By David Rosser Owen

At the moment it is quite common, even fashionable, among many people to denigrate and anathematise the Shari’ah, used as a shorthand for Islamic Law or more accurately as one for the degenerate legal systems applied in certain Muslim countries – which is not at all the same thing.

There is also the understandable reaction to a more immediate problem of the ignorant demands from certain Muslims of Britain, and their umbrella organisations, for the application in the UK of some concept that they describe as “Shari’ah” or “Islamic Law”, but which is actually little better than an Islamic label stuck crudely over some imported cultural or customary code that in all too many dimensions touches Islam itself only notionally.

It is sadly true that there is some justification for these responses.

However reacting from ignorance is not helpful. Yet what else can people do when they are let down by those whose professional duty it used to be “to educate and inform” but who nowadays seem to take it as being to promote ignorance and dissention? Few people are orientalists, and the generations who were born, grew up and served in the Empire have largely passed out of public life.

The aim of his essay is an attempt to fill in the gap abandoned by journalism. It is largely adapted from my monograph on Tory Fundamentalism and Muslim Ideas of State.

About two years ago, there was published in one of the UK’s daily broadsheets the results of a survey among Muslims, largely in the Midlands and north-east of England, asking whether they wanted Shari’ah in the UK. Many answered ‘yes’, but the questions remain what did the respondents understand by the request, did they think that there was a realistic possibility of it actually happening, or were they reacting to some massive hypothetical “If”?

Much has been made of the apparent results of this poll. So, following from this, what does the word Shari’ah mean for the average UK Muslim – or the proverbial ‘Muslim on the Clapham omnibus’ – and the average UK non-Muslim? And what does this actually mean for them at the operative level of daily life?

There used not to be an educated person unfamiliar with that verse from Jeremiah (6:16), “interrogate de semitis antiquis quae sit via bona et ambulate in ea” (ask after the old paths where is the good way and walk in it). This “good way” (via bona) is the well-trodden path of the prophets and patriarchs, and is the Way of Truth that all these have called people to follow.

The Muslims do not see their Way as being different from this but as a continuation of this well-trodden path, though all communities at various places, times, and circumstances have needed specific guidance for their conditions. As stated in the Quran “for every one of you We have ordained a Code and a Good Way” (li kulli ja’alna minkum shir’atan wa minhaja)(5:48). This via bona is none other than the Shari’ah – a ‘well-trodden path to that watering hole’ (which is what the word actually means) of laws and conduct derived from what has been sent down from the Almighty from which the Mosaic Law of the Torah, much of the Canon Law of the Christians, and the corpus of Islamic Law drink deep. To Muslims, each of these Abrahamic Faiths (as the late Professor Isma’il al-Faruqi, al shahid, termed them) has its own Shari’ah: its own track (semita) on the Way (via) of Truth.

What is Shari’ah?

The former State Attorney General of Singapore, Professor Ahmad Muhammad Ibrahim, wrote in his work Islamic Law in Malaya (1965, reprinted 1975, one of the most readable disquisitions for the layman or woman on Islamic Law in English),

“Islam literally means submission to the will of God and the will of God is that we should pursue husn, that is beauty of life and character and avoid qubh, that is ugliness of life and character. What is husn or morally beautiful and what is qubh or morally ugly, can only be discovered from divine revelation. The value of each human action must be considered in the sight of God; its earthly consequences are incidental. What is morally beautiful must be done; what is morally ugly must not be done. That is the path to be pursued, the Shari’ah.

The word Shari’ah is the name given to the whole system of the law of Islam, the totality of God’s commandments. Each one of such commandments is called hukm (pl. ahkam). The Shari’ah is defined as “that which would not be known had there not been a divine revelation”. This definition is wide enough to include all the divine revelations, including those made by the Hebrew Prophets and Jesus, but the divine revelations through Muhammad are considered as confirming the earlier revelations, and therefore constitute the Shari’ah in its purest and final form. Only what is expressly stated in the divine revelations or as may be inferred from them properly comes under the Shari’ah. The Shari’ah embraces all human actions; it is, therefore, strictly not law in the modern sense but might be regarded as a guide to ethics.

The Muslim term which corresponds more closely to law is fiqh. Fiqh is defined as “the deduction of the Shari’ah values relating to conduct from their respective particular (tafsili) evidences.””

