SEEING SHARIA THROUGH THE PRISM OF SERIOUS WESTERN SCHOLARSHIP

According to the most authoritative twentieth-century Western Islamic legal scholar, Joseph Schacht (d. 1969),— the sharia, or “clear path to be followed,” is the “canon law of Islam,” which “denotes all the individual prescriptions composing it.”²³ Schacht traces the use of the term sharia to Koranic verses such as 45:18, 42:13, 42:21, and 5:48, noting an “old definition” of the sharia by the seminal Koranic commentator and early Muslim historian Tabari (d.

Allah’s law is not to be penetrated by the intelligence, i.e., man has to accept it without criticism, with its apparent inconsistencies and its incomprehensible decrees, as wisdom into which it is impossible to enquire [inquire].

Muslim law...has always been considered by its followers as something elevated, high above human wisdom, and as a matter of fact human logic or system has little share in it.

For this very reason, the Sharia is not “law” in the modern sense of the word, any more than it is on account of its subject matter. It comprises without restriction, as an infallible doctrine of duties the whole of the religious, political, social, domestic and private life of those who profess Islam, and the activities of the tolerated members of other faiths so far as they may not be detrimental to Islam.²⁸

Elsewhere* Schacht elucidates how sharia—via the uniquely Islamic institution of jihad war—regulates the relationship between Muslims and non-Muslims. These regulations make explicit the sacralized vulnerability of unvanquished non-Muslims to jihad depredations, and the permanent, deliberately humiliating legal inferiority for those who survive their jihad conquest, and incorporation into an Islamic polity governed by sharia.

The basis of the Islamic attitude towards unbelievers is the law of war; they must be either converted or subjugated or killed; the third alternative, in general, occurs only if the first are refused. As an exception, the (Arab) pagans are given the choice between conversion to Islam or death. Apart from this prisoners of war are either made slaves or killed or left alive as (free) dhimmis, or exchanged for Muslim prisoners of war, at the discretion of the imam; also a treaty of surrender is concluded which forms the legal basis for the treatment of non­Muslims to whom it applies.. This treaty necessarily provides for the surrender of the non-Muslims with all duties derived from it, in particular the payment of tribute, i.e., the fixed poll-tax (jizya) and the land tax (kharaj), the amount of which is determined from case to case.

A non-Muslim who is not protected by a treaty is called harbi, “in a state of war,” “enemy alien”; his life and property are completely unprotected by law unless he has been given a temporary safe-conduct (aman)²⁹

Moreover, Schacht visited Nigeria between February and April 1950 and wrote the following about northern Nigeria's efforts at rolling back British colonial law, and reintroducing the sharia:*

Islamic Law has made great progress there.. The next ambition of the Muslim ruling class in Northern Nigeria is to continue in the same direction and seek the removal of the few restrictions which the British administration had to impose on the full application of Islamic law.³⁰

The consequences, at present, of this recrudescence of sharia in northern Nigeria—including at least intermittent application of hadd punishments—were described in a brief report published September 8, 2011.

An Islamic Shariah court in Nigeria has sentenced two men to amputation of their right wrists for stealing a bull, with the amputation to be carried out in public if it is given final approval. The Shariah court in the village of Nassarawan Mailayi in the northern state of Zamfara on Thursday ordered that Auwalu Abubaka, 23, and Lawalli Musa, 22, have their right hands chopped off for stealing a bull worth 130,000 naira ($867; 628 euros). However, the two men have 30 days to appeal their sentence and the state governor must approve any amputation.

2001, a notorious cattle rustler had his right wrist amputated following conviction by a Shariah court in the state capital Gusau for stealing a bull after the then state governor approved the sentence.³¹*

Independently endorsing Schacht's views, Professor Carl Brockelmann (1868-1956), the renowned scholar of Semitic languages, and arguably the foremost Orientalist of his generation,³² made these candid observations about the sharia's injunctions pertaining to jihad, and penal law, in 1939—Islamic law being “valid” eternally, and all too widely applied in Brockelmann's era, till now.

