11, Deutsch-Amerikanisches Kolloquium — Wildbad Kreuth July 26, 2010 ‘THE DIFFERENCE BETWEEN CANON LAW AND ISLAMIC SHARIA AND THE DIFFERENCE IT MAKES By Archbishop Raymond L. Burke Introduction Both the canonical discipline of the Roman Catholic Church and the Shari'a of Islam have their origin in religious faith and practice. It, therefore, seems reasonable to compare them for the sake of knowing how one differs from the other. In undertaking the comparison, it is clear that the two forms of religious law will differ from each other to the degree that the Catholicism and Islam are different. Given the great difference between the two religions, one rightly expects to find more differences than likenesses between Canon Law and Islamic Shari'a. The study and articulation of the differences, on the part of a canon lawyer, is undertaken with the hope that an understanding of the differences between the two legal traditions may lead to a greater mutual understanding between Roman Catholics and Muslims. ‘The present study is far from comprehensive in the sense of articulating the differences in the individual provisions of Canon Law and of the Sharia. As will become clear, the nature itself of Islamic law and its transformation in the modem period, both of which have resulted in significant divergence in the understanding and application of the law within Islam, complicate significantly the effort to compare it to Canon Law. As a result, to compare the individual provisions of Canon Law with Islamic legislation regarding the same matters would require an exposition far beyond the possibilities of the present study. It is possible, however, to establish the basic differences between the two laws by studying them within the context of the religious faith and practice from which they take origin. Until the context of both laws has been studied, the comparison of their different or similar provisions regarding any particular matter is unlikely to offer any profound insight into the law itself and its correspondence to what is just. In other words, knowing the basic diversity of the two laws makes all the difference in understanding the individual provisions of each law. ‘The present study proposes to uncover the context of the two legal traditions by studying and comparing two fundamental aspects of each law. The first is the nature of eachlaw, as it is understood within its proper religion, ‘The second is the sourees from which each law derives. Canonical discipline is understood within the context of the relationship of the Church with the world. Catholic faith teaches us that the world is the path of pilgrimage for us, as members of the Church, to our true home which is Heaven. In the words of the Letter to the Hebrews, “[fJor here we have no lasting city, but we seck the city which is to come."' The world is not ours, but we, rather, are stewards of God’s creation, seeking, throughout the time of our earthly pilgrimage, the personal sanctification which, at the same time, changes the world and prepares it for its definitive transformation at the Second Coming of Christ, when He will inaugurate “a new heaven and a new earth.” ‘The Church, therefore, respects the integrity of the temporal order, while giving witness to the perfection to which it is called and for which it is destined by God. When asked whether it was right to pay taxes to Caesar, Christ responded: “Render therefore to Caesar the things that are Caesar's, and to God the things that are God's.” The Church has understood Our Lord’s words to command obedience to civil authorities but to the authority of God, first! When, for example, the Jewish authorities unjustly tried to prohibit the “Apostles from carrying out their mission of evangelization for the sake of the salvation of the world, Saint Peter and the other Apostles did not permit themselves to be deterred from the mission but rather responded: “We must obey God rather than men.”* In other words, the ‘Apostles saw their service of the world to be true only to the degree that they were, first, obedient 10 God’s plan for the world’s salvation In the same line, at his trial on July 1, 1535, Saint Thomas More held firmly to the living Tradition of the Church, which forbade him, in conscience, to acknowledge King Henry VIII with the title of Supreme Head of the Church, When the Duke of Norfolk accused More of malice in his response to the Chancellor, during the trial, he responded: “What I say is necessary for discharge of my conscience and satisfaction of my soul, and to this I call God to witness, the sole Searcher of human hearts.” On the scaffold before his " Heb 13:14. * Rey 2:1; ef. 2 Pet 3:13. 3 Me 22:21; of. Mk 12:17; and Lk 20:25. “cf Catechism of the Catholie Church, no. 2242. $ Acts 5:29. © Gerard B, Wegemer and Stephen W. Smith, eds., A Thomas More Source Book, Washington, DC: Theexecution, Thomas More rightly declared: “I die the king’s good servant, and God’s first. ‘The Saint served his king well by obeying God Who revealed His truth to him through ‘Thomas More’s conscience formed by the Church’s Magisterium. The members of the Church are called to live fully in the world but not to be of the world, In other words, they are devoted to establishing a just order for the sake of the common good, while understanding that it is only by obedience to God’s law that justice and peace is established in the political and social order, anticipating the perfection of justice and peace in the eternal life of Heaven. The world as we know it, to quote Saint Paul, “is passing away.”