Sharia, Justice and the Law

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    Muslims and the Constitutional State

    From the book Iranian Photography Now, Verlag Hatje Cantz 2008Many non-Muslims have a very narrow understanding of what Sharia is; in the Arab world, how-ever, Sharia is widely comprehended as the totality of all the norms of Islam – religious norms, legal norms – and this system as a whole is regarded as fair. The question is: who actually controls the interpretation of Sharia? And it’s on precisely this question that there is disagreement.

    Mr. Rohe, when non-Muslims in Germany hear the word Sharia, they think of religious tyr-anny. On the other hand, many people in the Arab world associate the Sharia with the hope of jus-tice. Why the contradiction?

    This has to do with different understandings of what Sharia means. Many non-Muslims have a very narrow understanding of what Sharia is; they reduce it to rules about family law, inheritance law, and this draconian criminal law that includes corporal punishment. In these areas there are many aspects that are in violation of human rights, such as the unequal treatment of the sexes and the unequal treatment of religions. In the Arab world, however, Sharia is widely comprehended as the totality of all the norms of Islam – religious norms, legal norms – and this system as a whole is regarded as fair. That has something to do with historical developments. This region has not exactly been privileged in terms of state freedom. People have been trying since around the tenth century to establish justice, based upon the principles of Sharia, against the unjust ruler they usually had. So the Sharia saves you from oppression, if you take it seriously. Some people are picking up on this aspect today and regard it as a positive thing.

    Is that realistic in the modern world, or is that propaganda?

    Essentially it is propaganda. However, I’m convinced that they themselves believe what they are saying. Their capital is, after all, legitimate criticism. But they have absolutely no solutions to offer. In the end they take refuge in notions of an ideal state of affairs that never actually existed, and I fear that ultimately the Sharia is very often used as a means of underpinning someone’s own claim to power. The crux of the matter is that the Sharia is a multiform structure, more of a system for working out and interpreting what the standards actually are. It’s the opposite of a statute book. The question is then: who actually controls the interpretation? And it’s on precisely this question that there is disagreement. There’s a long, continuous development in the history of Islam that assigns the power of definition to the ruler of the day. That can, incidentally, also be a parliament! When there are differences of opinion, the ruler can determine which is correct. Now the Muslim Brotherhood comes along and says that they want to do that themselves, and in doing so they raise the question of who has the authority. Based on the Sharia, they can make interpretations that lead to equal treatment of the sexes, or to blatantly unequal treatment. This is why the thing that is of particular interest to me is: who exactly is it exactly who’s talking about the Sharia and wants to implement it? And on this point things are looking rather bleak in the Islamic world. Because everywhere where these people become stronger and the state starts making compromises, saying if they renounce violence we’ll take them on board, we immediately see that things get worse for women and they get worse for religious minorities. You see it in Egypt, you see it in Tunisia. They try to change society from within according to their standards. Reform then comes to mean: get the women out of the public eye and under those headscarves!

    Under the Egyptian constitution, the Sharia has since 1980 also been the primary source for judgement. What concrete effects has this had?

    It has led to a change in the practice of the law. Under Anwar Sadat there was a liberal family law, which greatly improved the rights of women within marriage. Following the change in the con-stitution in 1980, in 1985 the constitutional court declared this law to be unconstitutional. Nonethe-less, the high court in Egypt still seems to me to be fairly liberal; it’s defended many other freedoms. I observe with some concern, though, that the way things are developing now is very strongly influ-enced by Islamist ideas. We now have Islamist majorities in the bar association and in other important institutions. I have myself experienced discussions among lawyers in which professors have said: if you follow this or that reform, you are apostates. I then asked whether he really meant this, with all the consequences this implies, and he said: yes! That naturally puts a stop to every discussion; nobody dares to say anything else. And this has brought us to the sorry state of affairs that in many parts of the Islamic world it is no longer possible to have uninhibited debates about reform.

    What exactly was the question in this instance?

    It was at a meeting in Germany with Egyptian lawyers. We were discussing inheritance law. I quoted the opinion of a contemporary Muslim lawyer in the West who said that the unequal treat-ment of Muslims in inheritance law – men receive twice as much as women – was partly to do with the fact that only men are obliged to pay maintenance. If, however, you are living in the West and the obligation to pay maintenance applies to all, regardless of sex – whoever possesses something has to give something to the other – then the basis for this unequal treatment no longer applies, so that the Islamic solution would be for both sexes to have equal share in an inheritance. My Egyptian colleague said in response, ‘Whoever says and propagates something like this is an apostate.’ One case straight out of Egypt is Nasr Hamid Abu Zaid with his new approach to interpreting the Koran. Because of this he was declared divorced from his wife against his will. The judgement was approved by every legal authority, and we hear that the Supreme Judge, who gave the final con-firmation, used to be a liberal. He then went to live in Saudi Arabia for a while, and some people suspect that he was subjected to a kind of brainwashing while he was there. In any case, he re-turned to Egypt with an attitude that some describe as extremist.

