01 May 2012


This paper aims to investigate the religio-political effects on the implementation of Shari’a in the modern era. The research will examine the approaches by the religio-political actors nested in interpreting the Shari’a.  Literatures on the concept of Shari’a, its origin and its development will be used as the basis for further critical arguments. The research will also highlight modern approaches by muslim majority and minority countries in dealing with the implementation of Shari’a as the subject matter is currently hotly debated among various groups.
In Britain, the Home Office issued a warning to civil servants not to eat lunch in front of their Muslim colleagues during the month of Ramadan (Gardham 2009).  There was also the controversial Dr Rowan Wlliams, the Archbishop of Canterbury’s announcement that Shari’a Law may be included in the British legal system (Ahdar 2010, p.25). 
In Canada, Windsor police issued a public apology to the local Muslim community for the ‘embarrassment’ caused by its tactical officers when they conducted an arrest operation in connection with the activities of a radical Islamic group (National Post, 2009). 
In Melbourne, a group of local Muslim suggested the establishment of Shari’a courts and tribunals for Muslim community in matrimonial and financial disputes (ABC 2011). 
In New Zealand, the department of corrections revealed that all meat served to prisoners had undergone halal slaughter (Otago Daily Times 2009) and a Muslim woman had filed a complaint to the Human Rights Commission over her removal from the public gallery of a courtroom for refusing to take off her headscarf (New Zealand Herald 2009). 
In Egypt, Muslim Brotherhood attended first its Christmas celebrations in a Cathedral following the ousted of Mubarak and his regime (Mahmoud 2012). 
In Malaysia, a ‘Malay prophet’ was caught by the Islamic department of Selangor (JAIS) for his illegal propagation and causing distress in the community.
References to Shari’a, its concept, interpretation and implementation were  discussed by many scholars for decades. The answer to the question of ‘What is Shari’a’ is necessary to shed some light on the subject. Ramadan explains that there is ‘not a single definition’ of the term Shari’a. Shari’a can literally mean ‘the way’ (the path leading to the source) . It outlines a global concept of creation, existence, death, and the way of life it entails, stemming from a normative reading and an understanding of scriptural sources. It determines ‘how to be a Muslim’. For jurists, Shari’a is the corpus of general principles of Islamic law extracted from its two fundamental sources; Qur’an and Sunnah. The word occurs only once in the Qur’an and it is used contradistinction with hawa (whimsical desire) (Kamali 2008, p.2). The verse thus reads in an address by Allah to the prophet Muhammad (peace be upon him) through the angel Gabriel:
“Thus we put you on the right way (shari’atan) of religion. So follow it and follow not the whimsical desire (hawa) of those who have no knowledge.” (verse 45:18)
In an explanatory note on this verse, ‘Abdullah Yusuf Ali’s translation of the Qur’an reads : Syari’atan in this verse is best translated as “the right way of religion” which is wider than the legal provisions which were mostly revealed in the Madinan period, long after this verse had been revealed. The hawa in the context refers to the pagan belief of the people of Makkah who believed in idolatry and association of idols with supernatural powers (Al-Baydawi). 
Since Shari’a is a path to religion, it is concerned with a set of values that are essential to Islam and and its followers. Islam stands on the five pillars (arkan al-khamsah) which are the belief in Allah and His Messenger, ritual prayers, fasting, giving tithe due to the poor (Zakah) and the pilgrimage to Mecca (Hajj). Ibadat is the main characteristics of Shari’a, through which Muslims strengthen the faith to Allah by worshipping Him and observing the bbb to uphold the pillars of Islam.  
One of the primary concern of Shari’a is the protection and advancement of its five essential objectives (Maqasid Al-Syari’ah), namely the religion, life, intellect, lineage and property. This concept is important and used in solving conflicts. For instance it is forbidden for Muslims to touch the non-mahram (opposite sex - unless they are married or immediate family members), however it is permissible during emergencies such as fire, accidents etc, for saving lives is of utmost important in the Maqasid Al-Syari’ah.  
