Rehabilitating the Sharia: Exploring the Politicization of the Exegesis and Jurisprudence of Islam

Meaningful existence requires rules. Without rules, life would be chaotic. Rules differentiate right from wrong. Rules are articulated in ethics and reflected in legislation. The chief rules are laws. Rules of ethics encompass values. For example, Kant's categorical imperative teaches that we should treat others the way we would want to be treated by them. Ethics teaches us the right way to treat people. For there is a right way and a wrong way. The right way is the way of the righteous. The wrong way is the way of the wrongdoers. Revelation furnishes a fuller knowledge of morality than mere rationality, as revelations addresses the bigger picture, encompassing the afterlife, too. Revelation promises rewards to the righteous and punishments to wrongdoers, at times in this life but always in the hereafter. These provide further "incentives" to us to behave. For we possess freedom of will, and are able to choose right or wrong actions. A wise person will always choose the right action and avoid all wrongdoings. Unwise persons fall into wrongdoings. Meaningful existence requires us to treat all persons, as well as the flora and the fauna with justice. We are also required to treat the environment justly. The law requires to reflect justice. But justice has not received proper attention in Islam. Bukhari features no book on justice. Shatibi did not see it fit the mention justice among the purposes of the law. Legislating presupposes knowledge of the difference between right and wrong. This knowledge is furnished by revelation. But this knowledge requires being acquired. This is task of exegesis. The knowledge of right and wrong requires incorporation in legislation. This task falls to jurisprudence. When the knowledge of ethics is accurately reflected in the law, the law functions effectively. When knowledge is corrupted, enforcement of the law results in injustice. This transpires in authoritarian polities of all stripes. The sharia, as articulated at present, is tainted by encroachment on tawhid. This resulted from treating tradition as tanzil or "what Allah sent down" and treating persons as "lawgivers." For all laws require being derived from revelation understood as tanzil. Judgment is not reached by recourse to wahy (inspiration) alone. For even satans provide wahy. Treating tradition as wahy (inspiration) does not render it fit to be treated as a root of legislation. Allah alone is the Lawgiver. He shares His judgment with no one. Penal legislation is marred by jurisprudence based on errors and perceptions that encroach upon the preeminence of revelation as the chief root of legislation. Errors encompass the turn from revelation to tradition, the repression of reason, the treatment of tradition as revelation, the subordination of revelation to tradition, recourse to the teaching of abrogation, and treating jihad al-talab as a pillar of Islam. As a result of treating tradition as a root of legislation, parts of the penal code contradict revelation, especially the punishments for blasphemy, apostasy and adultery. The purpose of the law is to ensure justice, not to provide justification for the repression of the enemies of the ruling elites and the perpetration of injustice. The fusion of tradition with revelation, assisted by the repression of reason, produced confusion. In keeping with the perception of tradition as "revelation," it was asserted that tradition is sacred. Traditions are not the words of Allah. They are not even the words of the messenger. They are paraphrases of paraphrases of words attributed to the prophet, recorded in defiance of the prohibition of doing so by Allah as well as by the prophet. The confusion of tradition with revelation, embedded in jurisprudence on the unwarranted assumption that tradition is tanzil enabled extreme punishments to taint the penal code. Enforcing legislation without a grounding in revelation, results in miscarriages of justice. It also imparts an aura of harshness to Islam.