Dr Tamara Sonn, Kenan Professor of Humanities at the College of William and Mary, Jamestown, Virginia, America’s oldest university of which HM Queen Elizabeth II is Patron, elucidated this when she was interviewed on 24 February 2005,

“Fiqh is the effort of human beings to understand and implement divine will through legal codes – jurisprudence – not the divine will itself. Unlike shari’ah, which is eternal and changeless, legal codes can be adapted. Built into the roots that guide Islamic law is a method, called ijtihad, or intellectual ijtihad, to rethink and change these legal codes as circumstances demand.
The world is changing rapidly and legislation needs to keep up with it. The goal of legislation is to guide human life, so legislation has to keep up with human life.”

The purposes (maqasid) of Shariah, whether expressed simply and generally as Dr Ibrahim’s “guide to ethics” or as the more specific jurisprudential code of fiqh, are conventionally listed as five headings: safety of life (damm), thought (‘aql), family (or ‘good name’ – ‘ird), religion (deen), and property or wealth (mal).

Professor Sonn stated this as,

“Islamic legal discourse divides into two types: those accorded to God, such as prayer, worshipping, fasting, pilgrimage, and the rights of human beings or individuals. The five necessities or essential rights for people described by Islamic Law are religion, life, family, mind or intellect, and property or wealth. Establishing and protecting these rights are considered among the primary purposes of Islamic law.”

The Cambridge University lecturer, Dr Timothy J. Winter, phrased it slightly differently,

“The fundamental objects, maqasid, of the Shari‘a are the right to life, mind, religion, lineage, and honour…”

However phrased, it is to be seen that property rights, freedom of thought and opinion and by inference the freedom to express them, personal dignity, and the right to life are to be guaranteed under the Shariah. That in many, if not most countries with majority Muslim populations, few of these apply demonstrates how far their polities and political cultures are from Islam – it doesn’t matter what labels and epithets they give themselves. As Dr Winter continued,

“…and these are respected in the legal codes of the contemporary West. We may even venture to note that they appear to be better maintained here than in the hamfisted attempts at creating Shari‘a states that we see in several corners of the Muslim world”.

But what about Positive Law?

Roger Scruton is quite a meticulous scholar, and not particularly unsympathetic to the Muslim World. His 2002 book The West and the Rest: Globalization and the Terrorist Threat, taken generally, provides an example of a problem. Dr Scruton’s mixed sources are not always academically objective, but there’s no particular reason why he should not have taken them on trust as modern orientalism is not his discipline. As a result some of the things he wrote are not completely correct. For example,

“Classical Islamic jurisprudence, like classical Islamic philosophy, assumes that law originates in divine command, as revealed through the Koran and the Sunna, and as deduced by analogy (qiyas) or consensus (ijma’). Apart from these four sources (usul) of law, no other source is recognized. Law, in other words, is the will of God, and sovereignty is legitimate only in so far as it upholds God’s will and is authorized through it” (p 88)

and further on, after praising “the fourteenth-century Tunisian polymath”, Ibn Khaldun, nevertheless concludes that,

“For all his subtlety, therefore, Ibn Khaldun ends by endorsing the traditional, static idea of government according to the shari’a. To put in a nutshell what is distinctive about this traditional idea of government: the Muslim conception of law as holy law, pointing the unique way to salvation, and applying to every area of human life, involves a confiscation of the political. Those matters which, in Western societies, are resolved by negotiation, compromise, and the laborious work of offices and committees are the object of immovable and eternal decrees, either laid down explicitly in the holy book, or discerned there by some religious figurehead – whose authority, however, can always be questioned by some rival imam, or jurist, since the shari’a recognizes no office or institution as endowed with any lawmaking power.” (p 91)

There is something that bedevils the works of political commentators and historians alike, and that is not rigorously disciplining oneself to ensure that ‘like’ is being compared with ‘like’. While acknowledging that Ibn Khaldun was a 14th Century scholar in the Islamic World, Dr Scruton appears to have jumped to the 21st Century Western World to make a comparison. Yet, what was happening in 14th Century Britain and Europe?

