“It remains to be seen how soon the reformers will realize the account that must sooner or later be settled between real civil and religious liberty and Mohammedan sacred law or ‘Shariat’ [Sharia] (including the Koran, and the Traditions)....
It remains to be seen...whether the zimmi [dhimmi] (Christian or Jewish subjects) can ever really be accorded equal rights with the Moslem in Moslem states; whether the habit of freedom can be taught; and whether the root of the whole social evil, the position of women, can be touched, while a belief in the Koran remains..
But apart from the problematic future, we have the historical past:—by the confession of the entire Moslem world itself, nothing could have been more deplorable from every point of view, moral, social, intellectual, political, and even religious, than the state of all Moslem lands before the reform movement from the West agitated them. This was freely admitted at a Moslem Conference held lately at Mecca....Is this confessed failure, then, due to Islam, or is it not? All that can be said is that Islam had practically had an absolute monopoly of influence where the state of things had been brought about; and that the impulse towards change in no case sprang—apparently could not have sprung—from any purely Islamic source. These are, at least, two solid facts. The ‘movements’ that spring from purely Islamic sources are typified by names like Abd ul Wahhab, the Mahdi, El-Senussi: And these movements are movements—backwards.”1
—W. H. T. Gairdner, 1909
“He [Muhammad Abduh] tried to solve for Islam problems with which Christians had been busy for the previous century, and his solutions have nothing new for them....What a lot of trouble it would save if a conservative Muslim would study the history of Christian thought and apply the lessons to his own faith!”2
—A. S. Tritton, 1934
“Palestine, the holy land of the Jews, Christians and Islamites, had been turned into a desert haunted by ignorant poor diseased vermin rather than by human beings, as the result of six centuries of Muslim rule. Today Jewish rule has made this desert bloom into a garden, miles of sandy waste have been turned into smiling orchards of orange and citron, the chemical resources of the Dead Sea are being extracted and sold, and all the amenities of the modern civilised life have been made available in this little Oriental country.
Wise Arabs are eager to go there from the countries ruled by the Shariat [Sharia]. This is the lesson for the living history.”3—Jadunath Sarkar, 1950
“What is necessary to be faced is that a Muslim living in a secular or a modern state must have the freedom and independence to obey fresh laws; and new legal norms, whether related to the shari’ah or not, will have to be forged. It is becoming increasingly clear that something good and legal may be entirely outside the rules of shari’ah, just as, surprisingly enough, some rules which are unjust and indefensible may occasionally fall within the orbit of acts permitted by the shari’ah....The first task is to separate logically the dogmas and doctrines of religion from the principles and rules of law. To me it is an axiom that the essential faith of man is something different from the outward observance of rules; that moral rules apply to the conscience, but that legal rules can be enforced only by the state. Ethical norms are subjective; legal rules are objective. The inner life of the spirit, the ‘Idea of the Holy,’ must to some extent be separated from the outward forms of social behavior. The separation is not simple; it will even be considered un-Islamic. But the attempt at a rethinking of the shari’ah can only begin with the acceptance of this principle.”4
—Asaf A. A. Fyzee, 1954
“Is the Shari’a, again, to be static, or progressive; and, if the latter, how can it be developed? Can the doctrine of consensus be given a wholly new interpretation in the deliberate resolutions of a consultative body; and, if so, how is that body to be constituted, and can it be identified with the legislature? Yet again, how far can reform of the Shari’a (as applied by the courts) extend—whether by means of a new interpretation of the doctrine of consensus or by any other means? Is it to be limited to the present expedients of a refusal to entertain certain suits, to an enforcement of administrative regulations which are ‘not contrary to the Shari’a’, and to codifications of the law based on an eclectic choice of the juristic opinions which the courts must apply in this matter and that? Can it be recognized that even an explicit provision of the Qur’an or traditions may not be relevant to modern life, or that necessity—or even public welfare—can justify a radical change in the law? What, too, of the problems of International Law? In the orthodox view the world is still divided into Dar al-Islam, or those areas where Islam rules supreme, and Dar al-Harb, or those other parts of the world which should be brought by force of arms to acknowledge the political dominance of Islam, and between which and Dar al-Islam only interludes of peace should intervene.
