Last weekend’s interview with Dallas Muslim scholar, Dr. Yusef Kavakci, on radio Azad, an internet-based South Asian community radio in Irving, raised several points worthy of reflection and deeper elaboration. A couple of points will be addressed in this essay: first, Dr. Kavakci’s statement that less than 10 percent of Islamic laws are penal codes, and second, that there is no Islamic Shariah law fully applied anywhere in the world. In order to better understand these two points, what follows is a brief and simplified survey of the development of Shariah and Islamic law.
Shariah sometimes is interpreted from Arabic into English as “Islamic law.” This translation, despite its accuracy is misleading because it doesn’t show the whole picture. Instead, let’s state that Shariah is God’s Law (capital L,) and it is the ideal that God willed for Muslims to follow in this world. As Shariah literally means “the way to water” in Arabic, it then reflects the idealistic way that God is asking Muslims to follow by living it and behaving through its terms.
Now, where would Muslims find God’s Law? In their holy book, the Quran, and in their Prophet’s Muhammad’s tradition, the Hadith or Sunna. Thus, the Quran for example orders Muslims to fast the month of Ramadan, to pay almsgiving, to write contracts if they borrow money, to be just and kind, etc… However, neither the Quran nor the Sunna has a comprehensive answer to every single issue that Muslims have, since the days of early Islam and till the present. That is why Muslim scholars have developed an art and science, that of Islamic jurisprudence, to interpret Quranic texts that are ambiguous or to find answers to questions not addressed in the scripture. This jurisprudence provides Muslim jurists with tools like analogical reasoning that is very similar to common law’s case-precedent reasoning, consensus, public welfare, consideration of cultural norms, etc… What those jurists do is exactly like what American lawmakers do when they deduct certain legal rulings from existing governing legal rules. In Arabic and in Muslim tradition, this task is called “ijtihad,” rooted in the word “jahada,” meaning to struggle or exert effort.
So far, we have Quranic texts and Hadiths content that have clear rulings, and we now have jurisprudence that helps us find answers to issues not discussed in the sacred scripture. This body of literature is called “fiqh,” which literally means “understanding.” This word refers to the “actual legal rules on the ground,” as Asifa Quraishi puts it (I have used Quraishi’s paper “Who Says Shari’a Demands the Stoning of Women” extensively in this section. Thus, “fiqh” is Islamic law (with a lower case “l”). Since Shariah is God’s Law, the ideal static, “fiqh” is the Islamic law, the one that changes and is fallible as it is a human interpretation of God’s Law. Muslim jurists know that their interpretations are human efforts, among other people’s interpretations, and that they represent pluralism of legal rulings. Thus, Islamic law is probably true, not certainly true. God’s Law is certainly true. This probability of truth is reflected by the development of several schools of Islamic law, of which four major Sunni schools survived: Malikites, Hanafites, Hanbalites, and Shafi’ites. Shia Muslims have at least one major school of law, the Jaafarites.
Going back to Dr. Kavakci’s elaboration of penal codes and how they represent less than 10 percent of Islamic laws, there are four offenses mentioned in the Quran and one mentioned in Sunna or Hadith that require a fixed punishment. Those are adultery (fornication outside marriage,) slanderous accusation of adultery, theft, highway robbery, and drinking alcohol in public (specified in Hadith and not in the Quran.) These offenses are punishable by what is called “hudud” in Arabic, referring to offenses that trespass God’s limits mentioned in scripture. They are severe sanctions that intend to deter and protect society from such crimes. They were infrequently applied in practice, especially during the life of Prophet Muhammad and his companions, as well as during classical Islam (before pre-modern times.) One would wonder why these sanctions weren’t applied in practice. The evidence required to prove such crimes are almost impossible to obtain, besides the fact that Muslims were instructed by their prophet not to apply “hudud” anytime there was a slightest doubt of evidence. Muslim jurists throughout Islamic history have exerted an effort to stay away from applying “hudud” through their rejection of evidence as incomplete. Things have changed in modern times, however, as we shall see.
To give an example of how hard it is to prove these crimes, and consequently how it is almost impossible to enforce the penal codes, let us consider the crime of adultery. The prescribed punishment in the Quran is 100 lashes on the adulterer, whether a man or a woman. In order to apply this sanction, the judge needs one of two things: four eye witnesses who swear that they saw the actual act of penetration, or the confession of the adulterer. If neither requirement is available, the judge will refrain from applying the lashing. One can see, with common sense, that it is impossible to bring four witnesses who can testify to seeing the actual act. Moreover, there is another crime punishable with 80 lashes, and that is falsely accusing someone of adultery. If one of the four witnesses testifies and the other three refrain, then guess who is going to get lashed? That person who claims he/she saw the crime. Thus, Islamic penal codes have strict requirements of evidence that make them in reality hard to implement.
The other point in Dr. Kavakci’s talk that needs to be discussed further is his statement about how Shariah law doesn’t fully exist anywhere in the world today. By now, it is clear that Shariah, God’s Law, is the ideal that Muslims strive to follow. What some Muslim countries claim to be practicing as Shariah is actually their own interpretation of Islamic law, and is subject to human shortcomings and misunderstanding. Thus, those states that stone adulterers don’t necessarily follow the Muslim requirements of evidence through four witnesses testifying at the same time. Doing such a thing is not only a misinterpretation of Islamic law, but a transgression against Islamic law as well. What has been happening in the Muslim world for the last few decades is an Islamic revival that doesn’t necessarily take into consideration the history of Shariah. Moreover, even though Muslims believe that Sunna and Hadith are to be treated like a second source of sacred text, Muslims have always been aware that a number of Hadiths have been fabricated and therefore are not authentic. Muslim jurists have examined the Hadith collections and articulated a system to choose the authentic Hadith. Interestingly, today, those countries that claim that they use Shariah are those that are the least politically stable, democratic, or representative. This tells us a lot of how politics uses religion for its own interests, and this gives us another reason to encourage intellectual discussions of religious issues, away from bigotry and hateful speech.
Instead of attacking Shariah, which represents God’s Law to Muslims, those people concerned with human rights or Sharia in America should attack certain interpretations of Shariah, as Sadakat Kadri, an English and Muslim lawyer who graduated from Harvard, said on an NPR show. Americans, Muslim and non-Muslim, ought to educate themselves on the controversial issues of the day, and employ their intellect to find the truth. After all, how can American Muslims be banned from practicing Shariah in the United States, when Shariah means how Muslims can pray and fast, how they would be buried, and how they resolve their community and marital disputes? In the presence of Christian and Jewish tribunals in America, prohibiting Muslims to have their own Muslim tribunals to resolve disputes is unconstitutional, undemocratic, and un-American.