Living in the UK, I miss a lot of what happens in the States by way of questionable legislative suggestions, so I admit I’m a little behind the times on the proposed Tennessee law that would make practicing Sharia law a felony.
Salon.com has a very good discussion on the nature of Sharia law, but I think there are a couple more points to be made.
Firstly, I think it’s more fair to compare Sharia to Jewish Talmudic law than to cannon law. Although cannon law does treat elements of day-to-day practice and ritual, even in the Medieval period, at the height of the composition of cannon law, it was never entirely clear if these regulations applied to anyone except monks and clerics. There is also the fact that very few people today make arguments citing cannon law as authoritative. Obviously the Protestant and Reformation traditions reject cannon law entirely, but even in Christian traditions that still apply cannon law, it’s rarely referenced in the modern day.
On the other hand, both Talmudic law and Sharia are still used to define practice for a large community of believers today. Also in both cases, the traditions lack a sense of hierarchy, which defines one school of law as superseding the others. Instead, the multiple schools exist alongside one another. In the Muslim tradition, there are four schools of Sunni law and six of Shi’i law, and particularly in the Medieval period, it was common to cite the answer from all of the schools, even if the author was drawing on one particular school as the centre of their argument.
The word ‘sharia’ is also interesting in and of itself. It has no clear etymology, but it appears that the most closely related term in Arabic means ‘a path to the watering hole’. This might seem like a weird term from which to develop a concept of religious law, but remembering that Islam first arose among a partly-nomadic desert people, the path to the water hole may be an idiom for the most basic or important thing anyone needs to know.
I also think it’s worth talking a little bit about ijtihad, a concept which is hotly debated among modern Muslim jurists, as well as among Islamic scholars. In the salon.com article, Mr Awed omits ijtihad as one of the ways that Sharia law is written and formulated, as would most modern Muslim jurists. The term means ‘intellectual endeavour’, and it refers to the process of developing an answer to a legal question which has no firm basis in the Qur’an, so that it must be answered based on the spirit of the text, through a process of intellectual consideration.
Most jurists and Islamicist hold that ijtihad is no longer practiced, and has not been practiced since the 13th century, when the doors to ijtihad were closed (a lovely Semitic saying – abstract nouns regularly close and open in Semitic languages). There are two problems with this belief. The first is that, just on a logical level, it’s impossible. There are plenty of questions that Muslims are asking now about their faith that simply could not have been addressed in the Qur’an, as they would have been impossible concepts to understand in the seventh century – organ transplants, digital piracy, futures markets, all of these are things that could not have made sense then, but are all topics about which Muslims today need to know the correct, Muslim position.
The second problem is about the historical sources through which we ‘know’ that the doors to ijtihad were closed. The only clear citation of this fact that I have ever found, and the one everyone cites, comes from a 19th century British-German historian called Jospef Schacht. He wrote one of the first western manuals on Sharia, in which he referenced a 13th century Egyptian jurist as saying that the doors to ijtihad had closed in his own time. The problem with Schacht’s work is that he never gives any information about this jurist, beyond his name. As was standard practice for historians in the 19th century, there is no footnote or citation giving any information about the text itself, the manuscript in which Schacht found the reference, or any way of identifying the work he was discussing. There is also the further problem that, even if we could find the source he was using, it was still only one, Egyptian jurist, with no evidence for a larger movement throughout the Muslim world.
The good news is, despite the slightly dodgey history behind the belief that the use of ijtihad is no longer allowable, many Muslim jurists are arguing for its use from the logical position that it’s just necessary. Perhaps the best illustration of why comes from the story which gives the basis for all of the ways of formulating Sharia, a story of the Prophet (peace be upon him) speaking to his son-in-law and nephew ‘Ali, who was being sent to act as governor over a small community of Muslims who were going to live in the Christian kingdom of Abyssinia (modern-day Ethiopia). The Prophet (s’lm) asked ‘Ali how he would make decisions when the Muslims asked him for advice. And he replied that he would look to the Qur’an. The Prophet (s’lm) said this is good, but what if there is no answer there? And ‘Ali said, “I will think of you, and what I have seen you do.” And the Prophet (s’lm) said that was good, as well, but what if there was no answer there? And so ‘Ali said he would think of how the Qur’an had spoken of similar things. And after that, he would look to how the community as a whole practiced. And if there was still no answer there, he would do his best to make one, based on what he knew of the Qur’an and its message. And the Prophet (s’lm) said that that, too, was good.