    So would you say that, in terms of the judiciary in Egypt, the Islamists are taking over the institutions?

    That is the danger. I can’t quantify anything, but that is my impression. A final example: I was in Egypt last year. At the time there was a big legal debate going on about how one should deal with Christians who had converted to Islam and who then re-convert. The head of a department at the Azhar University had the cheek to say that they were apostates, who should be dealt with accord-ingly – although of course these ancient apostasy regulations do not apply in Egypt! Anyway, he was called to order. But there was a serious debate as to whether they shouldn’t be punished for apostasy, completely independently of the valid Egyptian legal position. And this is something I see a lot. Look at the new Egyptian legal literature. It often says the written law is this and this, but ac-cording to Islamic understanding it’s this and this. That wasn’t the case in the past. A parallel intel-lectual structure is being constructed, so that people are becoming increasingly unsure and are asking themselves: what’s actually the rule here? This is the result of the constitutional change in 1980, when the Sharia was declared the primary source for judgements.

    Are similar developments taking place in other countries?

    What is very noticeable is that all the countries that try to get the moderate Islamists on board make their concessions in the areas of hard-core Sharia law, i.e. family and inheritance law. As I said, this takes place at the expense of women and religious minorities. Take Tunisia, for example. A marriage between a Muslim woman and a non-Muslim man is forbidden according to classical law, and in Tunisia too. But until 1998 the Tunisian registry office just didn’t ask people about their religion. So the marriages could be performed; they simply didn’t know what religion the two part-ners were. That’s the typical, pragmatic, Oriental solution. They put an end to that in 1998. This is the price that has to be paid wherever traditionalism joins forces with the Islamists.

    So those in the West who call for the Middle Eastern regimes to integrate the non-violent Islamists should be quite clear that this will be the consequence?

    It’s the Afghanistan principle. You want there finally to be a bit of peace and quiet, so you try to win over the ones who are no longer using violence, but that means you let the poppy farmers carry on being poppy farmers. This is quite the opposite of harmless. From the Western point of view, in terms of security policy all these attempts to reintegrate former extremists are certainly beneficial because you don’t have to worry so much about bomb attacks, but, as I say, the society pays a very high price.

    What’s the alternative? Should we support dictatorships that suppress the Islamists?

    Certainly not. There are good reasons why we here in Germany are familiar with the saying ‘No freedom for the enemies of freedom’. However, we should not immediately declare everyone we find difficult to deal with an enemy of freedom. That’s the Uzbekistan principle: prop up a rabid dic-tatorship for reasons of security policy, give it free rein, it’ll define everyone who criticises this cor-rupt regime as an Islamist or as something else, torture them and stick them in prison. It’s all in-credibly difficult in practice. You often have to make a choice between several evils. But you shouldn’t be too happy about the solution, once you find it, if you know that there are a considerable number of disadvantages piled up on the other side of the scales. Perhaps, in order to prevent the worst, you sometimes have to make a concession in one area, but if at all possible this is not a price that should be paid indefinitely. We should give backing to the people who are trying to rescind this.

    Which Muslim intellectuals in the West do you currently find most interesting?

    The Sudanese Abdullahi an-Naim. He teaches in the United States, and in April 2008 he pub-lished a book, Islam in the Secular State, which I definitely recommend. An-Naim is a lawyer, he tackles concrete analysis of the traditional interpretation of the law and gives comparatively con-crete answers. He says that without secularity Islam loses its spirit. That’s an interesting statement. He’s trying to save the spiritual essence of Islam from these worldly claims to power. He believes that religion can’t be forced. You can try to establish a coercive system and justify it through relig-ion, but in doing so you not only harm the people, you harm the religion itself. We can clearly see this in Iran, where the young generation is categorically turning its back on religion, because their experience is of this nightmarish situation in which the self-appointed executors of God’s will claim absolutely everything for themselves. The end result of this is that it becomes God’s fault if the water supply isn’t working. When religion is cheapened in this way, everybody loses.

    Is an-Naim appreciated in the Arab world?

    No, hardly at all. He’s considered an apostate. All in all we are forced to conclude that the de-bates being conducted in the West are for the most part detached from the Islamic world. Someone who is perhaps taken more notice of is someone like Mohammad Hashim Kamali, an Afghan who teaches in Kuala Lumpur. Malaysia is interesting territory in this regard. Hashim Kamali is a tradi-tionally educated lawyer; he’s written interesting books on freedom of expression in Islam. It’s strik-ing that those whose argumentation still maintains a link with the traditionalists have the best chance of being accepted. Anyone who really sticks his neck out, anyone who starts delving into fresh interpretation of the fundamentals is quickly excluded from the mainstream discussion.

