Week 4

Q. How does Khalid Abou El Fadl, in 'The Shari'a' from 'The Oxford Handbook of Islam and
Politics,' address the relevance and interpretation of Shari'a in modern Muslim-majority
societies?
The concept of Shariah, or Islamic law, has played a pivotal role in the socio-political and legal
landscape of Muslim-majority countries. This complex and multifaceted topic has evolved over
centuries and has been subject to various interpretations and adaptations. Shariah is derived
from the Quran and Hadith, as well as the collective reasoning of scholars and jurists. It covers
a wide range of aspects, including personal conduct, family law, commerce, criminal justice, and
governance. Shariah is considered by many to be a comprehensive moral and legal framework
that guides individuals and communities in living a life in accordance with Islamic principles.
The dual nature of Shariah can be categorized into the rights of God (huquq Allah) and the
rights of humans (huquq al-'ibad). The former pertains to obligations toward God, where human
actions do not benefit or harm God. The latter includes the material interests and benefits of
individual human beings. The state is responsible for enforcing human rights and obligations,
but the rights of God are under divine jurisdiction. The hudud penalties are a category of divinely
ordained punishments for violations that involve both human and divine interests. However,
classical Islamic jurists rarely applied these penalties due to the sacred and prohibitive nature of
their enforcement.
The advent of colonialism brought significant challenges to the traditional Islamic legal system.
Western colonial powers often introduced their legal systems, eroding the autonomy of Islamic
legal guilds and religious endowments (awqaf) that had leveraged considerable power.
Alongside institutional replacement, there was a process of cultural transformation, where
Western education gained prestige and legal professionals increasingly distanced themselves
from Islamic law. This shift in cultural dynamics led to a decline in the authority of classical
Muslim jurists and the traditional schools of Shariah law.
The myth of the "closing of the doors of ijtihad" emerged in the 19th century, claiming that
Islamic law had ceased developing around a thousand years ago. This myth was propagated by
orientalist scholars, some of whom served colonial powers. It contributed to the acceptance of
legal reforms that transformed Islamic law from a common law-like system into one resembling
civil law. The crisis of authority became a central issue as the training of legal professionals
increasingly diverged from Islamic law.
In the 1970s and 1980s, countries like Pakistan, Sudan, and Nigeria experienced Islamization
campaigns that focused on applying specific Islamic legal rules for symbolic purposes.
However, the Arab Spring in 2011-2012 showcased a different dynamic. Mass protests in
countries like Tunisia, Libya, Egypt, Yemen, Bahrain, and Syria prioritized issues of political
liberty, civil rights, rule of law, and justice. The role of Shariah in these protests was seen in
religious expressions, the concept of jihad against despotism, and reverence for martyrs.
Prominent Muslim scholars and jurists differed in their stances on these protests. Some
supported the revolutions, emphasizing the obligation to rebel against corrupt and despotic
governments. Others, including Wahhabi scholars, opposed the uprisings, arguing against
rebelling even against unjust rulers. This diversity of opinions exemplified the dynamic nature of
Shariah's interpretation and application during periods of political change.
A significant development during the Arab Spring was the proclamation issued by Shaykh al-
Azhar Ahmad al-Tayyib. This proclamation emphasized Shariah's endorsement of majority rule
and its objectives to promote knowledge, justice, equity, liberty, and human dignity. It asserted
that any political system capable of upholding moral values and justice, known to all religions,
can be mandated by Islam. Furthermore, it affirmed the importance of democracy and
condemned despotism as incompatible with Shariah.
The Arab Spring and subsequent democratic elections led to ongoing discussions about the role
and nature of Shariah in relation to constitutional and democratic systems of governance. This
highlights the ongoing renegotiation of Shariah's role by those who consider it authoritative and
influential in their lives, suggesting the birth of dynamic structures of legitimacy and authority in
the 21st century.
In summary, Shariah is a multifaceted concept that encompasses both divine and human rights.
Its role and interpretation have evolved significantly over time, influenced by colonialism, cultural
shifts, and political movements. The Arab Spring demonstrated the diverse perspectives on
Shariah, with scholars and jurists offering differing views on its relevance during political
upheaval. These developments illustrate the dynamic nature of Shariah and its continued
adaptation to contemporary challenges and contexts.

How has the relationship between Islamic law and political authority evolved historically, as
discussed in Knut S. Vikor's 'Between God and the Sultan'?

The central idea is that Islamic law is considered the divine will of God, and it is the
responsibility of jurists to discover and interpret this divine law based on their methodologies. It
contrasts with the customary and common law as neither does it rely on customary practices
nor on legal precedent. It is the role of muftis who provide legal opinions (fatwas) based on
established legal rules and principles. Judges may consult muftis to clarify legal issues in
specific cases The legal schools i.e the Maliki, Hanafi, Shafi'i, and Hanbali or the madhhabs
play a crucial role in the practice and interpretation of Islamic law. These schools have different
methodologies and interpretations, but they are all considered valid within the broader Islamic
legal tradition.

