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Peter Heine {*}

A System of Great Flexibility

The Term "Sharia" Provokes Constantly Misunderstandings

 

From: Herder Korrespondenz, 12/2011, P. 613-617
webmaster's own, not authorized translation

 

    When, as currently in the context of the "Arab Spring", the possible introduction of sharia law is mentioned, horrific images quickly emerge and a lot of misunderstandings circulate. Islamic law, however, is primarily a complex and flexible system of guidelines, regulations, methodological rules and traditions, which is in a constant state of development.

 

In the majority of reports on the "Arab Spring" in Tunisia and Egypt, and on the rebellion against the Gadafi regime in Libya it was noted that now Islamist groups like the "Muslim Brotherhood" in Egypt, or the "al-Nahda movement" in Tunisia would probably try to establish sharia as the sole legal system in the respective States. This demand has been specifically formulated during the celebration of the liberation of Libya in Benghazi, whereas the leader of al-Nahda movement, Rashid al-Ghanoushi, expressed himself much more cautiously after his group had won the elections for a Constituent Assembly in Tunisia.

However, when such news are published, images are at once hanging in the air again: images of punishments such as amputation of hands for theft or stoning for adultery. But these are phenomena that should be connected only secondarily with the concept of sharia, because sharia literally means the path to the waterhole. In terms of content, it means the method and methodology of creating rules of law, and not a fixed bundle of laws such as e.g. the German law texts in the Civil Code (BGB) or in the Criminal Code (StGB).

 

The Legal Source with the Greatest Authority is the Koran

Muslim believers are convinced that all of their actions have a specific value in the eyes of God. They may be mandatory as the daily prayer or absolutely prohibited as the unjustified killing of a human being. Between these two poles there are degrees of assessment such as: some matter is ethically neutral, another one must be rejected totally, a third one is "good", as e.g. the additional fasting besides the month of Ramadan. Muslims of average education are hardly in a position to evaluate and assess the many aspects of life with its constant societal and technological changes, as regards their accordance with the will of God. In view of this mental overload they turn to Muslim jurists who give the insecure believers an expert opinion (Arabic: fatwa, plural Fatâwâ).

A distinction is here made between two major areas of law. One of them governs the correct behavior of man to God (Arabic ´ibâdât), the other people's behavior to one another (Arabic: mu´âmalât). In order to create these expert opinions, the scholars use various sources of law, to which a hierarchically structured value is attributed.

The legal source with the greatest authority is the Koran. It defines above all fundamental regulations for the relationships of the individual to God and neighbor. According to Muslim belief, the Koran provides detailed information on all that which is immutable in man's relation to God or His creatures, and formulates general instructions for that which is subject to change. In other words, when the Koran is calling on people, "O you who believe! Fulfill the obligations" (Sura 5, 1), it thus expresses a general call for respecting the sanctity of contracts without formulating specific rules in terms of sales contracts, marriage contracts or employment contracts. In addition, the Qur'an puts forward a few regulations in the area of criminal and civil law.

However, the Koran is commented on and interpreted by Koran scholars. Today, they then often refer to older interpretations, but they are quite capable of interpreting the text in such a way that it gets a differentiated meaning. In order to illustrate this approach, we point to the punishment for theft pronounced in the Qur'an. As is generally known, it is the amputation of the hand. In some Islamic countries this punishment is really executed even today. In other countries one refers to a legal tradition according to which early Muslims, as e.g. Caliph Omar (who ruled 634-644) stated that this penalty must not be applied as long as hunger and poverty exist in the Islamic society. The thief will then not go unpunished, but must either pay a fine or is sentenced to imprisonment.

 

The Community as a Whole Cannot Err

Besides the Koran, the handed down sayings and actions of Prophet Muhammad (Arabic: hadith) are the second most important source of Islamic law. These traditions are regarded as authentic. It is believed that these texts do not contradict the Quran. If a discrepancy can be established, they are considered to be incorrect. The hadiths address a wide variety of topics, which can also refer to matters of dress, music, correct greeting, naming etc.

Besides these two primary sources of law, there are also secondary sources of law. As a matter of principle, they must not contradict the Quran and the Prophet's traditions. The "consensus of scholars" (Arabic: Ijmâ´) has here to be mentioned first. The Islamic tradition has handed down a saying of the Prophet Muhammad, according to which his community as a whole will not err in an important matter. But the topic on which a consensus is created should be "supported" by the Koran.

It is believed that this consensus is valid only for a certain time period. In the early and middle stages of the Islamic legal history it was primarily about a regional consensus. This entailed, especially due to the improvement of communication facilities in the modern age, the risk that the results of the scholarly consensus in one geographical region did not coincide with those in another region, and thus the risk of reducing the authority of the Islamic jurists.

