Tuesday, August 24, 2010

Varieties of Islāmic law

The Prophet Muhammad (ca. 570/571-632) in a depiction from ca. 1315

With all the hate-mongering going on over the "Ground Zero Mosque" - which isn't on Ground Zero nor a mosque - one of the things we're hearing a lot from people like Sean Hannity is about the danger of "sharia" (Islāmic law) being imposed on us good Christian Real Americans. This sharia bogeyman is also used by anti-immigrant and anti-Muslim extremists in Europe. So, for anyone who actually cares to know a tiny bit more about the historical context of Islāmic law (sharia), I'm posting this brief description I originally did in March 2006, with only minor changes except for the addition of material about Afghanistan. It's based largely on the scholarly account by the Christian ecumenical theologian Hans Küng.

But I'm adding these introductory paragraphs. In one sense, the US discussion on this is just plain silly. American law is secular. It's not based on religion. On the contrary, for the national or state governments to adopt or enforce purely religious laws would be unconstitutional.

The conservative fear-mongering over "sharia" can't easily acknowledge this for several reasons, some of them obvious and others not so obvious. Pointing out that it would require a change in the entire Constitutional order to impose sharia law in the US wouldn't make it sound like an immediate threat to freak out over. Also, many conservative Christian Republicans want Christian religious ideas to be enacted and imposed by law, however much they might comma-dance around admitting it. (See Julie Ingersoll, Washington Post Story Gets Christian Reconstructionism Wrong Religion Dispatches 08/16/2010.)

The pseudohistory promoted by the scamster David Barton that is popular among Christian fundamentalists in the US - and forms the basis of history lessons at Glenn Beck University (there really is something called that!) - argue that US Constitutional law actually is founded on Christianity. (See J. Brent Walker, A Critique of David Barton's Views on Church and State 04/01/2005 on the Baptist Joint Committee for Religious Liberty website and Steve Foster, Beck U. – Leave Those Kids Alone The Donkey Edge 07/08/2010.)

It's also worth remembering that other religious groups have their own laws that are considered binding on their members, e.g., Catholic canon law. As a general rule, American law doesn't enforce those religious laws and doesn't interfere with their enforcement within religious institutions. Ask any Catholic who has had to have a marriage annulled. There are lots of "gray areas", of course, which sometimes produce much rending of clothing and gnashing of teeth among Christian political conservatives. Civil and criminal responsibility of church officials in case of sexual abuse of minors may be affected by the types of internal rules and oversight a church has exercised. But the basic rule is if religious law contradicts civil law, civil law overrides it. That applies to Islāmic religious law just as it does to Christian canon law or other kinds of religious regulations churches adopt.

Finally, Islām is a religion of law. Much of the development of Islāmic tradition has been in the context of the development of religious law, sharia, as compared to Christianity or Judaism, where theological disputes as such have had a greater role. (As always, this kind of broad historical generalization should be understood as just that.) That is due in no small part to the fact that in the traditional Islāmic lands, separation of church and state didn't develop as it did in Christian Europe. Islām has never been organized around a central religious hierarchy comparable to the Roman Catholic or Eastern Orthodox Churches. As referenced below, there are certainly problems within the Islāmic world around issues of law and what we call "separation of church and state." But there's a difference in understanding them realistically and making a scary bogeyman out of sharia.

Following is the text from March 2006; it references what at the time were current events and I've left those comments because they also provide context:

Up until not long ago, the President's [Bush's] most loyal supporters were making it a standard of American patriotism that we give unconditional support for his war to defend the Shi'a, Islāmic-fundamentalist government of Iraq. But now that the administration is making moves to improve relations with the Sunni fundamentalists and neo-Baathists and former Saddam supporters, it's hard to know which Muslim fundamentalist group in Iraq good patriotic Americans are supposed to be cheering for these days.

But since we're fighting one way or another for a government that wants to impose sharia (Islāmic law) on the Iraqi people - just like our model government in Afghanistan officially does (to the extent it has the power to impose anything) - we might as well know what we're being patriotic in cheering for.

There are four basic schools of sharia in the majority Sunni tradition: the Maliki, Hanafi, Shafii and Hanbali. Each of the schools is associated with a founding thinker and leader, from which the names were derived:

Mālik ibn Anas (710-795)
Abū Hanīfa (699-767)
Muhammad ibn Idrīs aš-Sāfi'ī (767-820)
Ahmad ibn Hanbal (780-855)

The Maliki school under Mālik ibn Anas (710-795) and his student Ibn al-Qāsim developed from the legal practices of Medina, the city of the Prophet. Today, Hans Küng writes in Der Islam (2004), the Maliki school of sharia "is distinguished by its strict adherence to the sunna (Islamic traditions) and an unmistakable conservatism". Mālik authored the first handbook of sharia. His most important criteria in defining correct practices was "the local consensus in Medina".