On the orders of Pope Clement V in a Bull four years earlier, the military order of the Poor Knights of the Temple was suppressed in 1312 and its Grand Master, Jacques de Molay burned at the stake in 1314, coincidentally the same year as the Battle of Bannockburn (Blàr Allt a’ Bhonnaich) was fought between the Scots under their king Robert I the Bruce and the English ruled by Edward II, the weakling son of Edward I Longshanks, malleus scottorum (the Hammer of the Scots). In 1320, the Scots sent a missive to the Pope, which was ignored, but this Declaration of Arbroath set down the Scottish view on sovereignty – the Community of the Realm, which took a long time to develop into anything resembling a modern system of government and it was far from being perfected by the time of the abolition of the Scottish Parliament in 1707. The Hundred Years’ War between England and France started in 1337 (and lasted to 1453, just two years before the beginning of the War of the Roses in 1455); the Black Death raged through 1348 to 1350, halving the population; in France a revolt of the peasantry, the Jacqueries, in 1358 was put down with condign savagery. In England, in the aftermath of the Black Death, came the Peasants’ Revolt (1381) in many ways a reaction to the Statute of Labourers 1351 (an attempt to restore the Feudal System) and was politically very far from a culture where matters were “resolved by negotiation, compromise, and the laborious work of offices and committees”. In fact, the system’s response to Wat Tyler, Jack Straw, John Ball and the Lollards in the Peasants’ Revolt was to put them down with the same viciousness as the French knights had used 23 years’ earlier with their own revolt.

The system that Dr Scruton criticises the Shari’ah for leading to is just that which held in the British Isles and British North America until well into the 18th Century, as a read of the contemporary scholars Richard Hooker, or Sir Edward Coke CJ, or Samuel Seabury, or Jonathan Boucher will amply demonstrate. Up to that point, the role of Parliament was to declare the Common Law, hence it was the High Court of Parliament, and the king commanded under this Common Law which was held as being of divine origin or, in other words, Natural Law. Though largely unthinkable in the British Isles of the 17th Century Wars of the Three Kingdoms and the Cromwellian aftermath, the idea of parliament as a debating chamber and legislature enacting new statute law evolved progressively through the 18th, 19th, and 20th Centuries. Possibly the first halting steps towards its being a truly representative democratic legislature occurred with the passage of the first Reform Act in 1832. In Britain, in the early years of the 21st Century, the process has been retrograded with the establishment of the unicameral Scottish Parliament and Welsh Assembly; and with the joining of the antidemocratic European Union with its institutional throwbacks to 17th Century French notions of divine right and vestigial feudalism. In the United States of America, the 18th Century Whig Constitutional Republic with its virtual elective Whig monarch has degenerated almost into a pre-revolutionary Bourbon kingdom. None of these is really in much of a position to hold up a Spencerian looking glass of Social Darwinism to the theoretical polities permissible under the Shari’ah.

It is a truism that in the different manners of arrival and popular endorsement of the first six successors after the Prophet Muhammad (Abu Bakr al Siddiq, Umar ibnu-l Khattab, Uthman ibn ‘Affan Dhi-n Nourayn, Ali ibn Abi Talib, Muawiyah ibn Abi Sufyan, and Yazid ibn Muawiyah), Muslim political thinkers have been provided with six models of rulership, including an hereditary monarch. Yet each had in common the endorsement by representatives of the governed as a necessary legitimizing mechanism. And each had an advisory council (the majlisu-sh shoura), a curia regis in a manner of speaking, made up of representatives (the ahlu-l hal wa-l ‘aqd, or ‘the people of loosing and binding’ – in effect a nascent legislature).

From these 7th-8th Century beginnings, various polities were tried in the Islamic World, until the Ottoman Empire in its final ‘century’ from the last decade of the 18th Century to 1924, when under the influence of the Naqshbandi Sufi Order, the Sultan-Caliph raised a parallel army (the nizam-i jadid) and eventually used it to suppress the Janissaries in the early years of the 19th Century, and then instituted political reforms under what are called the Gülhane Rescript and the Tanzimat Movement, both driven by the Naqshbandis, and both constituting what in present-day terms would be called ‘representational democracy’. There is no reason to suppose that this process should not continue, borrowing and adapting where appropriate.

Perhaps it is worth noting that succession, even when rulership was an hereditary monarchy, was not a simple matter of the eldest son inheriting the throne. Normally the most suitable son took over, and even in the most degenerate times the formality – or legal fiction – of endorsement by representatives of the governed was always gone through. Thus two principles are established through long usage: suitability in the Head of State, and endorsement by the governed.

There is another matter of relevance to Positive Law within the Shari’ah.

