By Serena Zhou EAS’14
"Why is the rule from God non-binding?" was the key question posed by Dr. Asifa Quraishi during her keynote speech on Shari’a– Islamic Law-- as part of Penn Law’s Muslim Law Student Association (MLSA) fifth annual conference, Feb. 26.
The conference, the theme of which was "Constructive Roles for Islamic Law in Western Society,” attracted to the Law School’s Levy Conference Center a diverse crowd of law students, Penn graduate students, and visiting scholars from cities around the U.S. and the world to engage in dialogue about Shari’a and other topics, such as the Egyptian revolution and Islamic finance.
Of the three featured conference speakers, Dr. Quraishi centered her talk on Islamic legal theory, engaging the audience with questions and a multimedia presentation depicting Islamic judicial systems with parallels in the American legal system.
Pointing out that the literal meaning of Shari'a is “the path,” believed by Muslims to be God's law passed down through the Qur'an and seen in prophetic examples such as Mohammed, Quraishi noted however that "People will run into situations that are not addressed by either.” Quraishi elaborated that Ijtihad-- legal interpretation by private scholars-- supplements Shari’a, and highlighted the implications of that: "Scholars wrote about this, aware of their own fallibility." The interpretation of Shari'a gave rise to Fiqh, different conclusions scholars drew from canonical texts, always ending their interpretations with the phrase “God knows best.”
The collective of these interpretations became methodologies that are simultaneously valid, she explained. "In Classical Muslim society, the legal system developed to accomodate pluralism." She went on to dispel many of the misnomers and the negative connotations associated with Islam in America. Ijtihad shares its root with jihad; but jihad’s meaning, Quraishi asserted, is not holy war but literally “struggle.” Further, a fatwa given out by a mufti, unlike for example a papal edict, is not absolute.
Muftis are recognized experts in the field, but Muslims that seek their advice do not have to follow it. Choice is a centerpiece of faith; as Quraishi pointed out, if someone follows an interpretation that is not coming from their own conviction, they run against the spirit of jihad for Muslims. That is why the rule of God or the interpretation of it is non-binding, she said.
The rule of law of temporal leaders, however, is binding to maintain order and maslaha or public welfare, she added. This realm of law related to political administration is Siyasa. "The separation of these two spheres, Siyasa and Fiqh,” Quraishi said, “has its Western analogy in the separation of Church and State.
Rulers, she explained, “tried to impose belief on the people, but academic freedom won out. That is the spirit behind the first Amendment." However the similarity ends there, as Islam has bifurcated realms of lawmaking, with legal schoars as a key source of law. While in the U.S., she argued, law comes from the state or positions created by the state.
Quraishi transitioned from Classical Muslim society to the nation-state model and asserted that codes of modern Islamic states have the basic European template and Western legal concepts that are not well equipped for interpretation. As a result, the legal system has lost a sense of pluralism, nuance, and diversity. She differentiated between classical Fiqh and legislated Fiqh and warned, "If the laws uses Fiqh as a source, remember that this is a maslaha choice, and is not dictated by Islam."
Shari'a is abstract while Fiqh is specific and doctrinal. Fiqh does not have to be legislated into Siyasa in order for a state to be Shari'a mindful. (The next speaker, Dr. Fadel, addressed the issue in the context of the Egyptian revolution; Article II of the Egyptian constitution contains the clause "Shari'a is the principle source of legislation for the state.")
When the decision by lawmakers in Oklahoma to prohibit judges from considering or using international or Islamic law in their cases was raised by an audience member, Quraishi replied, "That is a question for American liberal democracy, [whether] we can accomodate alternative dispute resolution and not a substantive debate about Shari'a."
Bilal Choksi L’12, president of MLSA, commented that in organizing the conference,"There were two goals the board had in mind as we chose the speakers. One, we wanted substantive legal dialogue.” Second, he said, “We wanted a forum to debunk the misconceptions associated with Islam."