Europe’s long history of religious warfare and the Age of Enlightenment that followed led to the establishment, in most Western countries, of a firm divide between church and state. From this divide emerged the concept that religious morality should be separate from secular law. Coming from a historical and cultural tradition defined by the separation of church and state, many Westerners assume that secularization is a necessary precondition for the emergence of modern, democratic forms of government that respect universal human rights. This belief underpins Western policymakers’ promotion of secularization as the path to political, social, and economic reform in the Muslim world. In the wake of the September 11, 2001 attacks, U.S. and other Western policymakers have, on the whole, intensified their efforts to cultivate secular democracy in the Muslim world in order to promote reform.
While there is indeed a clear need for comprehensive reform in the Muslim world, it is not clear that secularization is the path to realizing it. The conflict between church and state that has characterized much of Western history has in fact been historically absent in the Muslim world. As a result, the line between religious and secular obligations—and indeed, a societal consensus that there is a need for such a line—is not as well-established in the Muslim world as it is in the West.
Although in the West religion has been largely separated from law, in the Muslim world Islamic law, or sharia, is not con-fined to purely religious matters. Sharia is applied to a wide variety of ‘secular’ legal issues, ranging from inheritance, marriage, and divorce to contracts and criminal punishments. Moreover, after a brief (and mostly disastrous) flirtation with secularization in the 1950s and 1960s, many Muslim-majority countries have now embarked upon conscious efforts to inject more religion into government.
An increasing number of Muslim-majority countries are inserting ‘sharia supremacy’ clauses into their constitutions, making any legislation which contradicts the provisions of Islamic law unconstitutional. This trend is a continuation of one that began in 1979 in Pakistan with the passage of the Hudood Ordinance, and in Egypt with a 1980 amendment to the constitution stating that “the principles of the Islamic sharia are the chief source of legislation.” More recently, the newly adopted Iraqi constitution included a clause stating that “no law can be passed that contradicts the undisputed laws of Islam.”
Avowedly religious political parties are gaining support all across the Muslim world, from traditionally secular Turkey (where the Islamist Justice and Development Party has governed since 2002) to Egypt, Jordan, Morocco, and Palestine (where the Islamist parties of the Muslim Brotherhood, Islamic Action Front, Justice and Development, and Hamas, respectively, constitute the largest opposition groups in those countries).
The Muslim world’s resistance to secularization, coupled with the recent rise in the popularity of Islamist parties, has presented a unique dilemma for Western leaders. Policymakers evaluating these trends often react with alarm, decrying the participation of religious parties in government as dangerous and backwards. Implementation of Islamic law is seen as especially troubling, standing in the way of any liberalization and the em-brace of human rights. Indeed, with the so-called ‘Islamic’ regimes of Saudi Arabia and Iran justifying authoritarianism and a wide array of repugnant practices in the name of sharia, it is little wonder that some believe the West is engaged in an irreconcilable “clash of civilizations” with the Islamic world.
In fact, Western policymakers, ‘Islamic’ regimes, and indeed large numbers of individual Muslims have all grossly misinterpreted Islamic law. Sharia is not a rigid and immutable ‘law of God’ based on unchanging texts written in the Middle Ages. Understood and applied correctly, sharia is an imminently flexible, dynamic jurisprudence that is fully compatible with the modern human rights framework.
While there is indeed a need for reform in the Muslim world, it cannot be achieved through secularization. Western policymakers concerned with promoting reform in the Muslim world should cease attempts to impose a historically and culturally irrelevant model of secular governance, and must instead support indigenous efforts to reform and revitalize Islamic law. A modern and liberal body of sharia law which promotes respect for human rights is not only possible; it is necessary. With-out a firm sharia-based justification for liberal positions on economic and social issues, the changes being promoted by Muslim reformers and Western policymakers alike will fail to be accepted as legitimate by the individual citizens of the Muslim world.
Part I of this paper presents a brief picture of the modern Muslim world. Part II explores the principles and sources of Islamic jurisprudence and its original understanding as a dynamic source of law. Part III applies the principles of Islamic law to three controversial contemporary issues: democracy, women’s rights, and freedom of religion. Finally, Part IV concludes with a set of recommendations for Western policymakers attempting to promote reform.
Part I: The Muslim World Today
For many Muslims and non-Muslims alike, it is clear that the contemporary Muslim world is in crisis. Despite a 600 year Golden Age characterized by scientific innovation, political and economic success, and cosmopolitan tolerance, the Muslim world now lags behind much of the rest of the world in numerous significant areas including the sciences, and artistic and cultural production. A particularly disturbing (and often cited) measure comes from the United Nations Development Program, which reports that the total number of books translated into Arabic since the 9th century is around 100,000, or about as many books as are translated in a single year in Spain. The great men and women of letters of the Islamic world are constantly under siege, from the late Nobel Prize-winning Egyptian author Naguib Mahfouz, attacked in 1994 by knife-wielding Islamic radicals, to Indian-British Salman Rushdie, an internationally-acclaimed author whose death was called for by the government of Iran in 1989.
