Steven A. Cook

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Islamic Law and Justice for All?

by Guest Blogger for Steven A. Cook
April 17, 2012

A general view of the opening session of Tunisia's constitutional assembly in Tunis (Zoubeir Souissi/Courtesy Reuters) A general view of the opening session of Tunisia's constitutional assembly in Tunis (Zoubeir Souissi/Courtesy Reuters)

My dear friend, Nervana Mahmoud, an Egyptian-born doctor in the UK, is a keen observer of events in Egypt and the Middle East.  Her post on Islamic law and constitutions in the region is extraordinarily interesting.  Enjoy….

I once asked a Salafi acquaintance what he thought of Bouazizi. He paused for a moment then said: “He committed a major sin; he deserves the punishment of hell.” Then he added, “God has made from his bad action, something good.” I later asked a Muslim Brotherhood supporter the same question and his reply was roughly the same, except that he added “probably” to his verdict, showing slightly more sympathy and understanding.

Bouazizi, the Tunisian fruit vendor, did not just inadvertently unleash a wave of revolts throughout the Arab world; he also indirectly rekindled a heated debate about the compatibility of Islamic Sharia law and democracy. The debate is ongoing in Tunisia following the Islamic Ennahada party’s decision to rule out Sharia as a basis for the country’s new constitution and in Egypt where the Muslim Brotherhood asserted that implementing Sharia law is the group’s aim and final objective.

The fundamental goals of Sharia, known in Arabic as maqasid, aim to preserve the five essential elements of Islamic society: religion, life, intellect, lineage and property. These broad categories are in tune with basic human values, and they do not contradict the principles of democracy. However, for Sharia to be a viable model for constitutional law, its interpretation has to be reformative, meaning that it must achieve moral and spiritual virtues by incorporating a balance between rights and rules.

For example, in the classical maqasid, in order to establish religion, spirituality needed to be maintained and protected by following the divine law, as mentioned in the Koran and Hadith, and by adhering to Islamic rituals. This raises the question of enforcement: what about the freedom to leave religion altogether, which many scholars consider apostasy? Would the constitution include clear legislation to protect people’s individual choice of religion? Will a maqasid-based constitution punish people who opt not to fast or who avoid paying zakat (alms-tax)? Mandatory zakat was an idea floated by some Brotherhood members, only to be denied later.

The second maqasid is aimed to preserve life. The way to protect it is through the enforcement of prescribed penalties provided by the divine law. For example, murder, adultery, false accusation, and suicide are prohibited in Islam. Again, how will an Islamic constitution deal with adultery, honor killings, and female genital mutilation? During their visit to Washington, the Muslim Brotherhood delegates were very defensive when asked about clitoridectomy.

The third maqasid is aimed at protecting the intellect, namely against anything that hinders the intellect’s ability to function properly. In this regard, alcohol or any similar substance should be prohibited. With this in mind, how far would the “Islamic” government go to impose an alcohol ban, and what would the penalty for breaking this law?

The list of questions goes on. For example, how would a Sharia–based constitution define “morality,” and how would an Islamic government impose it? Regarding the economy, how would the future Islamic government reform the banking system? How would non-Muslims fit in? Would they be forced to accept the same legislations?

There were several attempts to view maqasid in a modern perspective, starting with Muhammad al-Tahir Ibn Ashur in 1946 who expressed the need for an objective-based approach to Islamic law in light of modern realities. Other works by Gamal Attia and Jasser Auda even advocated reform and the idea that the maqasid should be viewed as a dynamic, rather than a static, process.

Sadly, in the current polarized atmosphere in Egypt, the interpretation of maqasid varies drastically, with many parties still resisting any liberal or dynamic interpretation, preferring a cut and paste version of the sixth century model. This is precisely why my Salafi and Muslim Brotherhood acquaintance viewed the Almighty as a bureaucrat who would doom Bouazizi to hell. Ironically, both applauded Sheikh Qaradawi’s fatwa that sanctioned suicide in order to kill Jews in Palestine.

Adopting maqasid as a road-map for the new Egyptian constitution is not as easy as the Muslim Brotherhood makes it out to be. What the Prophet Muhammad presented to the world in the sixth century was a clear, progressive enlightened project that was far more advanced than what Arabs had before. In order to achieve the same results in the 21st century, Islamist parties should provide a new platform that is neither ambiguous nor regressive. This platform should maintain the delicate balance between the rights of individuals and their duties within  “Islamic” society in order to prevent hypocrisy, underground decadence (such as physical relations outside the realm of marriage and consumption of alcohol), and religious bipolar behavior that currently plagues many Muslim societies.

The Muslim Brotherhood still has a long road ahead to convince the public that its renaissance project is the way to go. Sticking to general slogans of justice and morality is simply not enough. As the parliamentary majority, the Brotherhood has a duty to engage the public in a debate about the interpretation and implementation of Sharia law in society. This debate may be awkward, difficult, and daunting, but the dialogue is essential to ensure that Bouazizi and the thousands of revolutionary martyrs who dreamed about freedom, equality, and justice did not die in vain.

