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Review Essay : Three Recent Views on the Implementation of Islamic Law

Maurits S. Berger
p. 272-279
Référence(s) :

Sa'îd al-'Ashmâwî, al-Sharî'a al-islâmiyya wa-l-qânûn al-misrî, Cairo : Maktabat Madbûlî al-Saghîr, 1996

Târiq al-Bishrî, Fî-l-mas'ala al-islâmiyya al-mu'âsira. Al-wad' al-qânûnî al-mu'âsir bayn al-sharî'a al-islâmiyya wa-l-qânûn al-wad'î, Cairo : Dâr al-shurûq, 1996

Muhammad al-Jâbrî, al-Dîn wa-l-dawla wa tatbîq al-sharî'a, Beirut : Markaz dirasât al-wad' al-'arabî, 1996

Entrées d’index

Mots-clés :

loi islamique, sharî’a
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Texte intégral

  • 1  See Ayubi, Nazih (1991), Political Islam : Religion and Politics in the Arab World, London : Routl (...)
  • 2  See for an overview and classification of these thinkers Ayubi (1991 : 201-213). In this article I (...)

1In the past two decades the movement of « political Islam » – also labeled « resurgence », « revival », or « renewal » of Islam – has dominated the agenda of most Muslim countries. The call for the implementation of sharî'a law is one of the tenets of this movement This tenet, however, suffered from two shortcomings. First, the call for the sharî'a turned out to be more a battle cry than a clear program.1Many Muslims will agree that the sharî'a should be applicable to their daily life, but few will be able to indicate what this means or how this should actually be executed. Second, the discussion has been polarized : it was a « yes » (full implementation of sharî’a law) versus a « no » (no implementation of sharî’a law). Moreover, the protagonists of sharî'a law advocated a revival of sharî’a law, the restoration of the sharî’a to its old glory. In this clash between supporters and opponents of sharî'a law, the moderates who tried to take an inbetween position were either unheard or ostracized. It seems, however, that these moderates are slowly but surely emerging. They are Muslims who support the implementation of the sharî’a, but who are in favor of an evolutionary rather than a revolutionary process. In addition, they have specific conceptions on what should be meant by sharî'a and to what extent and by which methodologies it should be implemented. Between the two extremes of the « yes » and the « no », these people have taken the middle position of the « yes, but » : Yes, sharî’a should be implemented, but on certain conditions.2

2In this review essay, aselection is made among these moderates based on three books published in 1996. The authors are the Egyptian former Court of Appeal and High Court of Security judge Sa'îd al-'Ashmâwî, the Egyptian State Council member Târiq al-Bishrî, and the Moroccan philosopher Muhammad al-Jâbrî. These books are interesting for various reasons. First, their authors do not blindly take a « yes » or « no » position, but break new ground for further developments of the sharî'a. Second, it appears that they endeavor to reach a larger audience by abandoning the complex intellectual discourse so common among Arab intellectuals and choosing to write small books in a simple and distinct Islamic prose.

Sharî'a and Ijtihâd

3Before entering into the discussion of these books, some terminology which plays a key role in the arguments of their authors needs to be addressed.

4According to orthodox Islamic dogma, the sharî'a is the code of conduct of the Muslim. Its written sources are the Koran (which is the word of God) and the Sunna (the collection of hadîth, which are the actions and sayings of the prophet Muhammad). From a legal point of view, this corpus of the sharî'a contains very few rules. Less than one percent of the Koran, for instance, can be considered legal rules, mostly dealing with family and inheritance law.

5In the first four centuries of Islam, many legal scholars developed new legal rules and principles, based ideally on the two principle sources, the Koran and the Sunna. The scholarship of deriving these additional rules and principles is called the fiqh, which was also the term used for the extensive corpus in which they were collected.

6The individual scholar who, through certain methodologies, derives rules from the two principle sources, is said to practice ijtihâd. According to orthodox Islamic dogma, this practice was stopped after four centuries (i.e. in the 4th century AH/10th century AD). It was said that « the gates of ijtihâd are closed ». One of the reasons for the prohibition of further ijtihâd was that four centuries of legal activity had provided enough rules, and no new rules were needed.