Early Integration of Religious and Political Authority: In the early stages of Islam, there existed a
profound integration of religious and political authority. Prophet Muhammad held both the roles
of a religious leader and a political ruler. The Sharia, at this point, was deeply intertwined with
political governance as it was rooted in the actions and sayings of the Prophet (his sunna).
Formative Period and Caliphs' Role: Following the death of Prophet Muhammad, the formative
period of Islamic jurisprudence commenced. During this era, the great scholars and founders of
Islamic legal schools played a pivotal role in shaping and interpreting Islamic law. Political
authority rested with the caliphs, who were expected to govern in accordance with Sharia
principles.
Western Scholarship and the doubts surrounding it : The historical authenticity of Islamic
sources, including Sharia, came into question in later centuries. Western scholars like Joseph
Schacht were at the forefront of this revisionist trend. Schacht criticized the contents of legal
hadith, claiming they were constructed one or two centuries later to support views arising at that
time. This led to doubts about the direct connection between Sharia and the Prophet's era.
Secular Influence on Political Decision-Making: Revisionist scholars, including Schacht,
emphasized that secular considerations often influenced political decisions, particularly those
made by rulers like sultans. They argued that judgments were frequently based on secular
needs and local customs rather than strict adherence to Sharia. Similarly classical orientalists
and post modernists also hold the same view that sharia is an external theory and that its the
contextual factors produce the decisions.

Anti-Revisionist Counterarguments: Anti-revisionists defend the traditional sources and claim

that the main body of historical facts presented in these sources is likely true. They believe that
josephs contention that sharia had become rigidified is wrong and that the gate to interpretation
(ijtihad) was always open

Historians of Practice: A significant shift occurred with the emergence of "historians of practice."
These scholars argued that Sharia retained a role in shaping legal decisions in courtrooms.
However, they contended that its application was flexible and adapted to evolving societal
needs. The law was seen as continuously developing, although using different methods from
the formative period.

Diverse Perspectives: The debate over the role of Sharia in politics has been characterized
by diverse perspectives. Some scholars argued that Sharia continued to play a dominant role in
political governance, while others suggested that it had diminished in significance, particularly in
comparison to secular governance.

Modern Challenges and Uncertain Future: In contemporary times, the relationship between
Islamic law and political authority faces modern challenges. Western legal systems and external
influences have significantly impacted the legal and political structures of many Muslim-majority
countries. Vikor concludes by acknowledging the uncertain future of this relationship, which will
depend on various political and historical developments within individual Muslim-majority
countries.

Islamic Sacred Law and Politics:

Daniel Pipes, In the Path of God, (1982), pp. 29-47 Week 4 Reading 3
Sacred Law in Three Monotheisms

The significance of sacred law in the Islamic tradition and its parallels with the role of
law in Judaism, as well as the key differences from Christianity. It begins by highlighting
the extensive influence of Islamic sacred law, known as the Sharia, in Muslim societies.
The author emphasizes that Islamic societies resemble pre-modern Christendom in
their reliance on sacred law as the governing mechanism.

