Rethinking secularism:

Why Shariah?

posted by Saïd Amir Arjomand

Noah Feldman prefaces his plea for the Shariah in his recent article for The New York Times Magazine (“Why Shariah?“) with a reference to the proposal recently made by the Archbishop of Canterbury to allow the Shariah and Jewish law to be considered in voluntary family and arbitration courts. The Archbishop and the Professor are addressing very different issues, however. The situation of a Muslim religious minority having the option of voluntary recourse to arbitration or court settlement in Europe, as proposed by the former, cannot be responsibly compared with that of a Muslim majority using the coercive power of the state to stone women accused of adultery in Nigeria, or to perpetuate patriarchal domination in Pakistan by keeping even those women who are eventually acquitted by superior courts in shackles and behind bars for many years.

In this article, presumably as a forerunner of his new book, Feldman extends the paternalism of the failed American empire in What We Owe Iraq to the entire Muslim world by telling the Muslims how good they really are; surely they would not realize this without the American law professor telling them. In telling them, he displays one of the worst examples of Orientalism.

We are given a précis of Islamic law and what Feldman calls its ‘constitutional theory’ without any sense of historical variation—the kind that can pass as an answer to a quiz in Islamic Civ. 101—to prove there was the rule of law in Islamic history. Feldman projects his construction into the mind of the contemporary Islamists as the meaning of Shariah, and then asks: Could they be right?!

Do the Muslims who demand “the execution of the Shariah” really mean the rule of law? Of course different Muslims mean different things, and many don’t know exactly what they mean but recognize the sentiment behind it. But Feldman does not offer any evidence that what he thinks Muslims ought to think on the basis of his précis is what they really think. The legal evidence we have from the countries in which it has been tried suggests that the demands for the implementation of the Shariah primarily means that of its penal code (hudud) with severe punishments for adultery, theft and blasphemy which gravely disadvantage the women, the poor and the religiously deviant, and has no constitutional component. The sociological evidence suggests that the ideological demand for the Shariah as the basis of the constitution and source of all laws appeals to the puritanical moralism strengthened by the resurgence of Islam that sees divinely-ordained severe punishment as the most effective way of stopping the moral corruption and libertinism coming from the West. The legal aspect is much better documented than the sociological one, and there is ample evidence where the Islamists have succeeded in establishing the Shariah as the source of law as in Pakistan, the Sudan, Iran and Nigeria. Can a professor of law be excused for not having read about any of this in the press or reports from human rights organizations on the subject of his specialization?

All this does not mean that Muslims do not call for the rule of law. They have done so for at least a hundred and fifty years; but they have said exactly what they meant. If Professor Feldman had studied modern constitutional history of the Middle East, he would have known that the mottos were ‘the rule of law (qānun),’ ‘limited government (mashrutiyya[t])’ and ‘government limited by law (qānun)’. The key term in the nineteenth and early twentieth century was Qanun, public law or state law (the same Greek word ‘Canon’, is used for church law in the West), and not Shariah or divine law. Feldman misses all of this and instead presents the Ottoman constitution as the imitation of the West and the root of the present evil of authoritarianism in the Middle East. This is a pity, especially as he did not even have to go that far back in history. If he had read the newspapers about Iran’s reformist President Khatami (1997-2005), himself a Muslim cleric, he would have known that the correct term for the rule of law is still the same.

The two Muslim organizations with over 30 million members each in Indonesia do not think “Shariah means the rule of law.” They mean what you and I mean, and amended the Indonesian Constitution between 1999 and 2002 to uphold the separation of religion and the state. Nor do the leaders of the Justice and Development Party, currently in power in Turkey, mean what Professor Feldman paternalistically tells them they really mean. Last but not least, a current trend in the constitutionalist writings and proposals of the Muslim Brotherhood in Egypt has returned to the pre-ideological constitutionalist advocacy of the rule of law as that of Qanun, with the Shariah as a limitation and a source of reference to state law. In short, there are many Muslims who know what they are doing without being told what they really mean.

