Notes from the field:

The politics of inaccuracy and a case for “Islamic law”

posted by Lena Salaymeh

A futile exchange:*

Random person: “What do you study?”
Me: “Islamic legal history.”
Random person: “Oh, sharīʿah law.”
Me: “No, sharīʿah means divine law; it’s an abstract concept. I study the interpretations of divine law or laws as actually applied by Muslim societies, which is fiqh in Arabic, and I focus on the medieval period.”
Random person: “Oh, so then you study the historical sharīʿah law.”
Me: “No, I study Islamic legal history.”

*

Then the conversation awkwardly ends. Some form of this ineffective exchange has occurred more times than I can count. I sometimes also explain that “sharīʿah law” is redundant because sharīʿah means divine law (and “sharīʿah law” therefore would be “divine law law”). But I typically sense that the miscommunication between us is so vast that rectifying it would be a prolonged burden. I blame the term “sharīʿah” and all of the imprecisions and mythologies that surround its use in Western discourses.

Like the philosophical distinction between Truth (with a capital T) and truth (with a lowercase T), the terms sharīʿah and fiqh distinguish between the unknowable and the knowable. Sharīʿah is God’s law. But humans have to rely on their interpretive faculties to ascertain what the divine laws are and how they are to be applied; fiqh thus refers to the human understanding of sharīʿah. In Arabic, a jurist is a faqih because his/her role is to interpret law (fiqh).

Since the process of understanding divine law is not a uniform or singular one, there are multiple interpretations of what divine law is, and, consequently, there are many schools of Islamic legal thought. The sharīʿah-fiqh distinction is one that is clearly recognized in Islamic jurisprudential texts and beyond. While I am still in the process of undertaking a thorough historical study, I suspect that the conflation of the terms sharīʿah and fiqh became normative among Muslims in the modern era—particularly in the context of Islamist-based resistance to imperialism. Regardless of the precise genealogy, the use of the term sharīʿah rather than fiqh in contemporary Muslim discourses has political motivations and ramifications; in other words, it is essentially about power. Jurists or political figures who use the term sharīʿah claim more authority for themselves and their opinions (legal or otherwise) than they could if they used the term fiqh.

Some of you might be thinking that Islamic studies specialists use the term sharīʿah, so how problematic can it be? Admittedly, this does not help my case. In the past, when I have discussed this issue with my colleagues, they have argued that we cannot win this terminological battle because the use of the term is too prevalent, and the term is, in any case, used by Muslims innocuously, etc. But these rationalizations have more to do with inertia than anything else.

So why do I think my interlocutor, this random person from the futile exchange above, should not use the term sharīʿah? Because my interlocutor has no idea what fiqh is, and therefore has no idea that there are numerous Islamic legal schools of thought. My interlocutor does not realize that no consensus exists about what is contained in sharīʿah, which animates an intense and fraught socio-political struggle. Who claims to define sharīʿah is just as significant as how sharīʿah is defined. Consequently, when Western media identify a particular country as applying sharīʿah and that country is actually applying an outlying interpretation of Islamic law, then Western media is legitimating that country’s policies as “sacred” or religiously authentic. Islamic law is defined and practiced distinctly by different people in different places and at different times, but using the term sharīʿah obfuscates those subtle realities. This is why I believe that the term sharīʿah should simply not be used: most people use it incorrectly.

But inaccuracy in Western discourses is only part of the problem. The other side of inaccuracy is an ideological interest in reifying the “Other”—in this context, Muslims and their laws. Why is the transliterated Arabic term sharīʿah consistently used in Western languages instead of the more accurate translation, “Islamic law”? The repeated use of the non-translated term (sharīʿah) rather than “Islamic law” operates as a distancing and vilifying mechanism. It is easier to colonize, to abhor, and to fear people who have “sharīʿah” than it is to do the same to people who just have laws. The usage of the term “sharīʿah” helps generate xenophobia.

I would like to erase the term sharīʿah from our contemporary lexicon and replace it with Islamic law. Many people have and will continue to resist relinquishing the term sharīʿah—perhaps in line with their political agendas—but I hope that at least some will consider the politics underlying the term’s misapplication. Someday, I hope, “Islamic law” will be my interlocutor’s term of choice.

