Sharia, Justice and the Law

    About Fikrun

    Fikrun wa Fann was a cultural magazine published by the Goethe Institute from 1963 to 2016 that supported and shaped the cultural exchange between Germany and Islamic countries. Together with the publishing of the last issue, “Flight and Displacement” (issue 105), in autumn of 2016 the maintenance and updating of this online portal was ceased.

    The Relationship between Sharia and Rationality

    Morvarid Moini-Yekta: Sohbat. Work for an art show. Ink drawing, photography, Photoshop, 2007.
From the book Arabesque: Graphic Design from the Arab World and Persia. Die Gestalten Verlag, Berlin 2008A discourse in which Sharia is contrasted with rationality, or Islam with reason, as if this involves some element of dichotomy is not to be found in the history of Islamic ideas. This is a modern dis-course forced upon Muslims in the post-colonial period as part of the rationalism that predominates everywhere – a rationalism on which the concept of human rights is based. For decades now Mus-lims have thus been confronted with the question of the relationship between their religion and ra-tionality.

    Traditionally a Muslim assumes there is no discrepancy between the provisions of Sharia law and human knowledge. For him, or for her, Sharia law constitutes the most reasonable and most ap-propriate demarcation of human nature. Often quoted is verse 30 in sura 30 of the Qur’an in which the Prophet Muhammad is told: ‘Set thy face to the (only true) religion, this is the way upon which He originated mankind’. The congruence between Sharia and rationality is also formulated in a basic principle within legal theory, which lays down that ‘everything which determines rationality also determines Sharia, and everything that determines Sharia also determines rationality’. So for a Muslim all of God’s actions by definition accord with rationality and reason, since he or she is convinced that God is wise and omniscient and His works (and thereby also the regulations of Sharia law) follow a specific and comprehensible intention.

    However, if the requirements of Sharia law so clearly accorded with human rationality, then many current discussions, which have in fact been in progress for decades, on ‘Human Rights and Islam’, ‘Democracy and Sharia Law’, and ‘Tolerance and Islam’ – in short ‘Modernity and Sharia Law’ – would not be necessary. Those themes are not only being discussed in Western countries, and not solely by non-Muslim scholars. Books devoted to such topics continually sell well in Islamic societies. Obviously people today – among whose greatest intellectual achievements is the concept of human rights – have difficulties with some aspects of traditional comprehension of Sharia law. I take up just one topic here as exemplifying that situation: freedom of opinion and of religious views. Today freedom of religious adherence is among those self-evident views that basically no one wants to do without, because by now everyone has become aware that ‘religious freedom is not a philanthropic act and gesture of tolerance towards people who go astray. It is the fundamental right of every human being. Demanding this for oneself thus entails being ready to demand this for others too’. On the other hand, the official view, held by the majority of scholars, states that apostasy from Islam is vehemently forbidden. I am not speaking here about the nature of punish-ment of an apostate, laid down in the Sunna rather than in the Koran, and which differs in minor details from case to case and from one law school to another. I am talking about the right to change one’s religious conviction, in this case belief in Islam. This is also denied in one passage in the Koran: ‘And whosoever turns away from his religion and dies disbelieving, their works have failed in this world and the next; those are the inhabitants of the Fire; therein they shall dwell forever’ (2/217).

    So called enemies of Islam

    The following example makes clear that such a comprehension of Sharia law is certainly upheld by many people today and even put into practice. Farag Fawdah (1946-1992) was an Egyptian jour-nalist, intellectual and political activist who publicly dissociated himself from Sharia law. In many newspaper articles he criticised Islamist ideology, expressing the view that Sharia in no way helped solve today’s problems. On June 8th 1992 he was shot in his office by members of al-Gama’a al-Islamiyya. Before he was killed Farag Fawdah had been called an apostate and enemy of Islam by leading scholars and upholders of Sharia at Al-Azhar University, thereby making him an open tar-get. After his death, Muhammad Al-Ghazālī (1917-1996), an important scholar at the university, upheld the killing before a court: ‘Anyone who speaks in public against the implementation of God’s Sharia is an unbeliever, an apostate. It is a duty to kill such a man and the perpetrators must not be punished.’