Nor does it mean that a powerful argument for making the Shariah a limitation on government and a source of law cannot and has not been made. As a matter of historical fact, it was—and long before the coming of Islamism and Islamic political ideologies. The argument carried the day and the Shariah was drawn upon in the writing of the civil codes of Iran (1928 and 1935) and of Egypt (1948), which served as the model for most other Arab countries of the Middle East. The photos of the orderly Egyptian family court rooms that are incongruously produced to support Feldman’s argument in fact represent institutional results of the previous wave of the movement for the rule of law which did not use the Shariah as a motto. The Islamist urge to reinvent the wheel must therefore have other reasons than the yearning for the rule of law.

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3 Responses to “Why Shariah?”

  1. avatar Mike Ghouse says:

    Noah Feldman is rare western author on Islam who has a built-in refresh button in his mind. Most of the Western “experts on Islam,” by contrast, lack original knowledge and are fed by a faulty foundation. They chase their own tails.

    I am pleased to highlight some of the powerful sentences in Feldman’s article for the New York Times Magazine (all of which are direct quotations):

    1. In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world.

    2. 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.

    3. At its core, Shariah represents the idea that all human beings — and all human governments — are subject to justice under the law.

    4. But if Shariah is popular among many Muslims in large part because of its historical association with the rule of law, can it actually do the same work today?

    5. In only two important instances do scholars today exercise real power, and in both cases we can see a deviation from their traditional role. The first is Iran… and the second is Saudi Arabia.

    6. The answer that developed over the first couple of centuries of Islam was that the Koran could be supplemented by reference to the prophet’s life — his sunna, his path. (The word “sunna” is the source of the designation Sunni — one who follows the prophet’s path.) His actions and words were captured in an oral tradition, beginning presumably with a person who witnessed the action or statement firsthand.

    7. Under the constitutional theory that the scholars developed to explain the division of labor in the Islamic state, the caliph had paramount responsibility to fulfill the divine injunction to “command the right and prohibit the wrong.” But this was not a task he could accomplish on his own. It required him to delegate responsibility to scholarly judges, who would apply God’s law as they interpreted it. The caliph could promote or fire them as he wished, but he could not dictate legal results: judicial authority came from the caliph, but the law came from the scholars.

    8. Once the law existed in codified form, however, the law itself was able to replace the scholars as the source of authority. Codification took from the scholars their all-important claim to have the final say over the content of the law and transferred that power to the state. To placate the scholars, the government kept the Shariah courts running but restricted them to handling family-law matters.

    9. Promulgated in 1876, the Ottoman constitution created a legislature composed of two lawmaking bodies — one elected, one appointed by the sultan. This amounted to the first democratic institution in the Muslim world; had it established itself, it might have popularized the notion that the people represent the ultimate source of legal authority.

    10. . With the scholars out of the way and no legislature to replace them, the sultan found himself in the position of near-absolute ruler. This arrangement set the pattern for government in the Muslim world after the Ottoman empire fell. Law became a tool of the ruler, not an authority over him. What followed, perhaps unsurprisingly, was dictatorship and other forms of executive dominance — the state of affairs confronted by the Islamists who seek to restore Shariah.A Democratic Shariah?

    11. The Islamists today, partly out of realism, partly because they are rarely scholars themselves, seem to have little interest in restoring the scholars to their old role as the constitutional balance to the executive. The Islamist movement, like other modern ideologies, seeks to capture the existing state and then transform society through the tools of modern government. Its vision for bringing Shariah to bear therefore incorporates two common features of modern government: the legislature and the constitution.

    12. Something of the sort may slowly be happening in Turkey. The Islamists there are much more liberal than anywhere else in the Muslim world; they do not even advocate the adoption of Shariah (a position that would get their government closed down by the staunchly secular military). Yet their central focus is the rule of law and the expansion of basic rights against the Turkish tradition of state-centered secularism. The courts are under increasing pressure to go along with that vision.

    13. Can Shariah provide the necessary resources for such a rethinking of the judicial role? In its essence, Shariah aspires to be a law that applies equally to every human, great or small, ruler or ruled. No one is above it, and everyone at all times is bound by it. But the history of Shariah also shows that the ideals of the rule of law cannot be implemented in a vacuum.