  • 3  See for instance Hallaq, Wael (1984), « Was the gate of ijtihâd really closed ? », International J (...)
  • 4  Dupret, Baudoin (1997), « À propos de la constitutionalité de la sharî'a », Islamic Law and Societ (...)
  • 5  See Berger, Maurits and Dupret, Baudoin (1998), « Extraits de la jurisprudence Abû zayd », in this (...)

7The main feature of the closing of the gates of ijtihâd is the cessation of direct access to the two principle sources, and complete reliance on the corpus of fiqh. Within the fiqh, however, new rules were allowed to develop, but technically speaking, however, this was not proper ijtihâd. From this period onward, one had to refer to the fiqh to know sharî'a rules. It is therefore not surprising that the terms fiqh and sharî'a are often interchanged. Two developments in the history of sharî'a ate of importance for this review essay : the reopening of the gates of ijtihâd and the reintroduction of the sharî'a. Although modern scholars have reason to believe that the gates of ijtihâd were never really closed, 3the possibility of reopening these gates has been a much debated issue among Muslim scholars since the 19th century. Orthodox Islamic dogma, however, has so far not acknowledged the renewed activity of ijtihâd'with regard to the Koran and the Sunna. In Egypt, this has been recently confirmed by the Supreme Constitutional Court in March 19944and in August 1996 by the Court of Cassation in the infamous Nasr Abu Zayd case.5

8In the 20th century, the debate on reopening the gates of ijtihâd became overshadowed by the debate on reintroducing sharî'a law. In most new Muslim nation-states, much of sharî'a law was replaced by western laws and legal systems, and reintroducing sharî'a law became a political issue.

Three Views

9The following paragraphs will present the three authors' arguments, beginning with a brief overview of the history of sharî'a law. It will become apparent that the three authors view their past in completely different ways which, in turn, have a definite influence on how they see the future. Finally, a discussion of the main issue ensues : How to implement sharî’a law ?

The Developments of Sharî'a Law in the Past

10Both Bishrî and 'Ashmâwî argue that sharî’a law has been in decline in the past few centuries ('Ashmâwî, 1996 : 8-9 ; Bishrî, 1996 : 7). Their views on how this deterioration was halted, however, lead to diametrically opposed positions. According to 'Ashmâwî, it was western legal concepts that put the sharî’a back on track again and saved it from further decline ('Ashmâwî, 1996 : 8-9).

11Bishrî, on the other hand, argues that western concepts – and western influence in general – are the root of its decline. He argues that the much needed restoration of sharî’a was already undertaken by Muslim scholars themselves, by the so-called « renewal » (tajdîd) movement of the 18th and 19th centuries (Bishrî, 1996 : 8-12, 110 ff.). These scholars were debating the reopening of the gates of ijtihâd. These activities were radically interrupted by what Bishrî calls the European « aggression » (ghazwa). Instead of concentrating on restructuring Muslim society and its legal system, the renewal movement became submerged in an identity struggle and resistance against westernization. The basis of Bishrî's argument is that the initial activity of the renewal movement should be picked up again and continued.

12Jâbrî sees the developments of sharî’a law from another perspective. According to him, the present situation of social turmoil and the call for implementation of sharî’a law is just the natural course of Islamic history. Early Islamic society was a coherent social order, he explains, without external influences. The only unrest this young society had to deal with was its search for a unified doctrine of its new religion. The fundamentalist groups and movements that were causing havoc at that time were in disagreement on the doctrine of Islam (‘aqîda), and not the application of the sharî’a. Issues were the essence of God, His attributes, divine justice, free will, the nature of creation, and so forth (Jâbrî, 1996 : 152-153). Today, Jâbrî claims, the opposite is the case. The religion of Islamic societies is unified in orthodox Islam, but its social order is disrupted by foreign influences. Islamic societies are forced to reevaluate and determine their own social order. This is a matter of sharî’a. Today's fundamentalist groups and movements do not disagree on religious matters, but on the application of the sharî’a. Issues include the implementation ofIslamic laws, the veil, interest on money, criminal law (Jâbrî, 1996 : 151-155). From these historical developments, Jâbrî deduces an optimistic vision of the present situation : just as religious groups and antagonists in the past found « modem » methods and notions to « reconstruct » religious dogma and theology, so will the fundamentalist movements vanish when the science of the sharî'a is « reconstructed » with modern methods and notions (Jâbrî, 1996 : 156).

