The last item on my summer reading list was Knut S. Vikør’s Between God and the Sultan, a survey of Islamic law. It provided a less partisan counterpoint to Hallaq’s work, which had been my primary source of information previously (aside from the segments on Shari’a in Hodgson). Some very general points that I found particularly interesting or salient:
- Classical Shari’a was never a standard code of law that can simply be applied — instead, it was an attempt to discern the ultimately unformulable perfect divine law that only God knows. Hence the practice of law grows directly out of the radical monotheism of Islam, which denies any commensurability between God and humanity.
- In classical Shari’a, law was independent of the state in a way we can’t really imagine today. While the sultan or other ruler was required to administer some punishments, the practice of Shari’a law was monopolized by a self-selecting group of scholars.
- At the same time, Shari’a was never the “only” form of law — the sultan and police often ran their own courts, which were much more flexible and practical in certain instances (because the burden of proof for securing a criminal conviction in Shari’a is extremely high, so that even obviously guilty individuals may wind up going free).
- Classical Shari’a only arose centuries after the rise of Islam, as a practical solution to political conflicts at that time (namely, a trans-national Islamic community divided into smaller political units). Law was practiced differently in Islam before that, and presumably it would also be legitimate to practice law differently after that (as is in fact the case in virtually all Islamic countries).
- Classical Shari’a was never any one thing — even in its most established form, it stabilized into four different schools of law, within each of which there was still room for debate.
- The social conditions that produced classical Shari’a have been irrevocably altered. No modern state — even Iran — is likely to concede its monopoly on law to a group of self-selecting scholars. (The one arguable exception is Saudi Arabia, which was never colonized and hence maintains some level of continuity with pre-modern Shari’a practices.)
- In contemporary parlance, “Shari’a” has more often served as a rallying cry than as a concrete proposal, and attempts at literalism have ironically enshrined some of the most severe punishments as “Shari’a” when they were actually little used and significantly ameliorated in classical Shari’a.
- The emphasis on the “worst” provisions of “Shari’a” often has more to do with an attempt to differentiate Islam from the West than with any substantive commitment to (or even knowledge of) Shari’a law as it was actually practiced in pre-modern times.
tl;dr: The system of classical Shari’a law is fascinating, but it would be impossible to restore it in the modern world. People who claim to be doing so are not in fact doing so.