Dr Khaled Abou El Fadl is the Alfi Distinguished Professor of Law at the UCLA School of Law where he teaches International Human Rights, Islamic Jurisprudence, National Security Law and Political Crimes and Legal Systems. He is the author of numerous books on Islam and Islamic law.
(Abridged from ‘The Great Theft: Wrestling Islam from the Extremists’)
Introduction
The law plays a central role in Islam and yet, the law is also the least understood aspect of the Islamic faith by Muslims and non-Muslims alike. Some even go as far as thinking that a Muslim who believes in Sharia law is by definition a fanatic or fundamentalist. Yet to accuse every Muslim who believes in Islamic law of fanaticism is akin to accusing every Jew who believes in Rabbinic or Talmudic law to be a fanatic as well. The truth is that so much hinges on the particular conception that one has of Islamic law and the interpretation that one follows.
How is Islamic Law Derived?
Islamic law is derived from two distinct sources: the Quran and the traditions of the Prophet (known as the Hadith and Sunnah). Traditions purporting to quote the Prophet verbatim are known as Hadith. The Sunnah, however, is a broader term; it refers to the Hadith as well as to narratives purporting to describe the conduct of the Prophet and his companions in a variety of settings and contexts.
In Islam, the Quran occupies a unique and singular status as the literal word of God transmitted by the Angel Gabriel to the Prophet Muhammad. The Prophet Muhammad did nothing more than communicate word for word God’s revelation and Muslims preserved the text and transmitted it in its original form and language to subsequent generations. Muslims believe that God warranted and promised to guard the text of the Quran from any possible alterations, revisions, deletions, or redactions, and therefore, while Muslims may disagree about the meaning and import of the revelation, there is a broad consensus among Muslims on the integrity of the text.
At times the Quran addresses itself to the Prophet, specifically, but on other occasions the Quran speaks to all Muslims or to humanity at large. In different contexts, the Quran will address Jews or Christians or the polytheists. After the Quran, most Muslims consider the Sunnah of the Prophet as the second most authoritative source of Islam. Although the Quran and Sunnah are considered the two primary sources of Islamic theology and law, there are material differences between them.
The Quran is primarily concerned with ethics and morality; the Sunnah, however, contains everything ranging from enunciations of moral principles, to detailed prescriptions on various matters of personal and social conduct, to mythology and historical narratives. Not all of the Sunnah can easily translate into a set of straightforward normative commands, and therefore, Muslim jurists argued that parts of the Sunnah are intended as legislative and binding, while other parts are simply descriptive and for the most part, not binding.
Most importantly, the huge body of literature that embodies the Sunnah is complex and generally inaccessible to the lay person. In order to systematically and comprehensively analyze what the Sunnah, as a whole, has to say on a particular topic requires a considerable amount of technical knowledge and training. In part, this is due to the fact that the Sunnah literature reflects a rather wide array of conflicting and competing ideological orientations and outlooks that exist in tension with each other. Selective and non-systematic approaches to the Sunnah produce determinations that are extremely imbalanced and that are highly skewed in favor of a particular ideological orientation or another. And yet, such selective and imbalanced treatments of the Sunnah are commonplace in the contemporary Muslim world.
Nevertheless, it is important to note that many of the basic rituals of Islam were derived from the Sunnah traditions. In addition, the Sunnah helps in contextualizing the Quranic revelation, and also in understanding the historical framework and role of the Islamic message. Consequently, it is not possible to simply ignore this formidable oral tradition, or focus exclusively on the Quran, without doing serious damage to the structure of the Islamic religion as a whole.
When the Quran and Sunnah are considered together, they tell a complex story. They can be a source of profound intellectual and moral guidance and empowerment. However, the opposite is also true: if approached with the wrong intellectual and moral commitments, or even if approached from within a hedonistic and non-committal moral framework, they could contribute to a process of ethical and intellectual stagnation, if not deterioration and putrefaction.