An important term, Fiqh, is part of Shariah. Shari’a is conveyed through the divine revelations (wahy) found in the Qur’an and Sunnah while Fiqh refers mainly to the corpus juris that is developed by the legal school (madhahibs), individual jurists and judges by recourse to legal reasoning (ijtihad) and issuing of legal verdicts (fatwa). 
In the light of understanding the Shari’a and its implementation issues, it would be necessary to highlight a few dominant camps who have different world views particularly in explaining the various perspectives of the Shari’a. There are the ‘moderate Islamists’, ‘literalist Salafis’ and the ‘modernists’ who continually debate and argue their understanding of the Shari’a .  This categorisation is not new and may be due to extensive literatures produced by the group s since  the early 18th century. The term Islamists may be referred to as individuals or groups in contemporary Islamic societies whose primary wishes is to govern and be governed politically by Islamic principles. Islamism refers to a highly politicized version of Islam whose genesis occurred in the early 20th century largely as a reaction to the abolition of the caliphate by the republican Turks in 1924. They are also concerned with the debilitating effects of western colonialism on the Islamic world. In 1899, Muhammad Abduh was appointed as the Mufti of Egypt. Well known as the Islamic reformist, his thoughts were  accepted by many scholars. The idea was to merge the divine revelations and the human  reasonings in formulating the Islamic rulings. There was also his devoted efforts towards building friendship between the  Christian Copts and the Muslims. 
In 1928, Hasan al-Banna in Egypt established the Muslim Brotherhood (al-Ikhwan al-Muslimun) as a countervailing response to both British colonial rule and secular nationalist politics. Unchecked, it was feared that it would undermine the traditional Islamic characters of the Egyptian society. 
In the Indian sub-continent, Abul A’la Al-Maududi established the “Islamic Society” (Jamaat Islami) in 1941 to effectively inculcate Islamic political consciousness to the masses in reaction to British occupation and Hindu nationalism. Maududi migrated to the newly created Pakistan in 1947 and continued to push for the establishment of an Islamic state there until his death in 1979. 
Among political activists and Islamic groups today, the term ‘moderate Islamist’  referred to the people who have been considerably influenced by the thoughts of Abul A’la Al-Maududi and his disciple, the Egyptian activist Sayyid Qutb (d. 1966) They were committed to a highly politicized form of Islam, subscribe to democratic norms and embrace modern notions of human rights to a considerable extent (Afsarudin 2010, p,30). Of late, the approaches of this camp were quite interesting . They embrace the concept of tadarruj (gradual) and  have strategic steps to revive the Shari’a principles mainly in Tunisia, Egypt and Morroco.
The Salafis, a word rooted from Salaf, the pious generations of the companions of Prophet Muhammad and their immediate heirs, is also gaining popularity. The early community of the faithfuls are considered to have been closest to the prophet and the revelation, and it can therefore be assumed to have the best knowledge of the divine call. Salafism is closely associated with the theological traditions identified with the political movements of the well-known reformist, Muhammad Abdul Wahhab (1703-92). Known as the Wahhabi movement, its legacy may be found in Saudi Arabia and become the ideological world views of many contemporary Muslims (Esposito 1998, p.118). It has also influenced other revivalists in Africa, India, Europe, Australia and some parts of South East Asia.
Modernists are also known as liberalists. They are the Muslims who, since the 18th century, began to emphasize the inherent adaptability of Islamic principles and thoughts to modernity. This was partially in response to the beginning of the European colonial onslaught. The modernists argue that certain Islamic principles can be freshly interpreted in line with the modern liberal principles of democratic government, civil society, gender equality, etc.   Modernists tend to be critical of traditionalists who they perceive as unthinkingly following precedents and stymieing the efforts of Muslims to adapt to the modern world in an ethical and critical manners. This ideological stream can be found in Europe, America, Oceania and some parts of Asia.
