Earlier today, Newt Gingrich, Senior Fellow at the American Enterprise Institute and former Speaker of the United States House of Representatives, presented a speech titled: “America at Risk: Camus, National Security, and Afghanistan.” In it he discussed a variety of issues, but the one that stuck out for me dealt with the sharī’ah (Islamic law). Gingrich stated:

Sharī’ah in its natural form has principles and punishments totally abhorrent to the Western world, and the underlying basic belief is that law comes directly from God. It is therefore imposed upon humans, and no human can change the law without it being an act of apostasy [irtidād].

Any student of Islamic studies will realize this is a completely simplistic understanding of the sharī’ah. Before discussing the sharī’ah and the establishment of law in Islam it is crucial to understand a few things first.

Indeed, in Islam, God is considered the lone sovereign (ḥākimīyyah). For instance, in Qur’anic verse 2:107 it says: “Do you not know that to God belongs the sovereignty of the heavens and the Earth”? But there are some Muslim jihādīs, such as Sayyid Qutb that link God’s sovereignty to governance. According to Sayed Khatab, Qutb’s theory of ḥākimīyyah denotes the following ideas: (1) “the system of government in Islam is not similar to any other system”; (2) “it is distinct from all forms of government in secular democracies”; (3) “it is constitutional”; (4) “it is not inherently theocratic or autocratic”; and (5) “the form of Islamic government has no impact on the Islamic identity of the state.”

In addition, the concept of ḥākimīyyah is connected to the concept of tawḥīd (oneness of God). As Qutb states:

Tawḥīd is that Allah is the Lord and Sovereign of people not merely in their beliefs, concepts, consciences, and rituals of worship, but in their political affairs … There is no God but God. There is no one worthy of worship except God, there is no creator or sustainer except God … There is no one in charge of the universe or even one’s own affairs except God … Thus, Muslims worship him alone … Muslims believe that there is no true ruler above them except Allah, no legislator for them except God, no one except God to inform them concerning their relationships and connections with the universe, with other living creatures, and with their fellow human beings. This is why Muslims turn to God for guidance and legislation in every aspect of life, whether it be political governance, economic justice, personal behavior, or the norms and standards of social intercourse.

When discussing the idea of Islamic governance, it was also essential for Qutb to connect the above terminologies – ḥākimīyyah and tawḥīd – to the sharī’ah. Qutb contends that for one to institute the sharī’ah one needs to first accept the idea behind tawḥīd, which based on the above definition, lends credence to the notion of ḥākimīyyah and one’s willingness to submit to the will of God and its laws. In other words, before one can follow the sharī’ah, one needs to believe in the idea of tawḥīd and ḥākimīyyah, which is a quintessential part of joining the faith of Islam.

The major problem with this is that Qutb and other jihadists for that matter are conceptualizing an Islamic state under the institutional framework of a nation-state, in that laws are codified and for jihādīs it is a totalitarian system that does not have any checks on power or law. This differs from the classical understanding, which Noah Feldman brilliantly explains in his book The Fall and Rise of the Islamic State. In it, Feldman points out that in the classical Islamic state, the ‘ulamā’ (religious scholars) provided a check on the power of the ruler since law was not a monopoly of the state like it is in the framework of the nation-state. This legal system was ever evolving and changing since there was a separation between the state and the sharī’ah. Therefore, according to Feldman it created: “[a] crucially [important] balance between the authority of the ruler and the law itself.”

This returns us to the original point of this post, which dealt with the creation of the sharī’ah. One derives sharī’ah from two primary sources: the Qur’ān and the Sunnah (actions and sayings of Muhammad). Islamic jurisprudence (fiqh) allows the ‘ulamā’ to interpret aspects of the sharī’ah to issues not directly addressed by the Qur’ān or Sunnah. These tools include using ijmā‘ (consensus of the scholars) and after that qīyās (analogy), while Shī’ah use ‘aql (reason) instead of qīyās.

The only individuals who are allowed to practice fiqh are qualified mujtahid’s (one who performs ijtihād or independent thought) who have gone through extensive training in classical Islamic and Qur’ānic sciences. One might answer by stating, well, I think I heard or have read something about the “gates of ijtihad being closed”. This is also a misnomer. Hakim Murad explains: “sophisticated mechanisms were available which not only permitted qualified individuals to derive the Sharī’ah from the Qur’ān and Sunnah on their own authority, but actually obliged them to do this.” Further, there are different levels of ijtihād that a mujtahid could perform. The highest level is mujtahid fī-l-shar, which is an individual who does not need to follow a particular madhhab (legal school, there are four in Sunnī Islam) because he is advanced in his knowledge of the Islamic sciences. These were the individuals whom Abū ‘Abdullah Muhammad Ibn Idrīs al-Shafi’ī (or al-Shafi’ī) explained the “gates of ijtihād” were closed for since a mujtahid of those heights could no longer exist. Therefore, the “gates of ijtihād” being closed was in reference to not being able to establish another madhhab outside of the established four. As such, the ‘ulamā’ were still allowed to perform ijtihād, just the lower levels. These included: (1) a mujtahid fī-l-madhhab who could perform ijtihād within a specific school on an array of legal issues; (2) a mujtahid muttabi (follower) “who follows his madhhab while being aware of the Qur’ānic and ḥadīth (sayings of Muhammad) texts and the reasoning, underlying its positions”; and (3) a mujtahid muqallid (emulator) “who simply conforms to the madhhab because of his confidence in its scholars, and without necessarily knowing the detailed reasoning behind all its thousands of rulings.”

These processes still exist at traditional religious establishments such as Jāmi’at (university) al-Azhar in Egypt, Jāmi’at al-Qarawiyyin in Morocco, Jāmi’at al-Zaytuna in Tunisia, and others. For example, scholars at al-Azhar issued a fatwā that discusses the permissibility of celebrating Mothers Day, a non-Islamic holiday (for the record it is indeed permissible). One can see that the process of the sharī’ah is far more complicated and intellectually rigorous than how Gingrich described it in his speech and that Islamic scholars have the tools to evolve the law as time changes. This does not excuse the heinous acts in the name of trying to establish the sharī’ah by jihadists, but most of them are not qualified to truly derive Islamic law, but that is a whole other issue.

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Sources:

Abdal-Hakim Murad, “Understanding the Four Madhhabs: The Problem with Anti-Madhhabism.” http://www.masud.co.uk/ISLAM/ahm/newmadhh.htm.

Noah Feldman, The Fall and Rise of the Islamic State (Princeton: Princeton University Press, 2008).

Sayed Khatab, The Power of Sovereignty: The Political and Ideological Philosophy of Sayyid Qutb (London: Routledge, 2006).