Published Oct 2021

Introduction

Law is a controversial topic in the discussion of faith and public life. We are used to images of Christians campaigning against laws on abortion, bioethics or equalities. There have been legal court cases concerning the right to wear religious clothing or symbols in the workplace and whether religious conscience can exempt a believer from certain professional obligations. Newspaper headlines regularly denounce shari'ah law and those who promote it.¹ When the then archbishop of Canterbury, Rowan Williams, suggested that some accommodation of the shari‘ah in the British legal system was “unavoidable” there was national outrage.² At the same time many Muslims associate Christian attitudes to law with libertarianism and secularism and believe that weak Christian views of law have been behind the decline of morality in the West.

This CMCS Hikmah Guide looks at law in both the Christian and Muslim traditions. It explores their histories, theories and practices of the law and how it relates to society. As with many of the topics dealt with in the Hikmah series, it is all too easy to see the problems in the other community and to focus on positive approaches in our own. On the other hand, it is often difficult to see the drawbacks of our own tradition or to recognize positive aspects of the other tradition.

This guide endeavours to look at the law from the perspective of both communities and outlines the different views and experiences within the communities. At the end there are suggestions for further reading for those who want to research this topic further and questions to help you or your small group think more deeply about this important aspect of our shared public life.

Christians and law

Christian approaches to law, and of the role of the state in general, are shaped by reflection on the Bible, Christian history and tradition, reason, and the challenges of an increasingly secular, non-Christian Western world. The following section outlines how these approaches originate in the Old and New Testaments, are shaped by the Christianization of the Roman Empire and later the Reformation, as well as by the modern world. It focuses on the societal role of law, rather than its theological function in the plan of salvation, and notes that while modernity is often considered “secular”, clear reflections of Christian principles remain in Western views of law today.

Biblical Perspectives

The first five books of the Hebrew Bible (referred to by Christians as the Old Testament) centre on the revelation of the law (Torah) of Moses to the people of Israel. This “law” covered Israel’s whole way of life, including but not limited to worship, personal morality, the judicial system and criminal punishment – a fact obscured by the translation of “Torah” as “law”. Nonetheless, this law does contain principles concerned with law and justice more narrowly, such as impartial judgement in court for the poor and vulnerable Exodus 23:2-3, 6-9 .

This Torah was to govern the conduct of the people of Israel, rather than all the nations of the world. However, the Hebrew Bible also describes Israel’s God as the Creator of the world, and all peoples within it ( Isaiah 42:5 ). As such, the Bible hints at a kind of natural law, applicable to all nations, to which prophets can hold the nations accountable.³

In the 6^th century BCE, the people of Israel were exiled to Babylon. While political independence was no longer part of the people’s identity, faithfulness to the Torah (without the judicial aspect of being an independent nation) remained a core concern. Fidelity in the face of hostility and suffering under non-Jewish rulers is the theme of the Old Testament Book of Daniel (e.g. Daniel 1-6 ) and of later accounts of unrest in Judea right up to the time of Jesus. These texts raise the question of the limits of obedience to legal authorities which contradict the law of God.

At the time of the New Testament, while the people of Israel had returned from exile, full independence had not been recovered. Judea was a Roman province, and many Jews lived elsewhere in the Graeco-Roman world. Jewish people sought to live faithfully under the Torah, although with a restricted ability to enforce it fully - as people were convicted and punished under Roman law.⁵

In this context, Jesus engaged in contemporary debates in Judea about the Torah’s continuing significance. Often Jesus appeals to the original purpose of the Torah to understand its meaning. So, he rejects an arbitrary setting aside of the law in Matthew 5:17-20 , and commands his followers to go even further in obedience than its literal meaning alone.⁴ On the other hand, in other accounts he rejects the broad interpretations of other commands (e.g. on the Sabbath in Mark 2:23-3:6 , and on clean and unclean food in Mark 7:14-23 ). More radically still, in some cases Jesus sees his own presence as directly overriding some of the law’s obligations (e.g. to parents in Matthew 8:21-2 ).

Taking up this last point, in the view of early Christians, Jesus’ person, death and resurrection inaugurated a transformed way in which God would relate to humanity – Jew and non-Jew alike. Whatever the former function of the law, the Christian life in relation to God was to be characterized not by law but by love and grace ( Matthew 22:37 , Galatians 5:1 , Romans 8:1-4 ) and in relation to others by the “royal law” of love ( James 2:8 ) and Jesus’ injunction to “do to others what you would have them do to you” ( Matthew 7:12 ).

Law and Gospel

Among Jesus’ first followers, there was a debate over the nature of this transformation, and over its implications for new believers who were not previously Jews. Would these non-Jews follow the law in the Torah or not? Acts 15 describes a council in Jerusalem, in which the whole Torah was not deemed to be universally binding on non-Jewish believers.

These debates shaped the early New Testament documents (including the letters of Paul). The texts preserve, and even intensify, much of the law concerned with personal morality (e.g. Matthew 5:21-48 )

However, the judicial system of the Old Testament was not relevant to Christians, as they were a minority with no independent legal power. As a result, the New Testament does not impose punishments beyond exclusion from the Christian community (e.g. 1 Corinthians 5:1-13 ). It is also strongly resistant to any laws which may divide Jewish and non-Jewish believers in Jesus such as food laws and circumcision (e.g. Galatians 2:11-14 ).

