Sharia : Ali Benmakhlouf

Mathilde Roussel / Empreinte #2
Mathilde Roussel / Empreinte #2


Sharia : Ali Benmakhlouf

Introduction: Sharia without Politics?

The “divine law,” the so-called “Sharia” in the Arabic language, refers not only to legal theories in the Islamic world, but mainly to an epistemic and methodological way of life: “The Sharia was as much a way of living and of seeing the world as it was a body of belief and intellectual play.1 Jurists and philosophers express very explicitly the idea that the divine law is not found in revealed texts in an achieved form. A new religion called “Islam” emerged in the seventh century. Different juristic schools were founded one century later, and each of them evaluated the divine law in specific ways: some jurists, like those from the Maliki school, give much importance to the behavior of the followers of the Prophet; others, like the Shafiite, form the first coherent corpus of juristic laws by compiling the two sacred texts, the Quran and the Prophet’s sayings, and give the two of them the same importance in that corpus. All the jurists agree on recognizing that the sacred text is only a source, not a content of law.

Philosophers, like Al-Farabi in the tenth century, identified the notion of “divine” with that of “excellent.” Al-Farabi commented on Plato’s book of law emphasizing Zeus’ law as divine. On the other hand, Averroes indicates that the divine law is nothing but a divine recommendation to pursue knowledge.

Another point has to be made in this introduction; the Sharia, in pre-modern states, is not a product of politics. It is rather independent from it. The meaning of the phrase siyassa shar’ya is “political Sharia.”

It represents the discretionary legal powers of the ruler to enforce the qadi’s judgments and to supplement the religious law with administrative regulations that mostly pertained to the regime’s machinery of governance, including powers to limit jurisdiction to certain areas of the law or to particular types of cases, as well as to curb and discipline abuses by government officials.2

This phrase does not imply that the Sharia was induced by politics, nor that it contains some political aspects of government.

In modern states, politics is no longer subordinated to the Sharia as legal law. It is quite the contrary, and this fact reinforces the Sharia as part of positive law, even if it reduces its scope of application to the area of personal status in many countries. In Iran, “the state does not operate within the framework of the law; rather, it is the law that operates within the state.”3 The modern conception of the Sharia is based on codification, on control, and makes it a mere political instrument of the state. The politicization of the Sharia is quite a new phenomenon.

My essay aims at evaluating the concept of Sharia by crossing juristic and philosophical approaches. The main idea I will develop is that the Sharia is an epistemic concept, which is likely to be devoted to change. Muslims were acutely aware of both the occurrence of, and the need for change in the law, and they articulated this awareness through such maxim as ‘the fatwa changes with changing times [Taghayyur al fatwa bi taghayyur al azmân] or through the explicit notion that the law is subject to modification according to ‘the changing of the times or to the changing conditions of society.”4

This is not specific to jurists. Philosophers have also emphasized the point. Al-Farabi describes the role of the way lawgivers follow one another in a nation where religion is a mode of government, and indicates how the changes are intrinsic to the function of giving laws. These changes have two features: first to fill a gap left by the previous ruler who legislated only “the actions that are of greatest efficacy, use, value, and benefit,”5 leaving the rest for someone else. Second to alter much of what the first had legislated and to determine it in another way, when he knows that this is best for his time—not because the first erred, but because the first makes a determination according to what is best subsequent to the time of the first, this being the kind of thing the first would alter also, were he to observe it.”6

The need for change here is explicitly recognized as a main characteristic of the divine law.

Thus the divine Law is not separated from its interpretation even if one has to develop some ability for it. This ability is called Ijtihad, that is to say, an endeavor to make clear an adopted solution, and includes pluralism in divine law:

Islamic law is thus also characterized by legal pluralism, not only because it acknowledges local custom and takes it into serious account, but also because it offers an array of opinions on one and the same set of facts. This pluralism gave Islamic law two of its fundamental features, one being flexibility and adaptability to different societies and regions, and the other an ability to change and develop over time, first by opting for those opinions that have become more suitable than others to a particular circumstance, and second by creating new opinions when the need arose. That Islamic law was accused of rigidity by European colonialism to justify the dismantling of the Sharia system is therefore not only wrong but highly ironic.7

