Getting Shari’a Wrong - Abuses and Misconceptions

 

By Asma Khalid, M. Phil. in Middle Eastern and Islamic Studies, University of Cambridge

 

Posted April 3, 2009

 

For far too long, images of bearded, turbaned mullahs proclaiming the “Qur’an is our constitution” have eclipsed the more nuanced reality of the Sharī’a’s religious role in Islam. Nowadays, the mere mention of the Sharī’a evokes an irrational level of fear amongst Muslims and non-Muslims alike. Since the 1970s, Libya (1972-1974), Pakistan (1979), Iran (1982), and Sudan (1983, 1991) have all adopted aspects of Islamic criminal law.[1] These attempts to “reinstate the Sharī’a” are largely spearheaded by a group of people known as Islamists. Islamism is a modern political ideology that interprets the religion of Islam as a political system whose objective is to construct a religious state. The ideology’s supporters are most commonly known as Islamists, and for decades they have viciously usurped the Sharī’a to the extent that now, the once-treasured Islamic ideal of Sacred Law is reduced to a set of harsh, barbaric punishments.

 

Interestingly, if we analyze the actual substance of Islamist Sharī’a campaigns in the 20th century, we realize that despite a façade of religious legitimacy, Islamists are not demanding a genuine reapplication of a once-prominent and well-respected Islamic institution; rather, they are manipulating Islamic terminology and theology. Islamists fail to differentiate between divine law and man’s interpretation of it. They misapply well-established rules by disguising them as religious orthodoxy, selectively severing one rule from a related regulation, often for political reasons.

 

Definitional Abuse

 

The translation of Sharī’a as “Islamic law” in modern discussions of Islamization is inadequate. It is an inflexible, simplified definition for mass consumption that ignores the complex reality of the Sharī’a as a fluid system, a method, or, literally, “the path that leads to the spring.” Islamists, with their obsession with criminal law punishments, are not referring to the Sharī’a; they’re referring to law. Essentially, the Islamist rallying call confuses terms. The Sharī’a is the divine ideal, whereas the law, as has been interpreted by the opinions and judgments of jurists, is more accurately called fiqh, or jurisprudence. This terminological mix-up is ever-present in Islamist demands to “restore the Sharī’a.”

 

Islamists are theoretically demanding a system of fiqh, not Sharī’a. This may seem like nothing more than a little linguistic mix-up, but it goes much deeper. First, it is emblematic of the Islamist monopolization of the term. And secondly, the misappropriation of Sharī’a as law incorrectly gives an amorphous concept a concrete quality.

Islamists not only confuse Sharī’a and fiqh, but, to make matters more complicated, they fail to understand how fiqh itself functions. Historically, fiqh, as we established earlier is more concrete than Sharī’a; it is not, however, a code, as Islamists today suggest. Historically, it has been interpreted as juristic commentaries. If you look through a classical fiqh text, you won’t always find a clearcut ruling; it is more likely that you will see a scholar’s comments, clarifications, and annotations on previous scholars’ opinions.

 

The texts are extraordinarily diverse; but they are scholarly treatises, not legal textbooks. They were never intended to guide Islamists more than 1000 years later on how to implement a criminal code. In direct contrast to modern Islamization campaigns, classical fiqh (essentially, the medieval fiqh texts) valued the process over the solution. Islamic law, in its 21st-century, codified form, emphasizes substantive results, often sacrificing religious authenticity along the way. The man-made code, rather than its sources, gains divine legitimacy. Judges express allegiance to the code, which is seen as the primary source of Islamic law even if its regulations are contentious from an Islamic legal perspective. Take, for example, Pakistani law, as it existed from 1979-2006. Pakistani code specified that rape was a type of illegal sexual intercourse and punished rapists as adulterers. But not all fiqh sources define rape that way. Nonetheless, once a government categorizes a law as uniquely “Islamic,” it becomes immune to discussion, even though it may have been written by the same men who write all of the country’s secular laws.

