Academic journal article
By Cesari, Jocelyne
Harvard International Review , Vol. 31, No. 4
In the aftermath of 9/11 and the subsequent terrorist attacks in the West, the Muslims in Europe have become the center of media spotlight and the contemporary debate concerning the compatibility of Islamic social and political values with European secular and democratic norms. Consider, for example, the case of shari'a law, which is conventionally conceived as the antithesis of European notions of secularism, liberty, and human rights. In the European imagination, shari'a law constitutes an archaic and inhumane set of practices that conjures up images of grossly violent and grim images including forced bodily amputations, the stoning of women, and communal infliction of physical torture. Consequently, the notion of the shari'a law, more than any other feature of Islam, engenders profound concern and fear among the public, and its imposition in any form is conceived as a grave threat to the establishment of European humanistic and secular values.
This paper aims to challenge the above-mentioned predominant view by suggesting that the perceptions of the shari'a law and the debate concerning its application rest on a profound misunderstanding of its meaning, its complex historical evolution, and its role and significance among contemporary Muslim communities in Europe. On the basis of research conducted among Muslims in Europe and published in Muslims in the West After 9/11: Religion, Law and Politics in 2010, this paper purports to show that Islamic law is already taken into account in most European legal systems. This fact, however, does not preclude political conflicts pertaining to the legitimacy of Islam in public space.
Malleability of Shari'a
Muslims believe that the Islamic law originates in the will of God who communicated it through divine revelation. Islamic law is thus a passage or guide to the divine will, and therefore called shari'a (meaning "path" or "road"). While the shari'a was initially limited to the original revealed text of the Qur'an, it gradually evolved and expanded beyond the scope of the legal matters discussed in the Qur'an to cover numerous and varied topics for which the Qur'anic revelation did not offer any explicit prescriptions. Consequently, classical Islamic legal theory came to distinguish between shari'a (divinely revealed law) and fiqb (humanly manufactured law). The principal purpose purpose of fiqb is to derive Islamic law in the absence of divine edicts in the Qur'an or baditb such that it ultimately remains in harmony with the basic tenets and vision of Islam. To this end, fiqb employs a variety of legal techniques and methods such as qiyas, or analogical reasoning (applying a rule provided in revelation to a new situation), and ijma, or consensus of the scholars.
The transformation of the divine principles into positive legislation is thus a consequence of human deliberation, i.e. the intellectual labors of lawyers and scholars of Islam. Therefore, shari'a--and this is the crucial point--is not codified but rather it is a product of a long and complex historical process based on the gradual evolution of Islamic methods of jurisprudence such as the in-depth study of legal doctrines and principles, the techniques of interpretation, and the criteria for the formation of legal judgments. So, even the criteria for the formulation of legal judgments. So, even though shari'a is ultimately supposed to be grounded in the divine will and to take inspiration from the Qur'an and the comprehensive vision of Islam, it is decisively shaped and developed by the continuous and practical efforts of Islamic legal scholars operating in myriad historical, cultural, social, economic, linguistic, and political contexts. Shari'a has therefore assumed many varied forms across time and space but such that they remain ultimately loyal to the revealed text of the Qur'an and the basic tenets of Islam.
The recent controversy concerning the expansion of shari'a to areas of criminal law (u'dud) overlooks the fact that in most contemporary Muslim states shari'a is confined to family law. …