God and Caesar

In terms of non-religious law, the New Testament takes up the example of Israel in exile, which was based on fidelity to God whilst at the same time respecting non-Jewish authorities. Jesus himself submitted to Roman rule and commanded his followers to “give back to Caesar what is Caesar’s and to God what is God’s” ( Matthew 22:21 ). The apostles Peter and Paul encouraged believers to live exemplary lives and to obey the law ( 1 Peter 2:11-17 ), and to see rulers as given by God ( Romans 13:1-5 ). However, obedience to the law of the land was not to be unqualified. When the path of Christian discipleship comes into conflict with the ruling powers, Christians “must obey God rather than human beings” ( Acts 5:27-29 ).

Partly for this reason, from the time of the New Testament onwards, Christians were persecuted by the authorities and by mobs for refusing to worship the local deities. Nonetheless, the early Christians continued to argue for just treatment from the Roman authorities, following the example of Paul (e.g. Acts 16:37-39 , 25:10-12 ). They argued for legal consistency and wanted the Roman authorities to treat their faith as they did other philosophies which were tolerated in the Empire.⁶

To sum up, the biblical texts give a number of important perspectives on law, which feature in subsequent Christian accounts:

One’s relationship with God ought to have implications for one’s entire life, not just ritual or legal duties.
The law should particularly protect the most vulnerable in society.
A “natural law” exists that can apply to all people, who are created by God and ultimately accountable to him.
God’s people are not necessarily an independent nation but can live under rulers who do not share their beliefs. The faithful response is to accept the ruler’s right to maintain order.
However, it is right to disobey a ruler who commands something which contradicts the command of God.

Historical Perspectives

After the New Testament period, Christianity grew in popularity, and with the rise – and conversion to Christianity – of the Roman Emperor Constantine (reigned 306-337 CE), persecution ceased (see Hikmah Guide on Christians, Muslims & Persecution ). Christianity became the official religion of the Roman Empire. This led to Christians being a part of the ruling majority, a situation quite unlike that envisaged in the New Testament. In response, theologians developed and modified a number of the above themes for this new context.

Instead of being restricted to the few legal concepts in the New Testament, or attempting to recreate the Old, Christian theologians affirmed the role of reason in formulating law. This expanded the above concept of “natural law”, applicable to all human beings made in God’s image. It drew on the thinking of the Graeco-Roman Stoics, who had similar ideas, and was developed by Thomas Aquinas (1225-1274) drawing on Aristotelian philosophy in his ethical teaching.⁷ As Pope Benedict XVI summarizes:

Unlike other great religions, Christianity has never proposed a revealed law to the State and to society, that is to say a juridical order derived from revelation. Instead, it has pointed to nature and reason as the true sources of law – and to the harmony of objective and subjective reason, which naturally presupposes that both spheres are rooted in the creative reason of God.⁸

Doctrine of the Two

The persecution faced by the first Christians meant that the early church saw itself as a distinct institution, separate from the Roman state. This view persisted even after the Roman Empire became Christian. The doctrine of the two powers was classically formulated by Pope Gelasius I (reigned 492-496 CE):

There are two powers, O august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power… while you are permitted honourably to rule over humankind, yet in things divine you bow your head humbly before the leaders of the clergy and await from their hands the means of your salvation. ⁹

Church and state therefore came to be seen as two legitimate, overlapping sources of law. These parallel systems led to the development of ecclesiastical (i.e. church) law as well as civil law, and frequent disputes over the limits of state and church power.

Debates over jurisdiction continued into the time of the Protestant Reformation, often linked with the idea of “state sovereignty” and the rise of modern nation states in Europe. ¹⁰ Protestant nations rejected transnational papal authority in favour of national churches, and states began to take a more political interest in religious affairs – overriding the parallel jurisdiction which had guided law-making in previous centuries.

At the same time, Christians have always been more or less suspicious of “law”, a suspicion which stems from Paul’s famous claim that Christians are not “under law but under grace” ( Romans 6:14 ). Some may accept the use of state law as a necessary evil, but argue that no, or minimal, church law is needed to govern the personal lives of those who are under grace and live the life of love guided by the Holy Spirit. Others deny that there is any natural law, that is, any universal human capacity to know the basic requirements of justice. Catholic theology and ecclesiology tend to be more “law-friendly”, sometimes prompting charges of legalism. By contrast, Protestant theology and church order tend to be more “law-hostile”, sometimes prompting charges of “antinomianism”, meaning being against the law. This is particularly the case with Christian denominations arising from what is called the “Radical Reformation” such as Anabaptists, Mennonites, Hutterites and Quakers, which still exist today.

Individual Conscience

These groups disagreed either with the theological views of the authorities, or in some cases with all

Christian engagement in civil or legal affairs for fear of complicity in evil (e.g. in sentencing someone to death). ¹¹ These groups were often persecuted by both the state and the established churches (see Hikmah Guide on Christians, Muslims & Persecution ).

These dissenting groups reignited debates around freedom of conscience from the early days of the church – but in a Christian, rather than a pagan, context. After the trauma of civil war between Christian denominations, many European nations (including Britain in 1689), responded by establishing one Christian tradition as a national or “established” church, whilst granting various degrees of freedom to dissenting groups (see Hikmah Guide on Christians, Muslims & Sectarianism ). In the 18^th century, freedom of conscience came to be seen as a “natural right” to be enjoyed by everyone regardless of their religious or non-religious beliefs, such that by the 19^th century freedom and equality of religion or belief were widely recognized as a constitutional principle. This resulted in a loosening of connections between church and state and a new expression of the Doctrine of the Two in the separation of church and state.