Legislation and Regulation: The Role of the Faqih

Al-Farabi uses the word “Sharia” as a synonym of “determination” or “regulation.” This choice allows him to focus on the very work of giving laws. The occurrence of the verb Shara’a more than that of the substantive Sharia, emphasizes the process of producing law. Here we can have in mind what Jeremy Bentham puts as a distinction between “right” as adjective and “right” as substantive. Consensus is easily reached about a proposition such as “this is right”; it is obtained less easily with the phrase: “I have a right.8

It has to be stressed that Al-Farabi distinguishes between the art of legislation (Sharia) and the art of jurisprudence, the work made by the jurist called Al-Faqih. The latter is not a lawgiver, but has the ability of interpreting the law, and also the ability to “make a sound determination of each thing the lawgiver did not declare specifically.”9 With the jurist we enter the field of speech acts and that of interpreting the actions and statements of a lawgiver. As law is put into words, the jurist has to be particularly aware of the uses of languages, not only the uses of the latter lawgiver but also those of the former, so as to be also aware of “the customary ways in which the people of his time used their language.”10

In addition, the jurist must be quite clever at recognizing the meaning intended by an equivocal word in the context in which it is used, as well as recognizing equivocalness in speech. Also, he must be quite clever at recognizing when an expression is used in an unqualified sense, whereas the intention of the speaker is more restricted. Thus the jurist must have both logical and linguistic competences.11

His work consists in giving fatwas, that is to say, legal answers to questions addressed to a mufti or a jurist:

Questions addressed to the mufti were raised by members of the community as well as by judges who found some of the cases brought before their courts difficult to decide. The first legal elaborations that appeared in Islam were the product of this question/answer activity. With time, these answers were brought together, augmented, systematized and eventually transmitted in memory as well as in writings as “law books.”12

This word fatwa is as misleading as that of “Sharia.” It has nothing to do with what Khomeini declared against Salman Rushdi: in this case, Khomeini mixed the roles of a judge and of a politician. He labeled his act “fatwa” but it has nothing to do with the meaning of this term as jurists use it. Traditionally, the divine law was applied by a judge, called qâdî, and was interpreted by a mufti, that is the jurist gives fatwas, meaning advices. Reasoning upon a law to adapt it to contexts is a chief characteristic of the jurist’s activity.

He must find out the lawgiver’s utterances for everything he legislated in speech and in actions for whatever he legislated by doing it rather than uttering it: by observing and listening to him, if he is his contemporary or companion, or by having recourse to reports about him; and reports about him are generally accepted or persuasive, each of them being written or unwritten.13

Divine Law from an Epistemic Point of View

Let us now discuss the epistemic dimension of the divine law. Averroes was a philosopher but also a jurist, giving fatwas, and a qâdî, that is a judge applying laws. As a philosopher, he defined many features of the Islamic law such as the epistemic aspects. As a jurist and a judge (qâdî), he evaluated the law and applied it.

First, as a jurist, Averroes uses the three Aristotelian methods of access to knowledge: rhetorical, dialectical, and demonstrative. He considers that these methods are present in the sacred text and have to be put into practice.

There are three forms of assent borrowed from Aristotle. These three forms are presented as if they were derived from the sacred text. Averroes quotes the verse in which he claims he finds these three forms: “Call them to the path of your Lord with wisdom and words of good advice; and reason with them in the best way possible.”14 “Wisdom” is compared to demonstrative philosophy, it is a strategic word chosen to introduce philosophy in this cultural area. “Exhortation,” or “good advice” is compared to rhetoric, and reasoning to dialectic. According to him, a judge cannot interpret the law. He has to apply it. It is the persuasive level of rhetoric. The qâdî, the judge, memorizes the law and applies it without any such initiative as those described by Al-Farabi. If the judge belongs to the Maliki School, he accepts “the validity of Malik School by following it without knowledge of the evidence upon which the school’s doctrine is based.”15 He is not a faqih involved in speech acts, customary laws, written or unwritten. The domain of the judge is that of the stability of societies where the same law is applied. Rhetoric is consistent with the interests of the city, for it is entirely suitable to the consent required by the power to obtain social cohesion. This aim gives the work of the judge a major value. Rhetorical consent is characterized by the immediate acceptance of something without giving credence to views that contradict this acceptance. In other words, it does not, like dialectic, evaluate arguments pro and con.

