from bad behaviour (Q 3:104-114, 7:157, 9:67,71,112, 21:17). Muslim society polices itself from below, while state coercion is only supplementary.
The obligation to enforce good behaviour and deter from bad behaviour is the foundation for the obligation of jihâd. Jihâd literally means "effort". Authors, such as al-Ghazâlî, talk of: 1) jihâd of the heart, including self-discipline and mastery over one's own evil inclinations, and disapproval in one's heart of the evil behaviour of others and the desire to see them correct their ways; 2) jihâd of the tongue, including verbal remonstrations of evildoers, and preaching and writing to promote Islam; and finally 3) jihâd of the sword, which is military effort to defend and to extend the "rule of God", that is, of Islam.
The latter is the first and normal meaning of jihâd, even though the other kinds are considered more meritorious. The world is distinguished into: 1) Islamic territories, 2) non-Islamic territories which must be conquered by jihâd, and 3) territories under truce, which are non-Islamic territories which for the moment cannot be overcome; a cease-fire may be made with these lands for a maximum period of ten years. Conducting jihâd is the particular obligation of the imâm who is head of state, as distinguished from the imâm who leads prayer (Q 4:59). This leader is also called the "commander of the faithful" (amîr al-mu'minîn) and "caliph" (khalîfa), that is, successor to the role of Muammad as leader but not as prophet. Of the various qualifications and duties of the imâm, one stressed by modern writers aware of Western democracy is to take counsel (Q 3:159, 42:38). A head of state is only the executor of Sharî`a and cannot make his own laws, just as a judge (qâî) merely applies Sharî`a in court. If they deviate from Sharî`a they can be deposed.
The Qur'ân (49:10) insists that all Muslims are brothers to one another. They form one community and should help one another. The territory of Islam is really one nation, and political divisions between Muslim countries are considered artificial. A Muslim is first of all a member of the Muslim nation, and only secondarily an Egyptian or a Nigerian. Historically, however, Islam has been linked with Arab culture, and Arabic culture and language are respected as the channel of God's revelation for all men. Therefore many of the areas conquered by the Muslims were Arabized at the same time as being Islamized. Even non-Arabized Muslims tend to imitate Arabic culture.
In states which try to follow Sharî`a strictly, pagans have no rights but to become Muslim or accept death or slavery. Jews and Christians are allowed to keep their religion provided they accept Muslim supremacy and abide by certain humiliations and conditions laid on them, such as not preaching to Muslims or accepting converts. Muslims may not leave their religion, for example to become a Christian, under pain of death. Modern Muslim governments which subscribe to the U.N. Charter of Human Rights try to assure some equality between Muslims and non-Muslims in their countries, but in practice discrimination is rampant.
QUESTIONS
- In what sense is Sharî`a claimed to be divine law?
- Compare different Muslim views on the place of Sharî`a in society with Christian views on the relationship between divine and civil law.
- Explain the aims of the different kinds of jihâd.
- Explain the position of non-Muslims under Sharî`a.
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