Modern Perspectives

The story of modern law in Western contexts flows to a great extent from the rise of Enlightenment liberalism, and the decline of the religious establishment described above. However, even this liberalism can be seen in some ways as a modification of the three legal principles mentioned above.

So, the Christian concept of “natural law” gave way to the idea of neutral, “secular law” based on reason instead of religious or other belief – giving rise most notably to the idea of “human rights”. The Doctrine of the Two, transformed as it was by the modern state, has now led to the idea of the separation of church and state, with religion being seen in terms of private observance rather than legal ruling. And liberty of conscience is often now seen much more in terms of individual freedom or autonomy which the law protects. Of course, Christians will have different views on the merits of these changes. Even so, significant traces of original Christian principle remain across allegedly secular Western legal systems, although it is not always clear whether these laws came about because they were only justifiable from within a distinctively Christian worldview or simply because of one-time widespread Christian conviction.

The practical results of modern changes can be seen in the United Kingdom. Distinctively Christian laws (e.g. laws prohibiting blasphemy, or envisaging marriage as between one man and one woman for life), have been repealed in favour of laws that accommodate other positions. ¹² At the same time, questions have arisen about whether “religious freedom” should protect Christian individuals or institutions acting on Christian principle, even when that principle goes against a non-Christian majority view. Examples of this dilemma include Christian doctors refusing to participate in abortion, or churches refusing to conduct same-sex marriages.

The Christian responses to modern challenges have been varied. Broad themes include:¹³

Protecting Christian Heritage. Some Christians have sought to defend aspects of Christian law (e.g. blasphemy laws) against modern reforms, arguing that the church should not be so keen to surrender these things.

Promoting the Common Good. Others have tried to re-present Christian moral and legal principles as ideas which could be embraced by those of all faiths and none – in a variant on natural law thinking mentioned above. This approach often uses the language of the “common good” to defend certain laws on Christian grounds.

Preserving Institutional Independence and Conscience. Many Christians have responded by emphasising religious freedom, either on an institutional level (for an organization based on any faith to be run on religious principles), or in terms of freedom of conscience for individuals.¹⁴

Pursuing Political Radicalism. Some Christians have not only sought freedom of conscience under the law but have used non-violent resistance to what they see as unjust laws. A classic statement of this position is Martin Luther King Jnr’s Letter from Birmingham Jail, defending non-violent resistance to racial segregation.¹⁵

Progressing Secular Reform. A few Christians actively take the side of “secular” changes to law and morality, and believe that it is the church that must change its doctrine to accommodate these legal shifts, and the societal ones that have gone with them.

As the law adapts to new challenges, debates within Christian churches will continue on these issues, and combinations of the above perspectives will be with us for some time.

Muslim responses to Christian views of law

Muslim responses to Christian views of law vary depending both on a Muslim’s understanding of Islam and his or her opinions on modernity and the degree to which the secular West is actually “Christian”. They range from a positive affirmation of the separation of societal and religious laws and the primacy of human rights through to a condemnation of Christianity for supposedly allowing secularism and libertarianism to dominate Western political life.

For instance, the Islamist cleric, Sheikh Yusuf al-Qaradawi, criticizes the Christian position on natural law and the separation of church and state: “Dividing the affairs of life into religious and secular is an un-Islamic categorization. It is an imported division taken from the Christian West, not known in our Islamic tradition”. ¹⁶ Such Muslims in Western contexts would either be supportive of a greater influence for Christian morality on laws and political life or, more assertively, seek accommodations for Islamic principles. More extreme groups, such as Hizb ut-Tahrir, al-Muhajiroun or Supporters of Shari‘ah , even dream of the introduction of the shari‘ah in the West.

Shabbir Akhtar is one of those who thinks that the current Western lassitude is due to the weakness of the Christian church with respect to law and its “capitulation to secularism over the past three centuries”. He feels that Christianity imposes “impossibly difficult ideals”, such as love of enemy, and its focus on the “fallen state” of humankind creates an “irremovable disability that no political order could eradicate”. He caricatures Christianity as saying that “things are so bad that nothing can be done about it” in terms of restraining laws. Whereas he suggests that Islam, with its willingness to impose moral laws, proposes that “things are so bad that something must be done about it”. ¹⁷

By contrast, others do not see such a big difference between church-state separation and various Islamic models – although they may feel that an Islamic system does it better. ¹⁸ Muslim reformists often support the Christian position, as many consider Western democracy to be similar to the Islamic principle of consultation (shūrā). To them, there does not exist a fundamental incompatibility between Islamic law and Western legal systems as both hold justice and order as their ultimate aims. For instance, American Muslim scholar Sherman Jackson, talks about “the Islamic secular” and various British Muslim organizations support a reformist perspective, including New Horizons and British Muslims for Secular Democracy ¹⁹ .

Muslims and law

Introduction

The relationship between the state, secular and Islamic laws traces its genesis in the rich history of Islamic legal reasoning. Although the Qur’an and Hadith constitute the primary sources of determining right and wrong, the legal content of these sources is quite limited. This compelled jurists to utilize various methods of legal reasoning (ijtihād) to determine Islamic positions for the ever-changing times, expedited further by the forces of modernity, such as the birth of the nation state and secular law. The following section examines briefly the history and development of ijtihād, explaining the relationship between human reasoning, the texts within the Qur’an and Hadith, as well as Muslim rulers and scholars. It also highlights modern jurists’ responses to modernity and how it affected their legal reasoning regarding the secular state and law.