Coming back to the focus of discussion, are there any religio-political impact on the Shari’a debates? How do those ideological streams view the fundamental issues regarding the adaptation of the ‘divine rule’ in the contemporary context
For ‘moderate Islamists’, as pointed out by Esposito, the emergence of neorevivalism, new religious societies, in particular Hasan al-Banna’s Ikhwan al-Muslimun (the Muslim Brotherhood) in Egypt and Maulana Maududi’s Jamaat al-Islami (the Islamic Society) put the Muslim community of the twentieth century at a critical crossroads (Esposito 1998, p.149). They acknowledged the internal weaknesses of the Ummah (Muslim community) and the external threat of the colonial powers which had caused the collapse of Caliphate. They believe that Islam is the only solution. Islam is a complete way of life ; not restricted to personal piety or simply just a component of the social or political aspects life. It is a comprehensive ideology for personal and public lifes, the foundation for a Muslim state and society. They reinterpreted Islamic history and traditions to respond to the sociohistorical conditions of the twentieth century. Islam is the all-embracing ideology. It is the union of religion and society, the relevance of Islam to all aspects of life, following the doctrine of God’s oneness (tawhid) and It’s sovereignty over all creations. The Shari’a is a complete scheme of life and an all embracing social order. 
Following the revivalists logic, they called for a return to the Qur’an, the Sunnah of the Prophet and the practices of the early community to establish an Islamic system of government. Like Islamic revivalists and modernists, they reject  Taqlid and uphold the right of Ijtihad. They are with the modernists in their acceptance of changes through legal reforms, though not accepting its application to modern family law reforms (which were regarded as Western in its inspiration and intent). It is important to highlight their belief that the reformation of Muslim society and its social transformation and modernization must be rooted in Islamic principles and values such as freedom, justice and integrity.
Although they are not political parties, their holistic vision and their belief that the Islamic community must exist in a state and society governed by Islamic law (Shari’a), drew the Brotherhood and the Jamaat into the political arena. Both understood  social reformation as existing within the society. The threat of the Brotherhood’s movement  to establish an Islamic state lead the Egypt government to take repressive measures  which subsequently lead to  the assassination of its founder, Al-Banna in 1949. Government repression drove the Brotherhood  underground and to a series of confrontations, imprisonment, executions and suppression in the mid-1960s.
While under years of suppression until Mubarak was ousted in 2011, the Brotherhood silently  and effectively educate the Muslim society, especially on their rights in Islam, through its comprehensive Islamic education system. Effectively, it had prepared the society to understand the needs of having Shari’a as the foundation of the constitution and ready to adopt those Islamic principles when the time comes. The people are ready to subscribe to Islamic values and legislations, including the majority of Christian copts. Similar situation can be seen  in Tunisia, Turkey and Morocco.
For literalist Salafis, Afsaruddin points out that the revival of Islamic caliphate as an institution is necessary and is an integral part of Islam (Afsaruddin 2010, p.35). The moderate Islamists and Salafis share a vision in that it is a duty to mankind to uphold Shari’a and govern the society based on Islamic principles. However, Salafis apply strict rules in its approach. Salafis scholars (ulamas), like former Grand Mufti of Saudi, Ibn Baz (d.1999) and Ibn Uthaimin  both play  significant roles in the administration of Shari’a, specifically in Saudi Arabia and  some other Muslim countries. As mentioned earlier, the Salafis  strongly subscribe to Muhammad Abdul Wahhab’s approach of Siyasa Shar’iyya which was actually developed by Ibn Taymiyya (d.1328) and his disciple Ibn Qayyim (d.1350).
Siyasa Shar’iyya means governance in accordance with the divine law, and it calls for harmonization between the law and procedures of Islamic jurisprudence, fiqh, and the practical demands of governance, siyasa. The rationale behind the doctrine is that if the divine law is duly observed, the siyasa of rulers will not be in conflict with fiqh as elaborated by the legal scholars. If conflict arises, it is either because fiqh is understood too narrowly, neglecting the resources of the Shari’a  (al-maslahah al-ammah) or because rulers disregard the divine law and act unjustly.