The chapter suggests that the Sharia serves as the pivotal institution that mediates the
role of Islam in politics, affecting the daily lives of its followers. It is regarded as the most
decisive expression of Islamic thought and an embodiment of the true Islamic spirit. The
author also compares the significance of the Sharia in Islam to the importance of
Halakha in Judaism. Just as the Halakha plays a central role in regulating Jewish life
and behavior, the Sharia fulfills a similar function in Islam. Both systems encompass a
wide array of regulations that govern various aspects of life, including family relations,
economic activities, dietary restrictions, and justice.
The author draws parallels between the development of Islamic law and Jewish law,
highlighting the similarities in their evolution and the extensive elaboration of the sacred
law. While Jewish sacred law originated with the Ten Commandments and evolved into
the Halakha, Islamic law underwent a similar process of development, drawing from
both the Quran and Hadith (oral reports about the sayings and actions of the Prophet
Muhammad). This comparison showcases the close historical and intellectual ties
between these two religious legal systems.
The text also points out the essential differences between Christianity and Islam,
emphasizing how the introduction of sacred law altered the Jewish and Muslim paths
significantly. The author discusses the role of Saint Paul in Christian theology,
emphasizing the transformation of the faith from a law-based system to one centered on
faith and salvation. This transformation created distinct religious identities, with Judaism
and Islam emphasizing law-based piety while Christianity shifted towards faith-based
salvation.
Jesus' teachings influenced both Judaism and Christianity. He highlights that, despite
having some Jewish antecedents, Christianity moved away from many Jewish laws,
such as dietary restrictions, Sabbath observance, and other Halakha requirements. This
made it possible for Christianity to become a separate religion, distinct from Judaism. In
contrast, Islamic tradition acknowledges Jesus as a prophet but rejects the Christian
interpretation of his divinity and crucifixion, remaining rooted in the observance of the
Sharia.
The influence of sacred law on the daily lives of Muslims and Jews. It emphasizes the
minutiae of regulations and rulings within both systems, highlighting how every aspect
of life, no matter how trivial, is subject to religious law. This meticulous attention to detail
has a profound impact on the way adherents live and perceive their faith. The text
draws attention to the distinctive dichotomous mentality in Islam, where things are
viewed as either conforming to the faith or opposing it, emphasizing the dualistic nature
of the Islamic worldview.
In summary, the passage underscores the significance of sacred law, particularly the
Sharia in Islam, and its parallels with the role of law in Judaism. It highlights the
transformative impact of Saint Paul in Christianity, which moved the faith away from
law-based regulations and towards faith-based salvation. Additionally, the text highlights
the meticulous attention to detail within Islamic and Jewish legal systems, shaping the
daily lives and worldviews of their adherents. Finally, it underscores the dichotomous
mentality in Islam, where adherence to the faith is seen as a crucial factor in fostering
communal unity and identity.

Public Ideals in Islamic Sacred Law

Discusses the role of Islamic sacred law, or the Sharia, in both public and private
domains. It highlights the division between public and private regulations within the
Sharia, focusing on the role of the state in implementing these laws. Private regulations
refer to those areas where the state primarily intervenes to punish offenses, while public
regulations involve state participation at all stages.

The text illustrates various aspects of life governed by Islamic sacred law, including
economic affairs, dietary restrictions, family relations, prayer rituals, warfare, and
political authority. Private regulations include areas such as dietary restrictions, while
public regulations encompass aspects like warfare and political governance. The judicial
realm serves as an overlapping space where courts, backed by state authority, handle
cases related to private affairs, as long as they do not threaten public order.

The author draws comparisons between Islamic sacred law and the roles of law in
Judaism and Christianity. It highlights the historical and intellectual ties between Islamic
and Jewish legal systems, as well as the transformative impact of Saint Paul's influence
in shifting Christianity toward faith-based salvation. It also underscores the distinctions
between these religions, emphasizing that Islam remains closely tied to the observance
of the Sharia. It goes on to discuss the significance of the private and public spheres in
Islamic and Christian traditions. It points out that Christianity's lack of a political
program, largely attributed to Saint Paul's teachings, allows devout Christians to
concentrate on matters of piety and ethics rather than politics. In contrast, Islamic faith
and politics are deeply intertwined, as Muhammad established a new religious
community in a stateless region. The author emphasizes that Islam's political character
is a central aspect of the faith, closely linked to the implementation of the Sharia.
Furthermore, touches on the concept of jihad, explaining that its primary purpose is not
to spread the Islamic faith but to spread the rule of Islamic law. Jihad, as a righteous
war, is seen as a means of increasing the application of the Sharia. It distinguishes
between offensive and defensive forms of jihad, clarifying that the goal is political
subjugation rather than religious coercion.

Delves into the relationships between Muslims, non-Muslims, and the different
treatment of those under Islamic political control. It outlines the rules for dhimmis
(protected peoples), who are allowed to practice their religions but subject to certain civil
constraints and disabilities. The text also covers the system of taxation, zakat, and the
obligation of the government to sponsor a judicial system that applies civil, criminal, and
commercial laws based on Islamic law.

The author concludes by emphasizing the interdependence of Islam and government,

highlighting the role of Islamic law in connecting divine will to government policy. It also
asserts that involvement in politics is a necessity for Muslims to live under the Sharia. It
also emphasizes the significance of the behavior of political leaders, stating that their
actions have religious consequences. He provides an in-depth analysis of the role of
Islamic sacred law in both public and private domains, comparing it to other religious
legal systems, and highlighting the political significance of the Sharia in the lives of
Muslims. It also discusses the concept of jihad, the treatment of non-Muslims under
Islamic rule, taxation, and the interdependence of Islam and government. The text
concludes by outlining the two main forms of Islamic political action: legalism and
autonomism. There is a distinction between legalism and autonomism as two forms of
Islamic political action. Legalism aims to apply the Sharia's precepts, while autonomism
seeks to establish Muslims securely in power. It characterizes Islamic political
movements as a combination of these two goals, whether they are premodern or
modern, peaceful or militant, and regardless of their specific objectives.