What is the shari‘ah?

Jurists (fuqahā’) interpret the legal content of the sacred texts, developing mechanisms to discern what God intended and how His Prophet understood them. Consequently, the use of reasoning has yielded two sciences. The first is jurisprudence (fiqh), referring to the interpretation of the legal content within scripture. The second is the Principles of Islamic Jurisprudence (uṣūl al-fiqh), a discipline which examines the methodology used to derive the rules of the shari‘ah.

In the literal sense, shari‘ah means the path to the watering place, the clear path to be followed, and the path which the believer has to tread in order to obtain guidance in this world and deliverance in the next. Technically, shari‘ah refers to the totality of guidance, including the legal content and ethical values expressed within the Qur’an and Hadith.

Fiqh has been developed largely by jurists who have discerned rules from the Divine sources through human reasoning (ijtihād). Wherefiqh is mainly concerned with practical legal rules ( al-aḥkām al-‘amaliyya), shari‘ah forms the wider circle, embracing all human actions. ²⁰ In essence, shari‘ah is believed to be the path laid down by God and His Messenger whilst the edifice of fiqh is erected by human reflection. However, both words are also used synonymously to denote fiqh.²¹

It is the classical jurist’s purpose to use reasoning to determine a legal norm for every new situation faced. The shariʿah recognizes five such norms, which order the entire range of human activity. The first of these is the category of the forbidden (ḥarām), which involves punishment upon commission of an act considered to be prohibited, such as breaches of contract. The second category, that of the obligatory ( wājib/farḍ), requires penalty upon omission of an act whose performance is regarded as necessary, such as prayer and payment of debts. The three remaining categories are moral in nature and are not binding upon commission or negligence. These are recommended to do ( mandūb), such as giving ṣadaqah (charity), neutral to do or not to do (mubāḥ), such as going on holiday, and disapproved to do (makrūh), such as smoking (according to some views).²²

The rules of shari‘ah can fall under the two umbrellas of devotional matters (‘ibādāt) and civil transactions (mu‘ āmalāt). The former regulates humankind’s relationship with God through prayer, fasting, pilgrimage, and the giving of alms. The latter regulates the social, economic, and political relations between human beings.Devotional matters are immutable across time and space, whereas civil transactions are subject to human interpretation as the human condition develops throughout history. ²³

The rules of shari‘ah can be similarly broken down into the Rights of God (ḥuqūq Allah) and the Rights of Man ( ḥuqūq al-‘abd – lit. rights of the servant). Public rights are associated with the Rights of God, whilst the Rights of Man refer mainly to private rights. Generally, the rules of shari‘ah regulating civil transactions constitute the primary concern of the government and the judiciary, as these seek to regulate relations among individuals. These are subject to trial in a court of law in that an individual can seek judicial relief if his rights are violated by others or by the government. Meanwhile, rules regarding the Rights of God, such as prayers and fasting, constitute religious obligations.²⁴ Therefore, the rules laid down by the shari‘ah are flexible as far as the Rights of Man are concerned, unlike the Rights of God, which are unchanging, although still in need of interpretation and application.

The objectives, sources and principles of the shari‘ah

A consideration for the objectives of the law ( maqāṣid al-sharī‘a) examines the motivations underpinning the rules of the shari‘ah, thereby raising the question of what it ultimately aims to achieve. Classical Islamic legal reasoning dictates that the essential objective of the shari‘ah is to protect life, religion, wealth, honour and intellect. In light of the emergence of the nation state and a greater consideration for human rights, contemporary reformists have developed these objectives further to include justice, equality, love, and tolerance.²⁵

Since the first century of Islam’s existence, Muslim legal thinking has had to contend with the problem of the extent to which human reason can guide mankind in conducting its material and spiritual affairs. Some philosophers view human reason as a gift from God that people should fully utilize. Others argue that man must rely on revealed texts because human reason alone is insufficient. This has created a dichotomy between people of reason (ra’y) and people of tradition (ḥadīth). The synthesis of the two involves the use of human reason to deduce rules from the Qur’an and Hadith and fills the gaps created by the dynamism of life and the static nature of the texts. This synthesis became the authoritative source of law, and its authority is still debated among jurists from both Sunni and Shia traditions.²⁶

Some resorted to legal precedent, processing by analogy (qiyās), or by appealing to the consensus among scholars (ijmā‘) or the community. Others argue that existing laws in a given society that do not contradict the scriptures are legitimate in Islam (‘urf). Similar to this is the accommodation of revealed laws that came before Islamic law (shar‘ man qablanā), such as those from Christianity and Judaism.²⁷

Consideration of the public interest (maṣlaḥa or istiṣlāḥ ) is perhaps the most important and flexible method of inference. In the absence of clear solutions in scripture, this utilitarian approach formulates rules that secure benefits or prevent harm.Similar to this is the methodology that rejects the precise letter of the law for a greater consideration for its objectives (maqāṣid).²⁸

The law schools

Translated as “school”, the Arabic word madhhab refers not only to a common doctrine, but also to its adherents. The various schools of law represent an essential feature of the shari‘ah , whose founding jurists differ on the use of reason and tradition, thereby influencing their principles and use of sources. Until their influence was weakened by the forces of reform in the 19^th century, no jurist could operate independently of them. In the Sunni tradition, the four most popular schools of law are: Hanafi, Maliki, Shafi‘i, and Hanbali.²⁹ In the Shia tradition, the Ja‘fari and Zaidiyyah represent the two most popular schools of law and are recognized as valid schools of law by some Sunni institutions such as al-Azhar.³⁰

Named after their founding masters, Abu Hanifa, Malik Ibn Anas, Muhammad Ibn Idris al-Shafi‘i, Ahmad Ibn Hanbal, Imam Ja‘far al-Sadiq, and Imam Zayd Ibn Ali, these schools codify the rules that address all areas of public rituals and community life, and provide arguments justifying such rules.