The second level is dialectical. It is the level of the sound principles upon which the juristic school is founded. Members of the school are not entitled to “derive positive legal rulings from the texts of revelation” but they have the power to discuss the principles, even if they don’t have the capacity to create them. They are aware of what widespread opinions are (shared premises in the Aristotelian logic) and to a certain extent they can evaluate them, but only to a certain extent, because “wide acceptance” of opinions “did not guaranty” their “superiority or even” their “validity.”16

The third level, that of “the well grounded in science,” is specific to members of the juristic school who, like the second group, know “how to differentiate the sound views that accord with the school’s general precepts and those that are weak . . . However, what distinguishes the members of this group from those belonging to the other two is that they were able to reason on the basis of the revealed texts and the general principles of the school.”17 At that level, the jurist knows for example if a hadith (what the prophet is supposed to have said) “passes the test of sound transmission” and if not, how he has to consider it “useless as the basis of legal reasoning.18

Members of this group, the third group, Al-Farabi calls Faqihs. They are involved in “ambiguous and clear Quranic languages” as verse 7 in Surah 3 says:

It is He who has sent down to you the Book, containing certain verses clear —they are the essence of the Book—and others ambiguous. Now those in whose hearts is mischief go after the ambiguous passages, seeking discord and seeking to interpret them allegorically. But, no one knows their interpretation except God and those who are well grounded in science they say ‘We believe in it, it is all from our Lord.”19

The Faqihs who belong to “the well grounded in science” give fatwas and the method for settling fatwas is Ijtihad, an endeavor of inferring and extrapolating on the basis of laws given by the ruler. One of their roles is to give councils and advices to judges when they are puzzled with some case. At that level, we transcend the boundaries of a juristic school and exercise a syllogistic activity of interpreting the divine law. In the eyes of Ibn Rushd, “The mufti–mujtahid was not bound by the limitations of the school and his task (when the case proved to require Ijtihad) entails a direct confrontation with the revealed texts.”20

The mufti has philosophical dispositions, not only because he has the capacity to infer the divine law directly from revealed texts, but also because his “wisdom” puts him in a position to harmonize between sacred texts and the heritage of “the Ancients” such as Plato and Aristotle.

Thus the work of a mufti not only transcends his own school, but also his religion, giving a synoptic and epistemic view on the divine law. His work consists in inferring directly from revealed texts—an activity a simple judge cannot do, as we have shown. Thus, Averroes deduces, from unequivocal verses, that the divine law is in fact an order to pursue knowledge, and specially “philosophy and the sciences of logic.” But as “philosophy” is not mentioned in the sacred text, how could it be derived from it? To solve the puzzle, Averroes labeled “philosophy,” “wisdom,” as it appeared clearly in the title of his book: “The Book Of The DECISIVE TREATISE Determining The Connection between The Divine Law And Wisdom.” At the core of his text, he substitutes the term “Wisdom” for that of “philosophy and logical sciences,” and gives his fatwa about teaching philosophy as a teaching justified by the divine law. He starts to infer directly from the revealed text, as a faqih of the third group is entitled to, the answer to the question: is philosophy allowed, recommended or compulsory by the divine law? The verses quoted by Averroes are not equivocal.21 All the verses indicate that man has to be aware of his world and to reason about all that God fabricated. We notice that Averroes does not refer to God as Creator (Khâliq), but as Craftsman (Sâni’). This conceptualization of natural beings as handicrafts allows Averroes to consider that they have to be manipulated and known as artifacts are: by the instrument of syllogism. Thus the divine law makes it compulsory to pursue the knowledge22 of the perfect Craftsman and of his fabrication by the most perfect instrument: the Aristotelian reasoning.

This technical lexicon: “artifacts,” “Craftsman,” etc., as a means of harmonization of the divine law and philosophy is not put on the level of truth as if they were coherent parts of the same truth: part of philosophy and part of the divine law. It is rather on the level of sound and valid opinion and not of truth. The divine law has a technical aspect, that is, of evaluating sound reasons; it is not a way of declaring truths.

