Sharia: practice of faith, politics of modernity

The logic and application of sharia law needs to be understood in its theological and historical context if intense controversy is to be succeeded by calm and constructive debate, says Sami Zubaida.

The furore in Britain over the Archbishop of Canterbury's cautious references to the sharia and law in his lecture in London on 7 February 2008 has been extensively discussed by a number of Daily Observer writers and from a variety of perspectives: among them Tina Beattie, Fred Halliday, Theo Hobson, Tariq Modood and Roger Scruton and Simon Barrow in OurKingdom. These responses, however, still leave room for some clarifications over the applications of the sharia in modern times and their implications for the debate.

The theological logic of the sharia is that God had revealed his commandments for a pious life, and that these should constitute the norms for the life of believers, their family, society and, ultimately, government. These commandments are given, in part, in the Qur'an, the word of God, and in other parts in the narratives and utterances of the Prophet Mohammed and his companions (and to the Shi'a in the narratives of their "twelve" imams). These latter are known as sunna (path) and hadith (utterance).

Theoretically, these canonical sources constitute the bases for elaborate legal traditions, known as fiqh (understanding), formulated by divines and jurists over the Islamic centuries, and subject to many mutations. There are close parallels with the Jewish halakha and the Talmudic traditions.

Muslim modernists and some western observers have pointed out the distinction between sharia (as God's law) and fiqh (as man-made elaboration. This distinction allows reformers to challenge the traditional fiqht accumulations as contingent on the historical circumstances of their formulation, in favour of new legal deductions in accordance with the spirit of the time.

This is against the conservative and fundamentalist Muslims who insist on what they consider literal meaning of the holy texts, or of traditional formulations.

The logic of applying the sharia remains that the believer seeks virtue and salvation in living according to God's commandments. Equally, in Muslim thought, it was regarded as the duty of the ruler and government to apply God's law in their domains. In practice, sharia only constituted one element in the legal and religious practices that prevailed in various societies and periods. Qanun (administrative laws), ‘urf (customary law), hisba (market regulation and inspection), and arbitrary police practices were combined with the sharia and its courts at most times and places.

The penal law of the sharia, the hallmark of Islamic law in western perception, was not always entrusted to sharia courts on account of their rigorous requirements of evidence and proof, and often relegated instead to police and military courts and procedures. In practice, sharia courts applied primarily to the private and commercial affairs of the subjects, not to the rulers and government affairs. Family relations and disputes - of marriage, divorce, custody, inheritance and financial obligations - constituted the primary realm of sharia courts and applications.

A modernist adaptation

Legal reforms in the Ottoman empire and the successor states and in Egypt and Iran, from the nineteenth century, have seen the etatisation of law in systematic positive codes. These have included the wholesale incorporation of European codes: Swiss, Belgian and Italian. Elements of the sharia were retained primarily for family law, but they became state law, subject to state legislation and amendment. The legal ideology of the historic Muslim states was that the law originated from the dual sources of God and the king (not unlike some Christian formulations).

Most modern states in the Muslim world derive the law, theoretically, from legislative processes and institutions, including parliaments, which ultimately have authority over holy law. And this is where the divergence from the informal sharia practices in Muslim communities in the diaspora, referred to by the archbishop, diverge from modern reforms. Whereas modern legislation has for the most part tried to get away from the rigours of the sharia regarding the status of women and children, informal communal practices have no such inhibitions.

Some modernist analysts and commentators emphasise the variability and malleability of the sharia. However, when it comes to family law, the sharia corpus has been fairly stable and predictable over the centuries, with minor variations between the four Sunni schools and Shi'a fiqh. Its main features are well known:

* polygamy, the right of the man to take four wives (and for the Shi'a the possibility of temporary "pleasure" marriages)

* the right of the husband to unilateral divorce/renunciation, while the wife has very limited rights in initiating divorce

* custody laws that favour the husband and his kin

* the duty of the husband to provide for the household

* mutual sexual obligations; rules over financial settlements at marriage, divorce and custody.

From these elements, other obligations on the wife were derived and were widely observed. These include, most significantly, the husband's right to allow or prohibit the wife's activity (if any) outside the home, including work and travel. The segregation of the sexes in public and the requirements of hijab on women are also features in many instances.

In addition, there is the penal provision for adultery, applicable to men and women, of beating for unmarried offenders, and stoning to death for the married.

This corpus is observed in its entirety in Saudi Arabia and under the Taliban regime (still, reportedly, prevalent in many parts of Afghanistan). The Islamic Republic of Iran attempted to institute this corpus in the country's laws after the 1979 revolution, though it faced strong opposition and pressures for reform, often from within Islamic circles; in consequence it has, over the three decades of the republic, been led to moderate many of these impositions.

Now the faction of the regime led by the president, Mahmoud Ahamdinejad, is pressing to return to the original impulse and undermine the reforms in turn.