The shari‘ah and state

Before the modern period, legal professionals operated beyond the authority of the state, simply because the state and secular law, as they are now known, did not exist. Therefore, the “state” is an inappropriate term to refer to the form of rule under which Muslims lived before the 19 ^th century, which was more akin to empire. We will instead refer to this pre-modern authority with terms such as “ruler”, “rule” or “government”.³¹

Communities regulated their own affairs; rulers were considered necessary only to protect against external threats. Jurists therefore enjoyed a degree of independence from political authority, but were also cognizant of their boundaries, consulting at times their political leaders on more complicated legal issues. The implicit agreement was that both scholars and political leaders reinforced each other’s legitimacy; the ruler required the scholars’ endorsement and the scholars could manage the community without the ruler’s intervention.³² Currently, politics in Saudi Arabia replicate this classical pattern.

During the Umayyad, Abbasid, and Ottoman dynasties, Muslim rule was limited in that government bureaucracy was mostly limited to urban areas and largely confined to matters of tax collection and defense. There being no passports or fixed borders, people had no citizenship status and could travel freely to other lands. Muslim rulers administered justice by appointing and dismissing judges, even defining the limits of their jurisdictions. However, the ruler could not influence what law should be adopted nor how it should be applied.³³

Prompted by the collapse of colonialism after the Second World War, nationalism and Islamic revivalism took root in Muslim-majority contexts, where people clamoured for the revival of the shari‘ah to encompass all of society. But there were some who instead favoured adaptation and reform, repurposing the colonial legacy for the betterment of their newly independent countries.³⁴ These reformists argued that the Muslim world did not possess a self-contained, shari‘ah-based civil code or constitutional model to offer a ready recourse for government, judges, teachers, and wanted to reform and update the fiqh heritage. By contrast, Western-educated government leaders and intellectuals became staunch advocates of modernization and secularism - not least when it suited their interests and won them support from Western governments.

In light of this, several newly independent states in the Muslim world, such as Egypt, Tunisia, and Iraq, based their new constitutions on the European model.³⁵ Yet they also sought to placate their constituents through clauses that declared Islam as the state religion, shari‘ah as a source of legislation, and in some cases, the only source thereof.³⁶ As a result of this process, Islamic criminal law and its punishments ( ḥudūd) ceased to be applied in most states, with some notable exceptions, including Iran, Saudi Arabia, Sudan (during the rule of Nimeiri), Afghanistan (during the rule of the Taliban), Mauritania, Somalia (in some areas which are under the rule of Al-Shabab), Pakistan, Malaysia, Brunei and finally in Syria and Iraq (in areas controlled by jihadist factions).

The shari‘ah and minority status

There are two aspects to the shari‘ah and minority status. The first affects non-Muslim minorities living in places where the shari‘ah is applied in some way. Historically, Christians living under shari‘ah have been considered as dhimmis, that is people protected under a covenant in return for payment of a poll tax (jizya). This concept is based on Qur’anic principles and explicit sayings of Muhammad in the Hadīth.³⁷ However, more restrictive dhimmi regulations can be traced to a document called the ‘Pact of ‘Umar’, which is sometimes attributed to the second Sunni caliph of that name but is more likely to originate from a later period.³⁸ The document records a Christian community agreeing to a list of restrictions on their buildings, marriages, worship, opposition to Muslims, critique of Islam, exercise of authority, housing, public appearance, status and behaviour. Many historians – Muslim, Christian and other – see these rules as an improvement on the general treatment of minorities at the time they were promulgated. Certainly, they were better than the treatment received by minorities, particularly Jews, under Christian rule in Byzantium and medieval Europe.³⁹ Today, of course, by the standards of the Universal Declaration of Human Rights, signed by many Muslim-majority countries, the dhimmi regulations would clearly be restrictive and discriminatory if applied. However, many Muslims point out that these rules were abandoned during the Ottoman period in favour of the millet system under which each confessional community had its own courts and today the “poll tax is no longer required since the introduction of uniform taxation laws in Muslim countries”.⁴⁰ Others reason that “religious freedom is possible, desirable and mandatory through the prism of Islam”.⁴¹

Nonetheless, in some Muslim-majority countries Christian minorities today do face various legal pressures or restrictions whether officially or informally sanctioned. For instance: it is not permissible in most Muslim-majority countries for a non-Muslim man to marry a Muslim woman (although the reverse is allowed); in some countries it is difficult to get permission to build or repair churches; conversion from Christianity to Islam is permitted and can be recorded on identity cards but not the reverse; and the proselytising of Muslims is forbidden by law.

