I think we are. The process of law, whether something is halal or haram, has arguably been more of a pre-occupation than what the outcome of actions are. In essence, we have downplayed the role of ethics, often translated as ‘akhlaq’ or ‘adab’, (though ethics is broader than moral conduct and also about moral philosophy). This has created a mechanistic understanding of the law, fiqh, and even the Shariah more broadly. But central to ethics is the notion of the ‘good life’, and a sense of what constitutes the good.
The Shariah recognises the differentiation between law and ethics and the Islamic sources themselves are deeply embedded with ethical references. After all, the Prophet (s) summarising his mission as coming to “perfect good conduct”. The concepts of taqwa, tazkiya and ihsan operate beyond the law and aim to take the human condition to a higher, spiritual plane. “God has prescribed ihsan in all things,” the Prophet said. This spirit of ihsan is not just about doing something well or with excellence, but with pure intention, devotion, heart and soul, with love – exemplified by Rabia Basri who said, “O Allah! If I worship You for fear of Hell, burn me in Hell, and if I worship You in hope of Paradise, exclude me from Paradise. But if I worship You for Your Own sake, grudge me not Your everlasting Beauty.”
Miskawayh, the tenth century Persian philosopher, further described how ritual worship alone cannot truly elevate the human spirit – arts and culture, relationships and social virtues are central to the human being attaining the heights of spiritual development envisaged by the Qur’an.
Perhaps early Islamic history was able to place greater emphasis on ethics due to the absence of highly developed schools of law. However, later fixation with the process of deriving law, in an understandable pursuit to retain the authenticity of the Islamic spirit, as well as the desire to administer land and peoples, led to a more procedural approach that risks undermining the spirit. The Qur’an itself is heavily critical of this – “it is not piety that you turn your faces East or West…” If Muslims have a frame of mind that relies only upon the law to judge actions then there is a risk of nurturing people that will not recognise right and wrong unless it is mentioned in a book of fiqh. Unless recycling is found in a hadith or categorised as a fard, it will be seen as just another nice thing to do, but not ‘Islamic’. Relying on the law alone and neglecting ethics will not suffice. It will not produce a community of ihsan.
Another problem with our obsession with law is the public (mis)understanding of ‘Shariah’, as typified by the reaction to the Archbishop of Canterbury’s comments in 2008. Given that the purpose of Islamic law points to principles such as justice, the preservation of life, religion, intellect, family and property – are such maqasid (objectives) sufficiently protected and nurtured by the English Legal System for Muslims to claim that its ethos is Islamic (given the limitations of any human society and the room for improvement)? Do Muslims themselves have a clear understanding of what they mean by calls to ‘bring in Shariah law’? And given all this, is the usage of the term more of a hindrance than help? Could we not simply say what we want – for example, that we want society to be more fair, equal and just? Where people can live with greater dignity and live more wholesome lives, where family values are respected, etc? Clearly we need to think about these issues long and hard.
The problems facing Muslims are so broad and complex that they cannot be dealt with through a legal prism alone. Wider scholarship is urgently needed. Yes, the law, and therefore jurists (fuqaha), will always play an important role in religious authority, but there is also a significant place for social and political science, which will help develop analysis, understanding and critique of the context we are in, as well as philosophy and theology, which will help to frame ethical responses. The challenge, then, is on the one hand to empower fiqh to become more relevant and attuned to the context and on the other hand to acknowledge the limitations of fiqh. The table of Muslim religious authority thus needs many more chairs around it.