Governance is also a major problem throughout the Muslim world, where true democracies are rare and the vast majority of states routinely deny basic human rights to their citizens. Of the 46 Muslim-majority countries, Freedom House deems only 7 percent (three countries) to be “free,” while 43 percent (20 countries) are deemed “partially free” and 50 percent (23 countries) are “not free.” These proportions are virtually reversed for the rest of the world, such that 46 percent of all countries are considered “free,” 30 percent are “partially free,” and only 24 percent are “not free.” Human Rights Watch reports that in Saudi Arabia, birthplace of the Prophet Muhammad and the religion of Islam, citizens are denied “the right to free association, peaceful assembly, and free expression . . . [t]orture of those arrested for crimes remains common, [and the] institutionalized system of legal guardianship denies women basic rights of travel, access to justice, health care, and educational choices.” In Iran, the center of Shi’a Islam, the situation is equally dire, as “authorities systematically suppress freedom of expression and opinion by closing newspapers and imprisoning journalists . . . those imprisoned for peaceful expression of political views [are subjected] to torture and ill-treatment . . . [and] ethnic and religious minorities are subject to discrimination.”
From Palestine, Iraq, and Sudan to Chechnya, Afghanistan, and Somalia, the borders between the Muslim world and the West have become flashpoints for major conflict. Russia has fought multiple battles in the majority-Muslim province of Chechnya. The United States is now fighting major conflicts in two Muslim countries, Iraq and Afghanistan. Indeed, since 9/11 the United States and other Western countries have devoted substantial resources and attention to fighting conflicts in the Muslim world, leading to accusations from some Muslims that the West is engaged in a battle against Islam itself. To its credit, the United States has consistently denied these claims, arguing that U.S. interventions in Muslim countries have been based on legitimate national security concerns. President Bush has repeat-edly emphasized his view of Islam as a “religion of peace.” Nonetheless, there exists throughout the Muslim world a pervasive sense of humiliation and foreign domination—a feeling that has heightened volatility among communities and individuals already aware of their relative deficiencies in the sciences, art, and politics.
Given the linguistic, geographic, and cultural diversity of the Muslim world, it is facile to suggest that Islam is the source of all these problems. There is after all very little relationship between the Islam practiced in Saudi Arabia and that practiced in Egypt, Malaysia, or the United States. To the extent that there are problems in Muslim-majority countries, it is far more likely that they arise from a shared history of colonialism, oppressive governance, poverty, disease, and war—especially over natural re-sources—than a common religious underpinning.
Nevertheless, although Islam is not the source of the Muslim world’s problems, there is an important and relevant relation-ship between Islam and many of the oppressive laws and practices that are prevalent throughout the Muslim world. With the exception of a small minority, the governments of the world that claim to speak on behalf of the global community of Muslims are authoritarian and repressive. These states promote a distorted and Medieval form of Islamic law to justify their harsh practices and, often, the very existence of their regimes. Even more radical and violent interpretations of sharia are the source of inspiration for terrorist splinter groups around the world. Prominent Western critics of Islam repeat the claims of Muslim radicals almost verbatim to support their arguments that Islam is an inherently backwards faith—Ayaan Hirsi Ali has called moderate Islam “wishful thinking,” while Christopher Hitchens has maintained that Islam is “extremely dangerous” because it cannot be reformed.
Perversely, the vast majority of Muslims—who indeed reject violence and extremism—are increasingly marginalized and caught between the narratives promoted by radicals within their own faith community and conservatives from outside their communities. The roots of these dual misinterpretations of sharia come from a specific set of historical circumstances that have cast a long shadow on the Muslim world and its interaction with the West. The truth is that sharia, if implemented correctly, can protect human rights. But understanding the proper application of sharia requires, in the first instance, a brief introduction to the origins and sources of Islamic law.
Part II: A History of Islamic Jurisprudence
Primary Sources. “This is the book,” the Qur’an begins, and “in it is guidance sure, without doubt, to those who fear God.” The basis of Islamic jurisprudence—and of Islam itself—is the Qu’ran, the collection of Islamic scripture revealed to the Prophet Muhammad over a period of 21 years beginning in 610 AD. Although the Qur’an is considered a great masterpiece of classical Arabic, it is often said that “the eloquence and rhythm of the Arabic does not translate into English and other languages.” Even for native Arabic speakers, the book is unusual and difficult to approach. Rather than present a linear, chronological story, the Qu’ran’s 114 chapters are arranged roughly by length. Furthermore, be-cause the intended audience of the Qu’ran—nomadic Arab tribes—were already familiar with the scriptures of the Jews and Christians with whom they interacted, the Qur’an references earlier Abrahamic traditions and historical events in what can appear to be a haphazard manner. Characters are discussed without any introduction, and previous occurrences are alluded to without specificity or context. Considering the aforementioned factors, one begins to understand how the Qur’an could be so easily misinterpreted today.
