Origin, sources and development of Shari'a law

The majority of Muslims believe that Shari’a is a divine law that is revealed by God to regulate their life. In this view, Shari’a is believed to be sacred and is exclusively formulated by the divine authority through the Qur’an and the Prophet’s tradition as well. Following this perspective, Shari’a is therefore beyond human intervention and interpretation. It is not created by history, but creates Muslim history and molds their society. However, research and studies reveal that the development of Shari’a does not exempt from human interpretation in its formulation. In spite of the claim to its sacredness, critical historical analysis discloses that the conception and understanding of Shari’a considerably change and are bound within a historical situation. The fact that there are many schools of thought (madhhab) in Islamic jurisprudence in interpreting Shari’a among Muslims suggests that this term has been interpreted differently in the wide span of time and within various methods. In this perspective, Shari’a law is similar to other legal systems, which are subject to interpretation and change in response to specific socio and legal challenges within a society.

To conceive of Shari’a in such a theoretical framework, it is necessary to discuss it in detail. This essay thus aims to disclose the origin of Shari’a, its sources and development and to examine the ways in which this term is conceived and approached by Muslims differently. In the last part of this essay, I examine the current issue of Shari’a application in Indonesia in order to show how widely the meaning that this term bears. There is no such a single and unified understanding of Shari’a amongst Muslims in that country. Nor do they concur in one method of its application. As a result, this causes, in one hand, confusion and overlapping in the level of application. On the other hand, this will enable Muslims themselves to always discuss, criticize and finally reinterpret Shari’a under the light of modern circumstances, humanism and democracy and under their current condition.

There is a tendency to strictly perceive Shari’a in a legal sense. This applies both in the West and in the Muslim world. However it should be noted that the literal meaning of Shari’a is not identical with law. Etymologically, Shari’a means a path or a way that leads to a source of water. This means that Shari’a in its basic literal meaning is neither a law nor a legal code in the modern sense. The Qur’an as one of the sources of Shari’a only contains small number of verses that deal with legal aspects. This is an important point to show that the Qur’an is not a book of law. Shari’a thus means a norm that guides human life in accordance with God’s will. It covers a wide aspect of life ranging from the matters of worship, law, family, ethics, economy until daily activities such as bodily purity, eating, drinking and the like. So, equating Shari’a as Islamic law per se is not necessarily correct since the former covers wider aspects than the latter. It should be said that Islamic law (fiqh) is the legal dimension of Shari’a. Therefore the phrase “Shari’a law”, which is quite often heard and written in many books about Islam and especially about Islamic law, refers to Shari’a norms that deal with law. Since this phrase has been commonly applied, I accept it, but only it that sense. It is exactly in this point, namely the apprehension of Shari’a as law, the historicity of Shari’a is tangible. This can be first seen from the source of Shari’a, which inevitably adopts both scriptures and human reasoning.

There are two sources of Shari’a that are revelation and reason. Revelation sources are mainly derived from the prime Islamic scriptures, namely the Qur’an and the Sunnah. All Muslims agree that the Qur’an is the most authoritative source of Shari’a. They also accept the originality and authenticity of this source. However, this does not mean that they hold same views and interpretation of the Qur’an because Muslim scholars, and their followers, apply different methods of interpretation. Unlike the Qur’an, the Sunnah has become a subject of dispute regarding mainly its authenticity. The dispute goes back to the debate about the authenticity of the Sunnah since many prophetic traditions are allegedly produced in the later period after the Prophet time. According to this theory, proposed by Ignaz Goldziher and Joseph Schacht, the subsequent generation of Muslims in the second century of Hijra attached the Sunnah back to the earlier period to obtain its authenticity as if it were originally from the Prophet. It is true that some Sunnah or Hadith were fabricated after the time of the Prophet and therefore less, or even not, authentic. This can be seen for instance from the chain of Hadith transmission, which to some extent missed or disconnected from one transmitter to others. However, according to Fazlur Rahman, the idea of Sunnah was found in the early Islam. The Prophet did establish his own Sunnah, which in many ways was continuation from, and correction to, the pre-Islamic Arab traditions.