The Muslim may show only hostility to infidels when encountered: war against them is a religious duty. Idol­worshippers must always be attacked without more ado, Jews and Christians, however, only after they have ignored a summons made three times, to accept Islam. After defeat the men are to be killed, women and children sold into slavery. Whoever is killed in the Holy War [Jihad] is sure of paradise, as a martyr.

The penal code of Islam has remained on a rather primitive level and only marks a slight advance over the ancient pagan concepts of law. The murderer is subject to death through blood vengeance; manslaughter through negligence is recompensed by an indemnity to the survivors. Bodily injuries may be atoned for by the culprit according to the principles of lex talionis—but the culprit may also redeem himself by paying damages. Theft is punished by amputation of the right hand, in case of relapse by additional maiming. Adultery is punished by a hundred strokes of the lash; but if an infidel seduces a Muslim woman, he is subject to the death penalty. Blasphemy with respect to God [Allah], the Prophet, and his predecessors is punished by death, as is defection from Islam, if the culprit persists in his disbelief.³³

A brutal contemporary example of the application of hadd punishment in Khartoum, the Sudan, during December 2010, was documented in this interview of Khartoum’s governor, Dr. Abd Al-Rahman Al-Khadr.

Governor of Khartoum, Dr. Abd Al-Rahman Al-Khadr: What was aired was the implementation of an Islamic punishment. The sentence of a court of the state was carried out in that manner. We should distinguish between two things: the punishment in and of itself, and the way it was carried out, about which something might be said.. We should consider the more important issue in this case —our penal code is in keeping with Islam, and the shari'a is the main source of our legislation. Islamic punishments are carried out to purge the perpetrator [emphasis added]..The people who made this public could have concealed the girl’s face. There are many techniques that allow you to do so.

Interviewer: This is not a case of a woman wearing pants, is it?

Dr. Abd Al-Rahman Al-Khadr: No, it is not. I did not mention the nature of the crime, because I do not want to slander her. It has to do with immoral activity and prostitution. The verdict was issued by judges, [emphasis added] not by the police.³⁴*

Rising Restrictions on Religion, a report by the Pew Research Center's Forum on Religion and Public Life issued August 9, 2011, examined the issue of “defamation” of religion, tracking countries where various penalties are enforced for apostasy, blasphemy, or criticism of religions.³⁵* “While such laws are sometimes promoted as a way to protect religion, in practice they often serve to punish religious minorities whose beliefs are deemed unorthodox or heretical,” the report noted.³⁶* The Pew report, consistent with Brockelmann's assessment from 1939,³⁷* found that application of the sharia at present resulted in a disproportionate number of Muslim countries, twenty- one—Afghanistan, Algeria, Bahrain, Brunei, Egypt, Indonesia, Iran, Iraq, Jordan, Kuwait, Maldives, Morocco, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Tajikistan, Turkey, Western Sahara, and Yemen —registering the highest (i.e., worst) persecution scores on their scale.³⁸* Furthermore, the Pew investigators observed,

Eight-in-ten countries in the Middle East-North Africa region have laws against blasphemy, apostasy or defamation of religion, the highest share of any region. These penalties are enforced in 60% of the countries in the region.³⁹*

As a predictable consequence of this sharia-based application of apostasy and blasphemy laws by Islamic governments, the Pew report also documented that

the share of national governments that showed hostility toward minority religions involving physical violence was much higher in countries where laws against blasphemy, apostasy or defamation of religion are actively enforced than in countries without such laws (55% versus 22%).—*

Another important mid-twentieth-century scholar of Islamic law, G.-H. Bousquet (d. 1978), explained how Islam's unique institution of jihad war, and its eternal quest to impose the sharia on all humanity, represented a “dual” totalitarianism. Writing in 1950, Bousquet further warned that these ancient Muslim doctrines remained vibrant and relevant to the modern era.

