Law, Morality and Shar'ia (by Dr Khalid Abou El Fadl)

Law, Morality and Shar'ia (by Dr Khalid Abou El Fadl)

The question of how the law becomes known has occupied the minds of Muslim jurists for a long time. In the early centuries, the heated debates and at times even hostilities centered around the place and role of ethical principles, morality, and reason in the development of the religious tradition.           

However, in modern times, this debate has formally subsided. Whatever the nature of the debate that exists today between liberals, fundamentalists, and secularists, it is no longer phrased in terms of morality and law. The issue of Islamic law and morality has dropped from all consideration in the modern age. I am here motivated by two considerations: first, I accept that the Qur'an and the laws of God are binding, and that an Islamic theory has to be expressed within the framework of Islamic principles; second, I maintain that it is not possible to sustain the dynamism and vitality of Islamic law and morality without maintaining the liberty and innovative capacities of the individual.

Here, I attempt to come to grips with a problem at the heart of the Islamic tradition and with an issue that will have a great impact on the role that Islamic law will come to play in the lives of Muslims in the present and future. 

What is Shari'a?

According to Muslim legal theory, the purpose of Islamic law is to seek after the righteous path - to try to come as close as possible to it, and in doing so achieve the welfare of the people. In Islamic law, achieving the welfare of the people (tahqiq masalih al-'ibad) is a term of art that is intended to acknowledge that the pursuit of abstract values, such as justice, compassion and mercy, is supposed to translate into concrete and tangible benefits to be enjoyed by human beings.

Muslim and non-Muslim writers often refer to Islamic law as Shari'a law, which is not entirely accurate. Linguistically, the word shari'a literally means the fountainhead that quenches the thirst of living beings or the way to goodness. Jurisprudentially, the Shari'a is the revealed guidance of God - perfect, complete, incorruptible, immune and immutable. In a sense, the Shari'a provides the skeletal ethical and moral norms of the Islamic legal system. Human beings must strive and struggle to realize the righteous path to the best of their abilities.  Thus, by contrast, fiqh (understanding) is human law—it is the human attempt to reach and fulfill the eternal law as it exists in God’s mind.  Fiqh is not eternal, immutable, or unchanging.  By definition, fiqh is human and therefore, subject to error, alterable, and contingent.

The moral and ethical objectives of the Qur’an play a central and pivotal role in the process of legal analysis.  The point of the legal analysis is not to unthinkingly and blindly implement a set of technical rules, but to seek after the ultimate objectives of the Qur’an.  All Qur’anic laws reinforce and promote moral and ethical objectives, such as racial and ethnic equality, freedom from compulsion in the conduct of human affairs, freedom of conscience, or the right of women to own property, and it is the duty of Muslims to apply themselves intellectually in order to comprehend and fulfill these objectives.  These moral objectives are related to the obligation to seek Godliness in oneself and in society.  The specific rulings of the Qur’an came in response to particular problems that confronted the Muslim community at the time of the Prophet. 

The particular and specific rules set out in the Qur’an are not objectives in themselves.  These rulings are contingent on particular historical circumstances that might or might not exist in the modern age.  At the time these rulings were revealed they were sought to achieve particular moral objectives such as justice, equity, equality, mercy, compassion, benevolence, and so on.  Therefore, it is imperative that Muslims study the moral objectives of the Qur’an, and treat the specific rulings as demonstrative examples of how Muslims should attempt to realize and achieve the Qur’anic morality in their lives.  Human beings are commanded to engage in a process - the process mandates that there be a conscientious and diligent search or investigation for what is good and what is bad, and then engaging in the process of teaching and counseling.

At the most basic and fundamental level, what are the ultimate objectives of the Shari’a (the eternal law as it exists in God’s mind)?  Historically, legal schools of thought disagreed on many issues, but they agreed on the response to these questions.  According to all the jurisprudential schools the purpose of the Shari’a is to serve the best interests of human beings. Put differently, the objective of the law is not to apply technicalities regardless of their consequences, but to achieve the ultimate moral and ethical objectives that represent the essence of Godliness on this earth. In the modern age, it is imperative for Muslims to reengage with the discourse about the intimate relationship between law and morality.

(Adapted from “Living in the Light of God: Islamic Law and Ethical Obligation,” ABC, February 25, 2013)