* During the time of our earthly pilgrimage, in the words of Saint Peter, “according to [the Lord's] promise we wait for new heavens and a new earth in which righteousness dwells.” The Church, therefore, lives and carries out its mission in a great variety of civie settings, while always insisting on the promotion of the common good by obedience to the natural moral Jaw and the particular laws of the nation and region, inasmuch as they are coherent with that law. The Catechism of the Catholic Church declares: The diversity of political regimes is morally acceptable, provided they serve the legitimate good of the communities that adopt them. Regimes whose nature is contrary to the natural law, to the public order, and to the fundamental rights of persons cannot achieve the common good of the nations on which they have been imposed.” ‘The Church, inasmuch as she knows that the world is destined for final transformation at the end of time, does not view any particular political order as definitive or perfect, but she works tirelessly in every political order for that good which serves man’s freedom, to the greatest degree possible, during his earthly pilgrimage and anticipates the perfection of his freedom in the heavenly destiny of his pilgrimage. The Catholic faith understands law to be “a rule of conduct enacted by competent According to the Church’s understanding, all authority for the sake of the common good. law is ultimately meant to give expression to the right order with which God has created the world and, in particular, man whom He has endowed with reason, so that he can know what Catholic University of America Press, 2004, p. 354. 7 Ibid, p.357. * 7} Cor 731. 92 Pet 3:13. © Catechism of the Catholic Church, no. 1901. " Catechism of the Catholic Church, no. 1951is right and good, and with free will, so that he can do what is right and good. Alll laws, therefore, are necessarily related to one another. In the words of the Catechism of the Catholic Church, There are different expressions of the moral law, all of them interrelated: eternal law — the source, in God, of all law; natural law; revealed law, comprising the Old Law and the New Law, or Law of the Gospel; finally, civil and ecclesiastical laws.” The Church understands that the civil state, in accord with its integrity, makes laws to guarantee the right order of secular society, even as she, in accord with her integrity, makes . The right order secured by the law is the minimum but essential requirement for the attainment for the attainment of the laws for the right order of her life as the Mystical Body of Chri common good which, according to the Church’s understanding, “is comprised of the sum of the conditions of life in society, by which men, families and associations may achieve more fully and more promptly their perfection.” Perfection is understood in the objective sense of the fulfillment of God’s plan for the individual and society. nature of Canon Law, as distinet from civil law? Canon What then is the speci Law is the body of disciplinary norms which serve the good order of the Church, so that she can fulfill her mission of the sanctification of man and of the world. Canon Law provides a humble but essential service. The teaching of the faith, the celebration of the Sacred Liturgy, ns of and the witness of holiness of life are clearly the highest and most beautiful expres the life and mission of the Church, but the effective exercise of these offices which are essential to her mission requires a just order which is secured through the Church's canonical discipline. The Venerable Pope John Paul Il, in the Apost leges, by which he promulgated the 1983 Code of Canon Law, described the service of Constitution Sacrae disciplinae canonical discipline, making reference to the writings of the New Testament, which, in his words, “enable us to understand even better the importance of discipline and make us see better how it is more closely connected with the saving character of the evangelical message itself." He described the humble but essential service of Canon Law in these words: ® Catechism of the Catholie Church, no. 1952. ® Second Vatican Ecumenical Council, Pastoral Constitution Gaudium et spes, “On the Church in Today’s World" 7 December 1965, Acta Apostolicae Sedis, $8 (1966), p. 1096, no. 74: “complectitur earum vitae socialis condicionum, quibus homines, familiae et consociationes, suam ipsorum perfectionem plenius arque expeditius consequi possin.” Translation by author. * Pope John Paul Il, Apostolic Constitution Sacrae disciplinae leges, 25 January 1983, Acta Apostolicae Sedis,This being so, it appears sufficiently clear that the Code is in no way intended as a substitute for faith, grace, charisms, and especially charity in the life of the Church and of the faithful. On the contrary, its purpose is rather to create such an order in the ecclesial society that, while assigning the primacy to love, grace and charisms, it at the same time renders their organic development easier in the life of both the ecclesial society and the individual persons who belong to it Later, in the same Apostolic Constitution, the Venerable Pope John Paul I insisted on the necessity of canonical discipline for the life of the Church and details the specific reasons why itis necessary, declaring: ‘As a matter of fact, the Code of Canon law is extremely necessary for the Church. Since the Church is organized as a social and visible structure, it must also have norms: in order that its hierarchical and organic structure be visible; in order that the exercise of the functions divinely entrusted to it, especially that of sacred power and of the administration of the sacraments, may be adequately organized; in order that the mutual relations of the faithful may be regulated according to justice based upon charity, with the rights of individuals guaranteed and well-defined; in order, finally, that common initiatives undertaken to live a Christian life ever more perfectly may be sustained, strengthened and fostered by canonical norms.'* Canon Law, therefore, is limited to the service of the right order of the Church as the Mystical Body of Christ. While, as such, it should certainly provide a model of the service of order and justice for civil society, it does not pretend, in any way, to have application in matters which are governed exclusively by civil legislation. 