If one believes in the divine origin of Natural Law, then ancient liberties and rights are God-given, not State-given in some Hegelian sense. Therefore the State cannot endow or enact rights and liberties because these belong to the person as of right as the Gift of God. This is the position of Islam, as it was the position of the Britons. Perhaps we should always ask why is a particular law being enacted, because laws restrict or limit action rather than permit it? The Shari’ah goes further. Unless something is expressly forbidden in the Quran, and the number of these things is very small (certainly fewer than a dozen), then it is permitted. It can be argued (such as was done by Dr Said Ramadan in his book Islamic Law) that so strongly is this matter of permissibility put in the Shari’ah, that all legal categories are to be viewed as degrees of it – even har?m. This would be seen under this methodology as ‘extreme negative permissibility’ rather than simply ‘forbidden’ or more properly ‘taboo’.

“Islamic Law”

The Moroccan political activist, and somewhat of a rationalist, ‘Allal al Fasi, stated in 1949,

“We know that Islamic Law had Divine inspiration as its primary source. But in details, it did not fail to make use of foreign legal rules, and even customs which were followed in the countries where Islam penetrated. It did that every time those rules or customs could be brought into agreement with the general principles of Islamic Law.”

Thus, the possibility of formulating Positive Law is established in Islamic jurisprudence, which Dr Scruton held not to be the case.

The actual mechanisms are formed by the categories of ijtihad (applied reasoning – both deductive and inductive), qiyas (analogy – particularly with measures adopted by Christians in analogous circumstances), and al ‘adat wa-l ‘urf (custom and usages – specifically where there is no conflict with Quran and Sunnah) known as ‘amal (works) in Morocco. Some authorities lump all under the heading of ijtihad as has Professor Sonn (above). But it was in the matter of not identifying this ijtihad that Dr Scruton’s authorities let him down. And, indeed, as a source of ruler’s judgments and legislation ijtihad has an ancient pedigree going back to the examination that the Prophet subjected Mu’adh ibn Jabal to when appointing him governor of Najran in the Yemen.

Typically jurisprudence, of whatever origin, is divided into the two broad categories of criminal and civil law. Under the Shari’ah, fiqh embraces both of these. But in the loose usage of the term, it also embraces the simple and basic daily and day-to-day religious requirements of the Muslim – how and when to perform the prayer, how and when to keep the fast, paying alms and the purifying-due, how to divide up one’s estate in a Will, marriage and divorce, the manner of commercial transactions and drawing up contracts, and so on.

It is as well to bear this in mind, as Professor Sonn stressed, because this is the level at which most people will encounter and engage with it. It is probably this picture that was in the minds of most of the respondents to the survey cited above. And it is probably this picture which, if asked about the Shari’ah, most Muslims will immediately think of and if asked whether they want to live under the Shari’ah will accede to.

However, quite a number of non-Muslims of political bent have a different conception in mind when citing the Shari’ah. They are referring to the criminal law of the fiqh, and in particular the hudoud punishments and the matter of apostasy from Islam, on the one hand and the state of the ahlu-dh dhimmah on the other. Were they to openly specify that this is what they mean, I think that many Muslims would draw their attention to the unlikelihood or impossibility of these happening in the UK or Europe. Not to be upfront and open about this from the very beginning to my mind amounts to deceit.

There is only one country that applies Islamic Law proper through a dedicated court system, Malaysia, and that is only the Civil Law as originally codified in British India as the Indian Civil Code and using case law from it. The parallel Indian Penal Code, with its body of case law, as it reflects the Shari’ah is not administered anywhere. Not even in Pakistan, which might have been expected to have inherited it after 1947. That Criminal Law of fiqh supposedly applied in Saudi Arabia, Nigeria, and Pakistan falls so far short of Islamic norms of equity and evidence as not to qualify, whatever labels are pinned to it.

And the critics, or detractors, were they to be honest and truthful would point out the strict limitations imposed on the use of the hudoud punishments and the absolute requirement to impose ta’zeer punishments where at all possible and certainly if there is a scintilla of doubt in the mind of one of the judges. The hudoud (singular, hadd), or in full the hudoudu-Llah or “limits of God”, refer to certain specified punishments for certain specified crimes, the special point about them being that if this punishment is applied to the transgressor in This Life then he or she arrives at the Day of Judgment with a clean slate with, as far as that item is concerned totally expiated. This could be a big matter to a believer if the commission is particularly egregious as the hudoud are.

However, there are strict constraints on their application. There must have been no ‘need’ that the committer had that it was the duty of the state to provide for – an example would be hunger, or the need to feed his family, caused by his inability to find work for example – so the act would have been entirely capricious. The committer must have been of sound mind when doing the deed, and must have intended to do the deed – in other words it can’t have been done accidentally or ‘when the balance of his mind was disturbed’. And so on. As for the Court, there must not be the shadow of a doubt in the mind of each of the judges as to the guilt of the accused under the terms of trying a hadd crime. If there is any doubt, then a concessionary (ta’zeer) punishment must be imposed – this can be as light as a fine.

