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There are at least two important issues which should be dealt with in more depth in the discussion of Shari’a or Islamic law and the public sphere, which is in present-days takes the form of “multiculturalism”., i.e. multicultural shari'a The First is the character and the practice of Islamic law. Doe to the everyday dialogues between Islamic legal norms, which are based on textual sources so that they are normative in character, and dynamic social norms which are empirical one, the character of shari'a or Islamic law will be more in line with the values and character that the public sphere conveys, such as individual autonomy, rationality and gender equality. In due course, it gives rise to the practice of Islamic law that based far more on personal own choice, and rationality. Eventually, in a way it pushes Islamic law away from the literal understanding of its scriptural bases and most probably gives more opportunities for any particular type of liberal interpretation of Islamic law. The cases of mixed married between Muslim and non-Muslim to some extent suggest that tendency . Women’s decision to wear and or not to wear the headscarf also addresses the issue.
Second, public sphere also suggests more public participation by all social strata, sexes and institutions. The increasing subjects who produce Islamic legal knowledge create significant changes in many aspects of Islamic law. Thus, for feminists who are advocating an equal gender relationship for instance, it gives hope that Islamic law will be eloquently gender-sensitive. In this context, more importantly however is the fact that it implies the changing of the structural authority of Islamic law. It is no longer the privilege of those who are traditionally called religious men to interpret Islamic law. Anybody if not everybody may to take part in public discussions of anything has to do with Islamic law. This is exactly what Aharon Layish calls “de-privatization” of legislative authority of fuqaha. In matters of implementation, I disagree with Layish’s opinion believe, it is not limited only to the secular legislature but also to all social organizations and social movements which have an interest in issues of Islamic law. Whatever the character and the structural authority of Islamic law might be, however, ultimately they depend by and large on what the public sphere really is.
Social Norms, Methodology, and Autonomy
The more crucial effort needed to realize to the presence of Islamic law in the European social order is the to make the two conform to each other and to tackle any possible conflicts by applying universal values such as gender equality, etc. Balancing Islamic legal and social norms is then another step that needs to be taken, so that, in the end “…the authority of minority fiqh ….derives from its acceptability to individual Muslim rather than the exercise of coercive power” (Maleiha Malik, p. 10-11).
Balancing legal and social norms and also tackling conflicts are the two things that I entirely agree should be dealt with in the framework of multiculturalism. This simultaneous effort, however, has to be based on a solid intellectual framework, which is able to involve the scriptural paradigm of Islamic law and social scientific principles. It must assume this form in order to gain its (epistemically Islamic) authority on the one hand and to bridge the gap with the surrounding reality.
For this reason, the effort mentioned has, really, touched upon the matter of methodology which has to reconsider and to make use of more public interest (al-Maslahah al-‘Ammah), the spirit of the law (hikmah al-hukm), and common practice (adat) to become contextual normative bases of shari’a, instead of using traditional analogy (qiyas), which is of its very essence very textual. As a result, Islamic legal theory (ushul fiqh) will gradually moves from what I call law in-book oriented towards creating a law in-action or empirical trend of reasoning. This is, actually, the condition that serves to get rid of the lack of empirical analysis label that has for so long been attached upon Islamic legal sciences.
Apart from the issue of the dialogue between legal and social norms, which touches upon the matter of methodology, one more point impinges on the autonomy of Islamic law. Minority fiqh or whatever name it is called has to be autonomous in character. It should not fall under the power control of any state, which in Europe simply violates the principle of secularization. But its multi-interpretability should not be abused to legitimize any unjust violation of behavior.
From all the above reasons mentioned, I would say that putting Islamic law into European public sphere is very likely to produce consequences that have no any precedents before. I suppose that the characteristic of Islamic law will be typically European in which substantially “liberal” to borrow Charles Kurzman’s term. In addition, this type of Islamic legal knowledge is methodologically closer to what Hallaq says utilitarian and liberal. This is also –I think—the social condition that explains the epistemological and the hermeneutical turn of twentieth century ushul fiqh . If this is the case, Islamic law within the European public sphere bears the seeds of hope of become a kind of, what Peter Mandaville calls, “critical Islam” . ©♥