    Malaysia is a mostly Islamic country. Is it possible to have more controversial discussions there than for example in Egypt?

    All in all it must be said that for decades now Islamic debates have been more interesting on the periphery than at the heart of the discussion. The further you go from the Arab centre of things, the more interesting the debates. Malaysia was extremely interesting in the 1990s, but there too we’re observing a certain rollback. I was there myself; there’s a big Islamic University in Petaling Jaya, and I spoke with some of the teaching staff, who complained bitterly that Wahhabism was becoming stronger over there. Saudi Arabia – organisations rather than the state itself – is pumping in a load of money to try and turn Islam there towards Wahhabism. I’m hearing this not only from Malaysia but also from Canada, from Bosnia, from the most diverse parts of the world, that the Gulf States and Saudi Arabia in particular are expending massive amounts of manpower to thwart this consideration of reform. And unfortunately they are not unsuccessful.

    So is it mainly Saudi Arabia’s fault that debate in the Islamic world is stagnating?

    No, it’s not only Saudi Arabia. There’s simply no public atmosphere that would allow a proper discussion of fresh interpretation and reform. There are many different reasons for this. For one, the Islamic orthodoxy has lost a tremendous amount of power since the days of colonialism. In Egypt there are two different courses of study in the legal field: the regular law course, and the Sharia faculty, which deals mostly with family and inheritance law. You have to see it from a practi-cal point of view: these too are jobs. If you try to take any more away from them and bring it into a secular framework, they’ll lose their foundation. Added to this are the debates about cultural self-assertion. I saw this in India too. Muslims are in the minority there; many of them say, ‘We urgently need a reform, there are serious deficiencies in the legal field, but we’re under so much external pressure that if we give this up too we’ll lose our identity.’ In many instances it’s unfortunately true that they associate the defence of the last little bit of their Islamic identity, as they see it, with tradi-tional concepts. In situations like this reformers always have a particularly hard time; they’re imme-diately discredited as the Fifth Column of the West.

    On the other hand, regimes exploit this desire for identity in order to distinguish themselves. They position themselves as the preservers of Islamic identity, and on cultural issues they abandon the field to the orthodox elements.

    That’s right. That has manifested itself repeatedly, right down to Islamic criminal law, the cutting off of hands for stealing and things like that, punishments that historically were very seldom actually carried out. At some point, after he had tried pretty much everything else, Gaafar Numeiri, the Su-danese dictator of the 1980s, decided to seek salvation in Islam and cut off a few hands – in cases, by the way, in which according to classical law the hand would have stayed on, because of so-called legal doubt. But that’s just very effective public policy, in the sense of making yourself look particularly Islamic. Good social policy is far more expensive.

    Why would a different judgement have been passed in these cases according to classical Islamic law?

    There was for example the case of a headmaster who’d been dipping into the school petty cash box. Classical Islamic law would say that this case dealt with bait al-mal, state assets, and that these belong a little bit to us all – which seems to me a very congenial attitude. So everyone has a certain share in the bait al-mal, and you can’t steal from yourself – you’re taking something that also partly belongs to you. So according to the classical majority understanding in Sunni Islam, he would have kept his hand. The man should have gone to prison or been given a fine.

    This brings us to a difficult topic: Islamic criminal law. Tariq Ramadan, a grandson of Has-san al-Banas and a very influential figure among young Muslims in Europe, is calling for a ‘morato-rium’ on these punishments. He says that Muslims have to discuss the circumstances in which hudud should have legal force. Non-Muslims in the West, of course, just shake their heads at this and call for a clear dissociation from Islamic criminal law.