75, Pars Il (1983), pp. x-xi: “Sie Novi Testamenti scripta sinunt ut nos multo magis percipiamus hoc ipsum discipline momentum, utque ac melius intellegere valeamus vincula, quae illud arctiore modo coniungunt cum indole salvifica ipsius Evangelii doctrinae.” English translation: Code of Canon law: Latin-English Edition, tr. Canon Law Society of America, Washington, DC: Canon Law Society of America, 1998, p. xxix. ° jbid.,p. xi: “Quae cum ita sint satis apparet finem Codicis minime illum esse, ut in vita Ecclesiae christifidelium fides, gratia, charismata ac praesertim caritas substituantur. Ex contrario, Codex eo potius spectat, ut talem gignat ordinem in ecclesiali societate, qui, praecipuas tribuens partes amori, gratiae atque charismati, eodem tempore faciliorem reddat ordinatam eorum progressionem in vita sive ecclesialis societatis, sive etiam singulorum hominum, qui ad illam pertinent.” English translation, pp. xxix-xxx. 16 bid, pp. xi-xii: “Ac revera Codex Turis Canonici Ecclesiae omnino necessarius est. Cum ad modum etiam socials visibilisque compaginis sit constituta, ipsa normis indiget, ut eius hierarchica et organica structura adspectabilis fiat, ut exercitium munerum ipsi divinitus creditorum, sacrae praesertim potestatis et administrationis Sacramentorum rite ordinetur, ut secundum iusttiam in caritateinnixam mutuae chris necessitudines componantur, singulorim juribus in tuto positis atque definitis, ut denique communia incepta, (quae ad christianam vitam perfeetius usque vivendam sucipiuntur, per leges canonicas fulciantur, muniantur ac promoveantur.” English translation, p. xxxi.In certain matters, the Code of Canon Law, in fact, accepts directly provisions of civil law as its own and obliges, therefore, the observance of the same."” For example, regarding the administration of temporal goods, the Code of Canon Law requires administrators, accord with good stewardship, to “observe the prescripts of both canon and civil law or those imposed by a founder, a donor, or legitimate authority, and especially be on guard so that no damage comes to the Church from the non-observance of civil laws.” Time does not permit the treatment of the many references to civil law in the Code of Canon Law. It is sufficient to note that the Code of Canon Law respects the norms of civil law, inasmuch as they are not contrary to the natural moral law, and even adopts as its own certain norms of the civil law. whe Sources of Canon Law Canon Law has its source in the Tradition of the Church, as it has been and continues to be faithfully handed down from one generation to the next. In describing the nature of the Code of Canon Law, the Venerable Pope John Pau! II referred to its source with these words: To reply adequately to this question [conceming the very nature of Canon Law] one must mentally recall the distant patrimony of law contained in the books of the Old and New Testament from which is derived the whole juridical-legislative tradition of the Church, as from its first source."” ion, the Supreme Pastor of the Church, the Roman Basing themselves always on the Tradi Pontiff, and the other legitimate pastors, the Bishops in communion with him, especially when gathered in ecumenical councils and in particular synods, have made canonical legislation, both for the universal Church and for the particular Church. Throughout the Christian centuries, these norms of discipline have been gathered into collections, so that they might be more readily known by all the faithful and especially by the pastors of the Church, who have the responsibility for the right ordering of Church life for the spiritual benefit of all. At times, too, the Roman Pontiff has sought the help of the great students of what have come to be called “the sacred canons,” for example, Saint Raymond of Pefiafort, in order that he might fill any lacunae in the Church’s discipline and correct any ” cf Codex luris Canonici, Acta Apostolicae Sedis, 75 ~ Pars I (1983), p. 4, can. 22. bid, pp. 220-221, ean. 1284, § 2, 3°: “praescripta servare juris tam canonici quam civilis, aut quae a fundatore vel donatore vel legitima auctoritate imposita sin, ac praesertim cavere ne ex legum civilium inobservantia damnum Ecclesiae obveniat” English translation: p. 397. bid, p. x: “Cui interogationi [de natura ipsa Codicis tris Canonici] ut rte respondeatur, mente repetenda est Jongingua lla hereditas juris, quae in libris Veters et Novi Testament continetur, ex que tadito iuridica et legifera Feclesiae, tamquam a suo primo fonte, originem duit.” English translation: p. xxix.contradictions in the various provisions of Canon Law. In recent times, in response to the desire of the Fathers of the First Vatican Ecumenical Council, the Church employed the form of codification, in order to make the normative or dispositive part of each act of canonical legislation more easily accessible to all. ‘After twelve years of labor, with the help of the Bishops throughout the world and many experts, Pope Benedict XV was able to promulgate the 1917 Code of Canon Law. Following the Second Vatican Council and in accord with the express desire of Blessed Pope John XXIII and the Servant of God Pope Paul VI, the 1917 Code of Canon Law was revised, over a period of many years, so that the Venerable Pope John Paul II could promulgate the revised Code of Canon Law on January 25, 1983. A concise history of the development of Canon Law, in fidelity to the Tradition, can be found in the Preface to the 1983 Code.” The Roman Pontiff is the Supreme Legislator in the Church. It is he who promulgates the Code of Canon Law and other laws, for example, liturgical laws, for the governance of the universal Church." Others who have received Sacred Orders and, therefore, can exercise legislative power, which, together with executive power and judicial power, makes up the power of governance or jurisdiction in the Church, only validly do so in union with the Roman Pontiff and the Bishops in communion with him, that is, in accord with the norm of Canon 135, § 2, declares: Legislative power must be exercised in the manner prescribed by law; that law which a legislator below the supreme authority possesses in the Church cannot, be validly delegated unless the law explicitly provides otherwise. A lower legislator cannot