Shariah and Its Application: Essence and Milieu
By Tarek A. Ghanem
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The quintessence of Islam and its currency is knowledge; it is not material wealth, it is not power, it is not even the Muslims themselves. It is a mode of knowledge that is unique; it is not a mere outgrowth of scholastic labour; it is not mere works of creative intellectual constructions; it is not just a linear production of theological, juristic, spiritual, textual literature; it is more than that. It is a knowledge that is disciplined, cautious, transmissible, and meticulous—like all types of knowledge. It creates its own unique frames and scopes, and it is, above all, dependent on something that falls outside its sphere, as is the case with all religious knowledge.

Imam Malik, the first imam of Madinah, is reported to have said, “This religion is knowledge. So look into where you get your religion from.” From an Islamic perspective, Shariah is not just the product of scholarly endeavours, it is directly related to the god-fearing and piety of its specialized scholars. Mere knowledge—even if profound and comprehensive—is not enough. Acting by it and truly living it—not just as a set of legal codes, but as a spiritual and existential ambiance—distinguishes the knower.

Lately, with the existing state of affairs of the Muslim experience, much debate about Shariah, its application, scope, and ethos has been circulated. Proponents and opponents deafened each other and confused us, and the call to freeze Hudud (prescribed criminal penalties) has not helped. All that came with this call has not contributed at all to a better atmosphere for understanding. Essentially, Hudud means the outer boundary. Isn’t it ironic how some unqualified commentators on this matter can even sweep the entire scholarly corpus of Islam off its feet, laying it down under the lenses of doubtful, sceptical scrutiny?

This does not mean that we support the pseudo-Islamic voices for whom applying Islam is about cutting off hands and killing apostates. As the attention-seeking “progressive Islam” attracts the media, “claim to know very little about Islamic law, theology, or mysticism, but are deeply familiar with the writings of Michel Foucault, Jacques Derrida, and Jurgen Habermas” step into the already blurry picture, we more than ever need to seek answers.

Islam’s ambiance is not the Western world’s maiden of modernity or its new, confused post-modernity. Islam, by fiat, is a firm, deep-rooted tree. To try to dig out it roots in an attempt to change it as one does not like what Muslims do (or do not do) with its fruits, is not the remedy. It is no more than digging one’s intellectual grave. Islam’s fruits are the absorption of its deep roots. So, deconstructionism, once applied, is no more than a self-created abyss that takes its traveller to his or her downfall, not the well-founded and firm-based Islam.

As Abdel Hakim Murad explains to us in his exquisite work Understanding the Four Madhhabs “The danger of less-qualified individuals misunderstanding the sources and hence damaging the Shariah is a very real one, as was shown by the discord and strife which afflicted some early Muslims—and even some of the earlier Muslims themselves—in the period which preceded the establishment of the Orthodox Schools. Prior to Islam, entire religions had been subverted by inadequate scriptural scholarship, so it was vital that Islam be secure from a comparable fate.”

In a tour to show us how the crown of Islamic sciences, usul al-fiqh, was created and developed, we understand what Shariah is and how it came into existence. To think that Shariah is a theory distanced from reality is a myth. To think that Shariah can just be reinterpreted thoroughly, away from its paradigm and sources, is a lie.

The following are a number of essential works in order to examine the issue of Shariah and its implementation. The works cover the following: a simple and comprehensive reading on Shariah; its position within the Islamic conceptual framework; the flaws in examining Shariah like any other non-Western law, from an Orientalist lens; the historical development of Shariah; formalism and case studies of that development; and finally, two examples of the application of Shariah, one in a predominantly Muslim land, Nigeria, and the other in Canada.