Über die Autorin bzw. den Autor

Frank Griffel is Associate Professor of Islamic Studies at Yale University. Abbas Amanat is Professor of History and International and Area Studies at Yale University.

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

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 and prophetic insights are, in fact, the sources from which the Muslim scholar who does fiqh-the faqih or Muslim jurisprudent-takes his clues. The discipline of fiqh arose in the early days of Islam, during the eighth century or probably even earlier. By the early ninth century Muslim scholars had developed two or three different methodologies for how the norms of Shari'a can be determined. Most of them place the Qur'an and the practice of the Prophet Muhammad at the center of Muslim jurisprudence and differ only regarding the balance between these two sources and the weight of third sources such as commonly practiced law or legal analogies. These slightly different approaches to the sources of jurisprudence are reflected in four different schools (sing. madhhab) of law, each of which has its own authorities and teaching tradition.

The centrality of the Qur'an for Shari'a stems more from theological considerations than from the ability to generate substantive legal rulings from its text. Although a number of the most central judgments in Islamic law are derived from the Qur'an, the majority of rulings in Shari'a derive from the practice of the Prophet Muhammad. Information about his actions and legal decisions was collected from oral reports. These reports were gathered as hadith. Since the ninth century they have been available in six large collections that Sunni Muslims regard as canonical. Muslim jurisprudence in the classical period aimed at reducing all new legal problems to existing rulings in the Qur'an and the corpus of collected hadiths. Because there are only a few legal rulings in the Qur'an, and because even the great number of cases in the hadith corpus cannot exhaust all future legal problems, Muslim jurists understood that the most important technique in Muslim jurisprudence is to reduce new cases to ones that are mentioned in these two sources. This was done by legal analogy (qiyas). Thus the Qur'an, hadith, analogy with the rulings contained in these two, and a fourth source, the consensus of legal scholars (ijma), which has always been of limited relevance, make up the four sources of classical Muslim jurisprudence (usul al-fiqh) for Sunni Islam, which has based most of its rulings in Shari'a on the example given by the Prophet Muhammad's actions. In Shiite Islam the actions and sayings of the early imams, especially the first imam, ^Ali ibn Abi Talib (d. 661), and the sixth, Ja'far al-Sadiq (d. 765), are an important additional source.

The complexities of legal theory soon made Muslim jurisprudence into a professional discipline with its own experts, handbooks, and encyclopedias. Practitioners went through a long and thorough education in professional schools, madrasas or seminars, such as the influential al-Azhar college in Cairo. If one had asked two hundred years ago what Shari'a was, the answer would not have been difficult. It was the norms studied by students at places such as al-Azhar from teachers who had gone through a long and rigorous education in fiqh. These authorities stood in a scholarly tradition with earlier ones and wrote books in the established genres of legal literature. After graduation the students of Shari'a became legal experts and collaborated in the implementation of Shari'a in Islamic countries. Two hundred years ago Shari'a was the law of Muslim lands.

But law is not the right word to describe Shari'a before the nineteenth century. There were no documents, no paragraphs, and no commentaries that one could refer to as "the law." Rather, Shari'a was a practice and a process of deriving law and of adjudicating disputes. These processes were associated with specific institutions and techniques of education and adjudication. The form of derivation and instruction of Shari'a cannot be separated from its content. "Law" was established not by issuing legal codes or by the decisions of principal authorities such as high courts or central administrations, but rather by the rules of its legal discourse. In traditional Sunni religious writing, texts always refer to previous texts; by discussing the rulings and decisions of previous generations, these texts set a standard of what is accepted by the community. This led Sunni jurisprudence to become a legal discourse whose first source of normativity was the variety of the views discussed and accepted by its scholars. Before the nineteenth century Shari'a was never understood as an abstract code, but rather as a series of commentaries on particular practices and of commentaries upon those commentaries.

It has already been said that in classical Arabic the word Shari'a refers to the law that God has ordained through revelation. Shari'a is understood as divine law and practiced in a realm that connects religion and law. Historically, law and religion have always been close companions, not only in Islam but also in the Western tradition. Plato (427-347 BCE), for instance, requires that all citizens of a polis must accept three basic religious tenets, namely, that there are gods, that they care for humans, and that they cannot be easily bribed by sacrifices given on their altars. People are to believe that the gods implement the laws and that they punish humans for transgressions. Most legal traditions of antiquity include the belief that the gods gave humans their laws. This is the case in the Mosaic law of Judaism that developed in the books of Exodus and Leviticus, believed to be composed around the seventh century BCE. The notion of a divine law that has its source in prophecy, that is, in the verbal pronunciation of divine norms, imperatives, and promises of rewards, as well as punishments, became fundamental for all three monotheistic religions of the Mediterranean basin, Judaism, Christianity, and Islam. Even when the societies shaped by these religions consider themselves thoroughly secularized, their practice of law often cannot hide the religious provenance of many of its procedures. Courthouses are designed to produce respect and awe and often resemble ancient temples. Judges and lawyers dress in robes, just as ancient priests did. People's behavior at court follows certain procedures that resemble a ceremony. They stand when an individual in a special robe-the judge-enters the room where the law is practiced and rise when this individual leaves the room. Lawyers begin their address with certain formulas, such as "May it please the court," and end it with a "pray" for relief. A higher authority than their own words must back everything they say in court. Indeed, they do best if they do not use their own words but quote from higher authorities.