    Similar cases have occurred repeatedly in recent years, confirming the contradiction between on the one hand a modern, rationality-oriented view of life and, on the other, the Sharia judgement on apostasy. Other examples are put forward to demonstrate the incompatibility of Sharia with a mod-ern concept of rationality. These include discrimination against women in their capacity as court witnesses, the restricted status of non-Muslims in an Islamic society, and severe punishments.

    So there is obviously a contradiction between traditional comprehension of Sharia law and a mod-ern way of life based on human rights. Where do people stand with regard to this? Before I go into that question I would first like to briefly elucidate the two terms Sharia and rationality.

    Today the term shari’a is probably one of the most frequently used slogans used in discussions about Islam. However there does not exist any unified definition of the concept. Originally the Arab word Sharia meant a path in the desert leading to a source of water. The Sharia was thus seen as guidance intended to lead human beings towards God, their source. The term is also used in that unspecific sense in the Koran and the hadiths. In the Koran the word as such only occurs once – in sura 45, verse 18: ‘We set thee upon an open way of the Sharia; therefore follow it, and follow not the caprices of those who do not know.’ It occurs twice in the Koran as a verb entailing some form of ordering (42/13:21). Here the term refers very generally to ritualistic order rather than specifically Islamic order. The term Sharia and its derivative verb-forms also occur in collections of hadiths in general references to divine order.

    In scholarly works there are various definitions of Sharia: religious law, regulation of life and of the law, or the religious legislation of Islam. At the same time Sharia is presented as an ideal of divine law intended to regulate all aspects of life – and the law as applied certainly can deviate from the ideal. So it can be asserted that Sharia represents the law in its most extended form, i.e. the totality of ritualistic, ethical, social, and legal norms contained in the Koran and the prophetic tradition.

    One Sharia, different opinions

    Hassan Massoudy: None of Our Joys Remain and Regret Cannot Return the Past To Us (Al Moutanabbi).
From the book Arabesque: Graphic Design from the Arab World and Persia. Die Gestalten Verlag, Berlin 2008 Nevertheless, there never existed a unified understanding of Sharia law. There were as many di-vergent theological standpoints as there were different schools of law. While legal scholars put the emphasis on ritualistic and external aspects, for mystics the inner relationship with God was pre-dominant. There were differences of opinion about almost all political, theological, ritualistic, and legal questions: from the Prophet’s succession to determination of (or doubt about) the moment when human life comes into existence, up to the way in which ritual ablutions are undertaken. However, these differences of opinion can only be the work of rationality. All sides affirm that the ‘true’ Sharia can only be one. Only when people attempt to approach it by way of reason do diverse views of the Sharia come into existence. So rationality constitutes an integral aspect of the historical Sharia.

    So what is meant by the term rationality? The Arab term aql is rendered as meaning both rationality and common sense. In general, these describe the human ability to think, to know, and to decide. A distinction is made in specialised literature between the two terms. People speak of ration-ality when it is a question of recognising more complicated subject matter and circumstances. Common sense applies to simpler contexts. As a political term rationality entails the human mind’s capacity to recognise generally applicable interrelationships in the world and their significance, and to act accordingly. The term ‘common sense’ is differentiated from ‘rationality’ today when a phe-nomenon is considered in detachment from a larger context.

    However, in everyday language no great distinction is made between the two terms. In philosophy too reason and understanding are frequently used as synonyms. To sum up – without getting lost in philosophical discussion – it can be said that the Arab term aql or the German words Vernunft and Verstand [reason and common sense] are expressions of the human capacity to think.

    It has already been mentioned that the application of rationality can be observed in all spheres of Sharia law. Behind this practice are the many calls in the Koran and in the tradition for making use of rationality. The Koran repeatedly calls for reflection on nature, history, other traditions, this life and the beyond, personal action and its consequences. In some collections of hadiths there is even a special chapter on rationality and knowledge. Of course, in the Koran and in the hadiths this does not refer to the modern philosophical concept of rationality; this would simply not be possible. The Koran and the tradition are not philosophical texts, and they originated at a time when rationality in the modern sense was not discussed. However, the fact that the texts mention these terms and call for reflection in every respect was important and pointed the way ahead for Muslim practice. That is why there were no inhibitions about applying rationality with respect to Sharia law.