Although the Qur’an is the basic source of Islamic jurisprudence, it is not intended as a legislative text. The majority of the Qur’an’s 6,239 verses are metaphorical, allegorical, and historical passages, as well as statements of moral principle and religious injunctions. The number of verses dealing specifically with legal issues, however, is usually estimated between just 200 and 500. Given the dearth of legal content in the Qur’an, sharia is normally supplemented by records of the customs and sayings (hadith and sunna) of the Prophet Muhammad. The authority for this practice stems from the Qur’an itself, which in several verses instructs Muslims to obey both the teachings and the practices of the Prophet.
It is important to note that a fundamental tenet of Muslim belief is tawhid, or the oneness of God. Unlike the Christian be-lief in the divinity of Jesus, in Islam Muhammad is seen as a mortal man, not a divine figure. The notion that God could have a son or be part of a “holy trinity” is specifically rejected in the Qur’an. Thus, as the Qu’ran is taken as the literal word of God, it is necessarily supreme; any inconsistency or conflict between the Qur’an and the hadith or sunna must be resolved in favor of the Qu’ranic view.
Furthermore, while the Qur’an, supported by the hadith and sunna, is considered to be the primary source of Islamic law, like any written document these materials are, and have been, subject to human interpretation. The hadith and sunna are especially difficult to interpret because while the Qur’an was com-piled within the lifetime of the Prophet, the hadith and sunna were not. This was due to the fact that “the Prophet is reported to have discouraged his followers from writing down his say-ings, lest they be confused with the text of the Qur’an” itself. This historical circumstance led to a proliferation of hadith and sunna of questionable veracity and origin, and their use to justify a wide variety of abusive practices by political leaders of the Islamic empire (and later, Muslim-majority countries). Religious scholars have attempted to combat this practice by compiling so-called “authentic” collections of hadith and sunna from as early as 850 AD. Recently, for example, Turkey’s highest religious authority announced that it would prepare a new standard collection of hadith by 2008, free of the “inconsistencies and nar-row-minded assertions” that are the source of many problematic practices and beliefs. However, major disputes regarding their authenticity continue to this day.
Secondary Sources. As Islam rapidly expanded out of the Arabian Peninsula in the eighth and ninth centuries AD through military conquest and missionary activity in North Africa and Asia, the bureaucrats of the new Islamic empire faced increasingly serious and complex legal questions that could not be resolved by referring solely to the primary sources of Islamic law. Consequently, schools of Islamic law, or madahib, arose to resolve legal disputes and instruct the faithful in matters of everyday conduct. The madahib created a variety of tools to further the development of Islamic law, a practice that became known as ilm usul al-fiqh or “the science of the interpretation of the law.” Although ilm usul al-fiqh predated the development of common law in the West by several centuries, the basic methods are analogous to those employed by common law jurists of the Western tradition. Furthermore, the resolutions provided by application of these new tools led to the development of a large secondary body of sharia in a manner akin to the development of the common law in the West. Questions are resolved by interpreting legislative materials (the Qur’an, hadith, and sunna roughly parallel the Constitution and statutory law in the Western common law con-text) in light of the principles of justice and the public good.
The first and arguably most important of the analytical tools of ilm usul al-fiqh is ijma, or the consensus of the scholars of law. In principle, unless there are compelling reasons to discard the legal precedent set by earlier scholars, their rulings should be applied to contemporary questions. However, as is the case in the Western legal tradition, the question of how and when precedent (or ijma) can be overruled is the source of long-running dispute. In the Islamic context, this debate centers specifically on whether precedent is set only by Muhammad’s earli-est and most well-respected followers (the sahaba), or if it can include precedent set by contemporary Muslim jurists.
Other tools of ilm usul al-fiqh should be similarly familiar to the student of Western law. These mechanisms include reason-ing by analogy (qiyas), consideration of the public good (maslaha), equity or consideration of the fairest outcome (is-tihsan), customary usage (urf), and independent legal reasoning (ijtihad). As in the West, a given legal question can be decided based upon a combination of all these sources of law. Contrary to being an alien system of justice, sharia has much in common with the modern legal framework employed throughout the West.