How Much Further ? What Is Needed Is Renewal, Not Revival

13With regard to the present situation, the three authors are unanimous on a few points. They claim that the call for implementation of sharî’a law has nothing to do with religion, but is motivated by social, economic, and political factors ('Ashmâwî, 1996 : 20 ; Bishrî, 1996 : 49,104 ; Jâbrî, 1996 : 129, 133). They also argue that present Islamic society faces many problems, especially the lack of justice. They further agree that the solution to these problems is the implementation of sharî’a law ('Ashmâwî, 1996 : 10), provided it is not being revived and restored in its former position, but applied in a renewed form (Bishrî, 1996 : 49 ; Jâbrî, 1996 : 133). Here, the road between 'Ashmâwî on the one hand, and Bishrî and Jâbrî on the other, starts to diverge.

'Ashmâwî : the Sharî'a Is Already Applied

14As mentioned above, 'Ashmâwî claims that the implementation of western legal systems and concepts has saved sharî’a law from further deterioration. He argues that this implementation does not mean that sharî’a law has been substituted by western laws. On the contrary, in Egypt, sharî’a law is actually already implemented, infused with western concepts and laws which are not contradictory to sharî’a law. « Egyptian law is ninety percent sharî’a law » ('Ashmâwî, 1996 : 11).

15'Ashmâwî reasons as follows. Since the sources of sharî’a law (the Koran and Sunna) contain so few legal rules, implementation of sharî’a law actually means implementation of fiqh ('Ashmâwî, 1996 : 25-26). Only the iiqh provides the corpus and the framework for a legal system that can be implemented. Within the fiqh, it is permitted by orthodox Islam to adapt rules to place and time. It is therefore perfectly admissible and within the scholarly tradition of the fiqh, 'Ashmâwî continues his argument, to use western concepts and rules ('Ashmâwî, 1996 : 22).

16He argues also that western influences in present Egyptian law are not foreign to Egyptian society or sharî’a law. Most of Egyptian law is based on French law, which is based on Roman law. Sharî’a law and Roman law, 'Ashmâwî argues, share the same legal and cultural heritage, and there are quite a few influences of Roman law in sharî’a law ('Ashmâwî, 1996 : 31-35).

17Finally, 'Ashmâwî states, the observation that sharî’a law is actually already implemented in Egypt is not new. It was the conclusion reached in 1987 by the committee appointed by the Egyptian government to review Egyptian law according to its Islamic value. According to 'Ashmâwî, the committee's conclusion was again confirmed in 1995 by the famous TV-preacher Sha'râwî and the shaykh al-Azhar, Gâd al-Haqq ('Ashmâwî, 1996 : 11-12).

Jâbrî and Bishrî : Reopen the Gates of Ijtihâd

18Jâbrî and Bishrî continue where 'Ashmâwî leaves off : sharî'a law still needs to be implemented, albeit in a renewed form. Their concern is not so much with the actual rules of sharî'a law, but its methodology. Both advocate the use of the legal theoretical framework of the sharî’a, and both argue that it is necessary to regain direct access to the primal sources of the sharî’a in order to formulate new solutions. In other words, the gates of ijtihâd should be reopened. But these gates are not merely to be opened ; the ijtihâd advocated by Jâbrî and Bishrî needs to be a « renewed » ijtihâd.

19Bishrî emphasizes that sharî’a rules should not be followed blindly, but serve as an inspiration, a divine blueprint for further legislation (Bishrî, 1996 : 124). There is no unique way to implement sharî’a law, he says. There are different ways, depending on the Islamic society where it is implemented, just as there are different implementations of « democratic » and « socialisf systems in European countries (Bishrî, 1996 : 78).

