In the wake of anti-sharīʿa marches across the United States, Senior Scholar Asifa Quraishi-Landes clarifies in the Religion News Service the history of state and religious law in Islamic legal history.
“To make things even more complicated for American observers, fiqh doesn’t neatly fit into Western categories of law and morality. Fiqh includes topics that Americans would call legal (grounds for divorce, charitable trust requirements), but also ethics and morality (the duty to rescue those in need), manners (hygiene, controlling anger) and ritual worship (fasting and prayer).
So, when a Muslim says she follows Shariah, that just means she refers to these rules as she lives her life. Does that mean she wants them to become the law of the land for everyone? No. She would be violating Shariah if she did. To understand that apparent paradox, consider how the “law of the land” worked in Muslim societies.
Before colonialism, Muslim legal systems were made up of two types of law: scholar-made fiqh and “siyasa,” laws made by rulers. Siyasa is very different from fiqh. It is not meant to guide individual Muslim lives but rather to serve the public good. Rulers made siyasa laws on things such as marketplace fairness, public safety and fair labor practices – i.e., laws that are necessary for society but not derived from scripture.
The separation of fiqh and siyasa protected Muslim societies from becoming “one law for all” theocracies. Rather than enforcing one version of fiqh on everyone, Muslim rulers appointed different judges from different fiqh schools. This created a “to each their own” environment for fiqh choice as well as the religious laws of Christians, Jews and others.
But don’t countries like Iran and Pakistan, as well as the Islamic State group, impose “one Shariah for all”? Yes.
But not because of Shariah. Thanks to European colonialism, these countries are all nation-states, with centralized state law. Even Islamist parties don’t remember the separation of fiqh and siyasa. Unfortunately, they instead pursue “Islamization” through state enactment of “Shariah.””