The behaviour of the courts in Nigeria, Pakistan, and in particular Saudi Arabia, in capriciously administering mandatory punishments for hadd crimes when these rules have not been observed and applied is, interestingly and ironically, actionable in itself. These places do not apply Islamic Law.

There is no clear sanction for a death penalty for apostasy under the Shari’ah. It is viewed as something of a consequence of free choice and caused by ignorance or the bad behaviour of Muslims. Where death penalties have been imposed the matter has not been simply an act of conscience but has been followed as a consequence by some outrage of public order or an act of treason and it has been these that were punished in that manner. Civil matters of disinheritance or expulsion are quite separate.

The dhimmah refers to the status of Jews, Christians, and Magians (as they are listed in the Quran) as ‘protected persons’ under states ruled by the Muslims. According to the Hans Wehr-J. Milton Cowan dictionary of Arabic, ahlu-dh dhimmah means “the free non-Muslim subjects living in Muslim countries who, in return for paying the capital tax, enjoyed protection and safety”. Their priests, monks, nuns, religious teachers and students, places of worship, graveyards, rights to worship, and so on, are not to be interfered with in any way and their general rights are guaranteed. The classic statement of this was the Treaty of Umar upon the Muslims’ capture of Jerusalem. This was extended and developed under the Ottomans to categorising the peoples of the empire according to their religious groups and organizing them into autonomous, self-governing and self-taxing millets run domestically under their own religious codes. This was generally speaking, by and large, respected throughout Islamic history, with certain reprehensible incidents and occasions when it was not. However, these incidents were roundly condemned by Islamic authorities both at the time and continuously since, so that it is justifiable to state that the norm was the preservation of the protected status.

There are two issues of contention that are repeatedly brought up, and particularly in recent years – possibly fed by the rubbish authored by ‘Bat Yeor’: the taxation of the dhimmis, and their perceived second-class status. The two taxes that the dhimmis were subject to seem to rankle. These were a kharj or ‘land tax’, and the jizyah. It needs to be stressed at this point that the jizyah was a payment in lieu of military service: only the adult male Muslim subjects were liable to be drafted at any time; the dhimmis were exempt. It was only fair that there should be some contribution from them to the defence of the realm – hence the jizyah. If they don’t want to pay the tax, then let them serve in the forces. This was actually the response of one of the Ottoman sultans to the complaint from one of the millets.

All Muslims were required to pay an annual capitation due on their surpluses but not current revenue. This is the zakah, which non-Muslims are not liable for. The kharj is the non-Muslims’ contribution to the exchequer, again liable only on surplus. It also seems a bit churlish for these matters to be brought up by present-day detractors of Islam and the Muslims without their drawing attention to the percentages demanded in these taxes, both of Muslims and dhimmis alike, (typically less than five percent) especially when these detractors come from states and communities where the common levels of taxation of the citizens approaches 60 percent levied on surplus and daily income alike.

Clearly those people who are demanding the banning of Shari’ah, on the one hand, or demanding its instating on the other, are ignorant as to what it is and what is permissible.

To quote again Professor Sonn,

“Islamic legal discourse divides into two types: those accorded to God, such as prayer, worshipping, fasting, pilgrimage, and the rights of human beings or individuals. The five necessities or essential rights for people described by Islamic Law are religion, life, family, mind or intellect, and property or wealth. Establishing and protecting these rights are considered among the primary purposes of Islamic law.”

It is not permissible under the Shari’ah for Muslims living as a minority in somebody else’s country to make any demands for the implementation of the Shari’ah, as long as “the prayer is permitted and continues to be said” (this is Imam al Mawardi’s ruling on obedience to the government). And as realistically what most Muslims want from the Shari’ah while living in the non-Muslim World is not much more than Roman Catholics or Anglicans want from the catechism calls for its banning are unfair and probably reactions to demands from Islamic extremists. Over-reacting to these people simply demonises all Muslims.

The solution, if there is a genuine social problem rather than simply using the Muslims and Islam as a convenient demon to further some other nefarious political agenda, is to engage with the mainstream Muslims and help them to sort out these people themselves. Remember, with Jeremiah, to “ask after the old paths where is the good way and walk in it”.

© D Rosser-Owen 2010, 2011 All Rights Reserved