The second source of Shari’a is reason, that is the exercise of human reasoning in interpreting and understanding those scriptures. This method is called ijtihad which commonly includes two popular techniques, ijma’ (consensus) and qiyas (analogy). Other common adopted techniques include istihsan (juristic preference), istishab (presumption of continuity), and urf (custom). The application of these later techniques depend on the schools of law (madhhab). A school might adopt one or two techniques, while other schools may employ other methods or simply abandon them altogether. Within Sunni legal tradition, the Hanafi school employs reason in a great portion. This may be so because the school founder lived in Iraq, not in Medina or Mecca, a condition that forced him to make use of reason more often than the Sunnah. In contrast, the amal ahl Madina (custom of Medinians) is an important source of Shari’a law in the Maliki legal tradition, because many traditions of the Prophet are easily found there. While the Shafi’i school seeks to take a middle position between those two schools, the Hanbali school tend to be conservative and is willing to accept weak traditions as the source of Shari’a in favor over reason. Meanwhile, Shi’i legal tradition develops into another direction under the supreme authority of their imam. The adoption of the diverse sources and techniques within each school both in Sunni and Shi’i tradition suggests that human agency plays a pivotal role in the development of Shari’a. Through those sources and techniques, Shari’a has been developed within human comprehension and historical framework. The techniques should be understood as alternative methods that create Shari’a flexibility to be applied at any time and condition. It is through ijtihad that Shari’a becomes widely divided into various schools and spread through different thoughts. Muslims have freedom to select one of them or even blend one with other schools to acquire the most compatible formulation of Islamic law. This will eventually encourage Muslims to be critical, and not merely accept jurists’ views and legal thoughts for granted. In the modern time, the portrait of this development can be seen from the application of Shari’a law in Muslim countries.

If we look at current development of Shari’a in Muslim countries, it will become more obvious that Shari’a is obviously undergoing significant change and reform. The introduction to progressive thinking in the Muslim legal reform that mainly relate to the issue of personal and family laws in many countries demonstrate changes and continuity of Shari’a law. The first modern codification of it occurred during the Ottoman reign. In the course of reform movement called Tanzimat, the Ottoman enacted a codification called al-Majalla that adopted the Hanafi legal thoughts, despite the significant influence of Western legal conception, especially from Swiss, in that reform. Other reforms took place in many other Muslim countries after acquiring their independence from the western colonialism. The reform in this period had inevitably influenced by colonial and post-colonial legal discourses. Unfortunately, many Muslims, especially radical and militant groups, disregard this historical account. The issue of the application of Shari’a law in Indonesia offers a candid overview on how Shari’a is understood and applied in various ways, between radical-fundamentalists and liberal-moderates.

The appeal of Shari’a legal enforcement stems primarily from militant Muslim groups who receive support from Muslim parties and politicians. This plea receives a great enthusiasm in the regions where the remnant of partisans of the Islamic movements, which in the past intended to establish an Islamic state in Indonesia, remains powerful, such as in Aceh, West Java and South Sulawesi. Meanwhile other, mostly moderate and liberal, Muslims decline the idea of the state intervention in Shari’a law. They argue that Shari’a should be an ethical guide for the state legislation. The ways these opposing views promote Shari’a considerably differ. While the former prefer to political and structural approaches, the latter tend to take a cultural method. The first approach demands political and legal enforcement of Shari’a law through the state regulation. The second one conceives of Shari’a as a guide for cultural behavior, in which the implementation of it arbitrarily depends on Muslim personal piety. Since the Shari’a purpose is to create a just, egalitarian and democratic society, the moderates accept any law, not necessarily called as “Islamic law”, which can achieve that goal.

