One revolutionary revelation that came about with Islam was the new emancipatory status that it gave womankind. No longer objects of exchange, they became their own subjects with property rights. In the early Islamic society the law was fluid and ideas were not fixed, as Islam promoted virtues such as courage, fidelity, kingship and finality, and former pagans were offered the prospect of salvation: ‘Islam converted nothingness into an eternal afterlife of either hell or heaven’.
Later on, the book provides an interesting account of sharia finance and Alternative Dispute Resolution(ADR). We should note, notwithstanding its ethical basis, that sharia finance is open to abuse as the cardinal condition of not charging interest has been reworked into new and ingenious forms of sharia finance whereby something very similar to interest may indeed be incurred. That said, as the authors point out, this change was arguably needed as sharia finance blocked private capital accumulation and this, according to Prof. Timur Kuran, was an obstacle for economic development back in early Islamic society,. ADR is implicit in sharia from the beginning and is a refreshing change from the litigation culture prevalent in the West, even though there are many settlement mechanisms in place in English and French legal systems without going to court.
Arguably, there are various mechanisms within sharia that enable it to adapt to modern contemporary circumstances and demands. The most important is ijtihad, which is the act of exertion, reflection and contextualisation in legal matters. The classical formula argues that the ‘gate of ijtihad is closed’ but the authors argue to the contrary and show that sharia was always changing through its history. To illustrate how ijtihad can work there is an example of a courageous activist, Jaha Dukureh, who was the victim of female genital mutilation (FGM) as a child. She returned to the Gambia from New York and, through education and social activism, persuaded a local imam that the practice was not necessary or compulsory. This eventually led to the outlawing of FGM in the Gambia. Other important notions are darura (‘necessity’) — a situation in which an illicit action is permitted for the sake of the public good, known as maslaha (public interest) — which allows for flexibility in changing the law to meet general welfare. The last important and overarching factor, maqasid al-sharia (the higher principles of the law) is intended to protect life, intellect, property, offspring and religion. This understanding has existed since the early days of Islam.
These mechanisms in sharia give lawyers and others the necessary tools that enable them to adapt law. Western laws are rule- and precedent-based, which enable them to adapt more rapidly to a modern context. Sharia is rule-based, but the rules are ostensibly derived from divine command and seemingly less flexible. However, the authors argue that sharia is not static but is capable of change, has changed over the centuries, and has the internal capacity to continue changing. In the final chapters the authors reflect on how this notion of change is essential in order to accommodate the changing times we live in.
As an English person, the law is not a part of my identity. It is a means to an end whereby an orderly society is maintained, and it upholds good governance guaranteed by a secular order. Sharia has an intrinsic value which affects a Muslim’s sense of identity and we should note that sharia is based on obligation or duty — something which rights-based Western legal systems could learn from. Sharia, which is itself sensitive to environmental obligations, is indeed an area of study which could have a profound effect on how we think about our civic duty to care about ecology in an era of global warming. This is a challenge for a secular society which can often lack the principle of duty since there is no overriding sovereign power to impose obligations. The loss of religious duty is something which Western philosophers feared in the nineteenth century as secular systems and science supplanted the role that the Church once had
This book provided me with a great insight into Islamic history, culture and thinking. As the Revd Canon Dr Alan Race states, the work is ‘accessible, informative and wonderfully enlightening [and] a must-read for anyone who wants to acquire an unprejudiced perspective on the meaning of sharia for today.’ Understanding Sharia: Islamic Law in a Globalised World addresses the gaps in our knowledge of sharia. The book should not become a gem that few appreciate, it is too important. It must be read, discussed and critiqued to stimulate informed debate.
By Theo Richardson-Gool – former legal practitioner, contributor to the New Law Journal and graduate of London University and the IE (Instituto de Empresa) Business School, Madrid.