validly issue a law contrary to higher law.”” The hierarchical communion of the Church is fully respected in her legislative activity. Judicial power is distinct from legislative power in the Church. In accord with the norm of can, 1400, § 1, judicial power is exercised for two purposes: first, “the pursuit or vindication of the rights of physical or juridic persons, or the declaration of juridie facts;” "Judicial power may and, second, “the imposition or declaration of a penalty for delicts not, in fact, be used in the Church for the purpose of legislation. Rather, the ecclesiastical » cf Ibid. pp. xvii-xxx. English translation: pp. xxiii % ef. cann. 331; and 333, §§ 2-3. ef. cann, 129, § 1; and 135, § 1 ® can, 135, § 2: “Potestas legislative exercenda est modo jure praescripto, et ea, qua in Ecclesia gaudet legislator infra auctoritatem supremam, valide delegari nequit, nisi aliud iure explicite caveatur; a legislatore inferiore lex iuri superiori contraria valide ferri nequit.” English translation: p. 40. can, 1400, § 1, 1°-2°: “personarum physicarum vel iuridicarum iura persequenda aut vindicanda, vel facta iuridica declaranda... delicta, quod spectat ad poenam irrogandam vel declarandam.” English translation: p. 439,judge applies the canonical legislation in force to particular questions which are brought before the Church’s tribunals. Himself. The Roman Pontiff and the Bishops in communion with him, together with their co-workers, the priests, are In summary, the ultimate source of Canon Law is C1 sacramentally configured to Christ Head and Shepherd of the flock, so that they may act in His person as Head and Shepherd in every time and place of the Church. Even as Christ declared that he had not come “to abolish the law and the prophets” but “to fulfill them,” even so those who act in His person as Head and Shepherd have the duty to make Jaws by Which the faithful may more readily do the will of the Father in all things, fulfilling Our “You, therefore, must be perfect, as your heavenly Father is perfect.”** Islamic law differs fundamentally from Canon Law in that it governs every aspect of both religious and civil life. Islam does not recognize the autonomy of the temporal order but rather holds that the temporal order, too, must be under the total jurisdiction of religious authority. In the words of Wael B. Hallag, Professor in the Institute of Islamic Studies at McGill University, “Muslim jurists viewed the Shari‘a as a mandate to regulate all human conduct, from religious rituals and family relations to commerce, crime and much else.”"* In the pre-modern period, the followers of Islam were simply able to follow the dictates of the Shari'a, following the laws determined by religious authorities. Regarding traditional Islamic law, in comparison to the situation of Islamic law in the modern state, Hallag observes: This situation {the regulation of the legal profession by the state and its legal and public policies] would have been inconceivable in Muslim lands before the dawn of modernity. The most striking fact about traditional Islamic legal personnel is that they were not subject to the authority of the state, simply ‘Thus, until the because the state as we now know it did not exist. introduction to the Muslim world — during the nineteenth century — of the modem state and its ubiquitous institutions, Muslims lived under a different conception and practice of government.” ‘Traditional Islamic practice, apart from a few matters required of individual Moslems by the 3 Mf Sc17 and 48. 28 Wael B. Hallag, An Introduction to Islamic Law, Cambridge: Cambridge University Press, 2009, p. 28. ” Ibid. p.7.civil society in which they lived, for example, conscription for the ruler’s army and tax collection, constituted a form of total self-government.” Prior to the modem age, the administration of Shari'a was accomplished, in Hallaq’s words, “with a minimum of legislative guidance, the determining factors having been informal mediation/arbitration and, equally informal law courts.”” According to Hallaq’s assessment, the traditional Islamic manner of administering justice assured the unity of law and morality, while the form of law, imposed by the modern age, has led to the alienation of Jaw from morality. In his words, “[mJorality, especially its religious variety, thus provided a more effective and pervasive mechanism of self-rule and did not require the marked presence of coercive and disciplinarian state agencies, the emblem of the modern body politic.” The Shari'a, by definition, governs the whole of life in all of its details. It defines the y of the people. The devout Muslim does not have to concern himself with the moral coherence of positive law with the moral law; the two are coherent by definition. Professor Umar F. Abd-Allah describes Islam as “nomocratic,” that is, “ruled by law,” and points out that “many questions — today including issues such as abortion, environmental protection and interfaith relations — which Christians regard as theological, are, for Muslims, not matters of theology but fundamental questions of religious law.”°" Commenting on the relationship of Islam to Christianity, and noting significant differences between the two religions, Professor Emeritus Bernard Lewis of Princeton University finds the greatest difference “in the attitudes of these two religions, and of their authorized exponents, to the relations between government, religion and socie ‘Regarding the great difference in the just-mentioned attitudes, he has written: ‘The Founder of Christianity bade his followers “render unto Caesar the things which are Caesar's; and unto God the things which are God's” (Matt. XXIE21) — and for centuries Christianity grew and developed as religion of the downtrodden, until with the conversion to Christianity of the emperor Constantine, Caesar himself became a Christian and inaugurated a series of changes by which the new faith captured the Roman Empire and transformed cf, Ibid. p.8 ® Wael B.Hallag Shart'a: Theory, Practice, Transformations, Cambridge: Cambridge University Press, 2009, 