Tuesday, March 14, 2006

The impracticality of imposing sharee'ah

What is the sharee'ah? The sharee'ah is a code of rules and laws - much like Jewish halakhah - that certain experts have codified and determined. Sharee'ah is basically implementing fiqh (religious juridprudence), which in turn have been fixed into four schools of jurisprudence (singular: madhhab; plural: madhaahib). Abu Hanifa an-Numan ibn Thabit (699-765 CE) established the Hanafi madhhab, Malik ibn Anas (715-796 CE) established the Maliki madhhab, Muhammad ibn Idrees ash-Shaafi'ee (767-820 CE) established the Shaafi'ee madhhab, and Ahmad ibn Muhammad ibn Hanbal (780-855 CE) established the Hanbali madhhab. All jurists must follow one of the four imams. Independent reasoning is not permitted: all relevant independent reasoning has already been done by the four imams. The sharee'ah is considered to be a divinely-sanctioned code of laws, and as such are unchangeable and relevant for all people in all places and in all times.

Because of the four schools, there are essentially four different versions of the sharee'ah (five, if one includes Twelver Shiites, whose fiqh is sometimes labelled as the Jaa'fari madhhab after their sixth imam, Jaa'far as-Sadiq). This is not much of a problem as the madhaahib tend to be distributed geographically (meaning certain madhaahib dominate in certain regions of the world), and so each region's experts would belong to the dominant madhhab. (Muslims are forbidden to pick and choose among or between madhaahib: one must choose a madhhab and stick with it for all of one's needs.) The relevant experts are the judges (singular: qaazi; plural: quzaah) and interpreters (singular: mufti; plural muftoon). Muftis issue fatwahs, which are rulings that act as advice for judges. They are not mandatory. The role of the judge is to apply the law.

However, anyone with half a brain will realize that the laws codified in the eighth and ninth centuries need to be slightly modified for today. This is part of what makes implementing the sharee'ah difficult and impractical.

We will now list other issues will be problematic in implementing the sharee'ah:
1. Which of the four (or five) versions will be used? This is a significant issue in non-Muslim countries, where Muslims from various parts of the world (and, hence, belonging to different madhaahib) may live in the same area.

2. Where will the state get the required judges and muftis? How will the state certify them? How will point 1 above affect the presence and availability of experts?

3. Over whom will the sharee'ah courts have jurisdiction? What if one person of a party wishes to go to a civil court while the other party wishes to go to a sharee'ah court?

4. What about elements that are legal in non-Muslim countries but illegal in the sharee'ah (gambling, alcohol, pork, sexual immorality, pornography, free speech, blasphemy, freedom of religion)? What about elements that are illegal in non-Muslim countries but legal in sharee'ah (oral divorce, male dominance and preference, laws regarding apostates)?

5. What about punishments mandated by the sharee'ah that would be unacceptable by the non-Muslim state (such as the infamous hudood, which mandate what limb is to be amputated for which crime, when a criminal is to be executed, how many lashes is to be given)?

6. Would the sharee'ah include or exclude apostates, non-believers, free-thinkers? Would the sharee'ah be enforced against a person's wishes? What if others (the person's family, relatives, friends) want sharee'ah to be implemented but the person doesn't as he/she no longer recognizes it?

The list can go on and on. Suffice it to say that any call for implementing the sharee'ah is utterly ridiculous and completely impractical. Such calls are simple propaganda and agitation with no goal save to stir up Muslims to more mischief and to intimidate non-Muslims.

(Cross posted from Vince Aut Morire.)

inna naHnu-l-a'lam.

1 Comments:

At 9:48 AM, Anonymous Iblis said...

What is it about Islam that seems to arrest the development of thought and philosophy?
How can jurisprudence be held static for 12oo years?
Its like someone told them they have a Utopia, and that any changes they make will destroy it. Wild.

 

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