The second aspect is when Muslims themselves are a minority in a non-Muslim land. Owing to globalization and mass migration, “more than 300 million Muslims, or one-fifth of the world’s Muslim population, live in countries where Islam is not the majority religion”.⁴² This is a new phenomenon and the classical works simply had not considered it because living outside the land of Islam was the exception to the rule. “Being a minority was not seriously considered.”⁴³ Yet, Muslims are no longer aliens in these places. They are “at home”, often having been born there.⁴⁴ The agreed maxim among classical jurists was that there is always a balance between understanding the texts of the Qur’an and Hadith and the actual reality of everyday life. Imam Ahmad Ibn Hanbal stipulated that to be qualified to interpret law as a jurist, you have to meet five requirements, one of which is “familiarity with human nature”.⁴⁵ So methods of legal reasoning for Muslim minorities (fiqh al-‘aqaliyyāt) are being developed today to provide legal opinions and solutions for Muslim minorities in the West that allow them to conduct themselves both as good Muslims and good citizens.⁴⁶ As Taha Jabir Al-Alwani, the founder of the Fiqh Council of North America, puts it:

Muslims are having to face new situations that raise many issues far beyond the limited personal ones such as halal food, the sighting of the new moon, or marriage to non-Muslim women. The debate has now turned to greater and much more profound issues relating to Muslim identity, the role of Muslims in their new homeland, their relationship to the world Muslim community, the future of Islam outside its present borders and how it may go forward to establish its universality in all parts of the globe.⁴⁷

Muslims and the shari‘ah today

Having been the dominant legal system in much of the Islamic world for centuries, shari‘ah declined in prominence between the early-nineteenth and early-twentieth centuries. During this period, it became largely confined to the areas of rituals, personal status and, to some extent, laws of trust (waqf), whilst Western legal codes covered all other aspects of law, including commercial and criminal codes.⁴⁸

Recent debates about shari‘ah revolve predominantly around its compatibility with contemporary, rational thinking and science, politics and human rights issues, such as freedom of religion and expression, women’s rights, violence and sexuality. Numerous responses have arisen to address these:

Secularists: This group calls for the full adoption of Western principles including the separation of mosque and state and the full implementation of secular laws in public life.

Traditionalists: Without necessarily calling for wider society to be refashioned in their image, this group adheres strictly to religious orthodoxy, rejecting any and all Western influence. Socially conservative and practising a strong Muslim identity, Deobandi and Tablighi Muslims in Britain fall under this umbrella.

Reformers: Islamic modernists seek a third way between the full adoption and full rejection of Western ideas. Taking a non-literalist approach to Islamic texts and seeing Western democracy as similar to the Islamic principle of consultation (shura), they generally support pluralism and freedom of thought. Furthermore, they see commonalities between Islamic law and Western legal systems since both strive to achieve justice and order.

Radicals: Due to their narrow and selective understanding of classical Islamic law, this group views Islam and democracy as fundamentally incompatible. Through social activism or political violence, they seek to restore the traditional Islamic caliphate and impose it on others.

An emerging body of scholarship in both the UK and Muslim-majority countries seeks to contextualize the shari‘ah by accounting for the historical context in which the Qur’an, Hadith, and their legal interpretations existed. It also contextualizes the shari‘ah in light of modern developments, such as human rights and the nation state, Islam and reason and Islam and gender issues.⁴⁹

Contextualising the shari‘ah prevents friction with the principles of the modern nation state and the secular laws under which many are governed. It also ensures that the shari‘ah is flexible and able to adapt to different environments. Moreover, examining the shari‘ah through the doctrine of maqāṣid allows for a greater accommodation of modern democratic norms whilst still adhering to the spirit of scriptural sources.

Christian responses to Islamic views of law

It is probably fair to say that the major concern for many Christians in thinking about the shari‘ah concerns the treatment of Christian minorities and those who leave Islam in various places around the world where the shari‘ah is applied in some way (see above). However, in the UK context, the Christian responses to legal change noted above can be applied to the new question of Islamic legal practices in the UK. For example, Christians who emphasize protecting the UK’s Christian heritage may oppose giving the shari‘ah any status in UK law believing that historically it has been Christian in orientation.⁵⁰

Other Christians disagree with this reading of history, but they may still have concerns about shari‘ah law being given legal recognition, for fear that it will lead to different communities living with different legal systems at the expense of the common good. Or they may feel that key legal principles which embody Christian beliefs about humanity (e.g. gender equality and monogamous marriage) will somehow be obscured.

On the other hand, Christians who emphasize the importance of individual conscience, and the institutional independence of religious organizations take a different view. Christians have had their own troubles with free speech and conscience in relation to the state in recent years, and are often concerned that disproportionate legislation against Muslim religious practice may cause problems for other religious groups, including themselves.⁵¹

This concern is often backed up by an approach to the common good which emphasizes equal treatment of minority groups. Christians will be concerned to ensure that Muslims have the same freedom to conduct their own affairs as that offered to other citizens. For example, English law has traditionally offered a great deal of freedom to people to enter into agreements or contracts, and to dispose of their own property after death. So there is no reason why shari‘ah principles should not be used by Muslims wishing to make shari‘ah-compliant wills.

This concern for fair treatment perhaps lay behind former Archbishop of Canterbury Rowan Williams’ controversial interview comment that the adoption of certain aspects of shari‘ah law in the UK “seems unavoidable”. He noted that the law already accommodated Orthodox Jewish courts and provided for some degree of conscientious objection.⁵² This came in the context of a longer lecture, in which Williams raised broader questions about the ideal of a single, universally-applicable secular legal system, and whether this perspective would not inevitably disadvantage some communities – particularly religious ones.⁵³

Given these diverse approaches to both religion and law and also the question of shari‘ah, it is very important for Christians – and others – to think carefully, to listen closely to what Muslims are saying and to understand accurately what the shari‘ah is.