With the coming of the reform era and the decentralization and autonomy from the central government, however, some regional and local governments have successfully enacted Shari’a-based regional ordinances and bylaws, such as in Aceh, Sulawesi, West Java and West Nusa Tenggara. Unfortunately what Shari’a means by these ordinances is quite obscure because each regional ordinance addresses different legal issues. While some are concerned with the regulation of women’s dress, others simply include the ability of reading the Qur’an for civil servants into their local statute. In Aceh, for example, the application of Shari’a covers a semi public law that gives sanctions against religious offense, such as biting for public decency, gambling and drinking. The success of the integration of Shari’a law into state legal system, as seen in many regions, cannot be disconnected from political impetus. Muslim politicians and parties play this issue during regional election to gain as many voters as possible from their constituents. Among the most active proponents of Shari’a law are Hizbut Tahrir Indonesia, Front Pembela Islam (Islamic defense front) and Majelis Mujahidin Indonesia (Indonesian jihad council).

Unlike their militant counterparts, moderate Muslims contend that the appeal of the application of Shari’a law is vogue. In fact, Shari’a law has already been established by the state and people altogether. If Shari’a is understood in the original meaning, which refers to Islam itself as a way of God, a lot of aspects of Islam do really apply in Indonesia. Muslims as well as non-Muslims are guaranteed by the constitution to observe their belief. To Muslims, this constitutional guarantee provide them a full opportunity to realize their religious observances such as daily praying, fasting in Ramadan, and going to the hajj to Mecca. All these are part of an essential element of Shari’a law. Even if Shari’a is strictly perceived in a legal sense, still certain parts of it prevails, especially related to private, not public, law because they are covered in the state law, such as the 1974 Marital Law, the Presidential Decree Number 1/1991 about the Compilation of Islamic Law and the Zakat Law Number 38/1999. Special attention should be given here to the Compilation of Islamic Law. This compilation blatantly demonstrates that private law of Shari’a has prevailed in the state court since almost two decades ago. This law covers three main aspects of Muslim personal law; marriage, inheritance and endowment (waqf).

By looking at these statutes, in which parts of Shari’a law are integrated, I think the appeal of the application of Shari’a law is redundant. What the radical groups means by applying Shari’a law is obscure. Do they mean it as a total application that includes public law? Again, their demand remains blurred since they never explicate it deeply. Hizbut Tahrir Indonesia, as the most militant proponent of that idea, has in fact never elaborated this idea in a great detail. Almost at every occasion they carry out their programs or during their street demonstrations, they always emphasize that Shari’a is the answer of all problems that Indonesia currently face. But the rational and candid explanation of why the answer for those problems (some of which are really nothing to do with Shari’a) should be Shari’a has never been given. Neither do they answer the essential question of how Shari’a will fit with pluralistic and multicultural society. If, for example, their demand includes public law of Shari’a, then the idea is weak for some reasons. First, the history of the Shari’a law application in the modern world shows that public law is hardly adopted in Muslim countries, except in a very few countries. Second, most reforms and codifications of it deal with the private laws such as family law. Third, Indonesia is not an Islamic state and its society is plural. Since the public law will regulate all citizens, then its conception and application should be based on the national consensus. No rules taken from a specific religion become a solely source for the legislation for the public or criminal law.

Nevertheless, I think Shari’a still can participate in modern legislation in two ways; by first imposing its main purpose, that is to uphold justice and create prosperity, and second by adopting certain aspects of its private law. Thereby, Muslims should approve to the application of any law that lead to social justice and prosperity, because this law in principle fits with Shari’a purposes. Likewise, since the Shari’a private law is in greater demand by Muslims, there less objection to adopt it to the state legislation because this law deals with Muslim personal life. However, progressive thinking and reform should always be enforced to criticize this law so that it will be always inline with the spirit of humanism, democracy and gender justice.

The sources, approaches and development of Shari’a law in the current time suggest that Shari’a considerably changes within the changing social and historical conditions in Muslim societies. Reform of Shari’a law is thus designed to answer all questions relating to its dialectic with social and historical challenges. The divine dimension of the entire nature of Shari’a proves to be an exaggeration, if not a myth. It is true that the sources of Shari’a are derived from the revelation, but it remains also dependable on human reasoning. Since the text of scriptures is limited and the context is unlimited, human agency and reason must take an active effort to interpret those texts. It is through this perspective that Shari’a will be always flexible in contemporary life.