The rise of Islamists has brought new emphasis to a pragmatic aspect of Sharia law, one which puts a premium on the public interest.
A pragmatic principle gains ground in Islamist politics
The results are final: Islamists have secured 75 per cent of the seats in Egypt's parliament. They will shape politics for at least five years to come, a chilling thought for many. But the reverse might also be true, not only in Egypt but in every country where Islamists are winning at the ballot box: politics will shape Islamism.
The rise of Islamists in the region has revived a pragmatic form of Islamic jurisprudence that has been neglected for centuries: "siyasa shariyyah", or Sharia-compliant realist governance, deals with politics, economics and law based on an overarching principle known as "maslaha", or public interest. In practice, siyasa shariyyah is often seen as in opposition to traditional jurisprudence.
But it is a school of thought that is gaining ground in different quarters. "Politics is mainly about maslaha," says Dr Salman Al Odah, one of Saudi Arabia's more prominent clerics. Dr Al Odah is in the process of preparing a study on the subject that deals with Sharia in the context of the Arab Spring.
Sheikh Mohammed Hassan, one of Egypt's top Salafi clerics, has used the principle of maslaha to justify the need to comply with the peace treaty with Israel. He maintains that it is not in Egypt's best interests to break the accords, citing the example of a 10-year truce Prophet Mohammed signed with Quraishi leaders when Muslims were weak. Although it was a deeply "unfair and humiliating" agreement, Sheikh Mohammed says, the Prophet adhered to the truce until it was eventually broken by the Meccans. Egypt's Salafi Al Nour party has recently held training courses for its members on siyasa shariyyah.
Ibrahim bin Omar Al Sakran, a Saudi intellectual, has been attacked by extremist Salafis after writing a treatise on siyasa shariyyah in which he argued that the Islamic political concept of "shura", or consultation, meant that all Muslims must be consulted - rather than a select group - bringing the idea of shura closer to a democratic system. He also argues that governments have contracts with the people that can be revoked just like any other contract if the terms are breached. Political engagement of the entire community, he says, falls within the national maslaha.
The significance is that these opinions come from moderate figures within the Salafi movement, who base their arguments on Sharia texts (the Quran and the Hadiths) and the views of Islam's early generations, making the ideas more credible in the eyes of other religious scholars.
Here in the UAE, the judiciary offers concrete examples of how the principle of siyasa shariyyah is applied. In 2010, Abu Dhabi's Court of Cassation set a legal precedent by ruling that a Muslim can be executed for the murder of a non-Muslim although the UAE hears cases under the Maliki school of jurisprudence - which stipulates the contrary. The lower courts found a Sudanese man guilty of stabbing to death a Christian woman from Ethiopia, and sentenced him to 15 years in prison.
The Public Prosecution appealed against the verdicts and demanded the case be tried under Hanafi teachings, the only Sunni school that calls for the death penalty if a Muslim kills a non-Muslim. Prosecutors said it was in the interest of the country to ensure equality for residents. The victim was a legitimate resident and therefore entitled to protection, security and sanctity for her "blood, honour and money", according to the prosecutor.
The case was then retried under the Hanafi school and the man was sentenced to death. As the cassation court's rulings are binding on local courts, all Abu Dhabi courts now have to treat Muslims and non-Muslims equally in criminal matters. Magistrates at the time cited the pragmatic principle of siyasa shariyyah.
"In Islamic jurisprudence, judges can announce that a person is sentenced to death in accordance with Sharia but should not be executed in consideration of politics," says Dr Ahmed Al Kubaisi, the head of Sharia studies at UAE University. "The interests of the nation precede the interests of the individual. Justice that safeguards the interests of the whole nation is preferable to that which safeguards the interests of the individual."
In another case, the federal Supreme Court ruled against a borrower who refused to pay interest that he owed on delayed loan repayments. The man claimed that interest was forbidden by Sharia and therefore he was not obliged to pay. Lower courts accepted his argument but the Supreme Court ruled the bank's right to charge interest was in line with both UAE secular laws and Sharia.
"As a general rule, interest, whether simple or compound, is prohibited by Sharia," the Supreme Court ruled. "But it has been made necessary for banks to accept simple interest. As long as the necessity persists, and until an economic alternative is established to replace the current banking system, interest is lawful."
The judges based their ruling on the Hadith: "A rich man's delay in payment is an injustice.
"In line with the Hadith, ordering the borrower to pay interest for late payments can be considered a sort of damages, which is compliant with both the UAE law and Sharia," the justices ruled.
Over the last century, Islamic scholastic tradition has been largely shaped by faqihs, or Sharia scholars, whose fatwas have been based purely on religious texts, even if the issues involve scientific fact or public interest. Siyasa shariyyah, on the other hand, requires judgements in light of the specific context and the general maslaha.
Across the region, the principle has gained momentum since Islamists rose in the political arena after the Arab Spring. It is not enough for a scholar to issue a maslaha-based opinion; the reasoning still must be based on a religious text. That is why siyasa shariyyah has such an imposing authority within Islamist thought. And it is why it may fundamentally reshape Islamic jurisprudence in public affairs.