 

Thus far, we’ve established that Islamists not only confuse Sharī’a with fiqh, but they also misunderstand fiqh. Equally problematic, they apply it selectively. For example, they tout the punishment for adultery (stoning to death or 100 lashes), while often neglecting the strict evidentiary requirements mandated by the Qur’an (four witnesses must see the actual act of penetration). In fact, the level of certainty necessary to prove adultery cases far exceeds most modern criminal law requirements. Equally important, the Qur’an specifies that anyone who falsely accuses someone of adultery must be reprimanded with 80 lashes. The harsh punishment for misleading allegations is an expression of Islamic law’s intent to deter public acts of indecency, not ruthlessly punish private behavior. Throughout most of Islamic history, the strict standard of proof, combined with the harsh punishment for disingenuous charges, ensured that the punishment for adultery was rarely applied.

 

Unfortunately, modern Islamic legal campaigns disregard the stringent guidelines. Instead, under the artificial legitimacy of religious authority, they blend diverse legal systems into new laws. Pakistan’s legal system illustrates this. Since 1979, the Hudood Ordinance (a criminal law code allegedly referring to a series of Qur’anically-mandated punishments for certain crimes) has governed Pakistan.[2] The Ordinance includes punishments for a range of crimes, most notably theft and adultery.

 

Anglo-Muhammadan Law

 

Modern codified Islamic law portrays itself as the 20th-century direct descendant of classical Islamic jurisprudence. But that is a gross myth. The Islamic legal “revival” is not a restoration; it is a modern innovation, a motley assortment of various historical legal systems. And despite its purported quest for religious authenticity, it is often the product of Western colonial influences. Modern Pakistani criminal law, for example, is the offspring of Anglo-Muhammadan law–a distinct legal system employed by the British to consolidate colonial authority. Anglo-Muhammadan law was markedly different from both classical fiqh and 18th-century common law. The British conceived of Islamic law as a fixed ancient code. This fundamental fallacy contradicted Islamic history and the diverse range of juristic opinion in legal texts.

 

To make matters more complicated, when the British arrived in India, they expressed concern for the lack of an Islamic legal “instruction manual.” This alarm led Warren Hastings, the first governor-general of India, to invent a legal textbook, elevating certain legal opinions (fatawa) to the status of law with the power to generate precedent.[3] Then, in 1772, the British replaced traditional Islamic judge-jurists with British magistrates. Gradually, Indian Muslims became magistrates, albeit trained in English law; and Anglo-Muhammadan law became an autonomous legal system entirely detached from its foundation of legitimacy, the Sharī’a.[4]

 

In theory, the new courts sought Islamic endorsement, but, in practice, the Anglo-Muhammadan system divorced the substance of the law (presumably Islam) from the procedure of the law (British court practice). Anglo-Muhammadan law restricted religious recourse to a handful of British-codified, Islamic legal books and openly objected when Muslim scholars tried to refer to authentic Islamic sources.[5] The British sought efficiency and public order, and, unfortunately, along the way, sacrificed the integrity of Islamic law.

 

Consequently and yet paradoxically, when Pakistan’s army general Zia ul-Haq sought to Islamize his country’s criminal law in the 1970s, he did not refer to an indigenous paradigm; instead, he turned to the conceptual framework of Anglo-Muhammadan law, to the colonized, reified “Sharī’a” of South Asia.

 

Pakistan’s Hudood Ordinance

 

The best way to understand the way Islamists have manipulated Islamic law is to examine Pakistan’s infamous Hudood Ordinance, which claims divine legitimacy. Since the promulgation of the British-imposed Penal Code of 1860, secular law has officially governed Pakistan’s criminal legal system. In 1979, when the state introduced the Hudood Ordinance, a British-inspired judicial system was already institutionalized. As a result, a parallel, secular-religious legal system with a truncated vision of Sharī’a developed. The judiciary was a jumble of secular provincial high courts and the purportedly religious “Federal Shariat Court” (FSC), created in 1980 specifically to review cases dealing with the Hudood Ordinance. Despite the nomenclature of Islamic law, the FSC chief justice was a high court or supreme court judge; his knowledge of Islamic law was irrelevant.[6] Moreover, the Constitution specified that no more than three of the eight judges could be Islamic scholars.[7] The court’s Islamic authority, bequeathed by a military dictator, was at odds with its true disposition. The lack of scholarly involvement created problems of judicial interpretation, perpetuating a cycle of rote legal regurgitation while hampering intellectual exertion (ijtihad in Islamic terminology).