In the formulation of Siyasa Shar’iyya, Ibn Qayyim believed true siyasa is but a part of Shari’a (Vogel 1997, p.695). In Saudi, interpretation of the doctrine implies that the king may take any action needed for the public good, including legislating to supplement fiqh, provided that the Shari’a is not infringed thereby. The call for unification of fiqh and siyasa points to the concept of Oneness of Allah (Tawhid) as defined by Ibn Taymiyya and following him Ibn Abdul Wahhab (d.1792).   Ibn Abdul Wahhab had distinguished the concept of  tawhid al-rububiyya and tawhid al-uluhiyya, i.e, between acknowledging that Allah is the sole creator , and that serving Him as such characterizes one as a Muslim. A Muslim is, seen from his perspective, a believer who acts in accordance with his belief, in fiqh as well in siyasa (Bramsen 2007, p.23). Therefore, many fatwas formulated by legal scholars regarding the society are strongly based on Qur’an, Sunnah and Qiyas. Giving few examples in Saudi; the rulings of women driving cars, women shaking hands with non-mahram, women working with men and on mixing in education are highly contested by many Muslim and non-Muslim scholars.
For Modernist, as pointed out by An-Na’im, to Muslims, Shari’a is the ‘whole duty of mankind’, moral pastoral theology and ethics, high spiritual aspiration, and detailed ritualistic and formal observance; it encompasses all aspects of public and private laws, hygiene, and even courtesy and good manners (An-Na’im 1990). Shari’a was characterized as ‘a historical-conditioned human interpretation’ of divine sources (An-Na’im 1996, p.337) It is required to observe the basic objective of Shari’a (Maqasid Shari’a), while fiqh principles are subject to change from one time or place to another. But the problem with this view is that the so-called basic objectives of Shari’a are expressed at such high level of abstraction that they are neither distinctly Islamic nor sufficiently specific for the purposes of public policy and legislation. As soon as these principles are presented in more specific and concrete terms, they will immediately be implicated in the familiar controversies and limitations of fiqh.
The modernist group are activists who look to the early Islamic period embodying the normative ideal. Although they overlap with some neotraditionalist,modernist distinguish more sharply between substance and form, between the principles and values of Islam’s immutable revelation and the historically and socially conditioned institutions and practices that can and should be changed to meet contemporary conditions. They maintain that the regulations enshrined in the law books represent the understanding and interpretation of early jurist who applied the principles and values of Islam to their societies. They distinguish between the revealed immutable Shari’a principles and laws contained in the corpus of traditional law and those regulations in Islamic law that are contingent and relative. The latter need to be reformulated in light of the needs of modern society (Esposito 1998, p.231).
Talking about the application of Shari’a in non-muslim states for example, it causes great debates between various groups and scholars. In Australia for instance some Muslim groups request for Shari’a system to be accommodated in Australian legal system particularly in matrimonial matters such as marriage and divorce; and financial transactions. As a response to the call, the government rejected the proposal because Australia is a secular state and no religious law will be introduced in the civil society (Costello 2006). However, the striking comments of Dr Rowan Williams on accommodating Shari’a had caused an uproar.  The scholar appreciates the religion, that  Islam, for Muslims, is the way of life and Shari’a being part and parcel of their day-to-day life. In fact, the principles in Shari’a of justice, freedom and equality are made universal and appropriate for all time and places.
For many Muslims, Shari’a is the perfect blueprint in the society. Majority of Muslims agree that Shari’a is the ‘whole duty of mankind’ and it is an obligation to uphold the Shari’a system as the way of life. However, this ‘divine rule’ is at a crossroad in its implementation  due to the various ideological, political and religious groups which have differences in interpreting, analysing the local conditions and reformulating  strategies and solutions.   Throughout history, some of the Muslim states had applied the system, such Saudi Arabia and Pakistan, though not its true sense. Some are struggling and facing  suppression such as Egypt and Sudan while some Muslims in secular states are fighting for  their rights to put the system into practice. 
It is a real challenge for Muslims to unite and come to an agreed approach in carrying out the principles of Shari’a into the society they live in.

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