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Book Reviews

Understanding Sharia: Islamic Law in a Globalised World

Volume 15, Issue 2  | 
Published 18/11/2018
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Understanding Sharia: Islamic Law in a Globalised World debunks myths. It tells us what sharia is not rather than just what it is. It speaks to Sunni, Shia and non-Muslim audiences as the two South-African born authors begin with the historical journey of Islamic law from its Qur’anic origins through the Islamic golden age to its present-day calls for reform. Raficq S. Abdulla read jurisprudence at Oxford University, is a founder member of the Advisory Panel of the Muslim Law Shariah Council (United Kingdom) and was awarded an MBE in 1999 for his interfaith work.  Mohamed M. Keshavjee, completed his PhD at SOAS with a focus on Islamic Law and Alternative Dispute Resolution and was awarded the Gandhi, King, Ikeda Peace Prize in 2016 for his work on peace and human rights education. In the early chapters, the book takes the reader on a journey from the inception of Islam in the seventh century to the end of the Abbasid era in the thirteenth century. Here the authors point out that the concept of the umma (community of believers) appears to contradict the post-Westphalian notion of nation states. They then explore the wider geographical expansion and cultural accommodation of Islam. Other chapters look at ethics, legal theory, sharia and human rights and criminal justice in Islam.

Although the authors claim that this is not an academic book, as it is easily accessible to read, it is an academic and timely piece of research. The authors offer theological, legal and philosophical reflections which serve to enrich and inform, and the reader is left to decide, based on their own interpretation, as contentious issues such as honour killings, conflicts with Western notions of human rights, and medical ethics, are discussed. Sharia Law, they argue, is a misunderstood concept, ‘The call for a return of sharia is often a formulation that is antithetical to the very principles that motivate people to call for it – woman, children minorities and non-Muslims become the victims of repressive readings of the holy text which, in effect, makes sharia, as thus understood, repressive and abusive.’

The notion of sharia as a call for draconian punishment is quashed by the authors. To Muslims, sharia is regarded as a catalyst for social justice where citizens can hold their governments to account and strive towards the shaping of a just society. The book speaks about ethics, such as caring and compassion as an obligation, not as a right. It also emphasizes the fact that less than 10% of the content of the Qur’an deals with strictly legal matters. Whether by hadith, based on the sayings of the Prophet Muhammad, a fatwa (a legal opinion handed down by an accredited scholar), or Sunna (an established custom or precedent), sharia has evolved from its origins. Islamic jurisprudence was also heterogeneous as local customs were observed and accommodated, particularly in the area of private law and much of what is considered to be sharia is derived from pre-Islamic pagan practices.

One revolutionary revelation that came about with Islam was the new emancipatory status that it gave womankind. No longer objects of exchange, they became their own subjects with property rights. In the early Islamic society the law was fluid and ideas were not fixed, as Islam promoted virtues such as courage, fidelity, kingship and finality, and former pagans were offered the prospect of salvation: ‘Islam converted nothingness into an eternal afterlife of either hell or heaven’.

Later on, the book provides an interesting account of sharia finance and Alternative Dispute Resolution(ADR). We should note, notwithstanding its ethical basis, that sharia finance is open to abuse as the cardinal condition of not charging interest has been reworked into new and ingenious forms of sharia finance whereby something very similar to interest may indeed be incurred. That said, as the authors point out, this change was arguably needed as sharia finance blocked private capital accumulation and this, according to Prof. Timur Kuran, was an obstacle for economic development back in early Islamic society,. ADR is implicit in sharia from the beginning and is a refreshing change from the litigation culture prevalent in the West, even though there are many settlement mechanisms in place in English and French legal systems without going to court.

Arguably, there are various mechanisms within sharia that enable it to adapt to modern contemporary circumstances and demands. The most important is ijtihad, which is the act of exertion, reflection and contextualisation in legal matters. The classical formula argues that the ‘gate of ijtihad is closed’ but the authors argue to the contrary and show that sharia was always changing through its history. To illustrate how ijtihad can work there is an example of a courageous activist, Jaha Dukureh, who was the victim of female genital mutilation (FGM) as a child. She returned to the Gambia from New York and, through education and social activism, persuaded a local imam that the practice was not necessary or compulsory. This eventually led to the outlawing of FGM in the Gambia. Other important notions are darura (‘necessity’) — a situation in which an illicit action is permitted for the sake of the public good, known as maslaha (public interest) — which allows for flexibility in changing the law to meet general welfare. The last important and overarching factor, maqasid al-sharia (the higher principles of the law) is intended to protect life, intellect, property, offspring and religion. This understanding has existed since the early days of Islam.

These mechanisms in sharia give lawyers and others the necessary tools that enable them to adapt law. Western laws are rule- and precedent-based, which enable them to adapt more rapidly to a modern context. Sharia is rule-based, but the rules are ostensibly derived from divine command and seemingly less flexible. However, the authors argue that sharia is not static but is capable of change, has changed over the centuries, and has the internal capacity to continue changing. In the final chapters the authors reflect on how this notion of change is essential in order to accommodate the changing times we live in.

As an English person, the law is not a part of my identity. It is a means to an end whereby an orderly society is maintained, and it upholds good governance guaranteed by a secular order. Sharia has an intrinsic value which affects a Muslim’s sense of identity and we should note that sharia is based on obligation or duty — something which rights-based Western legal systems could learn from. Sharia, which is itself sensitive to environmental obligations, is indeed an area of study which could have a profound effect on how we think about our civic duty to care about ecology in an era of global warming. This is a challenge for a secular society which can often lack the principle of duty since there is no overriding sovereign power to impose obligations. The loss of religious duty is something which Western philosophers feared in the nineteenth century as secular systems and science supplanted the role that the Church once had

This book provided me with a great insight into Islamic history, culture and thinking. As the Revd Canon Dr Alan Race states, the work is ‘accessible, informative and wonderfully enlightening [and] a must-read for anyone who wants to acquire an unprejudiced perspective on the meaning of sharia for today.’ Understanding Sharia: Islamic Law in a Globalised World addresses the gaps in our knowledge of sharia. The book should not become a gem that few appreciate, it is too important. It must be read, discussed and critiqued to stimulate informed debate.

By Theo Richardson-Gool – former legal practitioner, contributor to the New Law Journal and graduate of London University and the IE (Instituto de Empresa) Business School, Madrid.

 

Last modified on Sunday, 18 November 2018 21:55

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