159, Bd, p. 160 1 Umar F. Abd-Allah “Theological dimensions of Islamic law,” Classica! Islamic Theology, ed, Tim Winter, Cambridge: Cambridge University Press, 2008, p. 237. © Bemard Lewis, The Crisis of Islam: Holy War and Unholy Terror, New York: The Modem Library, 2003, pp. 56.10 its civilization. The Founder of Islam was his own Constantine, and founded his own state and empire. He did not therefore create — or need to create ~ a church. The dichotomy of regnum and sacerdotium, so crucial in the history of Western Christendom, had no equivalent in Islam. During Muhammad's lifetime, the Muslims became at once a political and religious community, with the Prophet as head of state, As such, he governed a place and a people, dispensed justice, collected taxes, commanded armies, waged war and made peace. For the formative first generation of Muslims, whose adventures are the sacred history of Islam, there was no protracted testing by persecution, no tradition of resistance to a hostile state power. On the contrary, the state that ruled them was that of Islam, and God’s approval of their cause was made clear to them in the form of victory and empire in this world.” For Muslims, religious law is, in reality, the only true law for them. While they may have to live, for a time, in a situation in which the sovereignty of Islamic law is not recognized, it is clear that they await the time when it will be sovereign in their particular situation, as in every place. One notes here that, while Christians await the transformation of the world at Christ's Second Coming, even as they work to prepare themselves and the world for the transformation to be worked by Christ at His coming in glory, Muslims await the sovereignty of their rule and its law to be accomplished in the here and now of the world in which we live. In the context of the Islamic understanding of its relationship to the world, one also understands the great difficulty which Islam has encountered in the modern state, especially in what pertains to the Shari‘a, In traditional Islam, the Shari‘a is indeed a way of life, and its contents were determined by those with legal authority in the community to whom alone the members of the community had recourse for a normative decision. It is not founded upon a promulgated law, even though it has certain fonts, namely, the Quran, with its five hundred or so “legal verses,” and the life of Muhammad or Sunna, but upon the judgments of legal authorities who are guided, not by a text of law, but by the goal of maintaining harmony and unity within the community. In the words of Hallag, Furthermore, legal pluralism — a pervasive and fundamental feature of the Shari‘a — not only was a marker of a strong sense of judicial relativism but also stood in stark contrast with the spirit of codification, another modern » Ibid. p.6.il means of homogenizing the law and, consequently, the subject population. ‘Nor was Shari‘a’s substantive law limited to being merely a mechanical and interpretive manifestation of divine will. It was also a socially embedded system, a mechanism, and a process, all of which were created for the social order by the order itself.* ‘The manner of administration of justice in traditional Islam, in fact, illustrates the pluralistic and relativistic nature of Islamic law. Although the Muslim ruler appointed judges to administer justice, once appointed, the judges enjoyed sovereign authority. It was not, however, the judges alone who created the law. Three other types of legal ministers were also instrumental in the development and operation of Islamic law. ‘The other three ministers were namely the muff the author-jurist, and the law professor. As Hallag has observed, “society and its communities produced their ‘own legal experts, persons who were qualified to fulfill a variety of functions that, in totality, ‘made up the Islamic legal system." It was the mufti, “a private legal specialist who was legally and morally responsible to the society in which he lived, not to the ruler and his interests,” who issued the farwa, “a legal answer to a question he was asked to address. His legal opinion carried great weight in the court and would determine a case, unless it was contradicted by a different and more authoritative legal opinion. It was, therefore, the fanwas which were collected in the Islamic jons of books of law, not the decisions of the courts. The author-jurists edited the legal o the mufiis, adapting them to contemporary conditions.” The judge was then obliged to apply the legal opinions of the experts to individual cases.”* Given the nature of Islamic law, the judge or qadi, in addition to resolving disputes, fulfilled many other responsibilities. In the words of Hallag, “he was in charge of supervising much in the life of the community.” He oversaw construction and inspected buildings, he audited the administration of charitable works and of an important institute of traditional Islamic life, the charitable endowment. He supervised the care given by guardians to those dependent upon them and “himself acted as a guardian in marriages of women who Hallag, An Introduction to Islamic Law, p. 165. % Ibid. p.8. % Ibid. p.9. » Thid., pp-10-11. % Thid, p11. » thi, p. 1112 had no male relatives.”"