Rethinking the Shari’ah Law
In Indonesia demands to establish a state based on Shari’ah is often complemented by efforts to apply the Shari’ah as positive legislation. In the idea of applying the Shari’ah to a state level, Islamic intellectuals and politicians always point to the history of the Medina State during the Prophet’s lifetime, which they claim as the best example for an Islamic way of life.
A number of Muslim hardliners in Indonesia believe that the Prophet Muhammad put the Medina State into effect (622-632 AD) and implemented the Shari’ah in the Muslim community there. Their idea to try to implement the Shari’ah as the base for the establishment of an Islamic State can be considered as their effort for identity reconstruction, which Manuel Castells calls ‘the ego of authenticity’, or the main goal of the supporters of the hard-line Islamic movements.
However, according to Abdullahi Ahmed An-Na’im, the concept Medina State which is projected by the Muslim hardliners is actually only valid in a specific historical context and its implementation was not in the form of positive legislation. Moreover, this special occurrence was never again replicated by any nation after the Prophet had died. In other words, the Medina State was based more on the moral authority of social compromise than on the coercive powers of the state. The key point is therefore that the Medina State model cannot be applied in any Muslim communal context. The history of the State of the Prophet is a unique phenomenon which ended with his death. Therefore, the claim to establish an Islamic State to force the implementation of the Shari’ah is unrealistic and manipulative.
Professor Coulson stresses in A History of Islamic Law that the Shari’ah known to Muslims is the product of a very slow, gradual, and spontaneous interpretation of the Qur’an as well as the collection, verification, and interpretation of the Sunnah during the first three centuries of Islam (7 – 9th century AD). This process took place between scholars and jurists (specialists on Islamic Law) who created their own methodology for the classification of numerous sources, deriving specific rules from general principles. The technical aspect of their labor is known as Ilmu Ushul Fiqh. We know that there are numerous differences of opinion (read: Mazhab) over many issues, even though the sources are the same: Qur’an and Sunnah.
The significant question here is, how it is possible to stipulate what the Shari’ah --which has a divine revelatory aspect-- is, if it can only be found through human understanding of the Qur’an and the Sunnah? It is impossible for Muslim jurists to stipulate the transcendental authorization of the revelation based on interpretation and their conclusions on the Qur’an and the Sunnah. In other words, their reformulation means social construction, to borrow Peter L. Berger’s terminology, which is relative. Therefore, the Shari’ah as it is understood in this context means Shari’ah as a social construction which is made and institutionalized by a group of people, the Muslim jurists. If an Islamic government is in power and implements one specific mazhab, intolerance towards other mazhab will arise. Such excesses are very dangerous as they carry the possibility of destroying and shattering the social cohesion in the prevailing social order of society.
To forcefully implement Shari’ah through the State is clearly invalid. Each effort to create an Islamic government will facilitate the creation of conditions of intimidation in a plural society, both between adherents to different mazhabs within the same religion as between believers of different religions. Why should it be like that? Because, if a ruling government mandates the implementation of a particular mazhab it will seek excuses if it does not agree with Shari’ah stipulations of a particular mazhab which, nota bene, forms an interpretation or the views of that mazhab. In this regard, it is assumed that anyone who does not follow the state’s official mazhab opposes Allah, and will be destroyed. Cases such as in Saudi Arabia, Afghanistan, Sudan, and Nigeria show political battles in the name of Shari’ah but appear to be negative and destructive.
In the view of a number of hardliners the Shari’ah is divine revelation-- that has a transcendental dimension --understood by people and to be applied by the State. Other groups claim that the implementation of the Shari’ah need not be formalized by the State. Thus, can we call those who do not agree with the implementation of the Shari’ah on state level disavowers of Shari’ah? According to An-Na’im, speaking about an Islamic State is impossible because, as a political institution, the state cannot be categorized as Islamic or non-Islamic. In the context of a global society, having one Islamic State applying the Shari’ah on the practical level is impossible.
Among the various substances of the Shari’ah the most important one (if we refer to the Qur’an) is the implementation of justice. The problem with the Shari’ah subsequently is how the state can provide justice for the people. When there is a just state that provides the needs of its people, the problem is not whether the state should be religious or secular. From a historical perspective there has never been a successful example of an Islamic State that applied the Shari’ah. The case of the Taliban in Afghanistan is an example that destroyed other parties who did not agree with them. Because of instances such as these, the Shari’ah should be enacted on a personal level, and not on the level of the state.
It is important to note that the concept of Medina as the model state is taken as axiomatic by supporters of the struggle for state implementation of Shari’ah. As already mentioned, the Medina model was only valid in the context of the moral authority of the Prophet, and had no validity in law. Thus Medina as a state was based more on the moral authority of social compromise than on the coercive power of government. In other words, the State established by the Prophet was a unique phenomenon, which ended with his death. The only conclusion can be is that the Medina State model cannot be applied in any other Muslim communal context.
Each interpretation and expression of the Shari’ah is a human endeavor, which is open to a variety of reformulation and re-modification constantly referring to justice as the eternal substance of the Shari’ah. The revelatory source of the Shari’ah cannot influence the life and the experiences of the people in any other way than by means of human agency. Humans have to understand and apply all these sources in the historical context of specific Muslim communities. This does not mean that the Muslim community may not exercise its right to determine for itself how it would define its Islamic identity. However, this stipulation of the Islamic identity should not be enforced through the reestablishment of the Medina State. In accordance with An-Na’im’s thesis, ‘The Shari’ah cannot be enforced as positive, unchangeable legislation as a normative system that is religiously sanctioned.’
Three groups emerge in Indonesia in response to the implementation and formalization of the Shari’ah by the state. One emerges from inside government circles, who enable a much restricted integration of the Shari’ah in the national law system. The second emerges from non-Muslim and Muslim circles who oppose the manifestation of the Shari’ah in positive legislation as they consider this a restriction of the principles of justice. The third emerges from hard-line Islamic groups who want the implementation of Shari’ah.
As long as mainstream Islam (Nahdhatul Ulama and Muhammadiyah) in Indonesia does not provide positive feedback for the idea of formalization of the Shari’ah through the creation of an Islamic State, the idea of the implementation of the Shari’ah remains utopian.
Ridwan al-Makassary is a Program Coordinator of Islam and Human Rights of the Center for the Study of Religion and Culture (CSRC) UIN Syarif Hidayatullah Jakarta, Indonesia.
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