By the beginning of the 10th century AD the dozens of madahib had coalesced around five major schools of thought, each of which was named after its founder: the Hanafi, Maliki, Shafi’i, and Hanbali schools among Sunni Muslims, and the Jafari school among Shiite Muslims. While each of the schools agreed that the Qur’an, hadith, and sunna were the primary “legislative” materials, differences arose as to whether these ma-terials should be interpreted literally or subjectively, and whether and how the tools of ilm usul al-fiqh should be applied. Thus, in solving a legal problem, the Maliki school would consider customary practice (urf), the public good (maslaha), and reasoning by analogy (qiyas); but the Hanafi school would reject maslaha and instead focus on istihsan, consideration of the fairest outcome.
The authority of each school was limited to specific geographical areas depending on the attitudes of the political leadership. But while the different approaches might lead to inconsistent results, it was universally understood that so long as a jurist used the methods of one school consistently, his judgment was considered valid. If a specific case was heard by a court in one jurisdiction, courts in other jurisdictions would generally respect the decision made—even if they would have applied different methods and possibly reached a different conclusion.
The Battle between Taqlid and Ijtihad. By the end of the 10th century AD the process that began with the crystallization of the five orthodox schools of sharia combined with internal and external political events to create a kind of intellectual stagnation in Islamic law. The Islamic empire, which under the Abbasid caliphs had stretched from Spain to North Africa, Arabia, and Central Asia, was now disintegrating into a series of competing regional dynasties. The Mongol empire of Genghis Khan gained strength in the Far East, and when it finally reached the edges of the Islamic empire, “one great Muslim city after another was demolished.” The banks of the Tigris in Baghdad were said to have run red from the blood of the scholars and black from the ink of so many destroyed books. The Mongols “left a swathe of ruined cities and libraries behind them, as well as economic recession.” The cosmopolitan, multiethnic and multi-religious Islamic empire was beset by internal calamity and external threats, and Islamic society reacted by turning inwards and becoming more conservative in an effort to preserve its religious tradition in the face of foreign influence and molestation.
As a result of the Mongol invasion and the internal collapse of the Islamic empire, the authority of the ulema, or legal scholars of the empire, was dramatically curtailed. The scholastic out-put of the five orthodox schools peaked, and most sharia jurists argued “that all the rules of law had been expounded and there was no more need . . . to formulate new rules.” Islamic jurisprudence, which to that point had been characterized by a high degree of independent legal reasoning, or ijtihad, became dominated by taqlid, or imitation. This ossification of Islamic law was a direct reaction to challenges plaguing the empire: “after the loss of so much of the learning of the past, the destruction of manuscripts and the slaughter of scholars, it was more important to recover what had been lost than to inaugurate more change.”
The ulema fought to maintain what little influence they still had by invoking ‘the closure of the door of ijtihad’ and arguing that any “new decision . . . would be based on previously recorded determinations.” In common law terms, it would be as if the principle of stare decisis or preservation of precedent had suddenly become an insurmountable obstacle to the continued development of the law, preventing the application of new ideas or understandings to previously visited questions. Extending the analogy further, it would be as if the United States Supreme Court was bound for all time by its notorious 1857 decision declaring that Congress had no right to ban slavery and that individuals of African descent could never be citizens of the United States (Dred Scott v. Sandford) and could not reverse its decision in subsequent jurisprudence. Indeed, the “closure of the door of ijtihad” is the primary reason why much of Islamic law appears so foreign when considered in a contemporary light.
In retrospect it is not difficult to predict the disastrous con-sequences that freezing the development of law—embracing taqlid over ijtihad—would produce in Islamic jurisprudence. Attempting to resolve the complexities of modern life by looking solely to law developed in the Middle Ages is simply impossible; a dispute about intellectual property, for example, cannot be re-solved with doctrines developed by 10th century jurists. Worse still, many of the Medieval holdings that are now enshrined in Islamic law—especially with regard to women—are outdated and even blatantly incorrect misapplications of the law (in the same way that virtually all Western jurists would now argue that the holding in Dred Scott v. Sandford was incorrect).
Despite the fact that the majority of the ulema opted to ‘close the door of ijtihad,’ several well-known scholars of sharia fer-vently and vocally opposed the majority consensus. Al-Shatibi, for example, warned that “ijtihad cannot cease except at the end of the world when man’s subjection to the Law will cease,” while Jalal al-Din al-Suyuti wrote a famous pamphlet called the “Reply to One who Prefers the Least Effort and Ignores the Fact that Ijtihad is Imperatively Necessary at All Times.” Other op-ponents of taqlid included the 11th century jurists Abd al-Jabbar and Abu Husayn al-Basri, who “deemed ijtihad to be an indis-pensable ingredient in law,” and the 13th century jurist Ahmad ibn Taymiyyah, who argued that jurists must use ijtihad “even if this meant getting rid of much of the [jurisprudence] that had developed over the centuries.” Unfortunately for the Muslim world, these scholars were in the minority, and Islamic law came to be overwhelmingly defined by taqlid and the failure to apply creative and contemporaneous development of new law.
