What is the Sharia?

By Baudouin Dupret

Hurst & Company, London. 2018. 256 pages. £35.00 hardback.

Reviewer: Zaynab El Bernoussi, Al Akhawayn University, Morocco

Baudouin Dupret’s What is the Sharia? is an insightful work that helps us understand dominant political discourses and knowledge production in many parts of the predominantly Muslim Arab and non-Arab societies as well as Muslim communities elsewhere. Given the Beirut School of Critical Security Studies interest in knowledge production and the genealogy of concepts in the Arab region, the book is useful in offering a deeply insightful corrective to dominant notions of Sharia.

The book was first published in 2014 in French as La Charia: Des sources à la pratique, un concept pluriel by Éditions La Découverte and then translated to English by David Bond in 2018. Dupret is a Belgian scholar educated in law, in particular Islamic Law, and political science and spent many years as a researcher for the French National Center for Scientific Research (CNRS) in Egypt, Syria, and Morocco. His fascinating work on the sociology and anthropology of law in the Middle East and North Africa is provocative in demystifying conceptions of religious action through insights from his deep praxeological work. In this book, Dupret surveys different understandings of Sharia throughout history (chapters 1 to 6) and then delves into an inquiry of Sharia’s ramifications today (chapters 7 to 10). Even if he talks about the experiences of a select number of countries, he also highlights the fact that the use of the Islamic discursive register (both from the West and East) needs to be understood in the context of state formation, migration, globalization, and postmodernity (144). This is why this is an insightful work to understand current issues beyond the countries Dupret is talking about in the book.

One of Dupret’s provocative arguments is the idea of the ‘invention of Islamic law’. By ‘invention of Islamic Law’, he discusses the influence of European powers in creating a transition from Islamic normativity to Islamic code legislation. Some of this influence can be seen through the Napoleonic-style law code in Arab contexts, particularly the Napoleonic legacy of differentiating between personal and real status (127). Islamic law in the Maghreb inherits from French positive law and civil law positivism, whereas Anglo-Muhammadan law draws from Anglo-Saxon common law (141).

In this book, Dupret shows how actors from outside the Muslim community and who had a vested interest in studying Islam due to colonial projects have contributed to the institutionalization of Islamic law and, to an extent, the invention of Islamic law. Dupret substantiates his claim of invention of Islamic law by going back to an original compilation of early Islamic law in Arabic by a Dutch scholar in Leiden in 1844 (135). The Dutch scholar translated from Malay a manuscript by a scholar from Aceh and in there Dupret tells us about the importance of locals’ collaboration even if Dupret coins Sharia as a European invention (138). The compiled text was used as a manual to teach Islamic law to students of the colonial institute in Delft for years (135). For Dupret, Islamic law is clearly not as ancient as Islam, but his wording of Islamic normativity refers to an Islamic Law with a capital L distinguished from the more recent human-made law. This transformation of Sharia has also brought along a sophistication in production related to knowledge of Islamic normativity (i.e., ʿilm usul al-fiqh), or what he calls a doctrine. The sophistication of the doctrine is reflected through the Sharia drawing its foundations from the Holy Book (Quran), including the hermeneutic and exegetical work of criticism and interpretation or tafsir (49), the Prophetic tradition (sunna), consensus among Muslims and their scholars (ijmaʿ), and analogical reasoning (qiyas). Dupret examines each one of these foundations to survey ensuing understandings of Sharia in separate chapters. He also details the increasing role of judges in Islam that he traces back to Suleiman the Magnificient (1494-1566), a leader who empowered the role of the mufti and created a new adjudicating role with shaykh al-islam (127).

In addition to its political implications, understanding Sharia is important to follow societal developments particularly related to state control of family status that can involve bioethical issues[1], and the functioning of the economy through Sharia’s implications on finance and principles of trade. We learn, for instance, that the first Islamic bank was established in Egypt in 1963, which is most certainly a modern creation (156).

Having traced the origins of what came to be known as Islamic Law, the author then turns to “what is Sharia made to be” (210). Sharia’s traditional definition (as also included in the book’s glossary) is “the way that leads to God and designates the divine Norm” (231). However, Dupret also shows that defining the concept depends on the context and the needs. For instance, presenting Sharia as the cure to a corrupted political system.