Questions

For all

Have religious laws been good, bad or a mixture where they have been applied historically?

Should religious practice and sentiment be protected by law and to what extent?

How can freedom of belief for all be guaranteed under the law?

For Christians

Do you believe that the state should legislate to promote Christian morality?

Should Christianity be privileged within the law of states that have a Christian history?

How should the religious law of minorities be accommodated within state law?

For Muslims

Do you believe that the state should legislate to promote the shari‘ah ?

How should the shari‘ah be interpreted and by whom?

How should the shari‘ah relate to non-Muslim minorities in Muslim-majority contexts?

A partially Anglicized spelling of the word shari‘ah has been adopted due to its common usage in English. It has not been capitalized to parallel the usage of the word “law”. Qur’an and Hadith have been anglicized and capitalized whilst other Arabic words are given in full transliteration. ↩
This comment was made during a BCC interview relating to his ‘Archbishop's Lecture - Civil and Religious Law in England: a Religious Perspective’ https://www.theosthinktank.co.uk/comment/2008/02/07/archbishops-lecture-civil-and-religious-law-in-england-a-religious-perspective . All url links were active at time of publication in August 2021. ↩
For example, in chapter 1 of the book of Amos, the prophet Amos criticizes other nations (who do not have the Torah) for brutality in war. See Barton, John. 1980. Amos’s Oracles Against the Nations: A Study of Amos 1:3-2:5 (Cambridge: Cambridge University Press). ↩
Capital punishment in Judea appears to have rested with the Roman authorities ( John 18:31 ), and in the rest of the Roman world trial had to be based on Roman law rather than disputes about the Torah (see Acts 18:12-15 ). However, the New Testament does record outbreaks of violence apparently without such sanction, in Judea and the Diaspora ( John 7:53-8:11 ; Acts 7:54-8:1 ; 14:19-20 ). In addition, according to 2 Corinthians 11:24 , local Jewish communities appear to have had some powers to punish their members (including the early Christians, such as Paul). Nonetheless, all this is quite different from the independent legal system envisaged in the Torah itself. ↩
For examples of intensifying the law, see Matthew 5:21-48 . For examples of challenges to any setting aside of the law, see Mark 7:9-13 on parental obligations, and Matthew 19:1-9 on divorce. ↩
See the work of the early Christian Apologists St Justin Martyr, and Tertullian. ↩
See for example: https://plato.stanford.edu/entries/natural-law-ethics/ . ↩
http://www.vatican.va/content/benedict-xvi/en/speeches/2011/september/documents/hf_ben-xvi_spe_20110922_reichstag-berlin.html ↩
Translated in Robinson, J.H. 1905. Readings in European History (Boston: Ginn), 72-73. ↩
This followed the Treaty of Westphalia in 1648, in which the ruler took on much greater authority in determining the nation’s official religion or denomination. ↩
See for example the 1527 Schleitheim Confession: https://en.wikipedia.org/wiki/Schleitheim_Confession . ↩
It is worth noting that some Catholic moral philosophers, such as John Finnis, would not see marriage between a man and a woman as a distinctively Christian law but rather as a rational condition of human flourishing i.e. a natural law. ↩
For more detailed perspectives, see Julian Rivers, ‘Three Principles for Christian Citizens’, http://www.jubilee-centre.org/three-principles-for-christian-citizens . ↩
A good example of this would be this report, https://www.respublica.org.uk/wp-content/uploads/2016/11/Religious-Liberty-Digital.pdf . ↩
For Christian political radicalism, see Bradstock A., & Rowland C. (eds). 2002. Radical Christian Writings: A Reader (Wiley). ↩
al-Qaradawi, Yusuf. 1997. al-Islam wa al-almaniyya wajhan liwajh (Cario: maktabat wahbah), 45-46. ↩
Akhtar, Shabbir. 2011. Islam as Political Religion: the future of an imperial faith (Abingdon: Routledge), 9, 130, 240. ↩
So Ramadan, Tariq. 2004. Western Muslims and the Future of Islam (Oxford: Oxford University Press), 145-7. ↩
Jackson, Sherman. 2017. 'The Islamic Secular',The American Journal of Islamic Social Sciences, 34/2:1-41. Seehttp://www.nhorizons.org and https://www.bmsd.org.uk. ↩
Wizārat al-Awqāf wa-al-Shuʼūn al-Islāmīyah al-Kuwaitiyya, al-Mawsūʻa al-Fiqhīyya, 2nd ed (al-Kuwait: Wizārat al-Awqa f wa al-Shuʼūn al-Islāmiyya, 1982), XXXII, p.194 and Saeed, Abdullah. 2006. Islamic thought an Introduction (Abingdon: Routledge), 40. ↩
Kamali, Muhammad Hashim. 2008. Shari'a Law: An Introduction (Oxford: Oneworld Publication), 16. ↩
