Sharia and Muslim Legal Thought in the 21St Century: the Paths Ahead

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Sharia and Muslim Legal Thought in the 21st Century: The Paths Ahead

Ayla Karmali*

1 INTRODUCTION

The debate regarding the restoration, revival and reform of Sharia continues. Yet, no consensus has been reached as to what exactly the Sharia encompasses or what should be the nature and extent of its role and operation. Neither is there a single context—a universal Muslim society where as single Sharia can operate. Nevertheless, despite these anomalies and uncertainties, the matter of the ‘future of Sharia’ still attracts signifi cant attention. As Hallaq reminds, Islam has always been a ‘nomocracy,’ and Muslim civilisations have been known to apply various conceptions of Sharia for over twelve centuries, thus demonstrating how integral Sharia is to the religion of Islam and Muslim thought.1 For this reason, along with the growing ‘Islamic resurgence’2 where Muslims are demanding their rights to self-determination and religious and cultural authenticity, research and discussion on the future directions of Sharia and its role among the lives of Muslim communities and societies across the globe is likely continue. Indeed, as An-Naim asserts, ‘the Sharia will continue to be extremely important in shaping the attitudes and behaviours of Muslims.’3 In an attempt to encapsulate some of this debate, this article seeks to analyse the contributions of several Muslim academics, namely Abdullahi An-Naim, Mohammad Arkoun and Khaled Abou El Fadl, all of whom are engaged in discussions over the problems presented by popular contemporary discourse over Sharia, its current opera- tion, and perspectives as to its future and the future of Muslim legal thought.4 Each of these scholars has identifi ed obstacles to the operation of a Sharia, and developed methods and ideas which could allow a Sharia to ‘operate’ and develop in

* Ayla Karmali LLM, SOAS, University of London, Research Assistant, British Institute of Inter- national and Comparative Law. I would like to thank Professor Lynn Welchman for fi rst sparking my interest in Islamic Law during my undergraduate studies, for her support and encouragement during my LLM, and for being an inspiration ever since. 1 Hallaq, Can the Shari’a Be Restored? In Yvonne Yazbeck Haddad and Barbara Freyer Stowasser, Islamic law and the Challenges of Modernity, Altamira Press, 2004, p. 42. 2 Haddad and Stowasser, Islamic law and the Challenges of Modernity, Altamira Press, 2004 p. 3. 3 An-Naim, Toward an Islamic Reformation, Syracuse University Press, 1990, p. 42. 4 Please note the distinction between what is Sharia, different conceptions of Sharia, the different ways Sharia manifests itself in practice and the differing infl uences of Sharia on Muslim thought. 4 Ayla Karmali a contemporary context. By examining their theories and suggestions, this article seeks to clarify their conception of Sharia, and the extent to which they differ in their rethinking and reconstruction or indeed, deconstruction of Sharia, and its future. Indeed, it is diffi cult to speak of a singular and universal conception of Sharia and so, the article will begin with a clarifi cation of what is meant and not meant by the use of the term. Thereafter, following a summary of the general theories of the aca- demics chosen for this study, a deeper analysis will address their concerns, perspec- tives, and proposals. These have been identifi ed as including the popular attachment to ‘a historical’ Sharia in modern discourse, ultimately leading to the use of history as an ‘ideology of legitimization;’5 the benefi ts of applying historical analysis to the Sharia as illustrated by its application to Muslim theology and the treatment of the Qur’an and Sunna in usul al-fi qh; growing authoritarianism in Muslim discourse; the challenges of modern political philosophy and uncompromising aspects of modern- ity such as institutional authority, secularism and democracy; and fi nally, the political appropriation of discourse over Sharia and how it should be remedied.

2 AN EXPOSITION OF SHARIA AND ITS OPERATION IN THE CONTEXT OF MODERNITY: WHAT SHARIA? WHOSE SHARIA?

Conceptions of Sharia differ in the context of academia, among various Muslim com- munities (both religious and social), ‘political Islam’ (as presented by both Muslims and non-Muslims alike), and increasingly, among Muslims as individuals living in the age of information and technology. Therefore, when debating the future of Sharia, what Sharia and whose Sharia is being discussed? While there may be different conceptions of what is Sharia, it does not mean that a normative conception cannot be identifi ed. Sharia was historically viewed as ‘the revealed, or canonical law of Islam,’ while fi qh was ‘jurisprudence in Islam,’6 combin- ing both legal methodology (usul al-fi qh) and the substantive rulings ( furu).7 However, Sharia itself is often understood as fi qh, and these changing conceptions and associa- tions have been common through time and place. There appears to be an undefi ned borderline between ‘revealed law’ and jurist formulations even at present time,8 and these ambiguities signifi cantly affect the scope of operation and reform. The Sharia conceived by the scholars in this study generally includes usul al-fi qh and furu (substantive legal rulings), along with the Sharia’s moral and ritualistic assertions, demands and preferences, all the result of interpretation of the revealed texts, the Qur’an and Sunna. As Weiss summarises, ‘(t)he Law as a topically-organised fi nished

5 Arkoun, ‘History as an Ideology of Legitimation: A Comparative Approach’ in Islamic and European Contexts in Islam, Modernism and the West, I.B. Tauris Publishers, 1999 p. 25 (editor: Gema Martin Munoz). 6 Haddad and Stowasser, supra note 2, p. 4. 7 Arabi, ‘Early Muslim Legal Philosophy: Identity and Difference In Islamic Jurisprudence,’ UCLA International Institute, G.E. von Grunebaum Center for Near Eastern Studies, 1999, p. 9. 8 Ibid., pp. 4–7.