The Modern Revival of Ijtihad.In the last two centuries Islamic scholars have begun to turn away from taqlid and once again embrace ijtihad in a manner rivaling even the earliest and most progressive periods of Islamic jurisprudence. The immediate cause of this revival was the decline through the late 18th and early 19th centuries of the last great Islamic world power, the Ottoman Empire. Despite the fact that Turkish Ottoman governance came to be resisted by many Muslims (especially Arabs), the dismemberment of the Ottoman Empire by ascendant Western powers at the end of World War I was a deeply traumatic event in Islamic history. Islamic jurists and philosophers were forced to confront the real-ity that the Islamic world had fallen far behind the newly wealthy and scientifically advanced West. A new scholarly consensus among the ulema began to emerge that “some change in the modus operandi of the [Islamic] legal system was needed, for all could see that the perfect society of the [Islamic world] had fallen to the point that it could no longer compete with the Christian West.” Unlike the Mongol invasion, which represented the temporary triumph of nomadic warriors over a cos-mopolitan civilization, the collapse of the Ottoman Empire was a clear sign that a new civilization was dominant.
Although the great majority of Islamic scholars (and Muslim laypersons) recognized at the dawn of the 19th century that ma-jor reform was necessary, there were strong disagreements about how this reform should be pursued and implemented. Traditionalists “called for a purification of the sharia through elimination of all the encrustations of the past several hundred years,” while radical reformers advocated “purposeful elimination of Islamic influence from the government and law” and the adoption of a secular, Western form of government and law. Be-tween these two extremes lay a third way, which embraced “a broadened doctrine of ijtihad” that would accept “the need for some Western-inspired reforms” within the framework of the Islamic sharia.
In many ways the history of the modern Muslim world is a history of the interplay between extreme traditionalists and radical reformers. We can see the puritanical reformist trend in places like Saudi Arabia since its creation in 1932, and Iran since the 1979 ‘Islamic Revolution;’ while the extreme secularist trend that defined the Arab nationalism of the 1950s and 1960s re-mains the most important principle by which the authoritarian regimes of North Africa (Morocco, Tunisia, Algeria, Egypt) and the Levant (Syria, and until recently Iraq) govern. The third way—a mix of Western reforms and Islamic law—is found in the Muslim states of the Pacific (Malaysia and Indonesia) and is being increasingly promoted by liberal Muslim reformists in Europe and the United States, including Amina Wudud, Tariq Ramadan, Abdullahi An-Naim, and many other scholars.
Part III: Reinterpreting Islamic Law
As previously stated, the state of the Islamic jurisprudence in the Muslim world today is abysmal, especially the absence of the basic human rights protections that are taken for granted in much of the developed world. Many Muslims and non-Muslims alike seem to believe that sharia is incompatible with a modern and democratic human rights framework. While a comprehensive refutation of this misconception would require more space than is available here, the following three case studies demon-strate that sharia can indeed be interpreted in a modern, pro-gressive and rational way.
Democracy. Despite the strenuous assertions of authoritarian regimes throughout the Muslim world, sharia does not legitimize an authoritarian approach to governance. Though the Qur’an does not specify what form of governance should be used in an Islamic state, it does allude to several concepts that are basic to democracy, and “undeniably proposes that the affairs and governance of the nation be based on shura [consultation].” The Prophet Muhammed himself was commanded by God in the Qur’an to “consult with [the faithful] upon the conduct of all affairs,” and the hadith recount many instances of Muhammad consulting with a broad base of his followers—not a limited sub-set of individuals close to him—and implementing the decision of the majority, even when he personally disagreed. An illustrative fact is that following Muhammad’s death, his successor as caliph, or leader of the Islamic empire, was chosen by majority vote of the sahaba and was not a blood relative of the Prophet.
Application of the traditional forms of Islamic jurisprudence is similarly revealing. An early form of democracy was practiced by the sahaba, and as such serves as a sort of precedent for modern times. Furthermore, in the Islamic world and the West it is now widely agreed that the public good (maslaha) is best served when as many people as possible have the ability to exercise their political rights in a democratic system, and that democracy is simply the most equitable political system available today (is-tihsan).
It seems clear that in our modern age, the Qur’anic requirement of consultation in government can only be fulfilled in a democratic system. It is hard to argue that the ‘Islamic’ regimes of Saudi Arabia and Iran, reviled as they are by their citizens, have obtained the consent of the governed. The government of Iran may claim, disingenuously, that the ‘Guardian Council’ of religious scholars in the employ of the regime serves this consultative function. However, it is clear that these regimes are nothing more than self-perpetuating oligarchies, not governments based on the Islamic guidelines that the Qur’an and the example of the Prophet intended.