20According to Jâbrî, the « old » ijtihâd is no longer usable : « The [old] ijtihâd which has been shaped by life is of no use to the present, and the past has no use for it anymore » (Jâbrî, 1996 : 166). The main problem of the « old » ijtihâd is that it tends too much towards a literal interpretation of the rules of the Koran and Sunna. The changes in « Muslim culture » demand a « renewal of its roots », i.e. renewal « in-depth, but also from depth » (fi al-a'mâq wa min al-a'mâq) (Jâbrî, 1996 : 134). He advocates a « reconstruction » of the science of the sharî’a by means of a modern ijtihâd.

21Jâbrî justifies this adaptation of the « old » ijtihâd within the context of the sharî’a. The method of legal reasoning as prescribed by the « old » ijtihâd might have become sacrosanct, he argues, but its principles are not prescribed by the Koran or Sunna. They are man-made, developed by the legal scholars in the first centuries of Islam. This means that « nothing prevents us from developing other legal methodologies, as long as they realize the wisdom of the Legislation in a particular period in the best possible way » (Jâbrî, 1996 : 179).

The Immutability of Sharî'a Rules

22The relation between sharî'a and fiqh rules is the most delicate subject in the debate on the implementation of sharî'a law. Bishrî and 'Ashmâwî are very explicit in separating the sharî’a from the fiqh. The sharî’a has as sources the Koran and the Sunna. These rules are untouchable. The fiqh, on the other hand, is man-made law and adapted to circumstances of time and place ('Ashmâwî, 1996 : 25 ; Bishrî, 1996 : 25-26,35-36,99-100).

23Bishrî takes this distinction literally. The rules of the Koran and Sunna are an untouchable blueprint for eternity and for every place. They are « non-historic and superseding time and place », and they are « the source of legal and institutional legality » (masdaral-shar'iyya al-qânûniyya wa-l-nidhâmiyya) (Bishrî, 1996 : 91). The few rules it contains, such as divorce, inheritance portions, hudûd, etc., are therefore immutable (Bishrî, 1996 : 107). Legislative freedom only exists within the context of the fiqlr. « fiqh is a positive, historical [corpus] : we take from it and we leave it according to what we perceive in the sources of Islam [i.e. Koran and Sunna] as modem, taking into account that the fiqh is a historical expertise which needs to be studied ; it is the experiences (tajârib) of the past from which we seek guidance. » (Bishrî, 1996 : 37) It is within this context that Bishrî sees the necessity of practicing a renewed form of ijtihâd (Bishrî, 1996 : 102).

24According to Bishrî, implementation of sharî’a does not.mean the implementation of certain rules, but« the return to the source of Islamic legality, to be sovereign, and the standard measure of ruling, and the legislative source for human actions and institutions as well as for values for behavior in accordance with ethics (akhlâq) (...). This does not mean seeking laws and orders to replace those promulgated by the state, nor [does it mean] the call to set its laws aside. (...) The aim is a situation in between » (Bishrî, 1996 : 124).

25'Ashmâwî takes a more liberal view with regard to the sharî’a. As demonstrated above, 'Ashmâwî argues that the call for the application of sharî’a is actually the call for the application of the fiqh – ninety percent of which is implemented in Egypt. The sharî’a might come back into the picture with the remaining ten percent. In that case, 'Ashmâwî argues, sharî’a rules should not be applied literally. The sharî’a is not only rules and principles but it is first (...) a general atmosphere which rules the community. » ('Ashmâwî, 1996 : 73) Sharî’a law should only be applied « within the framework that is wished by the Great Legislator » ('Ashmâwî, 1996 : 91). With regard to the hudûd, the criminal offences described in the Koran, for instance, he argues that they are limited by the fiqh, and are only applicable in a community of believers. Society, therefore, should first be changed in accordance with the spirit of islam before the hudûd are implemented ('Ashmâwî, 1996 : 72).

  • 6  See for instance, Masud, M. K (1995), Shatibi's philosophy of Islamic law, Islamabad : Internation (...)

