To think the ideal without preoccupying ourselves with the kind of reality that surrounds us is dangerous. Equally dangerous, is the attitude of some Muslims who think that it is enough to “return to Islam” in order that things be sorted out with one strike. In truth, the danger is twofold:
♦ The first is that it tends to present things in too simplistic and crude a manner. We convince ourselves that poverty will be resolved by the imposition of zakāt, that the economy will be cleansed by the prohibition of interest (ribā) and that society will be united because “the believers are brothers of one another”. We are then content with some well-intended speeches, and as far as the rest is concerned we would have to rely on God. As if “reliance on God” means a lack of intelligence or competence in action; as if the Qur’ānic Revelation has not distinguished between orientation and state, between where we should go and where we are; between the actualised foundation of a social project and the well-intended expression of its form. There is no place for such an attitude and “God’s tradition” (sunnat Allah) throughout the history of humanity shows 15 us that things are more complicated than this, and that the success of a human project is guaranteed, in the light of faith, to whoever knows how to develop the characteristics of his human nature. In other words, drawing near to the Divine recommendations is tantamount to multiplying the qualities of one’s humanity. But this does not mean emptying oneself in order to annihilate it in a fatalism which combines mysticism and passivity. This no matter how good our intentions are.
♦ The second danger is of a sensibly different nature, but it is nevertheless no less widespread. In fact, we can read today from the pens of certain ‘ulamā’ and Muslim intellectuals discourses which transform the profoundness of Islamic teachings in these orientations and objectives (maqāḤid) into a literal application of rules called Islamic only because they formally refer to the Qur’ān and the Sunna. Without taking the time to consider the context, the state of society, the modalities of application of laws and regulations, we demand an immediate application of certain measures which are often measures of constraint, as if to be a good Muslim today one must be less free. This formalism has consequences which are properly dramatic, for by wanting to plaster a façade of Islam on the problems of contemporary societies we do not go back to the cause of fracture and we, thus, prevent ourselves from finding solutions. The situation, therefore, cannot be improved; and by becoming worse, we intervene in a more coercive manner so as to “apply Islam”. Good intention, whether real or presumed, is thus rendered into a daily nightmare, this especially so when making a society more Islamic means prohibiting further, censuring permanently, reprimanding, imprisoning and punishing without respite. It, therefore, remains for us to ask ourselves how is it that a message which, at the source of the original permission, has put so much trust in men for the treatment of their affairs and, which has counted on their responsibility, ends up as the tool of a generalised suspicion which only a totalitarian and police regime can uphold. Formalism here kills the essence of the message, which it pretends to defend. It is indeed this betrayal that we find in the discourses of many a head of state and governments tell us that they want to apply the Islamic Sharī’a, and who in order to maintain themselves are equipped with an arsenal of the most repressive laws against their people. Whether military presidents, kings or princes, they candidly confuse the project of social reform, which is the real application of the Sharī‘a today, with the application of a penal code from which they will, at worst, only acquire greater power. It is a display of “Islamisation” used as a cover by dictators and from which many people suffer. 16
4. What is the Sharī’a?
Nowadays reference to the Sharī’a, in the West, has the effect of a bugbear. To see it applied is to start the sordid, detailed account of amputated hands, floggings, and so on and so forth. It is further seen as men’s moralist repression through which they impose on women the “wearing of the chador” as well as considering them as legal minors. Fed by such imagery, references to the Sharī’a appear as obscurantist confinement, medieval stubbornness, and fanaticism. Wherever a discourse raises the notion of the Sharī’a, the actors seem to turn their backs on contemporary reality and reject progress and evolution by arming themselves against the perils of the future.
One should also add that some kings and presidents do nothing to facilitate the comprehension of this notion. Repression had not been the way of the Prophet (peace be upon him). That law has a role in the total scheme of reform is not disputed; what should be clearly understood is that moral and social transformation is a multi-dimensional process. The penal sphere is not the be-all and end-all of the Sharī’a. It does not consist of adding prohibition to prohibition, and of reprimanding transgressors in the most exemplary manner. The Sharī’a aims at the liberation of man and not merely of whittling down liberties. The Islamic model must not be confused with the destruction that has been perpetrated by certain dictators in the name of the Sharī’a.
It is appropriate, nonetheless, to take very seriously this interpellation of a central notion of Islamic thought; a notion which today suffers from an incredible misunderstanding, when it is not a question of reprehensible betrayal. To tackle the question of modernity presumes that we have a precise idea of what is entailed in the orientations of Islamic sources. These sources being the essence of what we call, in Islamic law, the Sharī’a.
We have identified above 17 the two fundamental sources of Islamic law, and what the role of ijtihād is in the formulation of a legislation which is in tune with its time. One must here insist that the Sharī’a cannot be reduced to the penal sphere and that, a fortiori, such reduction is of a nature that belies its very essence.
“Al-Sharī’a” is an Arabic term which literally means ‘the way’, and more precisely ‘the way which leads to a source’. We understand from this notion, in the domain of juridical reflection, all the prescriptions of worship and social injunctions which are derived from the Qur’ān and the Sunna. On the level of acts of worship, the said prescriptions are more often than not precise, and the rules of practice codified and fixed. The domain of “social affairs”, however, is more vast and we find in the two sources a certain number of principles and orientations which the jurists (fuqahā’) must respect when they formulate laws which are in tune with their time and place. It is indeed ijtihād, the third nominal source of Islamic law, which provides a link between the absoluteness of the points of reference and the relativity of history and location. Fed at the source and by the source, the jurist must think his time with a clear conscience of the course which separates him from the ideal of general and oriented prescriptions. He must take into consideration the specific social situation in order to think the stages of his reform. 18 His pragmatism must be permanent.
Thus, only that which is derived from the Qur’ān and the Sunna is absolute, and this, as we have noted before, covers the expression of general orientations. Beyond this, reflection is subject to the relativity of human thought and rationality. We can, at the same time, witness in two different locations two different legislations regarding the same question, but both legislations still remain “Islamic”. Similarly, we can, in the same place but at two successive epochs, introduce two different regulations, both determined by socio-historical evolution, while still remaining “Islamic” in both applications. Fiqh 19 is the way whereby jurists, in light of the Qur’ān and the Sunna, have thought out a legislation which is in tune with their times. Their efforts,