Hallaq , Wael. 2009. Sharīʻa: Theory, Practice, Transformations (Cambridge; New York: Cambridge University Press), 86, and Hallaq, Wael. 2009. An Introduction to Islamic Law (Cambridge; New York: Cambridge University Press), 20-21. ↩
Kamali, Shari’a, 17. ↩
Ibid . ↩
Kamali, Muhammad, ‘Law and ethics in Islam – The role of the maqaṣid’, in New Directions in Islamic Thought: Exploring Reform and Muslim Tradition , ed.by Vogt, Kari; Larsen, Lena; Moe, Christian. 2009. (London; New York: I.B.Tauris). See also Auda, Jasser. 2007. Maqasdi al-Shari’a as Philosophy of Islamic Law: A Systems Approach (London; Washington: The international institute of Islamic thought), 2. ↩
Hallaq, Introduction, 15. ↩
Khallaf, Abd al-Wahhab. 2005. Masadir al-Tashri‘ fi ma la nass fihi (Cairo:Dar al-Qalm), 169-172; and Weiss, Bernard. 1992. The Search for God’s Law (Salt Lake City: University of Utah Press), 664-68. ↩
Ibid . ↩
Hallaq, Introduction, 7-8. ↩
http://www.oxfordislamicstudies.com/article/opr/t125/e1153 . See also Abu Zahra, Muhammad. Imam Zayid (Cairo: Dar al-Fikr al-Arabi). ↩
Hallaq, Introduction, 7-8. ↩
Ibid . ↩
Ibid . ↩
Kamali, Shari’a, 249 ↩
You can find the constitution of almost any country at www.constituteproject.org. ↩
Kamali, Shari’a, 249 ↩
Saeed, Abdullah. 2017. Islam and Belief: At home with religious freedom (Washington D.C.: Center for Islam and Religious Freedom), 2. See also Doi, Abdur Rahman. 1984. Shari'ah: the Islamic law (London: TaHa), ch.24. ↩
Levy-Reubin, Milka. 2011. Non-Muslims in the Early Islamic Empire: From Surrender to Coexistence (Cambridge: Cambridge University Press). Ch.2 has a discussion of the dating of the Pact of ‘Umar. ↩
See Chapman, Colin. 1998. Islam and the West: conflict, co-existence or conversion? (Carlisle: Paternoster Press), 32 and Riddell, Peter & Peter Cotterell. 2003. Islam in Conflict: past, present and future (Leicester: Inter-Varisty Press), 90. ↩
Kamali, Mohammad Hashim. 2015. 'What Everyone Needs to Know about Shariah', 21. ↩
Badri, Farhood. 2018. 'A Genuine Islamic Conceptualization of Religious Freedom', Muslim World Journal of Human Rights, 15/1: 1-27, p23. See also Saeed, Abdullah. 2017. Islam and Belief: At home with religious freedom (Washington D.C.: Center for Islam and Religious Freedom) ↩
Pew Forum. 2009. Mapping the Global Muslim Population, https://www.pewforum.org/2009/10/07/mapping-the-global-muslim-population ↩
Badawi, Zaki. 1981. Islam in Britain (London: Ta Ha), 26. ↩
Ramadan, Tariq. 2004. Western Muslims and the Future of Islam (Oxford: Oxford University Press), 53. ↩
al-Jawziyyah, Ibn Qayyim, I‘lam al-Muwaqqi’in, vol. 4, 340-348. ↩
Abd Allah, Bin Bayyah. 2007. ṣinā‘ āt al-fatwa wa-fiqh al-‘aqalliyyat (Jeddah;Beirut: Dar al-Minhaj). See also Shavit, Uriya. 2015. Sharī‘a and Muslim Minorities (Oxford: OUP). ↩
al-ʿAlwānī, Ṭāhā Jābir. 2010. Towards a Fiqh for Minorities: some basic reflections (London: International Institute of Islamic Thought), 6. ↩
Hallaq, Shari’a, 443. ↩
See for example Suleiman, Yasir. 2009. 'Contextualising Islam in Britain: Exploratory Perspectives' (Cambridge: Centre of Islamic Studies). ↩
See for example ‘Resignation from the Public Space’, https://archive.christianconcern.com/our-concerns/social/resignation-from-the-public-space-responding-to-john-stevens-liberal-pluralist-v ↩
This issue was noted by Parliament’s Joint Committee on Human Rights in 2016, concerning counter-extremism. See paragraph 108 of this report: https://publications.parliament.uk/pa/jt201617/jtselect/jtrights/105/10507.htm. ↩
See Jonathan Chaplin’s critique of Williams’ lecture in his essay ‘Law, Faith and Freedom’, https://www.fulcrum-anglican.org.uk/articles/law-faith-and-freedom-a-critical-appreciation-of-archbishop-williamss-lecture ↩
For analysis of this debate, see Griffith-Jones, R. (ed.). 2013 Islam and English Law: Rights, Responsibilities and the Place of Shari'a (Cambridge: Cambridge University Press). ↩

Hikmah Guides

'Hikmah' is an Arabic word for wisdom. CMCS Hikmah Study Guides are an accessible way for the reader to develop a wise understanding of complex and potentially controversial topics which Muslims and Christian encounter together.

Christians, Muslims and... Law

Introduction

Christians and law

Biblical Perspectives

Law and Gospel

God and Caesar

Historical Perspectives

Doctrine of the Two

Individual Conscience

Modern Perspectives

Muslim responses to Christian views of law

Muslims and law

Introduction

What is the shari‘ah?

The objectives, sources and principles of the shari‘ah

The law schools

The shari‘ah and state

The shari‘ah and minority status

Muslims and the shari‘ah today

Christian responses to Islamic views of law

Further Reading

Christian reading

Muslim reading

Questions

For all

For Christians

For Muslims

Centre for Muslim-Christian Studies

CMCS News