‘A’ Source of Law?

The different types of shari’a states.

By Reza Aslan

It’s impossible to talk about the issue of Islam and human rights without dealing with the problem of shari‘a law. Of course, when one talks about shari‘a, almost immediately images of the Islamic Republic of Iran or Afghanistan under the Taliban or Saudi Arabia come to mind. The question is: Can shari‘a, as it has been ap-plied in these countries, be reconciled with what one expects in a modern constitutional state? The answer is simple: No, it cannot.

And yet, at the same time, one cannot ignore the fact that throughout the Islamic world, large numbers of Muslims (including women) and, in some Western countries, large majorities of Muslims, when asked whether they want shari‘a to be the source of legislation in their countries, answer that they do.

Let’s step back for a moment. We talk about shari‘a as if such a thing actually exists. It does not. Shari‘a is meant to be a utopian, divine, perfect source of law that in reality does not exist in the earthly realm. This perfected concept of shari‘a is like a vast ocean. To build a shari‘a state, one scoops up a ladle of this ocean. But even then one still doesn’t have anything that could rightly be called shari‘a. First, that ladle of water must be poured into a vessel, which is the particular state, the society, the community. Now, whatever shape that vessel takes dictates the shape and substance of the shari‘a poured into it. Thus, if the vessel is, say, Egypt, whose constitution refers to shari‘a as the source of law, but quite frankly completely ignores it in all penal cases, you have one type of a “shari‘a state.” If the vessel is Iran, which probably has the most robust human rights and women’s rights organizations in the Middle East, you have another type of shari‘a state. And both are valid. In other words, shari‘a exists only in its confrontation with the mores, customs, and traditions of the society in which it is applied.

It is important, then, to remember that shari‘a has everything to do with a sense of identity. What I mean to say is that the reason there is such enthusiasm for something called a shari‘a state (although again that term is understood in vastly different ways) throughout the Muslim world is because of the resurgence of identity politics in that region. Part of this is a result of the anti-colonial sentiment that is still very much alive in large parts of the Muslim world. The colonial experience was one in which a Westernized and even Christianized ideal of the rule of law was forced upon Muslim cultures without any attempts to translate it into indigenous language or mores. In this regard, the longing for shari‘a has far more to do with a rejection of those Western ideals, and a desire for a more indigenous conception of the rule of law, than it does with chopping off hands or stoning adulterers.

This is a vital point, because when Muslims are pressed about what it is they mean when they refer to shari‘a, they always come back to the idea of the rule of law. Many of these Muslim populations live in dictator-ships, countries that are totalitarian, where the rule of law is not just arbitrary but also at the whim of a single individual. The push for shari‘a in these countries is not just about identity; it is also about a fair and just concept of the rule of law, which shari‘a promises to provide. Think of Pakistan, where over the last decade even the middle class, those living in urban areas, have begun calling for the imposition of shari‘a. They have been doing so quite deliberately in opposition to the dictatorship of Musharraf. The more Musharraf exerts his despotic powers by, for instance, calling for martial law or getting rid of supreme court judges, the more the population yearns for shari‘a—not to create some kind of religious state, but to push back against what they see as lawless-ness and a lack of the rule of law.

But there is an even larger issue here, because, as has been pointed out, human rights is a status discourse. If that is true, what happens when the state fails to live up to its obligation? What do you do when the state is not a reliable source of human rights? Again, with regard to the Muslim world, you rely on shari‘a.

It is incredibly important, particularly for journalists, to recognize the multiplicity of definitions and ideologies that are involved in the concept of shari‘a before we can dis-cuss whether there can be a reconciliation between shari‘a and a modern conception of human rights.

If we allow for this complexity and multiplicity, then the answer to the question with which I began—namely, can shari‘a be reconciled with modern human rights—is yes. But only if shari‘a is recognized as a source of legislation, as opposed to the source of legislation. Moreover, we need to address the problem with the idea of universal human rights, namely, that they are by no means universal. For example, the Universal Declaration of Human Rights and its accompanying declarations assume that individual rights must supersede collective rights. But that goes against the foundation of most Arab cultures, which tend to focus on collective rights over individual rights.

Finally, we must acknowledge that there will be certain limitations in applying shari‘a in a modern state, like limitations on drinking and gambling. These are issues I hope we can acknowledge, and can continue to address.

Reza Aslan, MTS ’99, is an assistant professor of creative writing at the University of California, Riverside. His first book, No god but God, has been translated into 13 languages. These words are adapted from a talk presented at the “Reporting Global Conflict” conference, which was sponsored by the Nieman Foundation for Journalism, with HDS, held on May 9-10, 2008.

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