But this doctrine is scarcely consistent with membership of the United Nations Organization. Nor is there any provision in the Islamic law to govern relations between two independent Muslim states, for the theory that Islam is one and essentially indivisible permeates the doctrine: the nearest equivalent is, perhaps, the discussions as to how the head of the Muslim state is to treat a powerful rebel. Again, while the adherents of a religion which is based on a divinely revealed book (e.g. Jews and Christians) may be allowed to follow their own faith as subject members of the Muslim state (provided they pay the prescribed taxes and do not insult Islam, etc. [i.e., remain in a state of servile dhimmitude, as per Koran 9:29]) all polytheists should be offered the choice between Islam and the sword; and ‘apostasy’ from Islam is punishable by death (or, in the case of a woman, by imprisonment, in the Hanafi view, until recantation or death). But all this runs radically counter to the [Universal] Declaration of Human Rights (which provides, inter alia, freedom for each individual to change his religion).”5—J. N. D. Anderson, 1957 “A state of this sort [i.e., an Islamic state] cannot evidently restrict the scope of its activities. Its approach is universal and all-embracing. Its sphere of activity is coextensive with the whole of human life. It seeks to mould every aspect of life and activity in consonance with its moral norms and programme of social reform. In such a state no one can regard any field of his affairs as personal and private. Considered from this aspect the Islamic state bears a kind of resemblance to the Fascist and Communist states.”6
—Sayyid Abul Ala Mawdudi, 1960 “I think it is fair to say that no secularization has taken place in the world of Islam: that the hold of Islam over its believers is as strong, and in some ways stronger, now than it was 100 years ago. Somehow or other Islam is secularization-resistant, and the striking thing is that this remains true under a whole range of political regimes.
It is true under socially radical regimes which try to fuse Islam with socialist terminology and ideas; it is equally true under traditionalist regimes whose elites belong to the world of Ibn Khaldun and come from a ruling tribal network; and it is true of the regimes in between.”7—Ernest Gellner, 1991
“As is so often the case when considering Islam, one has to concede the power of certain of its ideas. But when it comes to having these ideas advocated within our own shores, and as alternatives to our own institutions, one must then ask oneself: Which does one prefer? Western secular, pluralist institutions, imperfect as these are? Or the Islamic theocratic alternative? And if one decides in favor of one's own institutions, warts and all, one then has to ask again: How far may the advocacy of Islamic alternatives go, before this becomes downright subversive? And at that point, what should be done about it? Finally, do liberal, democratic politicians have the political and moral guts to do what is needed, or will they simply give way, bit by bit and point by point, to insistent and sustained pressure from the Muslim ‘Parliament' and other Muslim special-interest lobbies like it?”8
—Mervyn Hiskett, 1993 “Muhammad could not change the revelation; he could only explain and interpret it. There are liberal Muslims and conservative Muslims; there are Muslims learned in theology and Muslims devoid of learning. They discuss, they interpret, they rationalize—but all by going round and round within the closed circle of Islam. There is no possibility of getting out of the fundamentals of Islam; there is no provision of introducing any innovation.”9
—K. S. Lal, 1994 “We should, in particular the Muslim liberal should speak the whole truth about the condition of Muslim society— for instance about the plight of women within it. And not flinch from tracing it back to its roots—the text, the laws, the ways of thinking. We should document the social practice of the Ulema [Muslim religious leaders] and of the fundamentalist politicians....We should document what the Ulema etc.
have been saying and decreeing on religious issues themselves..We must, in particular the Muslim liberal must, take the consistently secular position on every matter—that is the only way to confront the fundamentalists, it is the surest way to bring home the alternative viewpoint to the community..F]atwas and the rest which impinge upon the civil rights of a person are manifestly a criminal infringement of law; we should show them up as such; and join others in demanding that anyone who seeks to trample upon the rights of others by using...fatwas should be brought to book under the law. Similarly, we must expose, and work to thwart concessions by our opportunist politicians which are meant to appease, and will in the end strengthen the grip of these reactionary elements....But it is not going to be enough to counter the Ulema, and their networks, or to show up their syllabi. As we have seen, what they proclaim, and regurgitate, and enforce is what the Koran and Hadith prescribe. Therefore, to really break the vice, liberals, and liberal Muslims in particular must examine and exhume the millenarian claims of Islam: the claims that there is only one truth, that it has been finally revealed to only one man, that it is enshrined in only one Book, that that Book is very difficult to comprehend, that the select few alone know its inner meaning, that therefore it is everyone’s duty to heed them just as it is the duty of the select to make sure that everyone heeds them. In a word, the basic texts themselves have to be opened to examination.”10—Arun Shourie, 1995 “The understandable fear among modern Muslim scholars is that the great edifice of the religious law, and thus Islam itself, will collapse if it is shown to have been the product of human minds. [Joseph] Schacht’s findings can, of course, conceivably be put at the service of a liberalizing movement, but this has not yet been attempted.”11
—Jeanette Wakin, 2003
“If Islamic society is to become prosperous, free and democratic, a true reformation must take place within the Arab nations.