Women's Rights. Women throughout the Islamic world do not enjoy the same le-gal rights and privileges as men. In Saudi Arabia, women are prohibited from appearing in public without a veil or without a male relative as an escort, nor do women have the right to drive or to leave the country without permission from a male relative. Though the Saudis justify these laws by claiming that they are requirements of sharia, this could not be further from the truth.
Azizah al-Hibri, one of many contemporary feminist Islamic scholars, notes that when modern circumstances are compared to the experience “of Muslim women during the life of the Prophet, the contrast is shocking. Early Muslim women were actively involved in every aspect of the life of the nascent Muslim society. They included businesswomen, poets, jurists, religious leaders and even warriors.” One cannot help but marvel at the fact that the Prophet’s first wife, Khadijah, was a highly successful businesswoman who met Muhammad when she hired him to work as her business agent, and who subsequently proposed marriage to Muhammad on her own initiative. In present-day Saudi Arabia, however, she would be prohibited from running a business or interacting with men in public. Similarly, the Prophet’s second wife, Aisha (whom he married after the death of Khadijah), would become a major figure in Islamic history and a “distinguished political and religious leader” of the growing Islamic community, even leading a group of Muslims into battle during a succession dispute. Yet in today’s Saudi Arabia, women are denied the right to vote or to meaningfully participate in politics.
In stark contrast to the unconscionable way that women are treated in many Muslim countries, the Qur’an insists on equality between the sexes. Unlike the Bible, the Qur’an does not blame humanity’s expulsion from the Garden of Eden on Eve alone, but on both Adam and Eve equally, who together disobeyed God’s commandments. Eve was not created from Adam’s rib (the often-cited Biblical basis for centuries of Western teachings that women are inherently inferior to men), rather, according to the Qur’an, men and women were created from the same nafs (soul) “and God made from that nafs its mate so that the mate may find tranquility with it.” The hadith are likewise clear that the Prophet Muhammad “mended his own clothes, cut meat, and performed other household chores . . . his private life was characterized by cooperation and consultation, all to the amazement of some of the men who knew about it.” Perhaps most interestingly, many of the great jurists of Islamic history were women or were taught by women (including Shafi’i, father of the eponymous school of law).
In pre-Islamic Arabia, women were often considered the property of their fathers or husbands. Men could take as many wives as they desired and could divorce their wives at will with-out paying any maintenance. Female infanticide was wide-spread and women had no inheritance rights whatsoever. But “Islam brought about a radical and immediate change in such abhorrent treatment . . . [giving] women an independent and equal legal and spiritual identity.” The Qur’an taught that women were not property but individuals responsible for their own affairs. It also taught that a woman’s consent would hence-forth be required before marriage, a bride’s dowry was to be paid directly to her rather than her father, female infanticide was prohibited, and women could divorce their husbands and would receive maintenance from their husbands if they were divorced. On the issue of polygamy, the Qur’an commands that men can take no more than four wives, provided that the husband can treat all of them equally—but then warns in the same chapter that “Ye are never able to be fair and just as between women, even if it is your ardent desire.” Read together, these two verses seem to suggest that polygamy should be resorted to only in extraordinary cases, such as when a society’s normal gender balance is distorted by war.
Application of the traditional tools of sharia, from either a modern or a traditional perspective, leads conclusively to the requirement of equality between men and women. The reality is that much of the lamentable treatment of women in Islamic countries today has its origins not in Islam itself, but rather in Medieval jurisprudence that warped Islamic law in order to justify a return to the old norms of pre-Islamic Arab culture.
Freedom of Religion. In early 2006 a great deal of media attention was focused on the case of Abdul Rahman, a Muslim Afghan man who converted to Christianity and as a consequence was made to stand trial for apostasy, a crime allegedly based on Islamic law. Abdul Rahman faced the death penalty if found guilty, and his case attracted international media attention and condemnation from political leaders throughout the Western world. Although many main-stream Islamic groups condemned the charges against Abdul Rahman, the media nonetheless focused on the supposed in-compatibility of Islam with democratic norms like freedom of religion. Indeed, most of Afghanistan’s sharia “experts” ar-gued that under Islamic law, the punishment for conversion to another religion was the death penalty. As only one example, Abdul Malik Kamawi, Deputy Chairman of the Afghan Supreme Court, was quoted declaring “Islam states that those who con-vert to another religion should be killed.” Indeed, fifteen Muslim-majority countries consider conversion from Islam a crime, and eight of these make it punishable by death.