As a faqih, Averroes has gone beyond the boundaries of his juristic school, namely the Maliki. Demonstration is a method of learning involved by the divine law because it is the most perfect path to accumulate knowledge about the most perfect being: God. The shar’i syllogism, the one practiced by judges is less perfect than the demonstrative. So if it is admitted to practice the less perfect syllogism as it is usually the case in juristic schools, a fortiori it is also admitted for the perfect one, the demonstrative. The two of them are based on inference and, so to speak, the two of them are products of the intellect: one for practical purposes, the other for theoretical purposes.23

The Divine Law and the Institution of the Caliphate

This kind of reflection puts philosophers and faqihs in connection together as the title of Averroes’s book suggested for the two terms of “wisdom” and “divine law.” But there is one boundary that this approach does not cross: the one between divine Law and politics. Averroes certainly defined the level of rhetoric as a level where laws are applied prima facie. It is the level of the judges. But he did not conceive this level as the one played by politics, namely the voluntary and historical actions of men. Two centuries later, Ibn Khaldun invented a new way of thinking by associating explicitly rhetoric and politics, giving the main role to history, not to logic or metaphysics.24 He said that he has a name for that new study combining these two arts: “Civilization.”

With Ibn Khaldun, the divine law appears as a strategy for governments in need of legitimacy. According to him the title of Caliph is based upon a justification: to safeguard religion according to the Sharia both on earth and in life after death. The chief of a government fights for this title because the caliph is supposed to assume the interim of the prophet, Ibn Khaldun says. There is a discussion about the status of caliph: is he caliph of the prophet or caliph of God, a substitution of the first or of the second? For those who prefer the first option, they add that the caliph is in reality a commander of the faithful (commandeur des croyants), nothing more.

What is the basis of these claims? One of the most important theologians in the beginning of the 20th century, Ali Abdel Razek deconstructed the supposed link between Sharia and caliphate, showing that nothing in the sacred text indicates that Muslims have to obey the authorities from a divine law point of view, showing also that the caliphate as an institution implies domination by an army, constraint, force and rivalry: nothing really that suggests spiritual features of the revealed text.

The case of the prophet is very interesting: he is both a messenger and a ruler. Averroes used the point of view of a faqih to justify the study of philosophy. Ali Abdel Razek who was a faqih as well uses the methodology of philosophers to dissociate the function of messenger from that of ruler. This dissociation is crucial and it is philosophy that deals with it as Al-Farabi says: “Philosophy hinges on arguing ‘insofar as’ and ‘with respect to.’ As the saying goes, were ‘insofar as’ and ‘with respect to’ eliminated, sciences and philosophy will cease to exist.”25

With this distinction in mind, let’s apply it to our subject. As a messenger, the prophet is completely out of the regime of constraint, hegemony and force. But as a ruler, he has maintained his power by an army, thus by force. This distinction shows that there is no prescription in the divine law for exerting power on the people by declaring oneself chief. “No prophet, in all the history known to us, has attempted to lead people to believe in God by violence, nor has he conquered any people to convince them to embrace his religion.”26

Adding to that, Ali Abdel Razek noticed that political sciences, in comparison with other sciences, were neglected by the Arab and Muslim tradition: “We do not find in the production of Muslims any research devoted to systems of governments or to the foundations of politics.” 27 Ali Abdel Razek points out a paradox: as the institution of caliphate has arisen much opposition in the history of Islamic states, why is there such a lack of political theories? Why do we not have a structured political science? According to him, the answer is censorship—because political science is dangerous for caliphates. We can add another reason: all the reflection was oriented on the divine law as an epistemic, methodological path to provide means for the interpretation and foundation on juristic schools. As the divine law was not, until modern time, a political production, it has contributed to the lack of political reflection.

Conclusion

The foregoing discussion has shown the consequences of the relative indetermination and flexibility of the divine law: for the faqih, namely the jurist, this indetermination allows him to cross the boundary from the juristic to the philosophical point of view, inferring or even extrapolating directly from the revealed texts theories on knowledge (Averroes) and the uses of language (Al-Farabi). And from a political point of view, this indeterminacy was used for legitimating power. Caliphs seized the religious law for preserving their power (Ibn Khaldun, Ali Abderraziq).

The introduction of the Sharia in modern codification was not accompanied by an effort to adapt it and pluralize solutions, as was the case in the Middle Ages, but it permitted some real work of ijtihad, that is to say an effort of interpretation of the revealed texts in some particular cases: for example the effort to adapt the Sharia prohibited polygamy in 1956 in Tunisia on the ground that it is impossible to treat one’s four wives with complete justice and fairness, as the Quran requires.28 Similarly, many debates about inheritance are now grounded on the same requirement: two parts for men, one part for women, can no longer be supported, many people say, because of the lack of fairness in the modern world when applying this distribution.