Meanwhile, however, supranational institutions, such as the "Academy for Islamic Law", have been set up. They make sure that consensus statements will be harmonized, although deviant ideas are again and again disseminated especially via Internet.

 


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Another source of law is the conclusion by analogy (Arabic: Qiyâs). It is a kind of lawmaking. Legal scholars assess a case which has already been similarly treated and decided in the Koran, the Prophet's traditions or by consensus.

The reason for the application of this technique reads, "God introduces laws only on the basis of common interest or common good. (Arabic: Maslaha). If in the Koran a case is resolved and there emerges a similar issue which is not mentioned there, it is a dictate of wisdom and of justice to treat it equally." But also common sense is given as an important criterion for applying the conclusion by analogy. Muslim legal scholars give the following example from the field of ritual purity: If according to some sources a dog's saliva is considered to be ritually impure, its urine cannot be regarded as ritually pure, just because there is no evidence in the sources.

Legal historians have proved that the oldest Islamic sources of law have hardly anything to do with the sources described above. These are the personal views (Arabic: ray) and "to deem well of something", but above all the customary law (Arabic: 'urf or 'âdât), which turn out to be very different in the various Muslim cultures between Morocco and Indonesia. Among these secondary sources of law, the customary law has proved to be the especially strong and influential law. In possible conflicts between Islamic law and customary law, the latter normally prevails still today.

Muslim legal scholars are convinced that cognition and enforcement of legitimate interests worth protecting or the general welfare are the goal of every legal action. People are admittedly able to recognize the principles of common weal by their mental powers. However, the Muslim legal scholars are also convinced that "in life people's interests are many and varied; they are not in unison but diverse and oppose each other; some of them are fixed and do not change, while others are new and are not of a permanent nature." These personal interests do ultimately not lead to the objective of common weal. The Muslim legal scholars are convinced that only an authority that goes beyond human interests is able to motivate, both by its incentives and sanctions, people to a truly rational behaviour.

The Islamic law distinguishes between three categories of interests which must be or should be protected by law. The "necessary interests" have top priority. They concern the areas "which are indispensable with regard to the existence of human society and the existence of human life (...). It is about matters on which people's religious and worldly life is dependent, insofar as life here on earth gets into disorder; eternal happiness is lost in the afterlife and punishment is incurred if they are disregarded."

 

God does not want to make People's Life Difficult

It is not only about the weal and woe of individuals but also about the community as a whole, both in this world and in the Hereafter. Without it, the human order would be dissolved, and destruction and chaos would spread. By acting according to law, five "fundamental legal goods" must be secured: religion, life, reason, purity of descent and property.

The "essential interests" are followed by "need-oriented interests." Here it is about things or procedures which are necessary to prevent harm or to escape from difficulties. In this context, the legal scholars refer to the principle which is repeatedly formulated in the Qur'an: God does not want to make people's life difficult but easy. Interests worth protecting can even be secured by suspending the basically absolutely binding guidelines of the Koran: the sick need not fast in Ramadan month of fasting, and the food taboos of the Koran can be ignored if there was otherwise the threat of starvation.

Finally there are the "interests aiming at improvement". The possibility of their enforcement is also a matter of Islamic law. These interests make it possible that the good things come to the fore, while the bad ones are pushed back. The societies could get along without these interests. But the Muslim scholars refer to a saying of the Prophet Muhammad, whose sentence has been handed down, "I was sent rather to make the noble customs perfect."

Interests which are aiming at improvement can be e.g. table manners, or make it a rule to throw away no food. The question of the use of modern inventions that make life easier, is also treated in the context of these interests. This may apply to the question of whether it is allowed to use aircraft or car, washing machine or Internet. The festivities without religious background, as e.g. birthdays, Mother's Day, wedding anniversary or International Women's Day are a further topic.

 


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In connection with the question of "interests which are aimed at improvement", also the problems of Muslim women's professional life are treated. Some scholars see here a conflict with the basal legal asset of purity of descent.

Islamic law is a complex system of guidelines, rules, methodological regulations and traditions, which continues to evolve. It is the concern of highly professional elites to assess and to penetrate even only approximately all this in its entirety. Due to a long-standing systematic training these experts are able to give the faithful numerous instructions which are important for the proper behavior. Although it is about an basically religious act, the scholar obtains this competence not by a rite of transfer, as e.g. ordination, anointing or the like, but only through his studies. The process of mental effort to clarify a legal situation is called "Ijtihäd".