    14. Still, with all its risks and dangers, the Islamists’ aspiration to renew old ideas of the rule of law while coming to terms with contemporary circumstances is bold and noble — and may represent a path to just and legitimate government in much of the Muslim world.

    I am pleased to see that a westerner understands all of this, and believe that this understanding would lead to acceptance and appreciation of a different point of view, rather than merely a conflicting view.

    Mike Ghouse

  2. avatar John E.D.P. Malin says:

    I think Professor Noah Feldman and Said Amir Arjomand are talking past each other, since they are at different levels of conceptual thought.

    Arjomand is certainly dealing with the stagnant, repressed brutal culture as lived now in the present moment and experienced by many Muslims, Arab or non-Arab.

    However, Professor Feldman views Muslim Islamic culture from the eyes of the historian who actually understands this brilliant culture from a thirteen-century perspective.

    I view the Middle East from a forty-century perspective. When Islam arose during the six hundreds A.D., two great “superpowers,” the Eastern Roman Civilization (ancient Byzantium) and the Sassanian Persian Civilization, had exhausted their economic-financial resources in a devastating, bloody war between each other. This temporary lacuna permitted the opening up of a new Oriental religion based on a fresher perspective. The Middle East retreated from Greek-Latin rationalism back to the pre-Hellenistic era: Authoritarianism, Mystery & Fate! This is the crux of the problem here.

    If you view religion as a cohesive social force, Professor Feldman is correct.

    If you view religion as mental ignorance, anti-science (or intellectual), and mental enslavement, Dr. Said Amir Arjomand is correct. Personally, my afffections are with Dr. Feldman; however, my intelligence is with Dr. Arjomand. He is an eminent sociologist! He has lived and seen these painful realities he so lucidly discusses in his response to Dr. Feldman.

    However, Professor Feldman should not be so cavalierly dismissed. A mastery of Classical Hebrew and Classical Arabic informs his working emotional reason. There is ethical idealism in his trenchant observations. This should not be a bad thing! It offers a direction for the Islamic people that is truthful to their extraordinary and great historical civilization in the Middle East.

  3. avatar Manuel Fernando Nunez says:

    I’d like to begin by stating that I am both a Westerner by birth and a Muslim by choice. Having been raised and taught in some outstanding private schools wherein the Classical European Model was the focus and now having been raised also for the last 11 years in the Classical Tradition of Islam (including Sufism), I have a deep appreciation for both Western Non-Islamic Thought as well as Islamic Thought.

    It is astonishing to me that Professor Arjomand has the audacity to call Professor Feldman an “Orientalist” while pretending that there is one solid, unmoving and universal code of law known as “The Shari’ah.” It is as if he believed that it was a big book from which all laws in Islam were derived. Arjomand presents the most Orientalist view of The Shariah in his dismissive and false view of it, whereas Feldman is sincere enough to basically say, “You know, it’s not a big book…it’s thousands of books and many schools of legal thought with many opinions on several matters…including the topic of punishments.” From this he expands into how this living (and often changing) system of laws raised governments that worked for hundreds of years.

    Knowing my Islamic History and having a decent grasp on the various disciplines of Islamic Thought, it seems to me that Arjomand is highly ignorant of the Classical Tradition of Islam, both Traditional (Non-Wahhabist) Sunni and (Non-Ayatollah-ruled) Shi’a Islam. Then again, perhaps he is just Secularized and of his own Spiritual Tradition (in which case he is being sincere) and likes to pretend (as he has been taught) that Islamic Law is “always” cruel, is “always” backwards, has “always” been used against Non-Muslims, etc. ad nauseam simply because this is the way that the Christian West (its only competitor in the realm of Religious Power on Earth) always sought to depict the Islamic Ummah as such falsely (even in this “enlightened” era).

    I am currently halfway through Dr. Feldman’s The Fall and Rise of the Islamic State and I am very impressed w/ the work. Unlike Arjomand’s simplistic and Orientalistic dismissiveness of a very diverse system of Religiously inspired laws, his is a very balanced and penetrating approach.

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