The Qur’an does warn in several locations that for “anyone who, after accepting faith in God, utters unbelief…on them is wrath from God, and theirs will be a dreadful penalty.” But not one of the many verses describing apostasy mentions any punishment. Unlike the crimes of adultery, false accusation, theft, physical assault, and robbery—all of which have a specific penalty mentioned in the Qur’an—apostasy is never assigned a sanction. Instead, it is a “crime” that is left to God to punish in the afterlife (“on them is wrath from God”). The principle of tawhid clearly applies in this case, in that when punishment is reserved for God, it is not up to human beings to decide how “unbelief” should be remedied.
This conclusion is supported by other statements in the Qur’an. For example, although God’s “wrath” will be on unbelievers, the Qur’an states clearly that “[t]here is no compulsion in religion.” The Qur’an describes Islam as part of a continuous tradition, and tells Muslims to:
Say: “We believe in God, and in what has been revealed to us and what was revealed to Abraham, Ishmael, Isaac, Jacob, and the [Israelite] Tribes, and in the Books given to Moses, Jesus, and the prophets, from their Lord: We make no distinction be-tween one and another among them, and to God do we bow our will.”
Islam is therefore not to be viewed as superior to Judaism or Christianity, but rather as one path among several. Muslims do believe that Islam supersedes previous Abrahamic faiths and is the “last word” from God; but this does not mean that believers of other faiths are committing any sin or crime. In the Qur’an God speaks directly:
We revealed the Torah with guidance and light, and the [He-brew] prophets, who had submitted to God, judged according to it for the Jews. . . . We sent Jesus, son of Mary, in their foot-steps, to confirm the Torah that had been sent before him . . . let the followers of the Gospel judge according to what God has sent down in it. . . . We sent to you [Muhammad] the [Qu’ran] with the truth, confirming the Scriptures that came before it. . . . We have assigned a law and a path to each of you. If God has so willed, He would have made you one community, but He wanted to test you through that which He has given you, so race to do good: you will all return to God and He will make clear to you the matters you differed about.
Judged by these verses, it seems clear that punishing a Muslim convert to Christianity should be abhorrent under Islamic law and a contravention of clear Qur’anic guidelines. When God confirms that the multiplicity of religion is part of His plan, it would clearly contradict sharia law to try to stamp out religious diversity.
The notion that apostasy is punishable by death has its origins in the jurisprudence generated as the Islamic caliphate was disintegrating. Apostasy was considered in this context an act of treason against the state itself, for it threatened the foundations of the Islamic polity at a time in which it was already under attack. Even today, treason is often considered a capital crime—in the United States punishable by death or imprisonment for no less than five years —and it is only in this context that scholarly acceptance of the death penalty for the “crime” of apostasy makes sense. Between the clear legislative requirements of freedom of religion found in the Qur’an and the practical disappearance of the historical circumstances that conflated apostasy with treason, there is simply no justifiable grounds in sharia for Abdul Rahman’s treatment, regardless of any statements made by Afghan or other religious authorities. The case of Abdul Rahman is yet another example of the problems that can arise when legal questions are resolved by reference to taqlid and Medieval reasoning rather than modern (re)consideration of original source materials.
Part IV: The Role of the West
It has been argued here that sharia has been misinterpreted by Islamic regimes and Westerners alike. However, despite the gross misinterpretation of Islamic law and the myriad problems and injustices that result, universal human rights will not take hold in Muslim-majority states without a clear intellectual justification for these rights from within the sharia framework. Western policymakers can and should play an important role in the evolution of a more modern, liberal sharia—but the Western role in the ongoing Islamic reformation must be as limited as the role of the Muslim world in the Western Enlightenment. In other words, the West can provide intellectual support and lines of transmission for good ideas, but it will not be able to dictate the final results or control the process of reformation itself. To be most effective and influential this intellectual framework must be developed by progressive Muslims, and not forced from out-side through military or any other means.
First and foremost, the West should cease both promoting secularization in the Muslim world and fighting the rise of Islamist parties. While separation between church and state is often correlated with democracy in the West, Western policymakers should “keep in mind that democracy need not be limited to the specific institutional forms that it has taken in the United States or elsewhere.” Public opinion polls and modern experience has shown that when forced to choose between secular democracy and Islam, most Muslims will choose Islam. But Muslims can and will choose democracy and Islam if this choice is offered to them—the two are not mutually exclusive. Modern-day Turkey provides an interesting example of what can occur when Islamist parties are allowed to participate in democratic politics, as the religious Justice and Development Party (AKP) has established democratic protections for Turkish citizens never contemplated by decades of ‘secular’ governments. The false dichotomy of secular democracy versus Islam serves no one other than the dictators and radical movements which themselves promote such a narrative.
Of course, some differentiation must be made between violent political parties such as Lebanon’s Hezbollah, and more moderate parties such as the Turkish AKP or the modern incarnation of the Egyptian Muslim Brotherhood. Yet current policy, especially in the United States, fails to distinguish between these movements and generally opposes the entrance of any one of them into democratic politics. This is misguided at best and extremely counterproductive at worst, for history has often shown that democratic politics have a way of moderating radical movements that are allowed to enter into the political main-stream.
