By Supna Zaidi
Noah Feldman, in his article, "Why Shariah?," (published in the New York Times on 3.16.08), naively defends the "bold and noble" effort of Islamists to return their respective nations to the rule of law through the re-institution of Shariah. Feldman argues that the West’s visceral hate of Shariah is an attempt to bolster the West’s image. He defends Shariah through a simplistic analysis of Islamic history, Islamic political parties, and avoids the reality of what life would be like if Shariah were to be implemented throughout the Muslim world.
Feldman fails to critique Shariah as it is understood and advocated in the Muslim world—as a specific code of criminal, family and personal law originating from the Quran. It is interpreted through the Sunnah (stories of the Prophet’s life) and case-law where applicable. Rather, he defines Shariah as an institution of religious scholars who exist to keep the executive body in Islamic check—meaning, that a country under Shariah would not only implement the specific codes of human conduct under the Shariah, but would have a governmental body that could veto the executive, legislature, or parliament based on their interpretation of the law.
Therefore, Shariah, Feldman argues, is capable of ushering in an age of just rule similar to what Muslims apparently experienced before today’s corrupt, despotic governments came to power post-WWI. Feldman divides the history of the Muslim world into two areas: a just period, where individual rights were expected under Shariah during the caliphate and sultanate; and the age of corruption, when the contemporary governments came to power post-Ottoman empire. Most Muslims believe, as Feldman asserts, that the first four caliphs who ruled after Muhammad were divinely guided. Shariah under these men was, therefore, infallible. Unfortunately, none of these men provided legal theories or institutions for analysis because anything they decided was ad hoc Islamic jurisprudence intended to hold the best interests of the Muslim population at heart.
But, Feldman gives no specific examples to justify what made this period so just and beneficial to the individual rights of man. Feldman states that this condition of goodness continued through the centuries after the four initial caliphs because a religious scholarly class arose that kept temporal rulers from committing acts that were contrary to Islam. Yet, he provides no examples. So, what made the Golden Age so good? Let us review Islamic history.
After the death of the Prophet Muhammad, Muslims were governed by four caliphs in succession. In order they were: Abu Bakr, Umar, Uthman, and Ali. These men are considered divinely guided because all four men knew the Prophet personally and two were family members. Abu Bakr was a father-in-law through Muhammad’s marriage to Aisha, and Ali was Muhammad’s son-in-law. Acceptable legal rulings were based on the nominal prescriptive statements in the Quran on crime and family to all areas of politics and society based on the Prophet’s life through the Sunnah. The Sunnah, are accounts of the Prophet’s life and his decision making, which were verified through isnad. Today, a Sunnah that can be used to justify a ruling is one where a chain of citations can be verified to its original source.
This alleged golden age was far from peaceful. Umar and Ali were assassinated by opposing Muslim political factions that wanted control of the growing Muslim empire. Followers of Ali, who founded the Shia strain of Islam, were marginalized in a political clash and fought the Ummayads in a battle at Karbala, which they lost.
Under the Ummayads, the Muslim empire was consolidated once again. Rather than limiting juristic reasoning to the Quran and Sunnah, the Ummayads borrowed ideas from the legal systems existing in the regions they conquered. Further, the qadis (religious judges) did not influence administrative rulings in any meaningful way.
Worse yet, after the tenth century there gradually developed the doctrine, sanctioned, of course, by the consensus of the scholars, that the gates of creative interpretation (ijtihad) of the law would no longer be permitted. Henceforth legal decisions would be made according to the principle of taqlid (‘imitation’), based on the judgments of the four legal schools. New attempts at ijtihad came to be condemned as bid’a – innovation. This does not bode well for reformers of Islam in Muslim countries that would be governed by Shariah. How is a juristic body ever then able to separate the principles of a faith from the dogma, thus allowing specific law to evolve? Stoning for adultery would always be stoning. Just as the evidentiary value of a man versus a woman remain double. For Muslims in 2008, such legal theory cannot be a return to just individual rights by any means.
Therefore, the revival of Islam in politics is simply a recognition of the respect for individual rights that existed during the Caliphate and were embodied in the Shariah. Why wouldn’t Muslims clamor around such a platform? And why would the West have a problem with such noble, peaceful domestic goals? Perhaps it is because none of the arguments Feldman presents are true.