The Maliki school is strong in Upper (southern) Egypt, Algeria (for Sunnis outside large cities), Morocco and the Sudan.

The Hanafi school was founded by Abū Hanīfa (699-767). The Hanafi variety of sharia became the dominant form of law under the Abassid dynasty and later under the Ottoman Empire. Küng regards this as "the most generous and most tolerant" form of sharia. "The Hanafites have been regarded right up until today as the representatives of free opinion and the related juridical dialectics". The Hanafi school from its beginnings emphasized the rational development of laws and professional jurisprudence.

The Hanafi school is influential in Afghanistan (Sunnis), Pakistan, Bangladesh, Albania, Bosnia-Herzegovina and part of the Sudan. Yes, the dominant Islāmic law tradition in Afghanistan historically is not the gruesome fundamentalism of the Taliban government ousted in 2001. To what extent the Hanafi school in Afghanistan has been corrupted by three decades of more-or-less continuous war with no end in sight, I don't know. In an undated article at GlobalSecurity.org (Hanafi Islam accessed 08/24/2010), they write:

Broad-minded without being lax, this school appeals to reason (personal judgment) and a quest for the better. It is generally tolerant and the largest movement within Islam. The Hanafi school is known for its liberal religious orientation that elevates belief over practice and is tolerant of differences within Muslim communities. ...

An estimated 84% of Afghanistan's population is Sunni, following the Hanafi school of jurisprudence; the remainder is predominantly Shi'a, mainly Hazara. In March 2003 Ayatollah Mohammad Asef Mohseni, leader of the predominantly Shia Harakat-e Islami-yi Afghanistan, proposed that, along with the Sunni Hanafi school of jurisprudence, the Shia Ja'fari school of jurisprudence be included in the new constitution as an official sect.
Taliban legal practices were particularly influenced by the Deobandi tradtion in Sunni Islām.

Muhammad ibn Idrīs aš-Sāfi'ī (767-820) founded the Shafii school. He is considered "the father of Muslim jurisprudence", writes Küng. He credits aš-Sāfi'ī with bringing Islāmic legal thought from what Küng designates as the "Arabian imperial paradigm" into the "classical-Islāmic world region" paradigm. Aš-Sāfi'ī Defined the four principles (i.e., bases) of sharia as the Qu'rān, sunna (religious tradition), development of analogies and consensus.

Küng sees the great strengths of aš-Sāfi'ī 's approach as being his mastery of rational argumentation and reliance on the prophetic traditions (hadith). And his approach led to development of greater consistency in Islamic law. However, even though the incorporation of the authority of divinely inspired tradition led to great progress at that point in Islāmic history, the emphasis on tradition over the long run led to greater "inflexibility and rigidity".

Shafii legal theory is important in Iraq (among Sunnis), Lower (northern) Egypt, Indonesia, Jordan, Yemen, Lebanon (Sunnis) and Syria.

Ahmad ibn Hanbal (780-855), the founder of the Hanbalite school, collected over 80,000 hadith, stories about the Prophet Muhammad's words and deeds. If we were to apply an analogous Christian term, we would say these were "extra-canonical" traditions. Küng observes that Ibn Hanbal's devotion to the hadith had a paradoxically liberal effect, because he argued that whatever was not expressly forbidden by authoritative tradition was permitted. Freedom of contracts, for instance, was more easily accommodated by the Hanbalite school.

Through the later (conservative) reformer Ibn Tamīya (1263-1328), founder of the Wahābī version of Islām, the Hanbalite legal tradition became wedded to Wahābī theology, and therefore has great influence today through the oil-rich Saudi Arabia and the United Arab Emirates (UAE). Hanbalite thought, writes Küng, is now "known by its literalist interpretation of the Qu'rān and the sunna and the strict observation of sharia". The Hanbalite school of sharia is also very influential on the Salafi movement which so heavily influences Sunni jihadists.

Hanbali is also strong in Kuwait and Qatar.

There are two significant Shi'a schools of sharia: the Twelver Shi'a school which is prominent in Iran and Iraqi Shi'a as well as in Shi'a parts of Afghanistan, Pakistan and Saudi Arabia, and the smaller Ibādite school prevalent in Oman, Zanzibar and part of Algeria. Shi'a sharia is more heavily influenced by the authority of the leaders of the umma (Muslim community), the imams and ayatollahs.

Hans Küng considers the rigidity of sharia as one of the key challenges for Islām today. He finds parallel challenges for Christianity in the reverence for traditional teaching, especially in the Catholic Church, and for Judaism in the usage of the Talmud.

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