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Shari'a

Stanford University Press

Contents

Preface........................................................................................................................................vii1 Introduction Frank Griffel..................................................................................................................12 Justice in Modern Islamic Thought Gudrun Krmer.............................................................................................203 The Harmony of Natural Law and Shari'a in Islamist Theology Frank Griffel...................................................................384 Islamic Law and Legal Change: The Concept of Maslaha in Classical and Contemporary Islamic Legal Theory Felicitas Opwis.....................625 'Allal al-Fasi: Shari'a as Blueprint for Righteous Global Citizenship? David L. Johnston....................................................836 Shari'a and Islamic Democracy in the Age of al-Jazeera Noah Feldman.........................................................................1047 From ijtihad to wilayat-i faqih: The Evolution of the Shiite Legal Authority to Political Power Abbas Amanat................................1208 Shiite Theories of Social Contract Shahrough Akhavi.........................................................................................1389 Shari'a and Constitution in Iran: A Historical Perspective Sad Amir Arjomand...............................................................15610 The Normativity of the Factual: On the Everyday Construction of Shari'a in a Yemeni Family Court Anna Wrth................................165Afterword Roy P. Mottahedeh...................................................................................................................178Notes..........................................................................................................................................183About the Authors..............................................................................................................................237Index..........................................................................................................................................243

Chapter One

WHEN MUSLIMS DISCUSS the ethical imperatives of their faith regarding contemporary moral issues such as abortion, stem-cell research, or the treatment of racial or religious minorities, they will at one point consider what Shari'a says about these questions. All normative discussions within Islam, as well as between Muslims and members of other faiths, center on the content of Shari'a, a concept that can be roughly translated as Islamic religious law. What many Muslims regard as being determined by Shari'a, however, includes much that modern Westerners would not recognize as law. Handbooks on Shari'a have been in circulation since the ninth century and are still widely used by Muslim scholars today. A traditional handbook of Shari'a starts with acts of worship (Arabic ibadat), for example, the five daily prayers and the ritual purity required to perform prayers, the month of fasting, or the alms tax. Next the manuals move to issues concerning human relationships (mu'amalat), such as marriage, divorce, inheritance, commerce, taxation, and war. These the modern Westerner might easily recognize as legal issues. However, Shari'a goes beyond what in the West would be considered legal discourse, for it extends to matters concerning proprieties of clothing, conduct between spouses, filial piety, behavior at funerals, and other questions that Westerners would treat not as legal, but as moral issues or mere etiquette. At the same time, Shari'a also provides answers to the most vital moral questions of the contemporary world, such as the legitimacy of violence or torture, just war, suicide and self-sacrifice, or the means of combating injustice.

Over the centuries of Muslim history a vast amount of literature has been generated discussing these normative questions. The first impression one gets from looking at this library is that of continuity and congruency. Legal authorities from many different centuries of Muslim history are quoted to determine the response of Shari'a to today's moral questions. When asked about the notion of just war between nations and the rules for conducting warfare, for instance, contemporary Muslim scholars often refer to one of the earliest treatments of this matter, that of the jurist al-Shaybani (d. 805). On achieving a balance between combating injustice and not interfering in other people's affairs, the jurist and theologian al-Ghazali (d. 1111) is still regarded as one of the most prolific experts. Al-Ghazali, who was also one of the foremost authorities on legal theory in Islam, understood Shari'a as human efforts to derive congruent rules and norms from divine sources. He stressed that although the sources of Shari'a are divine and go back to a revealed text, the establishment of Shari'a is a distinctly human enterprise that requires its own kind of scholarship. During the course of its development this understanding changed, and by the twentieth century the meaning of the term Shari'a had been subtly but fundamentally transformed. Contemporary Shari'a is in many ways different from what classical scholars such as al-Ghazali had in mind. This collection of essays is devoted to a further understanding of what Shari'a means in the contemporary context.

SHARI'A IN THE CLASSICAL MUSLIM PERIOD

"Islamic religious law" is at best only an approximate translation of the term Shari'a. The origin of this word is Arabic, yet today it appears in all languages used by Muslims, including English. It evolved as a technical term in the early period of Islam during the seventh and eighth centuries. Originally the Arabic word shari'a described the practical aspect of religion. This is how it is used in the Qur'an, for instance, where God is quoted as saying, "We have set you on a shari'a of command, so follow it" (Q 45.18). But the word shari'a does not play an important role in the Qur'an; this is, in fact, the only time it appears. In the context of this Qur'anic chapter (sura) the verse refers to the fact that Islam is a new religion that is distinct from, for instance, Judaism or Christianity. Its distinction comes with new kinds of worship and new ritual duties-the five daily prayers, for instance-and most interpreters translate shari'a in this verse as "rites," "the right way of practicing the religion," or simply as "the way." Muslim lexicographers give a wide range of explanations of how the Arabic word shari'a, which initially referred to the place around a well and whose original meaning may have also been connected to "path," "road," or "highway," came to refer to the correct way of practicing a religion. These shifts of meaning are not always clear. What is important is that within Muslim discourse the word Shari'a came to designate the rules and regulations that govern the lives of Muslims.

Once it became clear that Islam had its own ritual duties and rules for human actions, these regulations needed to be identified. The academic discipline whereby Muslim scholars describe and explore Shari'a is called fiqh, Islamic jurisprudence. Doing fiqh is a human activity and cannot be ascribed to God or to His prophets, although revelation...