How the improper implentation of Shariah has led to inaccuracies in how it is viewed?

Wa alykum as-salaam!

Quite the opposite, actually, it has been the removal of Shariah that has led to the inaccuracies in regards to peoples’ views of Shariah, both for Muslims and non-Muslims.

You see, the vast majority of the Muslim world utilizes Civil Law systems, which are clumsy and problematic. Now, while a Civil Law system works pretty well in France, for example, that doesn’t mean it’s going to work very well in say Egypt.

Why?

Because the Civil Law system in France is designed to work, quite frankly. The British, who colonized Egypt, did not put in their own Common Law structure, no, they put in and enforced French Napoleonic Code, i.e. French Civil Law. Why would the British do this?

Because Civil Law systems are fantastic at oppressing people. This isn’t a joke, there is no “har har,” I’m being dead serious.

Take a look at Ottoman reforms in the mid-1800’s, for example. The Sultan’s sole check on his power came from the Ulema, the jurists, who by pushing forth their legal structures and power as the formal guardians of the faith (because local preachers pushed an incredible influence over the larger populace [they were the equivalent to youtube and tumblr “sheikhs” at the time, who actually were much more important than we acknowledge, even academically]) anyways, so, the Sultan doesn’t like these Ulema, because they can tap into a discourse and an authority that makes him do things, and of course, he doesn’t like that.

So, what does he do? He says, “LET’S REFORM!” So he pushed Ulema to the side, they just talk about divorce and stuff so the Sultan doesn’t have to deal with people’s everyday stuff.

Now what?

He creates a European style judicial system, and he makes sure its a Civil Law system, why? Because Civil Law systems are controlled easily, because practitioners of the law (judges, lawyers, etc) are not high status positions and therefore are less likely to feature the society’s elites, thereby ensuring that elite interests are not pursued through legal means, but through other avenues.

So great, the judicial system is now terrible and ineffective and the people do not really see themselves as participants because it doesn’t not use a discourse they are familiar with: i.e. Islam.

Think about it this way, if in America they suddenly stopped using our legal system, so no more Supreme Court, no more Brown v. Board of Education, no more Roe v. Wade, no more Jeffersonian maxims on freedom and what not, and we put in some new system, people would be like “yo, what is this?” Right?

Same thing happened there.

So great, Sultan has the judicial system in check, and with the Ulema gone, he needs a group of people to craft laws, so what does he do? He creates a European-style Parliament. Awesome, right?

Well, the Sultan doesn’t realize something, that Parliaments’ first job is not to make laws, oh no, the first thing they do is criticize the executive. When President Obama became President, did Congress make laws? No, they talked about how terrible he was. Unlike a US President, though, a Sultan can just dismiss the legislature, and after a single year, that’s exactly what the Sultan did, and he didn’t reconvene them, making the history of dictatorship not a product of Shariah, but either of Colonialism or the injection of European-style institutions without regard for the context of the society in question.

So, when we talk about implementation and what not, you have to talk about institutional arrangementsand if you don’t do that, then we’ll be talking about very different things.

Look, the Shariah is not something that is that dated, because people still steal, people still murder, people still get divorced, and the Shariah deals with that. Now, how do we adjudicate that?

This is important: There isn’t some magical “Shariah says X” type of answer, it has always been “society A utilizing Y form of Shariah informed by their Z type of culture.” Things are far more fluid than we give Shariah credit for, and in my opinion, that comes down to the scholarship of Imam Shafi’i who talked about the fluidity of Shariah.

Imam Shafi’i originally began his work in Baghdad, but he famously settled in Egypt. Sheikh El Shaarawy, when writing about Imam Shafi’i, notes that:

“From Imam Shafi’i’s careful tuning of his “Baghdadi school” to produce the different “Egyptian school”, we see the importance he gave, in making a juristic decision about an issue, of taking into account not only the relevant verses of Qur’an and applicable Hadith, but the characteristics of the people he was giving the ruling for as well, including aspects of culture, behavior, the overall public level of morality and other intangibles. So whereas Imam Shafi’i could be said to have differed with himself on some issues, unfortunately today, differences in jurisprudence between the Imams have caused one group of Muslims to accuse another of insincerity, innovation (bida’), unbelief (kufr) and worst of all, polytheism, (shirk).“

So, when we talk about how we need to “reinterpret” the Shariah, I always get confused, because the reality is that Shariah, as a methodological process, is constantly in flux because it constantly has to readjust itself for people.

People think this means to have a different set of morals, when really, it’s about different methodologies in ensuring those morals and values are protected.

This has nothing to do with laws being set in a certain time or place, we’re not even at that point of the discussion, we need to figure out what Shariah actually is first before we can even get into a discussion of time-period and applicability.

Does that make sense?