Pointing out the confusion between the Sharī’a and fiqh and reminding that the Qur’ān and the Sunna convey expressions of absolute finalities, is not a question of sanctifying the decisions of such or such a jurist of such and such a time. For it is still not enough to respond to what the application of the Sharī’a can cover today. We have said above a few words about the necessity of Muslim jurists’ pragmatism, and it is necessary to be particularly precise on this subject. For the Muslim, pronouncing the attestation of faith (there is no deity except God and Muḥammad is His Messenger), praying five times a day, contributing zakāt, fasting during the month of Ramaḍān and making the pilgrimage, is already an application of the Sharī’a. 20 It is important to understand this notion from this angle, and one should realise that it is not playing with words or their meanings. The man of faith engages himself in fulfilling the orientation, practice, as well as the individual and collective legislation, whether public or private, from the moment he gives to his actions the sense of acknowledgement of the Creator. When he does so he is clearly on the way of the source.
This application, as much on the personal as on the social level, is the object of tension between the ideal design and the procedure of its daily actualisation. It is the share of each man, just as it is that of humanity in its entirety. Life is this course we take towards closeness of what is better, in the love of the best, while being conscious of insufficiency. Faith, then, must be the conscience of this humility. The Qur’ān, whose revelation was completed in 23 years, itself notes the essence of this tension in that it presents itself truly as a divine pedagogy. It has trained the men of the Arabian peninsula to rapprochement. It initiated them, from one revelation to another, and from one phase to another, in the best practice as much on the individual as on the collective level. Once engaged on this path, they never betrayed the meaning of the Sharī’a. Rather, they lived its accomplishment and perfection until the day when this plentitude was achieved:
Today I have perfected your religion for you, and I have completed My blessing upon you, and I have approved Islam for your religion. (Qur’ān, 5:3)
Thus, on the individual plane, each person learned by means of three successive revelations (in the span of nearly nine years) that the consumption of alcohol is forbidden. 21 Similarly, on the collective plane, four revelations progressively confirmed and enhanced the prohibition of interest and usury (al-ribā) before the Prophet (peace be upon him) clarified the imperative scope of this prohibition during his farewell pilgrimage. 22 The ‘ulamā’ who specialise in the study of the sources of legislation (‘ilm uḤūl al-fiqh) have derived from this pedagogical procedure a rule of primal importance for the elaboration of a social project. It consists of thinking and determining the phases of its general actualisation. It is appropriate, therefore, to fix priorities, to plan the phases which create a context within which the application of a rule will remain faithful to the Qur’ānic objective (qaṣd).
Considering the present state of our societies, to apply the Sharī’a from the starting point of an institutional penal code is tantamount to taking the wrong way twice. In the first instance, it is nothing less than starting from the end by not having taken into account a social context which is profoundly different and disrupted. It is, moreover, the height of injustice, for it means transforming the most deprived of victims into guilty people. Above all, it is betraying the scope of the Qur’ānic message which makes social justice the priority of all legislative activity. Hence, from the moment we admit that we are engaged according to our individual and collective abilities in an actualisation of the Sharī’a, it is necessary that we fix the priority of a greater social justice. Any procedure, measure, regulation, or law that moves towards more equity and to the defence of those fundamental rights which we identified above, is a concrete application of the Sharī’a. It is impossible here to be satisfied with a miserable formalism which, in order to appease consciences, is of itself a violation of the Revelation.
The application of the Sharī’a is nowadays the priority given to the actualisation of a social project founded on the principles of justice and collective participation. It entails engaging oneself in eliminating illiteracy, in ensuring training, in managing the distribution of resources, and national and regional development. Legislation must accompany and encourage this dynamic, and power must be a guarantor on all the rungs of political representation. There exists, very explicitly, a contradiction in terms between dictatorship and the application of the Sharī’a. 23
In fact, the Sharī’a is applied in the immediacy of the daily lot of each practising person, in a more or less complete manner, but always in tension and search; for each person, according to his capabilities, applies it in the hope of always going further in deepening his spirituality and practice. On the social plane, prayer in congregation and zakāt are already an engagement in this way, and each step which is carried out towards a better acknowledgement of the rights of people, is a step forward towards the achievement of a model. Therefore, we cannot begin with sanction when everything on the social plane drives us to transgression, theft, lying and delinquency. Such an intervention on the social field dictates that we consider things from the bottom up and also in depth. Legislation becomes here the support of a social reform, and in the interplay of their reaction, the one rests on the other in order to give birth to real change. We may think, at this phase of reflection, that there is here nothing specifically Islamic. It remains, in any case, that the orientations we have already spoken about remain the fundamental point of reference and that, in fact, there cannot be a will for Islamic social or political reform without the concrete conveyance of its priorities. In other words, for social action to be Islamic, it must, in the first instance, give witness of its respect to ethics; it can never be justified by its formalism.
5. The Situation of Women
It is within this domain of women, without doubt, that the fight against formalism is one of the most urgent. This is so not because the subject has become the favourite theme of the Western media, but rather because Muslim societies today do not have much to do with what Muslims might wish in terms of faithfulness to Qur’ānic and Prophetic sources. Before God and in conscience, Muslims cannot satisfy themselves by repeating what the texts say and then snap their fingers at daily social realities: that would be to speak of an ideal while at the same time blind themselves as to their daily betrayal.
The tendency which we have denounced above and which consists, from the moment we pretend to apply the Sharī’a, of starting with sanctions, penalties and the restriction of liberties, finds eloquent illustration with regard to women, their status and social role. We always put forward the imperative of wearing the Islamic veil, the limited participation of women in social life, and legislative reforms which codify the domains of marriage, inheritance, and the like. Here again, it is the “appearance” of “more Islam” which will be the proof of the Islamic quality of procedure. Moreover, it is often in light of permissive Western society that Islamic specificity is justified. If such liberties lead to a Western model, then to restrain them is tantamount to “proving” that we produce the Muslim ideal well. This apparent logic blinds us to the extent of this sophism. It is not more or less liberties, even less a rapport with a real or imagined West, which attests to the Islamic character or to a social or political project. It is, rather, the degree of faithfulness to the principles of the points of reference which alone is credible.
Here, one must also, analyse things in depth. We have said above that Islam offers to the woman, besides absolute equality before God, inalienable rights that all societies must respect. 24 We remember, moreover, that the Qur’ānic revelation produced a progressive reform of mentalities and drove new Muslims to reconsider the status of women in society. In the same manner, during the last 23 years of the Prophet’s life, it became possible for women to understand, from within and by means of spirituality, their private and social duties and rights. This parameter of time, of evolution and of accomplishment is inescapable on the personal plane just as it is within social strategy. It is a question of putting in place a long-term