° He was also the exclusive mediator of disputes which “were not of a strictly legal nature” and offered third-party counsel to disputing relatives." The law professor was a mufti, a specialist in the law, who conducted sessions or “circles”, usually at a mosque, for students and other interested parties, during which he would expound the Shari’a, At times, a mufii, during a single sitting, would issue farwas, then announce a session for the giving of judgments, and, having concluded his work as |judge, give a class in the law. Regarding the giving of classes in the law, Hallaq observes: They [the legal experts] did not have salaries and their interest in the study of the law was motivated by piety and religious learning. Around each of these early muftis gathered a number of students — and sometimes the intellectually curious ~ who were interested in gaining knowledge of the Quran and the biography of the Prophet Muhammad as an exemplary standard of conduct. Once again, the all-embracing nature of the Shari'a is evident in the work of the law professor, which is directed to helping the devout Muslim know the dictate of the law in every situation of his life. In the circles, the law professor made no distinction between law and morality, between civic life and religious life. With time, the leading master-jurists founded what were first personal schools. four of which, in Sunni Islam, later became doctrinal schools. The founder of a doctrinal school or madhhab, from whom the school took its name, had the title of imam. ‘The imam’s “doctrine laid claim to originality not only because it derived directly from the revealed texts but also, and equally importantly, because it was gleaned systematically from the texts by means of clearly identifiable interpretive principles.“ About the imam, Hallaq affirms: “The embodiment of pure virtue, piety, modesty, mild asceticism and the best of ethical values, he represented the ultimate source of legal knowledge and moral authority." In Sunni Islam the four doctrinal legal schools are the Hanafi, Maliki, Shafi'i and Hanbali.“* In Shiite Islam, the schools are the Zaydi Shi‘i and the Twelver (Ja'fari).” Regarding the doctrinal schools, Hallag affirms Once they were formed, and until they were dissipated by modern reform, no © (bid, p.11 " bid. p. 11 © id. pp. 12-13. © [bid p12. “ ibid, p. 38. © Ibid, p. 35. “of Ibid, pp. 31 and 37, ef. Ibid, p. 3713 jurist could operate independently of them. Although lay persons were free to follow any of these schools for a particular transaction or way of conduct (e.g., rituals), each school tended to have influence in particular regions, “ In short, “in Islam it was the doctrinal legal school that produced law and afforded its axis of authority,” not the legislative power of the ruler.” The phenomenon of the doctrinal school manifests an essential characteristic of Islamic law. In the words of Hallag, “legal authority in Islam was personal and private; it ‘was in the persons of the individual jurists (be they laymen or, on occasion, caliphs) that authority resided, and it was this competence in religious legal knowledge that was later to be known as ijtihad, a comerstone of Islamic law.” The nature of ijtihad will be further described in the treatment of the sources of Islamic law. Islamic law, understood in the context of the Islamic view of the relationship between religion and the world, in contrast to Canon Law, exercises a dominant and indeed all- pervasive role in the Muslim’s life, For the follower of Islam, even the most religious of acts is primarily a juridical act. Prayer and purification, for example, are juridical acts, that is, only the prayer and purification which is carried out in accord with Islamic jurisprudence is, in fact, prayer or purification, Father Samir Khalil Samir observes: It is not by chance that the main science of Islam is jurisprudence, not theology or spirituality, as in the Christian tradition. In Islam the scholar (or the fagih, singular of fugahd’) is the one who knows all jurisprudence. ‘The faithful tum to him to ask whether, in certain situations, they can, for example, do their prayers, and he indicates what they must do to pray validly. Open any book of Muslim tradition, of jurisprudence, or of hadith, and you will find everything, starting with the rules of purification, that is normative for the ablutions necessary for prayer or fasting... Everything is calculated but framed in the context of the Arab cultural world of the seventh century. For this reason, if one tries to understand Muhammad's project for the Muslim religion, what emerges is an all-inclusive design for a social, political, cultural, and religious community.** * Ibid. p.31, © Ibid. p. 37 © bid. p. 38. 5\ Samir Kahlil Samir, S.J, 1/7 Questions on Islam: A Serles of Interviews conducted by Giorgio Paolueci and Camitle Bid, ed. and tr. Wafik Nasry, S.1.,c0-tr. Claudia Castellani, San Francisco: Ignatius Press, 2008, pp. 52- 53.14 Whereas Canon Law provides a humble service to the higher expressions of religion in the Magisterium, in Sacred Worship and in the holiness of life, the Shari'a is the highest expression of religion; it encompasses the whole of life, including those aspects which we identify as the summit of our faith.” In understanding the dominant place of law in Istam, it is important to keep in mind the radically concrete nature of Islamic faith, that is, the human representation of the mystery of the divinity with the corollary humanly determined means of carrying out the will of the divinity. Father Samir Kahlil Samir describes the difference between Christianity and Islam in these words: To be a Muslim means, for many believers, to pray or to dress in a certain way; to eat some foods and refuse others (especially pork and blood meats); and to behave in a specifically prescribed way, both externally and internally In this regard, one must note a radical difference with Christianity, which is not a religion in the sense that is is not a human attempt to represent the Mystery with a certain idea of God and to put into practice a series of ethical norms by requiring adherents to behave in a coherent way; rather, Christianity is an Event, the Event of the revelation of God, by which he answers a human longing and makes himself present to man by taking man’s condition upon himself.” Whereas Canon Law is at the humble service of the Mystery of Faith, the encounter with the living Christ in the Church, Islamic law is the guaranteed means of knowing and doing the will of the di United States, commenting to me about the number of Catholies whom he knew who were ity. A Catholic priest and professor of philosophy in a major city of the converting to Islam, told me that many gave as the reason for their conversion the fact that Islam is a much easier religion to follow, for everything in life is determined by Islamic law or jurisprudence which, by its very definition, is fully the will of God. Since Islam identifies morality with the law, it eliminates the daily challenge of moral thinking. ‘The Sources of Islamic Law Islamic legal theory or usul al-figh recognizes two sources of the Shari'a. The first and “most sacred source of law” is the Quran. Regarding the Quran as a source of law, Hallaq writes: 5 cf. Umar F. Abd-Allah, “Theological dimensions of Islamic law,” p. 240. 