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8 Responses to “The politics of inaccuracy and a case for “Islamic law””

  1. avatar Andrew March says:

    Hey — at least your interlocutor knew the accurate transliteration and pronunciation of sharīʿa! :-)

  2. avatar Fatima says:

    I like the easy way this sometimes complicated distinction is explained. I’m copying as short notes for my kids. Hope that is acceptable to the writer.

    Thank you

  3. avatar Tarek Masoud says:

    This is an important and thoughtful piece. I for one will be careful to make this distinction in the future.

  4. This is a good explanation of the terms Shari’ah and fiqh, including the point about the political ramifications. But the end leaves me feeling we are in a “no win” situation. We are urged by many Muslims to use the proper Islamic terms for things and now we are told that if we do we are distancing and vilifying. Are we doing this if we use hajj for pilgrimage or salah (or salat) for prayer? In the hands of some people any of these terms will be distancing and vilifying, but I don’t think this is true for most of us. I think Shari’ah gains us more in accuracy and authenticity than it loses us by the misuse of some. My preferred usage for the modern period is “Shari’ah law” or “Shari’ah based law”, i.e. human law that claims to be based on the Shari’a, bearing in mind that the Shari’a is now quite law, in the Western sense, but rather more a moral classification of actions.

  5. Thank you for this clear and clarifying argument. I find the question you raise about *who* claims to define sharīʿah very important, and for that reason I cannot accept a translation of the term which includes “law.” Fiqh gradually becomes more influential in many societies ruled by Muslims, but my students almost all think sharīʿah is the universal law of all Muslim states from Muhammad onward. I introduce the different schools of fiqh, of course, but also point out that what is called “Islamic law” has never been the law of the land (for a variety of reasons), even as most medieval and modern Muslim rulers pay some lip-service to sharīʿah. Instead, fiqh is what the ulama *wished* was the law, about which (in the pre-modern period) they frequently disagreed with the actual rulers. To translate sharīʿah as “Islamic law” uncritically accepts ulama claims to social authority which they did not in fact possess.

  6. avatar Andre Eriksson says:

    Contrasting any school of Islamic law that actually has its basis in the Quran and the Hadits with western law, there are quite a few striking differences. In my readings I’ve found that states that refer to their laws as Sharia laws are closer to the root texts.

    As you say, the differences are subtle but if you are looking for a word to contrast the western law system with the more fundamentalist aspects of Islamic law, Sharia seems to fit the bill.

    It is my understanding that there is quite a big agreement within the major Islamic schools of Law on many major points where there is an equal but opposite agreement within western democracies about the same points.

    Take the treatment of apostates as an example, as Thomas points to, the Sharia as discussed by the traditional authoritative Islamic scholars has mostly not been the actual law of the land. For people like me, Sharia then (used in the sense of what the various schools have in common) becomes very useful to point to something that I do not want to be implemented in the western societies, without condemning every Muslim or Muslim state through history.

  7. avatar Jeff says:

    Thank you Lena Salmayeh for this explanation of the difference. However, I am at a loss to understand how the term sharīʿah generates xenophobism. The root cause of xenophobism is the crushing realization that the vast majority of interpretations of divine law (as discussed in Islamic texts) tend to be medieval and barbaric. I don’t think introducing a new term called “Islamic law” will do anything to dispel that notion.

    What we need is a economically strong, scientific, modern, equal and power nation state that has its roots in Islamic law to categorically and convincingly demonstrate that Islamic law belongs in this century.

  8. avatar Mudasser says:

    So Jeff, I think by economically strong, scientific, modern, equal and a power nation state which has its roots in Islamic law to categorically and convincingly demonstrate that Islamic law belongs in this century; you are referring to Turkey, which is a nation economically strong, scientific, modern, equal and a power nation trying to navigate it’s democracy with a balance of Islamic law and western laws (which are deeply rooted in Islamic law anyway).

    The western countries seem to not like that a muslim majority country is doing so well and has not buckled like Egypt and other middle eastern countries to coups and dictatorships.

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