Sharia and Islamic law
Scholars working in the field of sharia and Islamic law have attempted to offer varied understandings of sharia and Islamic law (Schacht 1964; An-Na’im 2008a, 2008b; Tucker 2008; Salim 2006; Mir-Hosseini 2006; Bowen 1996).
Schacht (1964, 1) argued that ‘sharia’ refers to Islam as a religion, because sharia is indeed ‘the core and kernel of Islam’. Sharia is thus generally understood as ‘religious law’ because many believe that it includes religion, morality and law (Salim 2006, 21–22; An-Na’im 2008a, 3). Muslims believe that sharia offers ‘totality’ and is ‘eternal’ and ‘derived from God’s revelations in the form of Qur’anic verses and Hadith (the sayings of the Prophet)’ (An-Na’im 2008a, 245; Salim 2006). Similarly, Mir-Hosseini (2006, 632) argues that sharia carries with it the ‘totality of God’s will as revealed to the prophet Muhammad’. Mir-Hosseini (2003, 21) therefore argues that sharia inherently calls for justice, freedom and equality.Based on the understanding that sharia is divine law, Muslim women scholars and male reformists believe that sharia cannot limit women’s freedom or discriminate against women, as that would be contrary to divine will (Mernissi 1991; Ahmed 1999; Wadud 1999). To Muslim women scholars it is the methodological approaches that were used in the eighth and ninth centuries that have generated interpretations of that divine law that disadvantage women (Mernissi 1991; Ahmed 1999; Wadud 1999). Thus, the central argument in this discourse is that the practice of interpretation requires a specific methodology to determine what interpretations are accepted as authoritative formulations of sharia. An-Na’im (2008a, 13), for example, argues that while the Qur’an and Hadith cannot be changed, there could always be ‘consensus around new interpretative techniques or innovative interpretations of the Qur’an and Sunna’.
This interpretive process is known as Fiqh. Mir-Hosseini (2006, 632) defines Fiqh as the ‘science of jurisprudence which is part of the human endeavour to discern and extract legal rules from the sacred sources of Islam that includes Qur’an and the Sunna or Hadith (the practice of the prophet)’. She argues that while sharia is ‘sacred, universal and eternal’, Fiqh is ‘human and like any other system of jurisprudence, it may change over time’. Thus, she contends that if there is discrimination and oppression towards women, it is not the result of sharia, but derives from patriarchal interpretations of sharia which can and must be challenged or overruled. On the other hand, Fiqh, she argues, is ‘nothing more than human understanding of the divine will that is sharia’. To her, it is:
This transcendental ideal which condemns all relations of exploitation and domination that underpins Muslim women’s quest and critique of patriarchal constructions of gender relations, which are to be found not only in the vast corpus of jurisprudential texts but also in the positive laws that are claimed to be rooted in the sacred texts.
Similarly Bowen (1996, 13) defines Fiqh as ‘the very human interpretative art of fitting a narrow range of sharia to the world’. According to Bowen Fiqh practice is ‘supposed to be socially and culturally variegated, taking into account custom as well as circumstance’. Thus, the making of religious law is, according to him, a cultural interpretation in which judges and lawmakers make choices for or against human rights, social tolerance or gender equality. Likewise, Hooker (2008, 1), in a discussion of sharia in Indonesia, argued that in the modern nation-state, Islamic law is the result of a process of state’s selection, ‘the practice of taking from the classical legal thought’ performed by the state based on the political circumstances of the time and place of the state. Thus, Islamic law (in the sense of Fiqh) is not divine and, in fact, changes along with the social and political circumstances of the particular society.