Sunday, March 23, 2008

A Primer on Shariah

An interesting article in the NYT by Noah Feldman;

In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world. Today, when we invoke the harsh punishments prescribed by Shariah for a handful of offenses, we rarely acknowledge the high standards of proof necessary for their implementation. Before an adultery conviction can typically be obtained, for example, the accused must confess four times or four adult male witnesses of good character must testify that they directly observed the sex act. The extremes of our own legal system — like life sentences for relatively minor drug crimes, in some cases — are routinely ignored. We neglect to mention the recent vintage of our tentative improvements in family law. It sometimes seems as if we need Shariah as Westerners have long needed Islam: as a canvas on which to project our ideas of the horrible, and as a foil to make us look good.

In the Muslim world, on the other hand, the reputation of Shariah has undergone an extraordinary revival in recent years. A century ago, forward-looking Muslims thought of Shariah as outdated, in need of reform or maybe abandonment. Today, 66 percent of Egyptians, 60 percent of Pakistanis and 54 percent of Jordanians say that Shariah should be the only source of legislation in their countries. Islamist political parties, like those associated with the transnational Muslim Brotherhood, make the adoption of Shariah the most prominent plank in their political platforms. And the message resonates. Wherever Islamists have been allowed to run for office in Arabic-speaking countries, they have tended to win almost as many seats as the governments have let them contest. The Islamist movement in its various incarnations — from moderate to radical — is easily the fastest growing and most vital in the Muslim world; the return to Shariah is its calling card.

How is it that what so many Westerners see as the most unappealing and premodern aspect of Islam is, to many Muslims, the vibrant, attractive core of a global movement of Islamic revival? The explanation surely must go beyond the oversimplified assumption that Muslims want to use Shariah to reverse feminism and control women — especially since large numbers of women support the Islamists in general and the ideal of Shariah in particular....

One reason for the divergence between Western and Muslim views of Shariah is that we are not all using the word to mean the same thing. Although it is commonplace to use the word “Shariah” and the phrase “Islamic law” interchangeably, this prosaic English translation does not capture the full set of associations that the term “Shariah” conjures for the believer. Shariah, properly understood, is not just a set of legal rules. To believing Muslims, it is something deeper and higher, infused with moral and metaphysical purpose. At its core, Shariah represents the idea that all human beings — and all human governments — are subject to justice under the law.

In fact, “Shariah” is not the word traditionally used in Arabic to refer to the processes of Islamic legal reasoning or the rulings produced through it: that word is fiqh, meaning something like Islamic jurisprudence. The word “Shariah” connotes a connection to the divine, a set of unchanging beliefs and principles that order life in accordance with God’s will. Westerners typically imagine that Shariah advocates simply want to use the Koran as their legal code. But the reality is much more complicated. Islamist politicians tend to be very vague about exactly what it would mean for Shariah to be the source for the law of the land — and with good reason, because just adopting such a principle would not determine how the legal system would actually operate.

Shariah is best understood as a kind of higher law, albeit one that includes some specific, worldly commands. All Muslims would agree, for example, that it prohibits lending money at interest — though not investments in which risks and returns are shared; and the ban on Muslims drinking alcohol is an example of an unequivocal ritual prohibition, even for liberal interpreters of the faith. Some rules associated with Shariah are undoubtedly old-fashioned and harsh. Men and women are treated unequally, for example, by making it hard for women to initiate divorce without forfeiting alimony. The prohibition on sodomy, though historically often unenforced, makes recognition of same-sex relationships difficult to contemplate. But Shariah also prohibits bribery or special favors in court. It demands equal treatment for rich and poor. It condemns the vigilante-style honor killings that still occur in some Middle Eastern countries. And it protects everyone’s property — including women’s — from being taken from them. Unlike in Iran, where wearing a head scarf is legally mandated and enforced by special religious police, the Islamist view in most other Muslim countries is that the head scarf is one way of implementing the religious duty to dress modestly — a desirable social norm, not an enforceable legal rule. And mandating capital punishment for apostasy is not on the agenda of most elected Islamists. For many Muslims today, living in corrupt autocracies, the call for Shariah is not a call for sexism, obscurantism or savage punishment but for an Islamic version of what the West considers its most prized principle of political justice: the rule of law...

So in contemporary Islamic politics, the call for Shariah does not only or primarily mean mandating the veiling of women or the use of corporal punishment — it has an essential constitutional dimension as well. But what is the particular appeal of placing Shariah above ordinary law?

The answer lies in a little-remarked feature of traditional Islamic government: that a state under Shariah was, for more than a thousand years, subject to a version of the rule of law. And as a rule-of-law government, the traditional Islamic state had an advantage that has been lost in the dictatorships and autocratic monarchies that have governed so much of the Muslim world for the last century. Islamic government was legitimate, in the dual sense that it generally respected the individual legal rights of its subjects and was seen by them as doing so. These individual legal rights, known as “the rights of humans” (in contrast to “the rights of God” to such things as ritual obedience), included basic entitlements to life, property and legal process — the protections from arbitrary government oppression sought by people all over the world for centuries.

Of course, merely declaring the ruler subject to the law was not enough on its own; the ruler actually had to follow the law. For that, he needed incentives. And as it happened, the system of government gave him a big one, in the form of a balance of power with the scholars. The ruler might be able to use pressure once in a while to get the results he wanted in particular cases. But because the scholars were in charge of the law, and he was not, the ruler could pervert the course of justice only at the high cost of being seen to violate God’s law — thereby undermining the very basis of his rule.

In practice, the scholars’ leverage to demand respect for the law came from the fact that the caliphate was not hereditary as of right. That afforded the scholars major influence at the transitional moments when a caliph was being chosen or challenged. On taking office, a new ruler — even one designated by his dead predecessor — had to fend off competing claimants. The first thing he would need was affirmation of the legitimacy of his assumption of power. The scholars were prepared to offer just that, in exchange for the ruler’s promise to follow the law.

Once in office, rulers faced the inevitable threat of invasion or a palace coup. The caliph would need the scholars to declare a religious obligation to protect the state in a defensive jihad. Having the scholars on his side in times of crisis was a tremendous asset for the ruler who could be said to follow the law. Even if the ruler was not law-abiding, the scholars still did not spontaneously declare a sitting caliph disqualified. This would have been foolish, especially in view of the fact that the scholars had no armies at their disposal and the sitting caliph did. But their silence could easily be interpreted as an invitation for a challenger to step forward and be validated.

His latest book is The Fall and Rise of the Islamic State

via Mahmoud El-Gamal

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