These similarities suggest that the practice of law and the practice of religion are not as far apart as they seem at first. There is a structural similarity between the two because both look at superior authorities. Working with authority in both cases means that they work with authoritative texts. The meaning of these texts and the authority they convey are not within them but are established through the reading of these texts and their interpretation. A constitution, for instance, conveys authority not only from the words it contains but also through the context that is known to its reader, namely, that a political community adopted the text as a foundational document for the norms that govern political actions.

Islam's understanding of divine law arose from the same tradition as Judaism and Christianity. Muslim jurists accepted the validity of the Mosaic law, as well as the law practiced by Christians. The Muslim point of view on earlier laws that are based on revelation assumes that they are, like Islam, genuinely inspired by divine decree. They have, however, been abrogated by the clear message of the Qur'an and the law that comes with it. Islamic revelation is considered a more fruitful and a more precise source of divine law than any earlier revelation. However, although there are many similarities in these three traditions, there is an important difference. Compared with the Old and the New Testaments, the character of the Muslim revelation is a much more literal address to its reader. In the Qur'an God speaks to Muhammad in the second person ("you") and through him to the whole of humanity. Often Muhammad is bypassed, and the "you" in the text is an address to humanity as a whole. The only parallel in the two earlier books of revelation would be the Ten Commandments of Exodus 20.2-17 and those passages in the four Gospels of the New Testament in which Jesus, who is regarded as part of the Holy Trinity, is quoted literally. These words can be understood as God's direct address to mankind. Other parts of the Old and the New Testaments are often considered equal in holiness and authority. Their textual manifestation, however, is that of a text written by humans to humans, even if the authors are considered prophets or evangelists and the words directly inspired by God. The narration in the Qur'an is a more straightforward imperative from God to humanity. The readers find themselves directly addressed-a powerful feature of the text that might be responsible for much of the success of Islam as a world religion.

The most important branch of Muslim jurisprudence, that of Sunni Islam, emerged in the ninth century CE from a dispute about the nature of Muslim revelation. Rationalist theologians of the now-defunct Mu'tazilite school of theology had suggested that the Qur'an is a document that God had created like any other of His creations. When this view was adopted by the caliph al-Ma'mun (reg. 813-33), it prompted a vigorous reaction from a more conservative group of Muslim scholars. These scholars were the nucleus of what is today called Sunni Islam. They argued that the Qur'an represents God's speech, and as such, it is one of God's eternal attributes. Therefore, unlike any other of God's creations, the Qur'an cannot be created, but must be coeternal with God. The close connection between the text of the Qur'an and of God as its author almost led to an identification of the two. The dogma of the existence of the Qur'an from eternity was an undisputed cornerstone of Sunnism from the ninth century to the beginning of the twentieth. Even if this dogma plays almost no role within contemporary Muslim debates on the Qur'an, it has deeply shaped the Muslim understanding of its revelation. This is true not only for Sunni Muslims-who make up 80 percent of the contemporary Muslim community-but in a similar way also for Shiites and other smaller branches of Islam. For Muslims, the Qur'an is the door between the manifest world of our experience and the transcendence of God. It is the bridge between the Creator and His creation. Some interpreters have coined the word inliberation for this process. In Christianity the divine word (the logos of John 1.1) became flesh in Jesus Christ as its incarnation, but in Islam the divine word became a book.

This difference may lead one to the conclusion that Islam developed a unique understanding toward divine law and its sources that is different from that of Judaism or Christianity. The contemporary significance of Shari'a, one may argue, can only be explained out of the history of its central role within Islamic scholarship of the past. Shari'a is the Wesenskern, the essential core of Islam, the quintessence of the true Islamic spirit, and the decisive expression of Islamic thought. This essentialist view leaves little room for Shari'a to change or to be understood differently by different generations of Muslims. In contrast, this book wants to explore how the contemporary understanding of Muslims is different from that of previous generations. An essentialist view, for instance, downplays the strength of the intellectual convulsion that has been caused by the confrontation with European thought and culture since the early nineteenth century. Modern Muslim theology, which is the ultimate home of jurisprudence of the divine law, is in many ways different from its predecessors during classical Islam and the Muslim Middle Ages. We have already said that the dogma of the uncreatedness of the Qur'an plays almost no role in contemporary debates. Having been taught and discussed for many centuries, it flew out of the textbooks of Muslim theology, so to speak, when Muhammad 'Abduh (1849-1905), the most influential Muslim theologian of the period around 1900, published a book in which he said that the Qur'anic text and its recitation are created. This and his casual remark that he could not comprehend the historical dispute on the eternity of the Qur'an prompted harsh criticism from his peers at al-Azhar. Later, when his student Muhammad Rashid Rida (1865-1935) reedited 'Abduh's work on this subject, he omitted the controversial passage and added a long footnote that responds to the complaints.

(Continues...)

Excerpted from Shari'a Copyright © 2007 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.