Similarly, the project of securing and promoting individual rights should begin with the education of Muslim men and women with respect to sharia’s true teachings on gender and interfaith relations. It is not useful to go to Afghanistan and dis-cuss the jurisprudence of the European Court on Human Rights. It would be more effective to provide funding and support to liberal Muslim scholars making the same arguments from within the framework of sharia. Foreign-aid programs promoted by the U.S. government as well as private institutions should seek to support the work of Muslim reformers rather than do nothing (or worse still, actively oppose them). The decision in 2004 by the United States to bar the moderate Muslim scholar Tariq Ra-madan from accepting a position at the University of Notre Dame is an excellent example of that which should not be done. Individuals like Mr. Ramadan, who have impeccable Islamic jurisprudence credentials and are pursuing a modernizing and liberalizing agenda, should be supported in every way by the United States and others seeking to promote reform in the Muslim world.
Finally, and perhaps most importantly, the West should support the rationalization and consolidation of Islamic law under the national courts of Muslim-majority states. Almost with-out exception, Islamic law has been developed and driven by local jurists. The same holds true today, when Islamic law is usually determined either by local religious leaders who may or may not be qualified (witness the literally thousands of individuals writing fatwas or religious judgments around the world), or by quasi-governmental authorities acting on their own initiative. However, the “constitutionalization” of Islamic law has empowered the courts of Muslim-majority states to be-gin developing country-specific jurisprudence through rational mechanisms that are subject to review and editing.
By way of example, following Egypt’s 1980 constitutional amendment, the Supreme Constitutional Court (SCC) was able to assert its jurisdiction over questions of Islamic law. In the years since, the SCC has consistently attempted to reconcile Is-lamic law with “international human rights and economic liberalism.” This year alone, the SCC has issued landmark rulings allowing Christians who had converted to Islam to return to Christianity and striking down the Egyptian government’s pre-vious rule prohibiting the issuance of official documents to those of the Baha’i faith. The SCC’s implementation of Islamic law has been “interpreted to be consistent with (and indeed to rein-force) the Court’s established commitments to liberal economic philosophy and to the protection of certain civil and political rights, particularly women’s rights.” The judgments of the SCC must be followed by the lower courts of Egypt, and in this way a new and vibrant Islamic law is being developed—in much the same way that common law has been constantly refined and up-dated in the West. By establishing judicial supremacy over ques-tions of Islamic law, the SCC has been able to prevent the emer-gence of radical and incorrect interpretations of Islamic law which could be used to justify human rights violations. And by helping to codify Islamic law, the SCC has avoided the kind of arbitrary legal process that is the norm in countries like Saudi Arabia, where judges applying Islamic law seem to rule at whim, rarely providing public justification for their decisions.
The United States and other Western powers should support these positive developments in every way possible, rather than attempting to discourage them and remove Islam from the juris-diction of government authorities. In fact, even where the consti-tutionalization of Islam is occurring in more repressive states—for example, Saudi Arabia, Sudan, or Iran—the United States and other Western powers should promote these processes. The reason for this is simple: assertion of jurisdiction over religious questions allows Muslim states to develop state-specific juris-prudence that can be reviewed and edited in the future. Just as in the West, courts will sometimes make bad decisions—whether to uphold slavery and stand in the way of civil rights, or to deny women and minorities their rights in an ‘Islamic’ system. How-ever, when national courts are able to rationalize and codify their jurisprudence, attorneys then have the ability to argue with one another, challenge perceived orthodoxies, and begin to de-velop the existing body of law. In short, it becomes possible for the jurists of the future to revisit and revise old issues in order to promote the continued development of the law. Perhaps counter-intuitively, it may be the spread of Islamic law within the Muslim world—rather than the replacement of sharia with foreign systems of secular governance—that will bring about the reform and revitalization that is so clearly needed.
This should not be interpreted to suggest that Islamic law should be applied by courts outside the Muslim world. Indeed, the Archbishop of Canterbury’s recent remarks in support of the establishment of religious courts in the United Kingdom are misguided at best, for such courts would likely perpetuate the ghettoization of immigrant communities and the application of multiple standards of law within a single state. Nor is it being suggested here that Islamic law should be modified to suit West-ern needs and interests. The task at hand is instead to support the peoples of the Muslim world as they seek to reclaim their tradition of intellectual production, open debate, and inquiry, and to renew the continuous development of the law which once characterized the religion of Islam, and which can and must characterize Islam in a modern world.
Kareem Elbayar is a JD/MA international affairs candidate at The George Washington University Law School, and a Middle East/North Africa specialist at the International Center for Not-for-Profit Law.