8 Samir Kahlil Samir, $.J,, 117 Questions on Islam, p. 53.15 ‘The theory began with the assumption that the Quran is the most sacred source ‘of law, embodying knowledge that God had revealed about human beliefs, about God himself, and about how the believer should conduct himself or herself in this world, This human conduct was the domain of law, and to this end the Quran contained the so-called “legal verses,” some five hundred in all (the others being theological, exhortative, ete.)." One finds, for instance, the following norm regarding marriage of a Muslim man to a non- ‘Muslim woman and the marriage of a Muslim woman to a non-Muslim man: Do not mary idolatresses until they believe: a believing slave woman is certainly better than an idolatress, even though she may please you, And do not give your women in marriage to idolaters until they believe: a believing slave is certainly better than an idolater, even though he may please you. Such people call [you] to the Fire, while God calls [you] to the Garden and forgiveness by His leave. He makes His messages cleat to people, so that they may bear them in mind. ‘The “Fire,” to which the non-Muslim leads the Muslim, and the “Garden,” to which God leads the Muslim through the Shari‘a, refer to the law regarding punishment in the life to come, which reads: On that Day you will be brought to judgement and none of your secrets will remain hidden. Anyone who is given his Record in his right hand will say, ‘Here is my Record, read it. I knew I would meet my Reckoning,’ and so he will have a pleasant life in a lofty Garden, with clustered fruit within his reach. It will be said, “Eat and drink to your heart’s content as a reward for what you have done in days gone by.’ But anyone who is given his Record in his left hand will say, ‘If only I had never been given any Record and knew nothing of my Reckoning. How I wish death had been the end of me. My wealth has been no use to me, and my power has vanished.” “Take him, put a collar on him, lead him to bum in the blazing Fire, and [bind him] in a chain seventy metres long: he would not believe in Almighty God, he never encouraged feeding the hungry, so today he has no real friend here, and the only food he Hallag, An Introduction to Islamic Law, p. 16. SSepThe Cow,” 221, The Qur’an, t. M. A. S, Abdel Haleem, Oxford: Oxford University Press, 2004, 2005, p. 2s.16 has is the filth that only sinners eat." ‘These and similar legal verses of the Quran are the first point of reference for the legal expert in deciding any case brought before him. The second source of Islamic law is the life of Muhammad who is not held to be divine but to have understood God’s intentions and to have acted, in his daily life, in accord with God’s intentions, The biography of Muhammad, which became known as the Sunna, is the second most important reference for the legal expert. The individual texts. of the biography, narrating the words and deeds of Muhammad, were known as hadiths. Hallaq gives as an example of a hadith the teaching on private property in the Sunna: For example, the Sunna of the Prophet generally promotes the right to private property, but the precise nature of this right was not made clear until the pertinent hadiths became known. Thus, we learn in one such hadith that when the Prophet once heard that someone had cultivated plants on the land of his neighbor without the latter’s knowledge, he said: “He who plants, without jon, in a lot owned by other people cannot own the crops although he labor.” ‘The number of the hadiths became so great that the Shari‘ah had to develop a standard of perm is entitled to a wage [for sound transmission, in order that they could be reasonably known, With regard to both the hadiths and also ambiguities found in the text of the Quran, the Shari‘a followed a theory of consensus, according to which “it is inconceivable for the entire Muslim community to conspire on a falsehood, including forging or distorting the holy Book." Consensus, in tum, is established by what is called recurrence, Hallaq describes the conditions for the establishment of recurrence: For recurrence to obtain, three conditions must be met: first, the text must be conveyed from one generation to the next through channels of transmission sufficiently numerous as to preclude any possibility of error or collaboration on a forgery; second, the first class of transmitters must have had sensory perception of what the Prophet said or did; and third, the first two conditions must be met at cach stage of transmission, beginning with the first class and ending with the last narrators of the report.” 5 «The Inevitable Hour,” 18-37, Ibid, pp. 387-388. * Hallag, An Introduction to Islamic Law, p. 16. * Ibid.,p. 17. ° Ibid., p17.ae Clearly, many of the hadiths did not meet the conditions of recurrence and were termed “solitary.” Hallaq observes: “With the possible exception of a few, the hadith reports are generally considered solitary, and, unlike the Quranic text, they do not possess the advantage of recurrence." Nevertheless, the various hadiths could be sources for the legal reasoning or ijtihad employed by the legal experts and judges. Hallag concludes: If all this points to anything about Islamic law, it is its own acknowledgment that, as a practical field, religious law (mostly hadith-derivative) does not have to enjoy certainty. Canon Law, on the other hand, enjoys the certainty which is inherent to its source in the Tradition as it is authoritatively interpreted by those who, by God’s grace, exercise jurisdiction in the Church as a hierarchical communion. The fourth source of Islamic law is givas which “provides a set of methods through which the jurist arrives a legal norms."