26Jâbrî takes an even more liberal view and advocates a complete renewed approach : « What is needed today is a renewal, not based on the continuation of ijtihâd in the furû » [i.e. fiqh] but on resourcing the sources (i'âdat ta'sîlal-usûl) [i.e. the sharî'a] and on reconstructing them » (Jâbrî, 1996 : 157). Like 'Ashmâwî, Jâbrî argues that when practicing ijtihâd, one should focus on the meaning of the rules of the Koran and sharî’a rather than on the literal text. The legal reasoning should be inspired by the sharî’a in order to « realize God's wisdom. » But Jâbrî continues his argument by. stating that the general purpose of the sharî’a – or God's wisdom – is the common interest of a society (maslaha) (Jâbrî, 1996 : 52-53, 164-165, 169-172). This legal concept was developed by the Muslim scholar al-Shâtibî in the 8th century AH6and is vehemently rejected by Bishrî (Bishrî, 1996 : 130).

27In addition, Jâbrî advocates that sharî’a rules be seen in a historical and social context. He gives the example of the hadd punishment of cutting off the thief s hand. This punishment was justifiable in a Bedouin nomadic society which lived in harsh conditions, without jails, police or central power. Today, Jâbrî argues, the social context has changed, and although a thief still needs to be punished, modern means and institutions have made the hadd punishment obsolete (Jâbrî, 1996 :175).

Conclusion

28The call for implementation of the sharî’a is as old as Islam itself, and is not a whim of the 1970s and 1980s. The implementation of sharî’a does not exist. This review essay shows that there are many possible views between the extreme position of full unconditional implementation of the sharî’a and complete rejection of it.

29The views of the three Muslim Arab authors discussed in this essay are interesting for a number of reasons. They are the vanguard of Muslim « moderates » that dare to speak out in the vicious battle between opponents and proponents of implementation of sharî’a law. Their maxim is : Yes, the sharî’a should be applied, but on certain conditions. All three agree that implementation should take place not by revolution, but by an evolutionary process through legislation. Their main concern is that Islamic society benefits from this implementation. Implementation, therefore, should take place in a new adopted form. The authors also agree that the necessary changes in society cannot come about by legislation alone, but need to come from within society.

30The conditions by which sharî’a law should be implemented is also an issue of contention between the authors. 'Ashmâwî argues that sharî’a law is in effect already implemented in Egypt, since Egyptian law in most cases does not contradict sharî’a law. Jâbrî and Bishrî argue that sharî’a law still needs to be implemented, and both advocate the reopening of the doors of ijtihâd. But where Jâbrî advocatesa liberal interpretation of sharî'a rules based on the common interest of the community,Bishrî takes the conservative view that sharî'a rules are not to be altered.

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Notes

1  See Ayubi, Nazih (1991), Political Islam : Religion and Politics in the Arab World, London : Routledge ; Roy, Olivier (1994), The Failure of Political Islam, London : I. B. Tauris (original French version : 1992).

2  See for an overview and classification of these thinkers Ayubi (1991 : 201-213). In this article I deliberately use the vague term « moderate » to avoid discussion of rather unclear definitions such as « neo-lslamist, liberal Muslim », or « reformist ».

3  See for instance Hallaq, Wael (1984), « Was the gate of ijtihâd really closed ? », International Journal of Middle Eastern Studies 16 : 3-41.

4  Dupret, Baudoin (1997), « À propos de la constitutionalité de la sharî'a », Islamic Law and Society 4(1) : 91-113.

5  See Berger, Maurits and Dupret, Baudoin (1998), « Extraits de la jurisprudence Abû zayd », in this issue.

6  See for instance, Masud, M. K (1995), Shatibi's philosophy of Islamic law, Islamabad : International Islamic University.

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Maurits S. Berger, « Review Essay : Three Recent Views on the Implementation of Islamic Law », Égypte/Monde arabe, Première série, 34 | 1998, mis en ligne le 08 juillet 2008, consulté le 22 mars 2017. URL : http://ema.revues.org/1542

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Maurits S. Berger

University of Amsterdam

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