Such questions apparently do not concern Feldman, considering his dismissive attitude towards Shariah in practice today. Citing 300 year-old human rights to "prove" the West has been equally as harmful as Shariah, Feldman attempts to marginalize human rights violations sanctioned by Shariah. The fact that Shariah invokes images of "hands being cut off, adulterers stoned, or women being oppressed" doesn’t seem to bother Feldman. Instead, he would like to remind the reader that the West was equally as oppressive in the 1700s. He asks,
… who today remembers that the much-loved English common law called for execution as punishment for hundreds of crimes, including theft of any object worth five shillings or more? How many know that until the 18th century, the laws of most European countries authorized torture as an official component of the criminal-justice system? As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.
We are to believe from Feldman’s article that because Islam was "more humane" and "woman-friendly" than the West was 300 years ago, that the West cannot recognize any problems in Muslim society today. Further, Feldman applauds the strict rules of evidence in Shariah, referring to "… the high standards of proof" necessary to implement Shariah. For example, he argues that in order for a woman to be convicted of adultery she must "confess four times or four adult male witnesses of good character must testify that they directly observed the sex act."
Unfortunately, confessions can be coerced. And in the case of rape, where the victim is usually female, providing four male witnesses who can attest to the lack of consent during sex is nearly impossible. Feldman forgets that four such men are probably either the perpetrators or somehow complicit in the crime. Therefore, the victim will very easily be found guilty of either having sex before marriage or adultery. Both of which are crimes, punishable by stoning. And even worse, there is no protection for victims who don’t go to the police for fear of being arrested for adultery.
Feldman argues that the popularity of Islamic political parties who emphasize a return to Shariah as a central goal of their respective platforms, do so to return their nations to the "rule of law." While it is true that numerous articles have been written about the corruption, lack of transparency and recognition of human rights in most Muslim countries, few politicians recommend a solution to the real economic and social blight of its citizenry if elected. Rather, most focus on the West’s negative influence that will only degrade their culture, religion and society.
As Feldman states, "What the mainstream Sunni Islamist position, found … in the electoral platforms of the Muslim Brotherhood in Egypt and the Justice and Development Party in Morocco, is that an elected legislature should draft and pass laws that are consistent with the spirit of Islamic law. On questions where Islamic law does not provide clear direction, the democratically chosen legislature is supposed to use its discretion to adopt laws infused by Islamic values."
Yet, what are these Islamic values and how would they be translated into current domestic and foreign policy? In whichever society Shariah is imposed class division abounds to differing degrees limiting human rights on the basis of gender, religious status, and ethnicity. Such examples exist in the theocracies of Iran and Saudi Arabia and in Afghanistan under the Taliban. Women are prohibited to drive in Saudi Arabia, are physically hit by a vice squad in Iran if not dressed appropriately, and are barred from walking outside without a male escort in Afghanistan.
The Taliban exterminated the Hazara Shia minority at every opportunity and Iran continues to discriminate against the Ba’hai. None of these countries recognize freedom of speech, assembly or any other human right defined by the Universal Declaration on Human Rights and the Geneva Convention. The worst offenders are Muslim countries in which Islam is used to keep dissenters quiet through Blasphemy laws [GIVE EXAMPLE].
The Taliban may be officially gone in Afghanistan, but their culture and interpretation remains in many parts of the country and has crossed the border into Pakistan, particularly the Northwest Frontier province. Shariah issues no rules or political theories on economics, or social policy that could improve the status of men and women. Feldman’s failure to acknowledge this reality leaves any new interpretation of Shariah pointless.
Lastly, Feldman fails to recognize that the institution of Shariah throughout the Muslim world would result in a worse situation than the world post 9/11. The Golden Age of Islam is perceived as an age of Muslim supremacy. Islamic Imperialism is the goal of the founding fathers of the Muslim Brotherhood, Jamaat-i-Islami and various other off-shoot parties throughout the Muslim world through the doctrine of Jihad, which originates in Shariah. These groups view Israel as encroaching on Muslim land and support Hamas and Hezbollah, considering them freedom fighters. This issue is particularly important because it unites Sunni and Shia against Israel and the West.
Mr. Feldman may have good intentions but his argument is flawed, his sense of history is ill-read and his presuppositions are theoretical. He omits the progressive interpretative tools like Ijtihad. He omits the lack of human rights it advocates and such repercussions throughout the world. He disserves us all by being contrarian for the sake of being such. The Shariah is not an academic hypo for class discussion. His opinions have real influence on students and readers alike. One can only hope that they are more open to the facts than he appears to be. If anything, we need leaders now, more than ever, seeking to free Muslims from the oppression of Shariah.
(Supna Zaidi is Editor-in-Chief of Muslim World Today)
