Understanding Shari’ah: never a virtue under tyranny

A YEARNING for Shari’ah-centric governance is understandable where Muslim communities suffer from enduring oppression, belligerent occupation and a lack of the rule-of-law. For people in those dire situations, Shari’ah is often presented as a quick-fix panacea – a regime of vengeance against an ‘other’ portrayed in a swirl of totalitarian black-and-white reform.

However, Shari’ah is not an ideological cure-all, nor is it an instrument of state power. It is a holistic, dynamic, and divinely sourced legal system requiring scholastic endeavour and adaption to the day. In other words, Shari’ah is a check on – and not a lever of – state power.   

So, therefore, applying Sacred Law piecemeal in a political vacuum – in, for example, Iraq or Syria – would be a travesty. No specific governance model was left behind by the Prophet Muhammad, and the application of Shari’ah is a challenging undertaking, even in politically stable societies – which today are mostly found in constitutional democracies.

It is not for nothing that in a survey conducted by two George Washington University researchers in 2010 that of 208 countries surveyed for Islamic values, New Zealand came out tops. South Africa, in 50th spot, rated higher than any of the self-proclaimed Islamic states of Afghanistan, Bahrain, Iran, Mauritania, Pakistan, Oman and Yemen. Even Israel scored higher.

In the study, the countries were compared to a subset of Islamic ones based on UN Development and Transparency International Corruption Indexes, as well four Islamic constructs: walayyah (compassion through wisdom and justice), karamah(human dignity), meethaq (recognition of the sovereignty of the Creator) and khilafah (responsible rule).

Shari’ah – as we all know – is based on Qur’an and Sunnah [Prophetic Tradition], and is by definition a ‘watering hole’, an oasis where everyone should be able to gain succour – not just a certain group. Islamic scholars are unanimous that the Shari’ah has to offer relief and to be a benefit, not only to Muslims, but to everyone.  

The point is that Sacred Law is based on justice, and to be just, it cannot be apartheid influenced or sectarian inspired. This is in concordance with the Qur’anic injunction that Muhammad, the Messenger of Shari’ah, was sent as a mercy to all [rahmat lil ‘alameen].

This overwhelming spirit of compassion [it is said that Allah’s Mercy precedes His wrath] underlines the little known maqasid, or goals, of Sacred Law espoused by scholars such as Imam Shatibi and Imam Ghazali. They are: the non-violability of Life, the protection of Faith, the security of the Family, the preservation of Property and Wealth, the safeguarding of the Intellect and the honour of Human Dignity [a category later added by Ghazali].

If these principles are not embraced and put into their constitutional place, a state is wasting its time in claiming Shari’ah as its legal corpus. A building without proper foundations will obviously crumble, and any society without a human rights culture will eventually collapse in a heap of oppression.

This is strongly evidenced by the disastrous socio-political Shari’ experiments in Sudan at the time of Shaikh al-Turabi, the Taliban, Al-Shabab after the demise of the ICU in Somalia, Boko Haram’s murderous escapades, Al-Qaeda’s suicide bombings and ISIS’s takfiri extremism in Iraq, Syria, the Sinai and Libya.

None of these entities, all focused on “social transformation”, have ever come close to upholding the maqasid – the compassionate and relieving principles – of the Shari’ah. Sacred Law, as we’ve just said, cannot be a cut-and-paste pastiche of political whims. It cannot be based on the narrowest of theological views that restrict its meaning to the AK47, or the rocket launcher. Shari’ah cannot be a political project.

Apart from being able to guarantee the maqasid – which in our language is a basic bill of rights – any aspirant “Islamic state” would have to have civic infrastructure in place. Imam al-Ghazali in his writings on siyasa (governance) stresses the importance of a range of skill sets, from Maths to Waterworks. Not everybody must be a religious scholar, he says. In other words, an “Islamic state” cannot be a scholar-driven institution – ‘ulama inspired, yes, but not ‘ulama-driven.

The authentic Islamic tradition has always demanded that its religious scholars be divorced from a direct hand in state affairs. Imam Malik, the 7th century legal master, forbade his text – the Muwatta – from being used by the ‘Abbasid Caliphate. The other great legal imams, Abu Hanifah, Imam Shafi’i and Imam Hanbal all suffered for refusing to be co-opted by the state.

This is forgotten by the strident protagonists who naively see Shari’ah as a magic potion for our socio-economic-political woes. Too often, Shari’ah – or at least a grotesque caricature of it – has been injected into an environment of revolution or lawlessness via the most stringent forms of the hadd, or punishment.

In a total betrayal of the values of Shari’ah, this usually creates a counter repression, a response which is as disastrous as the failed system the Sacred Law is trying to replace. The football stadium whippings of the Taliban and the You Tube beheadings of ISIS are nothing less than public terror.

A careful reading of Qur’an, Hadith and the views of the mujtahid [authorised] scholars reveals very quickly that Shari’ah has nothing to do with vigilantism – and contrary to other legal systems, requires far more than circumstantial evidence for a successful ruling by a Qadi (a religious judge) in a religious court.

In fact, the Shari’ah is a subtletly layered system that favours reason, and should always rule on the side of caution. How many know, for instance, that adultery can only be legally proved if four reliable witnesses actually saw the penetration? That if a person suffering from theft was negligent with his goods, the thief is given a lesser sentence?  

Then there is the point that the drastic hudud [punishments] mentioned in the Qur’an are there to indicate the moral reprehensibility of the offences. Legal experts concur that they represent only the final resort after comprehensive due diligence – something not always achievable in reality. A reading of history supports this. Instances of limb amputations are actually very rare.

In conclusion, the point has to be that Shari’ah – essentially a guidance to the good and an avoidance of the bad – can never be a virtue under tyranny as it is so commonly espoused today.