* Analogy is the principal method. Hallag describes the four elements of givas as a source of law: [As the archetype of all legal argument, giyas is seen to consist of four elements, namely: (1) the new case requiring a legal solution (jie, the application of one of the five norms {the forbidden, the obligatory, the recommended, the neutral and the disapproved); (2) the original case that may be found either stated in the revealed texts or sanctioned by consensus; (3) the RATIO LEGIS, or the attribute common to both the new and original cases; and (4) the legal norm that is found in the original case and that, owing to the similarity between the two cases, must be transposed to the new case.” Hallag provides the example of the jurist who must decide a case regarding the prohibition of drinking date-wine. Examining the text of the Quran, he discovers that only the use of grape- wine is forbidden, On the basis of the ratio legis, namely the cause of intoxication, be decides that date-wine is also forbidden. Regarding the sources of the Shari‘ah, it must be asked whether the Shari'a recognizes the natural moral law, ‘that is, the law written on the human heart, which is, according to the Church's understanding, discoverable by human reason alone, even if it is © Ibid, p.17. Ibid, p. 17. ® Ibid, p. 22. © Ibid. pp. 22-23. © Ibid. p. 23.18 also revealed in the Sacred Scriptures. While Islamic jurists have identified “five universal principles that underline the Sharia, namely, protection of life, mind, religion, property and offspring,” they do not declare that they are discoverable by reason alone. In other words, they are principles of the law because they are revealed in the sources of the law. ‘The jurists practice istislah, “a method of inference that does not resort directly to a revealed text as the foundation of reasoning, but rather draws on rational arguments grounded in the five universals of the law." order to Istislah is practiced to discover what can best serve a legal interest, but, i employ this method of reasoning, the legal interest must involve the Muslim community at large.” Seemingly, any notion of law similar to the natural law is conditioned by the supremely concrete and immediate character of the Islamic faith, which identifies the good with whatever serves the actual advancement of Islam, Conclusion What difference do these differences between Canon Law and Islamic Sharia make? They make clear the distinct nature of the two laws. At the same time, they permit certain conclusions regarding the Shari‘a, which have serious implications for the mutual understanding of Catholics and Muslims. First of all, it seems clear that for the Muslim the ultimate goal of earthly life is the universal observance of the Shari‘a. The tolerance, therefore, that a Muslim demonstrates in a non-Muslim society before certain non-Muslim laws must be understood as a merely practical accommodation in view of the establishment of the perfection of the Shari‘a in all of society. The concrete nature of the Islamic understanding of salvation, that is, salvation to be realized in the here and now, in distinction from the Church’s understanding of salvation as the grace of turning to Christ, at all times, in the hope of the consummation of Christ’s saving work at His Final Coming, necessarily inspires a certain impatience with the legal accommodations which must be made in a non-Muslim society and a certain urgency in insisting upon the observance of the Shari‘a. Secondly, the plurality and relativity which marks Islamic law often renders it difficult to know, with certainty, what the norm of the Shari'a in any given matter truly is. Depending upon the school of interpretation, the content of the norm can be quite different. © ibid, p.26. * ibid, p. 174. ° Ibid, p.27.19 For example, in what pertains to marriage which, in Islamic law, is a contractual agreement, the various schools of interpretation are not in agreement regarding the validity of the various stipulations introduced into the contract At the same time, the “enforceability of stipulations,” even if they are valid, “depends on many variables and differs significantly from school to school. Since there is no hierarchical authority to resolve disagreements in the law itself or in its interpretation, such disagreements coexist and, therefore, create confusion regarding what the Shari‘a mandates. While in any law, including Canon Law, disagreements regarding the meaning of the text of the law can arise, the Code of Canon Law provides the norms by which such disagreements can be timely resolved.” The Pontifical Council for Legislative Texts assists the Roman Pontiff in responding authoritatively to questions regarding the interpretation of Canon Law.” Finally, the comparison of the two laws underlines a fundamental difference of understanding of the world. So fundamental is the difference that, depending upon the interpretation of the Shari‘a, life in harmony between devout Catholics and devout Muslims can become untenable. One must reflect upon the fact that if, according to Islam, the Shari‘a is to be the law of all society, then, once the adherents of Islam constitute the majority of the population, would they not be obliged to impose the Sharia upon the entire population. There is are fundamental differences between Canon Law and Islamic Shi And they do make a great difference in the lives of all, Catholics and Muslims. (Most Rev.) Raymond L, Burke Archbishop Emeritus of Saint Louis Prefect of the Supreme Tribunal of the Apostolic Signatura © CE Kecia Ali, “Marriage in Classical Islamic Jurisprudence: A Survey of Doctrines,” The Islamic Marriage ‘Contract: Case Studies in Islamic Family Law, e6. Asifa Quraishi and Frank E. Vogel, Cambridge, Massachusetts: Harvard University Press, 2008, pp. 12-13 © Ibid, p.21 ® of, cann. 7-28. 116 Pope John Paul Il, Apostolic Constitution Pastor bomus, “On the Roman Curia,” 28 June 1988, Acta Apostolicae Sedis, 80 (1988), pp. 901-902, att. 154-158