The Arab governments of the Middle East must remove theocratic Islam as the most dynamic element within their borders. Gradually secular education, respect for other faiths and the reflective gift of self-criticism must blossom to produce a harvest of individual liberty....There are some (I believe, misguided) liberal Muslims who deny any such transformation is necessary, that Islam need not be marginalized for liberty to flourish. These liberals often argue that the real Islam is compatible with liberal democracy, that the real Islam is feminist, that the real Islam is egalitarian, that the real Islam tolerates other religions and beliefs, and so on. They then proceed to some truly creative re-interpretation of the embarrassing, intolerant and misogynist verses of the Koran. But intellectual honesty demands that we reject just such dishonest tinkering with the Koran’s text, which, while it may be open to some re-interpretation, is not infinitely elastic. The truth is there is no real difference between Islam and Islamic fundamentalism—at most there is a difference of degree, but not of kind. There are moderate Muslims, but Islam itself is not moderate. All the tenets of so-called Islamic fundamentalism are derived from the Koran, the Sunna, and the Hadith—the defining texts of Islam—and elaborated in intimate detail by the classical Muslim jurists from all four schools of Sunni Islamic jurisprudence, as well as by Shi’ite jurists. The only solution is to bring the questions of human rights out of the religious sphere and into the sphere of the civil state, in other words to separate religion from the state and promote a secular state where Islam is relegated to the personal. Here, Islam would continue to provide consolation, comfort, and meaning, as it has to millions of individuals for centuries, yet it would not decree the mundane affairs of state.”12—Ibn Warraq, 2003
“The autonomy of the public law of the land [i.e., in the West] must be upheld. In most Western contexts this law is derived from the Judeo-Christian tradition, as interpreted and clarified by aspects of the Enlightenment.
The Sharia, even if influenced by the laws of the Byzantine [Christian Empire], is actually founded on quite different assumptions. Its recognition or incorporation into public law could cause not only confusion, but undermining the fundamental assumptions undergirding the general law. Family law, for example, is often mooted as an area of Islamic law that might, somehow, be recognized by public law in the West. But what would be the consequences? I noted earlier the unequal position of Islamic women in the context of divorce. Similar questions would arise with respect to the custody of children, the laws of inheritance and of evidence, the legality of polygamy, and so on....The possibility of some persons, such as women or young people being coerced into accepting the decisions of so- called Sharia ‘councils' or ‘tribunals' has to be monitored carefully. Moreover, it should not be possible for the structures and institutions of any religion to deal with criminal matters—domestic violence and rape come to mind here.The incorporation of Sharia into the public law of states, or to groups of states (such as the EU [European Union]), cannot, in my view, be supported.”13
—Michael Nazir Ali, 2010
35.
More on the topic “It remains to be seen how soon the reformers will realize the account that must sooner or later be settled between real civil and religious liberty and Mohammedan sacred law or ‘Shariat’ [Sharia] (including the Koran, and the Traditions)....:
- Bano Samia (ed.). The Sharia Inquiry, Religious Practice and Muslim Family Law in Britain. Routledge,2023. — 143 p., 2023
- Cox Robert E.. Creating the Soul Body: The Sacred Science of Immortality. Inner Traditions,2008. — 288 p., 2008
- The Liquidation of Religious Traditions
- CIVIL LIBERTIES, INTERNATIONAL HUMAN RIGHTS, AND SHARIA
- A century ago the legal realists declared that the real law is the law in action, not just the law in books.
- THE LOGIC OF LEGAL REASONING IN RELIGIOUS AND NON-RELIGIOUS CULTURES: THE CASE OF ISLAMIC LAW AND THE COMMON LAW
- In Part Two, we looked at the first part of Gaius' institutional scheme, the law of persons. It now remains to us to consider the law of things.
- PART VI RELIGIOUS AND SACRED VIOLENCE
- PART IV RELIGIOUS, SACRED AND RITUALISED VIOLENCE
- Sharia and Islamic law