 

Like many Islamists, General Haq defined the Sharī’a narrowly. He thought its reimplementation could occur through a hasty revision of criminal law. He constrained the diversity and flexibility of Islamic law to a handful of easily perceptible, codified ideas, most notably the hudud. For Haq, like other Islamists, regulating sexual morality became a particularly potent mark of authority; it embodied a clear break from the past while substantiating further Islamization endeavors by expressing the religiosity of the regime. We must not forget that Islamists are first and foremost political actors. And General Haq was a military man seeking legitimacy who introduced these “Islamic laws” under martial law. The laws provided convenient, tangible verification of his Islamic credentials. It is difficult to ignore the political opportunism involved in Pakistan’s establishment of Islamic law–Haq introduced the ordinance on the Prophet’s birthday (upon him be peace).

 

He adopted an intrinsically parochial discourse that wrought internal damage while seeking to clarify religious law without realizing that the desire for simplicity disrespects and disregards accepted minority juridical positions. When asked how the Hudood Ordinance would deal with the numerous, sometimes conflicting interpretations of Islamic law, General Haq naively answered, “We are going to the basic laws: Qur’an and Sunnah. We are not going into various schools of thought.”[8] General Haq assumed he could discard hundreds of years of Islamic legal thought. He wanted Islamic law without the fiqh, failing to understand that Islamic law cannot be established without a basis in fiqh.

 

As a result, the Hudood Ordinance dismissed crucial concerns with misunderstood and, therefore, empty terminology. The law established equal standards of evidence and punishment for rape and adultery.[9] To make matters worse, the Pakistani legal system repeatedly punished women for unexplained pregnancies–a situation denounced in leading medieval fiqh sources. But modern Pakistani judges were unfamiliar with Islamic legal sources. They did not know that renowned classical Islamic scholars had explicitly argued that a pregnant woman who claimed rape should be given the benefit of the doubt and not punished, regardless of whether or not she could prove her claims.

 

The Hudood Ordinance sought to standardize and homogenize the law, but a review of Pakistan’s FSC verdicts suggests that Islamization actually augmented legal inconsistency. Rape cases were confused as adultery, and adultery punishments were ordered without adequate proof. All too often, modern Islamization programs ensure that the “Islamic” dimension of the law is officially and ideologically pre-eminent, even if, as in the example of Pakistan, the self-styled “Sharī’a” was a messy assortment of fiqh terminology, South Asian culture, and British common law.

 

Consequently, it has become all too popular nowadays to recommend relegating the Sharī’a to merely a marginal and passive societal role. That would be inappropriate. Despite its recent exploitation, the Sharī’a remains the Islamic ideal. The solution lies not in exiling the Sharī’a, but in a ceaseless search for the true Sharī’a. The key to appreciating the Sharī’a is not the same in every community. And that is not necessarily a problem. The Sharī’a understandably manifests itself differently in various countries. The important factor is that it maintain a commitment to its spirit while seeking creative answers for new problems, that it value the Classical era but recognize that a return to the past will not solve the problems of today.

 

By Asma Khalid, M. Phil. in Middle Eastern and Islamic Studies, University of Cambridge

 

http://www.ascent-magazine.org/

 

Notes

 

 

1. R. Peters, “The Islamization of Criminal Law: A Comparative Analysis,” Die Welt des Islams, 34, 2 (1994) 254.

 

2. In November 2006, the law was amended to exclude rape and fornication.

 

3. S. Kugle, “Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia,” Modern Asian Studies, 35, 2 (2001) 270-274.

 

4. J. Schacht, An Introduction to Islamic Law (Oxford: Oxford,1964) 95-96.

 

5. S. Kugle 280, 287.

 

6. Constitution of Pakistan, Part VII, 203C.

 

7. In both the FSC and the Shariat Appellate Bench the ‘ulama’ are outnumbered by judges trained as modern lawyers (Constitution of Pakistan, Part VII, 203F). Additionally, at times, Pakistan’s military ruler Zia ul-Haq did not fill all of the possible vacant ‘ulama’ positions on the court. In 1987, for example, only one judge was a member of the ‘ulama’ (D. Collins, “Islamization of Pakistani Law: A Historical Perspective,” Stanford Journal of International Law, 24 (1988) 575).

 

8. Dawn (Pakistan-based, English-language daily newspaper), April 10, 1978: 7.

 

9. Sec. 5, 6, 8 Offence of Zina (Enforcement of Hadood Ordinance, 1979.