    Here we have a real conflict between different strategies for getting to grips with the problems. Let’s take the example of the cutting off of hands. In sura 5, verse 38 it is written: ‘The thief, male or female, you shall cut off their hands as a punishment for their crime, and to serve as an example before God.’ There are very few Muslim lawyers who at this stage would already be prepared to shrug off explicit pronouncements in the Koran and say that that is per se outdated and has been abrogated by other rules. These schools of thought do exist. The fact is, however, that in the ma-jority of Muslim countries punishments like this have not been carried out for a long time. What are the strategies? Number one: forget. You write a new penal code and, oh dear, you forget to include it. That way you avoid a frontal attack against the orthodoxy. Because there won’t be any legal political debates about this. If someone were to say: we’re deliberately abolishing this, they would provoke opposition. But if you just do it, somehow it’s accepted. In the classical age it was often dealt with by saying that one more appeal should be made to the delinquents to repent, or that the Caliph Omar had not carried out this punishment in this time of famine. Then they could go on to say that the world is still unjust, the poor are still with us, and these punishments would only really be appropriate if people were doing really well. It’s an absolutely typical strategy to say we don’t want this, but we’re not going as far as to say we’ll abolish it once and for all, because it would provoke too much opposition. On the other hand, it naturally creates insecurity here in the West when someone like Tariq Ramadan talks about a moratorium. People then ask themselves: but doesn't a moratorium end at some point, and if so when, and under what conditions? So we get into these debates along the lines of: you’re adapting yourselves to your situation of being in the minority, but does that mean that if you were the majority you'd want to introduce this? That’s a pretty theoretical discussion, but it’s a discussion Muslims here in the West won’t be able to avoid forever. The Muslims in Europe are arguing with their backs to the wall. But we have a culture of debate here which demands that at some point we also establish clarity on basic questions.

    Why is it so difficult to establish what these fundamentals are? What does the German ‘guiding culture’ look like?

    It won’t take long to agree on a couple of basic points: the inviolability of human dignity, the catalogue of fundamental rights. But for a start just look at the death penalty. It’s been abolished in the constitution, which I’m very happy about, but all opinion polls since the Second World War have shown that a stable majority of our population supports the death penalty. The proportion goes up to more than 80% when another dreadful sex crime is committed. Does this mean that everyone who’s in favour of reintroducing the death penalty is an enemy of the constitution? There are a couple of points on which we are not as clear as we like to think we are. Equality of the sexes, for example. This is one of the points in the catalogue of fundamental rights. But what if someone makes the personal decision for themselves that the woman belongs in the home and the man should earn the money? I’ve heard that not only Muslims but also some non-Muslims share this view. Are they allowed to? If they think this way, are they placing themselves outside the constitu-tional consensus?

    Unlike in the Islamic world, the legal profession is very well respected in Europe. Perhaps young Muslims who study law in Europe could find solutions to these problems?

    I can well imagine that. When I read Islamic law, I always say to people: don’t expect me to tell you what is correct in Islam. I can’t do that, not least because I’m not a Muslim. What you can ex-pect from me is that I present to you different positions of Muslims in different contexts, this plural-ity. For many people it’s the first time they’ve heard that there are other points of view besides the one their local imam has to offer. If you think that the Catholic Church only made its peace with the secular constitutional state in 1962 with the Second Vaticanum, through dialogue with other forces in society that went on for centuries. I hope it won’t take that long with the Muslims; it doesn’t look as if it will. That’s my hope. We need institutions to foster this intellectual exchange. That’s why we need Muslim education; we have to train Muslim teachers of religion, perhaps imams as well, and get them into our secular institutions. Then, though, we have to take religious freedom seriously and give them a proper chance.

    Is it fundamentally harder for Muslims to accept a secular state than it is for followers of other religions?

    There are different understandings of religion, and of how great a part religion should have in actual daily life and the formation of institutions. In this Islam does make far greater demands than Buddhism, Hinduism, perhaps Christianity as well; they are therefore better able to get to grips with it. Yes, the basic demands of Islam are more total in nature. But Muslim tradition itself says that while God’s rules may be pre-existent, we have to interpret them. This hadith is often quoted: ‘Dif-ferences of opinion in my community are a blessing.’ On the other hand, in democracy too the most important things are not subjected to majority vote. Even with a majority of 100% the Bundestag or the Bundesrat would not be able to abolish the catalogue of fundamental rights, or even to limit it. Where do we actually get human rights from? Is it God? Is it common sense? Is it a societal contract, or what is it? I almost don’t care what the answer is, because one thing is clear: we are immunising the basics of our human coexistence against despotic human decisions. And if at some point we can reach an understanding that we basically have similar approaches, then all we have to discuss is whether we are also protecting the same content.

    Are we?

    There are more correspondences than you’d imagine. The catalogue of legally protected inter-ests in Islam, for example: that the person and his possessions should be protected, that marriage should be protected. The tricky issue is religion and what exactly this means. We’re still in a phase of serious misunderstandings. People in the West know nothing about the flexibility of the Sharia, and in the Islamic world people know nothing about the basics of the system of the democratic constitutional state.

    Albrecht Metzger
    is an Islamic scholar and journalist based in Hamburg.

    Mathias Rohe
    is a judge and holds a chair at the University of Erlangen. He is a co-founder and president of the Society for Arab and Islamic Law.

    Translated by Charlotte Collins
    Copyright: Goethe-Institut e.V., Fikrun wa Fann
    January 2009

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