Defending Shariah, Undermining Shariah
Posted: 24 Rabi-ul-Awwal 1429, 1 April 2008
Two statements on Shariah, made in February and March of this year by two prominent leaders in the UK and US have generated a storm of protest and praise. Both the statements and the reaction they generated are of interest to the students of history and Western civilization. They help us gauge the state of religious freedom and open mindedness in the Western world today.
The first was from Rowan Williams, the archbishop of Canterbury, who suggested that for some personal matters like marriage and divorce Muslims in the UK could be allowed to be governed by the Shariah. He did not suggest that all personal matters for Muslims in the UK be so governed. He would pick and choose which personal matters would be so privileged and which would not, in effect awarding the right to second guess the Shariah to the Church of England whose law is an integral part of the law in the UK. Islam’s inheritance laws, for example, would not be permitted under his proposal.
Of course, to propose even this much he had to say that the Shariah was not all that bad after all, despite all the propaganda against it. He wrote: “In conclusion, it seems that if we are to think intelligently about the relations between Islam and British law, we need a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment.” In other words we have told a lot of lies about the Shariah for all these centuries. Now the circumstances require us to engage with the Muslims in a different manner and therefore we have to acknowledge some of our lies and distortions as lies and distortions.
The response to this modest proposal was a tsunami of protests and condemnations. There were calls from wide areas of British media and leadership for retraction and even resignation by the archbishop.
The second statement came from Harvard Law professor and Islamic expert Noah Feldman in an article in the New York Times in March. Feldman who reportedly is fluent in both Arabic and Hebrew, has deep interests in the Muslim world. He worked as a consultant for the occupation in Iraq and drafted the constitutions of occupied Iraq and occupied Afghanistan. He keeps a close eye on the developments in the Muslim world and knows that the people there have been longing for the rule of Shariah. He wants to satisfy this thirst without giving up the objectives of occupation. For this he has come up with a brilliant two-step approach. One, acknowledge that Shariah has had a bad press and that it has been a source of good in the past. Two, practically take all that praise back by suggesting that today Shariah is no longer a viable option in the form it has been applied in the past. Today it will have to be implemented using secular institutions manned by non-scholars. He tactfully presents this proposition so it appears that this is not something being imposed by a colonial master. Rather this state has been arrived at by the doings of the Muslim societies and leaders themselves.
Naturally, like Williams, he had to praise the Shariah for its past glory. He noted that Shariah meant rule of law and was responsible for the check on the powers of the rulers. “Without Shariah, there would have been no Haroun al-Rashid in Baghdad, no golden age of Muslim Spain, no reign of Suleiman the Magnificent in Istanbul.” His article also generated a storm of criticism in the US.
In both cases Muslims were overjoyed at the generous support for the Shariah offered by these notables. Their statements were reproduced at countless Muslim web sites in deep appreciation. Unfortunately, reading the two gentlemen more carefully would dampen that enthusiasm.
To begin with, none of them offered their suggestion as a matter of principle. Williams clearly gave the rationale that it would be a prudent policy for better community cohesion. Religious freedom is not a principle but a policy matter. And the problem with policies is that they are dictated by policy goals and are subject to change as the goals or the perceived means of attaining them change. While community cohesion is a noble goal, Williams has his eyes set on another not-so-noble a goal as well. He calls it “transformative accommodation.” His accommodation for the Shariah is aimed at transforming it. The idea is to set up mechanisms for exerting internal pressures on Shariah authorities to transform the Shariah. This he hopes to achieve when a party to a dispute finds a greater award from a secular court instead of the Shariah court and is tempted to choose that. When people shop around for legal judgements in a “competitive market” this will help improve the law according to him. One wonders if he would be willing to use that as a general recipe to improve all law or is the special treatment reserved only for the Shariah.
Feldman is equally interesting in his efforts to separate the Shariah from the true Shariah experts, i.e. the scholars. It is clear that his support for the Shariah is premised on the condition that the authority to decide Shariah rulings is vested in secular parliamentarians and judges and not the scholars. However he ingeniously lays the blame for the loss of authority of the scholars on the Ottoman rulers and their attempt to codify Islamic laws in the 19th century. Codification meant that scholars were no longer needed to interpret them, he claims. It is like claiming that codification of laws should lead to unemployment for lawyers and judges. The fact is that codification or no codification, Islamic scholars— being the experts of Islamic law— would always be needed to interpret Islamic law. The real reason for the current state of affairs in the Muslim world is its colonial past (and present) but Feldman says not a word about that. Do we need to remind him that Lord Macaulay, who introduced British Penal Code in India, had boasted in his 1835 Minutes on Education that Muslim books of jurisprudence would soon be history? Although his prediction did not come true, his purpose hardly needs any elaboration.
Feldman also knows the value of decorative clauses like the repugnancy clause (No law will be made against the Shariah) he put in the Afghanistan and Iraq constitutions. It sounds good and assures the masses that the constitution is Islamic, but in effect is worthless. First, there is a world of difference between saying that all laws will flow from the Shariah (as the Shariah requires while he has been careful in keeping such a statement out of those constitutions) and the repugnancy clause. Second, the mechanism for deciding which laws are against the Shariah is sufficiently and deliberately so weak that it could not even prevent the signing of the notorious CEDAW (Convention on the Elimination of all forms of Discrimination Against Women) by these countries. As is well-known, that fancy name is a cover for a hideous attempt to replace Islamic Shariah with the one made at the UN. The allocation of a quota for women’s seats in the Iraqi and Afghan parliaments, which is mentioned by Feldman with a great sense of achievement, is another example of a “Shariah” imposed by the occupation. Despite Feldman’s charming words, it is difficult to swallow that an occupation that has engineered the deaths of hundreds of thousands of women and children is exactly interested in their welfare.
What all this boils down to is that their support for the Shariah is actually aimed at undermining it without appearing to be doing so. It is difficult to get enthusiastic about such support.
It was this Shariah that gave Jews, Christians, and other non-Muslims living in the Islamic state freedom to be governed by their own religious laws as interpreted by their religious authorities in all personal matters. It did so as a matter of principle. It has done so since the seventh century. Fast forward to the twenty-first century and contrast this with the current suggestion that a fraction of those freedoms be allowed Muslims in the West. The proposal was laced with questionable intents and even then met with open hostility.
To both Williams and Feldman we say that we appreciate that you have shown some realization that the Shariah has been maligned to the max by a vicious media in the West. The honourable thing would then be to openly recognize this fact and sincerely try to make up for the damage done. But this cannot happen unless you recognize freedom of religion the way Islam did. As a matter of principle—not policy.