But in general, in our contemporary world, our view on law is less and less epistemic, as Wael Hallaq says, and more and more political. And there is more and more reference to the Sharia without a specific work of interpretation and inference of laws.

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Ali Benmakhlouf is Professor of Philosophy at the Université Paris-Est Créteil Val de Marne.

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1. Wael Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), p. 164.

2. Hallaq, An Introduction to Islamic Law, p. 74.

3. Hallaq, An Introduction to Islamic Law, p. 156.

4. Wael Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), p. 166.

5. Al-Farabi, “Book of Religion,” in The Political Writings of Al-Farabi, trans. Charles E. Butterworth (Ithaca: Cornell University Press, 2004), §7.

6. Al-Farabi, “Book of Religion,” §8.

7. Wael Hallaq, An Introduction to Islamic Law, p. 27.

8. Jeremy Bentham, “Sur l’usage et l’abus du mot droit,” in Clero, Binoche (ed.), Bentham contre les droits de l’homme, p. 121.

9. Al-Farabi, “Book of Religion,” p. 100.

10. Al-Farabi, “Book of Religion,” p. 100.

11. Al-Farabi, “Book of Religion,” p. 100.

12. Wael Hallaq, An Introduction to Islamic Law, p. 9.

13. Al-Farabi, “Book of Religion,” § 10, p. 101.

14. Quran, Surah 16: 125.

15. Hallaq, An Introduction to Islamic Law, p. 3.

16. Hallaq, Authority, Continuity and Change in Islamic Law, p. 148.

17. Hallaq, Authority, Continuity and Change in Islamic Law, p. 148.

18.Hallaq, An Introduction to Islamic Law, p. 17.

19. Quran, III, 7, quoted by Averroes, pp. 53–54.

20. Quran, III, 6, quoted by Averroes, pp. 53–54.

21. Averroes, Decisive Treatise, §2: “There is His statement (may He be exalted), “Consider, you who have sight” [59:2]; this is a text for the obligation of using both intellectual and Law-based syllogistic reasoning,” (trans. Charles E. Butterworth).

22. Averroes, Decisive Treatise, §3: “Since it has been determined that the Law makes it obligatory to reflect upon existing things by means of the intellect, and to consider them; and consideration is nothing more than inferring and drawing out the unknown from the known; and this is syllogistic reasoning or by means of syllogistic reasoning, therefore, it is obligatory that we go about reflecting upon the existing things by means of intellectual syllogistic reasoning. And it is evident that this manner of reflection the Law calls for and urges is the most complete kind of reflection by means of the most complete kind of syllogistic reasoning and is the one called ‘demonstration.’”

23. Averroes, Decisive Treatise, §4: “It is not for someone to say, ‘Now, this kind of reflection about intellectual syllogistic reasoning is a heretical innovation, since it did not exist in the earliest days [of Islam].’ For reflection upon juridical syllogistic reasoning and its kinds is also something inferred after the earliest days, yet it is not opined to be a heretical innovation. So it is obligatory to believe the same about reflection upon intellectual syllogistic reasoning — and for this there is a reason, but this is not the place to mention it. Moreover, most of the adherents to this religion support intellectual syllogistic reasoning, except for a small group of strict literalists, and they are refuted by the texts [of the Quran].”

24. “When there is a general change of conditions, it is as if the entire creation had changed and the whole world been altered, as if it were a new and repeated creation, a world brought into existence anew” (Ibn Khaldun, Muqqadima: An Introduction to History, trans. Franz Rozenthal, ed. N.J. Dawood [Princeton: Princeton University Press, 1989], p. 30).

25. Al-Farabi, “Harmonization of the two opinions of the two Sages, Plato the divine and Aristotle,” §18, in Political Writings, p. 134.

26. Ali Abdel Razek, Islam and the Foundations of Power, chapter 5, French version, p. 103.

27. Razek, Islam and the Foundations of Power, chapter 3, French version, pp. 72–73.

28. This is an example given by Wael Hallaq in An Introduction to Islamic Law.