Post a Comment 7 Comments

  • Posted by Aharon Meytahl

    Religion, especially when mixed with politics, cannot explain everything. Muslims in the name of religion had produced the glory of early Islam, as well as Bin Laden. Muslim Brothers are first of all a political party, which, as any other political party, is looking for power. It was founded in the early 20th century and at that time admired Hitler and fascism. It never had aspirations for democracy, human rights and freedom of expression. Its politicians can quote Koran, hadit and sharia claiming unconvincingly that it changed. It will take generation to create democracy in Egypt. There is no reason to assume that the path to democracy will be easier and and shorter than it had been in Europe.

  • Posted by Lalit Ambardar

    Nervana articulates well her argument in favour of democracy based on individual freedoms . Dogma can not be a socio-political order in the contemporary world . Whole world is watching with curiosity how the quest for democracy that arose at Tahrir Square takes shape in Egypt.

  • Posted by Josh Shahryar

    Wonderful, Nervana.

    What really got me was where you mentioned how the same people who’re ready to damn Mohammed Bouazizi to hell for committing suicide out of abject poverty and in the face of daunting frustrations and helplessness are perfectly ready to cheer on suicide bombers. This points out two things:

    A) Hypocrisy,

    and this gives me hope,

    B) Even to the most ardent maqasid-oriented minds, maqasid are as dynamic as to the mind of those who want to keep religion and state separate.

    It’s hopeful because you can debate this issue with them. If they’re ready to forgo it once, it means their thinking is already somewhat fluid – even it’s fluid in the wrong direction. With time and effort, these minds can be changed.

    Also, sharing!

  • Posted by S. Siddiqi

    I think China well proves one thing: it’s all about the economy. Everything else falls in place.

    Ms. Mahmoud delectably deals with the topic, however I’m afraid the basic premise, of making Sharia compatible with democracy, has no traction in Muslim lands. In the calculus of human emotions, it would make sense to flip this equation on it’s head…how can democracy and the principles it entails be rationalized within a traditionalist context?

    The only other option is war on religion. Islam is not going to be removed from the political sphere silently. In the 60′s the claim was that education was the key to moderating (i.e. making Islam compatible with one’s own world view, be it western, communist, socialist, etc.). The educated people founded Islamist movements, based on fanciful political theorizing and revisionist history, instead.

    Now we fast forward to the future, and look at the fate of Bouazizi. He dreamed about freedom, equality, and justice? The very buzzwards pro-democracy advocates adopt as slogans? That’s rather crass opportunism to co-opt one’s desperation at economic misfortune, and lack of opportunity. I don’t think he set himself alight for how minorities were treated, or for Gay rights. If anything, it was for want of a proper capitalist system where even “the little guy” could prosper.

    Ideological nonsense aside, the Islamists have a degree of momentum. The onus is on them to provide opportunity for the masses, if they are permitted to take control. A hungry stomach breeds desperation, not piety. They know this. The question is, will they resort to mindless ideological tricks to keep the masses strung along, or will they deliver.

  • Posted by Maia

    Interesting to see how worked-out a project islamic society is – Christianity is just the Jewish bible stopped at a certain date with some messianic short stories tacked on the end and an injunction to ‘keep the law as it is’, which was already different from the old testament (monogamy,for instance)and the argument,once or twice stated, that god made different rules in the old days because he knew people were too sinful to obey the stricter ones he really had in mind,just to contradict that. Jewish law is openly about being contradicted,updated,reviewed-they are very different,i heard. I would never have become a teenage muslim-i was an idealist who wanted to sacrifice my life for something wildly impractical-’the 5 goods of daily life’stuff would have put me right off. But since leaving religion, i can see now, that it is a human activity, done by humans, and therefore will always be human, not divine. It might be divine in origin, but by the time it’s been through a human brain,it bears that human’s imprint: so what seemed uncanny when i was a christian – that some people had a neurotic religion, some a jolly extraverted one, some one that was full of hard rules and hard work, others seemed to just worry about sinning the whole time – seemed logical when i left.

  • Posted by Mohamed Magdeldin

    It is a mistake to portray Sharia & the universal bill of rights as polar opposites. Many scholars in Islam have come to discover that both actually meet more than they differ. The debate arises and to be frank fears from a sharia bound laws appear when extremist & literal interpretations of makasid create a gap between both.
    Its important to maintain the understanding that this gap is politically motivated. What we see in Egypt within the last year is not a debate on the role of religion in society but the role of government.

  • Posted by Raja Saleem

    Great article. The whole article is about democracy and democratic values and MB is taught principles of democracy. However, the author herself find it very difficult to accept the first principle of democracy i.e. popular sovereignty. Who won the elections? Why a party which has won the elections fairly should do what you want and explain to you what they want to do ? Why can’t they keep their cards to themselves and decide when they really have the power? And of course author’s MB and salafi friends constitute a required random sample so we can generalize it for all the Salafis and MB. No need for any other survey

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