 

Not only Active in Response to Respective Queries

The jurist who undergoes such efforts is a "mujtahid". If a believer turns to him in order to get guidance in a religious or ethical question, the mujtahid may respond with a written "fatwa", a legal opinion. In many Muslim countries, entire systems of hierarchically structured institutions have developed in order to give fatwas. They are supported by state funds. A jurist who works in such institutions is called "Mufti".

This may be a single person who, in the framework of a respective "fatwa praxis", answers questions which were addressed to him. Such quasi-privately working muftis are found not only but especially in countries where Muslims are a minority. In addition, Mufti also regularly give in specific columns of newspapers their view on questions from readers or today in much-used internet forums. One of the best-known Muslim television preachers, Sheikh Yusuf al-Qaradawi, has e.g. every day more than 250.000 inquiries in various languages on his Web site. They are, of course, not answered by him alone. On the contrary, he has a staff that continually updates the respective databases with opinions of al-Qaradawi, or with such with which he agrees.

In some countries the leaders of those official institutions are titled Grand Mufti. The national fatwa centers are not only active in response to the relevant inquiries of the faithful. They give their view also on matters of which they think that they might be of importance for the public and for individual Muslims. The results of their studies are spread today worldwide especially by the electronic media. In addition, well-known Muslim jurists still publish their legal opinions in multivolume collections. The individual national Fatwa institutions primarily address themselves to the population of a country. They deal with regional characteristics and the relationship between Islamic law and customary law.

 

The Problem of Regional Differences

The respective legal assessments may naturally vary from those which were made by scholars in other regions. In international Muslim organizations this discrepancy was recognized as a problem already since the eighties of last century. Due to the improvement of communication facilities, the faithful were now in a position to detect possible differences in the results of the fatwa praxis. Muslim authorities feared the confusion of the faithful and saw a certain risk that the authority of the legal experts might be harmed. Therefore, efforts were made to standardize the content of legal opinions.

To this end the "Academy for Islamic Law" has been established, initiated by the "Muslim World League." Founded in 1962, the Muslim World League is now the leading international Islamic non-governmental organization with many subdivisions. One of them is the "Academy for Islamic Law." It has not got the structure of a permanently operating institution with a firm office in an Islamic country. Rather, recognized legal scholars from almost all Islamic countries meet once or twice a year at meetings in different places.

On the agenda of those meetings a complex issue is placed, which is considered to be significant for the Muslim community as a whole. For example, issues of bioethics or economic issues are waiting to be discussed and decided. Since the legal scholars may not be specialists in the field of medicine or economics, they consult the respective professionals. In individual work groups e.g. questions about organ transplantation or investing in hedge funds are treated. After the relevant professional explanations the groups discuss the legal and religious or ethical aspects of these issues and pass an assessment about them. Together with those of other study groups it is then presented to the plenary of the Academy and is put to the vote. Here, a consensus of all members is desired, because the scholarly consensus would not exist due to negative votes. The valuations accepted by the plenary are then disseminated throughout the Islamic world by various means of publication such as modern electronic information technologies.

 


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What is the effectiveness of those numerous legal opinions? A believer who, for his salvation's sake, turns to a legal scholar will regard his advice as a recommendation which is binding for him. In Sunni Islam, to which approximately 85 percent of the world Muslim population belong, it is possible that a believer turns to another scholar with the same issue, if he is not satisfied with the result of the report. The situation is different in Shia Islam. According to Shia belief, the faithful need the guidance by a mujtahid. They are free in selecting their spiritual leader. However, if they have chosen a scholar, this authority-based relationship lasts until the death of one of the two. The legal statements of the scholar are binding, and this applies not only to the question which was or is put by the faithful but to all expert opinions of the mujtahid, even on completely different issues.

While some Sunni scholars receive a certain financial compensation for their report or are paid for it by the relevant institutions, the Shiite jurists are provided with a regular annual payment. Its percentage amount is dependent on the economic circumstances of the faithful. Since the major Shiite legal scholars have millions of followers, in this way large capital assets come about. The scholars use them above all for charitable activities, for the upkeep of places of Islamic scholarship, and a small portion for the personal needs and those of their extended families.

The Islamic law is characterized by a high degree of flexibility and by the ability to respond quickly to new social, cultural, political, economic or religious facts. However, today the Ummah is facing the problem that via electronic media like the Internet many people who possibly have not the appropriate skills spread legal opinions. These can be utter nonsense, from the perspective of a trained and for many years skilled jurist. But thanks to the technical possibilities, such statements are in the public and it requires great effort and persuasive power of the established Islamic legal scholars to prove that the basically easily refutable texts on the Internet are the work of charlatans. For this problem they have not yet found a solution.

 

    {*} Peter Heine (born in 1944) was from 1994 to 2009 Professor of Islamic Studies of the non-Arab area at the Berlin Humboldt University.

 

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