More than a manifestation of truth, Sharia is an interpretation of a dogma (1), a polysemous concept (27), and, finally, “a virtuous abstraction” (204). Dupret also reminds us of Sharia’s important ethical dimension of how society ought to be which also makes Sharia a normative enterprise. Dupret’s work complements Rumee Ahmed’s recent contributions on Sharia in which he attempts to decolonize the concept and unveils its transformation into pious neoliberalism. In doing so, he focuses on how Islamic law functions as a religious discourse for Muslims outside of circles of privilege. Ahmed’s approach, much more than Dupret, questions the ethical dimension of Sharia with a direct focus on a so-called Islamization of neoliberalism in these concerned societies. Dupret, on the other hand, is more concerned with a process of politicization of Sharia. He brings a vivid example of this politicization of the term with the current ruling Islamist party in Morocco, the Party of Justice and Development (PJD). Beyond Sharia in its legal sense, he finds a political sense in which Sharia is a political slogan in elections. Even in the legal sense, there isn’t much of Sharia as Islamic law without specifying a national designation, and, as such, there is no transnational Islamic law (145). Islamist political movements may seem similar to leftist parties, but they get added value by using a rhetoric of authenticity (6). A postcolonial insight is needed to understand the resurgent identity questions in such Islamic contexts, particularly as a reaction to a discursive othering of anything Islamic, particularly in Western Orientalist literature (38).

However, this othering can even come from ‘within’, in the form of locals’ collaboration with the modern colonial enterprise, particularly when looking at state formation in Islamic contexts (140). Murat Somer once suggested understanding the Muslim world as ‘enchanted with Islam’ despite processes of modernization of institutions, to differentiate the Muslim path from the Christian one in terms of state formation. Somer’s idea is a restatement of Canadian philosopher Charles Taylor’s famous suggestion of a disenchantment with religion that leads to secularization in Christian Europe. Dupret reminds us here that no major movement in predominantly Muslim contexts clearly rejects religion. Beyond, the spiritual fulfillment of Islam as a religion at the individual level, Islam has the capacity to enlist swaths of people to issues from systems of government to eating habits (halal) and environmental protection. Islam, in Muslim contexts, is more than a religion and Sharia is also more than a law, and one cannot speak of Islam without speaking about Sharia.

In the very act of speaking of the concept of Sharia, the author does not pretend to seek any intrinsic meaning that is particular to each individual. Most importantly, he highlights how language games construct meaning. The uttering of the word itself has a powerful impact. In the first chapter, he brings a personal anecdote in which he tells us about how he took a case of robbery, in which he was the victim, to the police in Cairo back in 1992. The police officer tried to appease his concerns over appearing vindictive by saying that in Egypt they don’t apply Sharia, otherwise the thief would have his hand cut. This example is juxtaposed to the incident of 2008 when the Archbishop of Canterbury alluded to using Sharia in the country’s legal system spurring a popular backlash as if a Muslim takeover of British government and society was imminent. Such fears of Islamizing religion re-surface when Muslim migrants seeking what they think will be fairer treatment in Belgium attempt resort to Islamic law in courts (191-198). Here again, the book is also useful in treating questions related to constitutional Islam (54, 146, 148).

This book is timely not the least because of the many blurred visions of Sharia that need to be cleared and Dupret successfully manages to do so. His writing is clear, succinct, and intended to reach a large audience beyond experts in Islamic studies. In this book, Dupret shows false binaries by many different sides (such as extremist Islamists, their critics, secularists in predominantly Muslim societies, actors with interests in Islam in the West) in viewing what Sharia is and isn’t and how it is used/misused in interpreting Muslim societies. A must read!

Reference

Ahmed, R. (2018). Sharia Compliant: A User’s Guide to Hacking Islamic Law. Palo Alto, CA: Stanford University Press.

[1] The author and Baudouin Dupret have published encyclopedia entries on bioethical issues that discuss such pre and post-modern changes: El Bernoussi, Z. and Baudouin Dupret. “Bioethics in Egypt.” In Oxford Islamic Studies Online.

Oxford Islamic Studies Online. Oct 30, 2017. <http://www.oxfordislamicstudies.com/article/opr/t343/e0248>. “Birth Control.” Nov 1, 2018. <http://www.oxfordislamicstudies.com/article/opr/t343/e0277>. “Circumcision.”

Oct 30, 2017. <http://www.oxfordislamicstudies.com/article/opr/t343/e0246>. “Sex Reassignment.” Oct 30, 2017. <http://www.oxfordislamicstudies.com/article/opr/t343/e0257>.