Sharia, a Divine Path Constructed by Men

Last update: 2022-04-22 09:19:41

The Muslims’ Holy Book is a “mirror-book:” the meanings promoted by the exegetes lie not in the text but, rather, in an interaction between the text and the exegetes’ own experience. Even when the legal rules do find a foundation in its verses, they are not obtained by way of a simple reading. The prohibition against wine demonstrates this quite clearly: the exegetes reorganize the text of the Qur’an after reworking it and then, relying on external data, they propose an interpretation.

If one is to understand the Qur’an’s legal exegesis[1] properly, it is necessary to take the classic concept of sharia, the “Islamic law,” as one’s starting point. Here, I am not referring to the Qur’anic conception of the Law but, rather, to that singular notion formulated by the jurists during the ninth century that was to become hegemonic during the centuries that followed. This approach enables one to see that it would be anachronistic to talk of sharia before the ninth century. Islam has adhered to the idea of a revealed, divine law right from its very dawning, to be sure, but the concept of sharia was a distinctive manifestation of this idea.

It was a Sunni invention in the beginning. Only later was it to spread amongst the other religious families, with the exception of certain currents such as the Druse, the Nusayri (the current Alawites) and post-Fatimid Ismailism. The concept is marked principally by a paradox: although sharia is presented as revealed divine law, nowhere is it established as such. There exists no corpus of which it may be said, “this is the sharia.” Indeed, although it has been revealed, this divine law is not immediately accessible: it has to be reconstructed by interpreting the “indicators” (adilla) that their author (God) has disseminated as much in the Qur’an as in the Sunna, or in the unanimous decisions of the first Muslims (ijmā‘) or, again, in the natural world. Reasoning is therefore indispensable for arriving at it. This important innovation was an attempt to escape the situation created by the closing of the Qur’anic corpus and the weakening of the Abbasid caliphate.

Indeed, that the Qur’an is finite is a fact that comes into conflict with life: by what laws should the new situations not foreseen by the Qur’an’s legislative verses be governed? There are only two possible answers to this question. According to the first, which prevailed until the mid-ninth century, the head of the Community (the caliph, the imam or the commander of the faithful – the name we give him matters little) is the only person qualified to make laws. Thus, many rules that were subsequently incorporated into the body of sharia are attributed to the first caliphs and to Umar I, in particular. These include the definition of a first canonical version of the Qur’an, the establishment of night prayers (tarāwīh) during the nights of Ramadan, the ban both on temporary marriage (mut‘a) and on selling a concubine slave (umm walad) who has borne her master a child, the definition of the punishment for those who consume wine and the introduction of prayer for the dead.[2] This primitive concept has been kept alive in all the Shi‘ite and Kharijite families.[3]