    The importance of rationality

    Such a praxis can clearly be seen in the legal sphere. Here rationality constitutes an important element in the process of reaching legal decisions. In this the term ijtihad is of central significance. In consequence, and without entering into hair-splitting about definitions, it can be said that ijtihad is the informed application of reason when investigating the Sharia. Pragmatic considerations un-derlay the practice of ijtihad: people knew that new questions constantly arise in both profane and sacred matters – and also that not all these questions can be answered by way of the Koran or the Sunna. So it was thought important and even necessary to allow qualified experts the possibility of reaching new and practical judgements in accordance with new circumstances – in other words, to practice ijtihad.

    Scholars have repeatedly affirmed that requirements in the Koran or the Sunna should be compre-hended in accordance with historical and geographical changes. People thus also spoke of ‘modi-fying religious prescriptions in accordance with changes in time and place’. Similar views are ap-parent when scholars speak about the principle of ‘changes in the regulation resulting from a change in the circumstances’.

    Let us return to our initial question of how to deal with the obvious contradiction between a number of Sharia regulations (e.g. the status of apostates) and the modern precept of freedom of opinion and religion as anchored in the concept of human rights. There are many scholars who affirm free-dom of belief, invoking the well-known Koranic affirmation ‘There is no compulsion in religion’, 2/256. Nevertheless, they paradoxically view the prohibition of falling away from Islam and even the punishment of anyone who does so as being right and reasonable. This attitude is contradictory and no longer acceptable. It would only be defensible within a way of thinking that categorised human beings hierarchically in accordance with their adherence to different belief-systems – a way of thinking that is today unacceptable even within Islamic self-comprehension, and an attitude that even unjustly divides humans before God.

    But if one takes seriously freedom of opinion and religion, consistently upholding it, here one must also yield to the precept of rationality, undertaking a reinterpretation of Sharia law – it entails a fun-damental attitude, a question of belief or unbelief, and the right to be allowed to change one’s reli-gious/Islamic convictions. Faced with such issues, a number of Muslim thinkers also call on believ-ers to practice ijitihad beyond the limits of the law with regard to the sphere of fundamental ques-tions.

    Every expert is right

    In fact, freedom of opinion and religion was also discussed in the context of ijtihad early in Islamic intellectual history, giving rise to the sentence ‘Every expert is right’. With this sentence differences of opinion can be legitimised in both law and theological issues. Ubaidallah b. al-Hasan al-Anbari (d. 168 AH / 785 CE) went down in history as the originator of this formulation. Unfortunately nothing of al-Anbari’s views has been preserved in his own writings. However, what a later scholar, Ibn Qutaiba (d. 276 AH / 889 CE) has to say about al-Anbari and his thinking clearly reveals that his declaration ‘Every expert is right’ was also intended to justify divergent opinions regarding theo-logical issues. Al-Anbari upheld the existing diversity of theological and other opinions of his time, legitimising a wide range of groups. The logical consequence of this thesis would therefore be that everyone striving to find truth must be tolerated, even if they reach convictions that deviate from Islam.

    In conclusion it should be stated that the history of Islamic law from its beginnings up to the present day is characterised by constant exchanges between the textual sources and a rationality shaped by personal biographies with events and habits influenced by time and place. There are numerous examples of how Sharia regulations were, time and again, freshly comprehended and reinterpreted. It was thus established that those who reach legal decisions solely on the basis of what has been handed down in books, without taking customs, habits, times, places, situations and contexts into account, go astray and lead others astray.

    This tradition must be continued and an expanded dimension of ijtihad praxis opened up or revived, for the resolution of current issues, as I have attempted to illustrate with reference to the topic of apostasy. This would also legitimise the plurality of opinions.
    Abbas Poya
    is a lecturer in Islamic Studies at Freiburg University. His publica-tions include the book Anerkennung des Idjtihad – Legitimation der Toleranz. Möglichkeiten innerer und äusserer Toler-anz im Islam am Beispiel der Idjtihad Diskussion [Recognition of Ijtihad – Legiti-mising Tolerance: Possibilities for Internal and External Tolerance in Islam Exempli-fied by the Ijtihad Discussion] (Berlin 2003)

    Translated by Tim Nevill
    Copyright: Goethe-Institut e.V., Fikrun wa Fann
    January 2009

    Your opinion concerning this topic? Write to

    Related links