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Defending Shariah,
Undermining Shariah
By: Khalid Baig
Posted: 26 Rabi-ul-Awwal 1429, 3 April 2008
submitted by / Mahammoud Egal
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.
-distributed by/Mahammoud Egal (Amoud
Foundation)
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