The Sharia Problem with Sharia Legislation
University of Wisconsin Law School
August 28, 2015
Ohio North University Law Review, Vol. 41, p. 545, 2015
Univ. of Wisconsin Legal Studies Research Paper No. 1361
A much-cited 2013 Pew poll reported that a strong majority of Muslims around the world favor making sharia the “official law of the land” in their countries. This was alarming news for many, especially when followed by further statistics supporting things like hand amputation and stoning as criminal punishment. But does a Muslim desire for sharia necessarily mean “sharia legislation”? Does public support for sharia have to mean Muslim theocracy? The answer is “yes” if sharia is defined as scripturally derived religious legal doctrine. But that is a very narrow definition of religious law, and it is an especially inappropriate way to understand sharia. In this article, I will explain why a country that “follows sharia” need not — indeed, should not — be one that “legislates sharia.” I will also show how an appreciation of this distinction — among Muslims as well as non-Muslims — will open up new solutions to the apparently intractable and politicized conflicts between Islamism and secularism in many Muslim majority countries today.
Specifically, I will explain why sharia is best understood as an Islamic rule of law, rather than just the collections of Islamic doctrinal rules known as fiqh. Looking at pre-modern Islamic jurisprudence and Muslim history, I show that sharia rule of law systems were made up of two branches: 1) fiqh rules extrapolated from scripture by religious legal scholars articulating right conduct for Muslims, and 2) siyasa laws created by temporal rulers, legitimated on service of the public good. The role of siyasa as the second of these two branches is especially important to understanding sharia as a rule of law system, but unfortunately is virtually absent in contemporary discourses. As a result, sharia-minded Muslims tend to advocate theocratic systems of government. That is, without an appreciation of the importance of how and why siyasa is part of sharia, average Muslims presume that sharia corresponds only to the doctrinal rules of fiqh, thus leading them to believe that state legislation of fiqh rules is the only way their government can follow sharia. In short, they understand sharia as a collection of rules rather than as a rule of law. This then leads to public support of sharia legislation in politics and in polls. The result is theocracy — government articulating and enforcing religious law upon its people. In opposition to this trend, I will show why “sharia legislation” efforts around the world are misguided attempts by Muslims to make their governments more Islamic. Ironically, these sharia legislation efforts operate from a European paradigm of the nation-state rather than pre-colonial Muslim norms of law and government, and they stand in the way of deeper, more creative and authentic thinking about Islamic constitutionalism in the modern world.
Number of Pages in PDF File: 23
Keywords: Islam, Sharia, Sharia Legislation, Islamic Constitutionalism, Islamic rule of law
Date posted: August 30, 2015 ; Last revised: September 22, 2015