For instance, the Sunnah contains a large number of traditions that could be very empowering to women, but it also contains an equally large number of traditions that are demeaning and deprecating towards women. To engage the Sunnah on this subject, analyze it systematically, interpret it consistently with the Quran, and to read it in such a fashion that would promote, and not undermine, the ethical objectives of Islam calls for a well-informed and sagaciously balanced intellectual and moral outlook.
Other than the Quran and the traditions of the Prophet, there were various methodologies used by jurists for producing legal rulings. Jurists used rule by analogy and principles such as equity and public interest in order to make the law responsive to changing circumstances and conditions.
Islamic Legal Tradition
Importantly, what is called Islamic law is not contained in a single or few books. Islamic law is found in an enormous corpus of volumes that document the rulings and opinions of jurists over the span of many centuries. At one time, there were 130 schools of legal thought in the Islamic civilization but most of them became extinct for a variety of reasons. On any point of law, one will find many conflicting opinions about what the law of God requires or mandates.
The Islamic legal tradition is expressed in works that deal with jurisprudential theory and legal maxims, legal opinions (fatawa), adjudications in actual cases, and encyclopedic volumes that note down the positive rulings of law (ahkam). Islamic law covers a broad array of topics ranging from ritual practice to criminal law, personal status and family law, commercial and transactional law, international law, and constitutional law.
How does jurisprudence relate to God's law?
The question is: How does this substantial body of jurisprudence relate to Divinity or to God’s law? In what way can this tradition of juristic disputations, judgments, and opinions claim to be sacred or Divine law?
These questions bring us to a crucial distinction that is central to the very logic of Islamic law. What is customarily referred to as Islamic law is actually separated into two distinct categories: Sharia and fiqh. Sharia is the eternal, immutable, and unchanging law, or Way of truth and justice, as it exists in the mind of God. In essence, Sharia is the ideal law as it ought to be in the Divine realm, and as such it is by definition unknown to human beings on this earth. Thus human beings must strive and struggle to realize Sharia law to the best of their abilities.
In contrast, fiqh is the human law-it is the human attempt to reach and fulfill the eternal law as it exists in God’s mind. Fiqh, unlike Sharia, is not eternal, immutable, or unchanging. By definition, fiqh is human and therefore, subject to error, alterable, and contingent.
Moral Objectives of Law & the Qur’an
The moral and ethical objectives of the Quran play a central and pivotal role in the process of legal analysis. The point of the legal analysis is not to unthinkingly and blindly implement a set of technical rules, but to seek after the ultimate objectives of the Quran. All Quranic laws reinforce and promote moral and ethical objectives, such as racial and ethnic equality, freedom from compulsion in the conduct of human affairs, freedom of conscience, or the right of women to own property, and it is the duty of Muslims to apply themselves intellectually in order to comprehend and fulfill these objectives.
These moral objectives are related to the obligation to seek Godliness in oneself and in society. The specific rulings of the Quran came in response to particular problems that confronted the Muslim community at the time of the Prophet. The particular and specific rules set out in the Qur’an are not objectives in themselves. These rulings are contingent on particular historical circumstances that might or might not exist in the modern age. At the time these rulings were revealed they were sought to achieve particular moral objectives such as justice, equity, equality, mercy, compassion, benevolence, and so on.
Therefore, it is imperative that Muslims study the moral objectives of the Quran, and treat the specific rulings as demonstrative examples of how Muslims should attempt to realize and achieve the Quranic morality in their lives.
The Aim of Shari'ah
At the most basic and fundamental level, what is Sharia for, and what does it aim to do? What are the ultimate objectives of the Sharia (the eternal law as it exists in God’s mind)?
Historically, legal schools of thought disagreed on many issues, but they agreed on the response to these questions. According to all the jurisprudential schools the purpose of the Sharia is to serve the best interests of human beings (tahqiq masalih al-ibad). Put differently, the objective of the law is not to apply technicalities regardless of their consequences, but to achieve the ultimate moral and ethical objectives that represent the essence of Godliness on this earth.