Spiritual Guidance versus Positivist Law: A Reply to Amina Wadud
Posted Nov 1, 2010

Spiritual Guidance versus Positivist Law: A Reply to Amina Wadud

by Dr. Robert D. Crane  

  In her article, “Shari’ah Is Not the Law”, published on November 1, 2010, in Religion Dispatches, Amina Wadud addresses the current hot-button issue of “Shari’ah Compliance”, especially in America.  She distinguishes between what most people call the orthodoxy of jurisprudence and orthopraxy of positivist human legislation or positivist law. 

  Amina Wadud is a pioneer in reviving the sophisticated jurisprudence of the classical Islamic period, which until recently was dead, especially in the Suuni world, for 600 years.

  She defines the shari’ah as follows: 

“From its root form, shari’ah means: a path that leads to water (the source of all life). This is really a lot like the Tao, or like Zen.  It is the way, but not in a road-map-with-specific-details kind of way.  It is not a long list of dos and don’ts.  It is an idea that there is harmony in all of creation, including human creatures, our communities, and our relationships with each other, with the rest of creation, and with the Creator. It is also about doing what will maintain that harmony. It is an ideal. The grounds for this idea are divine. In this respect and in this respect only, can we say shari’ah is divine.”

  If this is the shari’ah, how about the rules and regulations, known as the fiqh, which supposedly must conform to this higher guidance from Islamic jurisprudence, and how does one derive them.  This is the substance of what Islamic philosophers call “The Role of Knowledge”, and specifically of ontology, epistemology, and axiology. 

  A major task in all religions is to distinguish the transcendent from the immanent. Seeking awareness of God’s presence in life is the primary purpose of religion, but this carries responsibilities to understand and seek faith-based, compassionate justice.

  The link between the two may be defined as the shari’ah or Islamic jurisprudence, which provides a set of guiding principles of human responsibilities and human rights. The greatest scholars of Islamic jurisprudence have held that the positivist laws of the fiqh or legal regulations are valid contextually only to the extent that they conform to these principles, known as maqasid or purposes.

  Both the shari’ah and the fiqh are human constructs based on the jihad al kabir, the Great Jihad, the intellectual jihad, which is the only jihad specifically mentioned in the Qur’an, though the jihad al akbar and the jihad al saghrir are implicit throughout.

  The guiding principles can be derived from the coherence (nazm)of the Qur’an, as defined by itself, and by the Sunnah as its practical expression in daily life, which together are known as haqq al yaqin.  This derivation is accomplished by various methodologies, including the shari’ah itself.  These principles can be derived also from scientific observation of God’s creation, known as haqq al ‘ain or natural law. The human element in deriving meaning and guidance is known as ‘ilm al yaqin, which is rational processing to understand the first two sources, haqq al yaqin and ‘ain al yaqin.

  This process, whether based on divine revelation throughout human history or on rationalistic thought, should produce the same results, because the shari’ah is merely an expression of natural law in the sense understood by America’s Founders, namely, as a combination of haqq, ‘ain, and ‘ilm al yaqin.  They derived their basic premises from Edmund Burke and the Scottish Renaissance (as distinct from the secularist continental Renaissance).

  For particulars, check out the 224-page book, available since January, 2010, on Amazon, The Natural Law of Compassionate Justice: An Islamic Perspective, as well as my 750-page textbook, Islam and Muslims, co-authored with Muhammad Ali Chaudry and scheduled for hardback distribution on Amazon in December.  A 350-page cut-down e-book edition is currently available at http://www.cuii.org.

  Amina’s pioneering article, published in the interfaith ezine, R D Magazine (Religion Dispatches), like all of her writings, speeches, and actions, is pushing the envelope of Muslim cultural correctness.  One may question her diplomatic judgement, but she replies, “If I don’t, who will?”  This article, entitled “Shari’ah Is Not the Law” can be read in full HERE.