Islam first came before the world as a doubly totalitarian system. It claimed to impose itself on the whole world and it claimed also, by the divinely appointed Muhammadan law, by the principles of fiqh, to regulate down to the smallest details the whole life of the Islamic community and of every individual believer.... Viewed from this angle, the study of Muhammadan Law (dry and forbidding though it may appear to be to those who confine themselves to the indispensable study of the fiqh), is of great importance to the world of today.⁴¹

Two prominent, enduring trends have reinforced this doctrinal, sharia-based totalitarianism. Contra Judaism and Christianity, Islam's history never compelled Muslim religious leaders to reexamine their basic assumptions concerning power and faith. Moreover, Islamic religio-political doctrine does not recognize individual liberties, even as an abstraction. The independent existence of objective universal truths is not acknowledged by normative Islamic doctrine. Unless decreed to be so by a notoriously mercurial Allah, nothing is either good or evil. Murder, even today, is merely forbidden by Allah in the Koran, it isn't innately immoral. Thus, as Islamic legal historian N. J. Coulson (d. 1986) observed,

[T]o represent, in actual fact, a real guarantee of individual liberties, the idea of the rule of law must carry with it certain essential implications. The first of these is, obviously enough, the recognition of certain individual liberties by the law itself. No such recognition is to be found in the Sharia; and the formulation of a list of specific liberties of the individual as against the State in the manner, for example of the American constitution, would in fact be entirely foreign to its whole spirit.. The stress...throughout the entire Sharia, lies upon the duty of the individual to act in accordance with the divine injunctions; and since the continuous application of these injunctions is declared the purpose of the political authority, the jurists did not visualize any conflict between the ruler and the ruled.⁴²

The Islamic understanding of “freedom,” or hurriyya, is—as Ibn Arabi (d. 1240), the lionized “Greatest Sufi Master,”⁴³ expressed it—“perfect slavery.”⁴⁴ And this conception is not merely confined to the Sufis' perhaps metaphorical understanding of the relationship between Allah the “master” and his human “slaves.”⁴⁵

Bernard Lewis, in his Encyclopedia of Islam analysis of hurriyya, discusses this concept in the latter phases of the Ottoman Empire, through the mid-twentieth­century era. After highlighting a few “cautious” or “conservative” (Lewis's characterization) reformers and their writings, Lewis maintains,

there is still no idea that the subjects have any right to share in the formation or conduct of government—to political freedom, or citizenship, in the sense which underlies the development of political thought in the West. While conservative reformers talked of freedom under law, and some Muslim rulers even experimented with councils and assemblies government was in fact becoming more and not less arbitrary. ⁴⁶

Lewis also makes the important point that Western colonialism ameliorated this chronic situation:

During the period of British and French domination, individual freedom was never much of an issue. Though often limited and sometimes suspended, it was on the whole more extensive and better protected than either before or after [emphasis added].⁴⁷

And Lewis concludes his entry by observing that Islamic societies forsook even their inchoate democratic experiments:

In the final revulsion against the West, Western democracy too was rejected as a fraud and a delusion, of no value to Muslims.⁴⁸

Elsewhere, writing contemporaneously (i.e., in 1955) on democratic institutions in the Islamic Middle East, Lewis conceded that at least “equality and fraternity” between Muslims were accepted.⁴⁹ But even here Lewis included a major caveat with regard to “liberty,” whose Islamic formulation might never resemble John Stuart Mill's conception in On Liberty,— punctuated by a reference to Alice in Wonderland making plain Lewis's assessment of the likely superficial (at best) outcome of Muslim democratization efforts:

[P]erhaps it may be possible to extend them beyond it [the Muslim community] adding a redefined liberty [emphasis added], to make a new kind of democracy. Only “the question is” as Alice remarked, “whether you can [emphasis in original] make words mean so many different things.”⁵¹

American constitutional and governmental models, specifically, were ignored, and ultimately, Lewis viewed this immediate post-World War II era of democratic experimentation by Muslim societies as an objective failure, with the possible exception of developments, at that time, in Turkey.

The machinery which works well in the West may not work in other countries. Except perhaps in Turkey, our kind of democracy appears to have failed in the Muslim Middle East.⁵²

This pessimistic, if apposite, 1955 assessment is all the more remarkable, in retrospect, over a half century later, because Lewis was critiquing what turned out to have been the Muslim world's high-water mark toward creating indigenous, democratic institutions and societies.⁵³