Jihad Watch, by Andrew Harrod, May 2, 2015:
In a refreshing departure from Sharia apologias common in Middle East studies, University of British Columbia Islamic law professor rejected the “myth” of Sharia (Islamic law) as a “static, fixed, reified entity” on April 22 in the Georgetown University Center for Contemporary Arab Studies’ wood-paneled boardroom. Ahmed’s presentation, “Shari’a 2.0: Islamic Systematics and the Science of Islamic Legal Reform” before a student-dominated audience of about fifteen, demonstrated simultaneously Sharia’s all-too human origins as well as its embedded dangers.
He described a “sharp, sharp disconnect” between contemporary and historical Islamic interpretations of Sharia. According to the former, Islamic legal scholars substantiated their claim of being central to legitimating Islamic regimes that claimed to rule by God’s law. Yet judges who were not legal scholars often made politically motivated legal decisions that were subject to subsequent overruling by temporal rulers such as caliphs. Campaigning armies, meanwhile, would simply make unilateral decisions without consulting legal scholars on issues such as the division of spoils.
Concerning pre-colonial Islamic legal scholars, Ahmed questioned the power and reputation of such men in a world of three percent literacy. Political patronage could compromise the purity of their intentions. Danger lurked, he noted, since their struggles with rulers could lead to imprisonment or even execution.
Ahmed expressed a “very cynical view” regarding past legal use of Islam’s canonical texts. Quran 8:67-68, concerning the Muslim victory at the Battle of Badr under Muhammad, suggested that taking prisoners manifested a failure to fulfill a divine command to fight the enemy. But “sharp breaks” throughout history in the acceptance of taking and ransoming prisoners by Sunni Islam’sHanafi school of jurisprudence demonstrated how Islamic law responded to political developments with theological reinterpretation.
Practical realities aside, Ahmed described how earlier Islamic legal scholars created in their voluminous writings “subjunctive worlds.” Although these legal visions often had no expectation of implementation, they expressed the “ideal relationship between human beings and God.” “Writing a book of law is never a waste of time,” he noted, but is a “way to express your religiosity” or a “devotional act” similar to prayer. The intricacy of such legal thinking means that attempts to reform a single point of Islamic law on, for example, punishments involving whipping necessitates considering several other elements of Islamic legal theory.
Islamic legal history is replete with controversies surrounding reform, he said. Quran 5:38 was “pretty clear” in mandating hand amputation as punishment for stealing, although some had tried to interpret this verse to mean “cut off their power” with imprisonment. Several hadith, or canonical narratives of Muhammad’s life, however, did indeed mandate amputation and formed a corresponding pre-colonial Islamic legal consensus, contrary practice notwithstanding.
Slavery’s permissibility received a similar “unequivocal yes” in Islamic law sixty or seventy years ago. Political pressures forced Muslim scholars to justify abolition in what Ahmed described as a “little bit of a technical argument” premised on the understanding that “times have changed.” The Islamic State (ISIS), though, has recently reintroduced slavery, arguing that times have changed again.
Other controversies involving Sharia have been addressed creatively, Ahmed noted. The Egyptian jihadist group Gama’a al-Islamiyya, for example, discovered in Western contract law a unique basis for abolishing airline hijacking: the purchaser of an airline ticket may not violate its terms by destroying or seizing the plane. In the political sphere, while many European diaspora Muslims vote simply for the sake of political participation, the Sharia principle of maslaha or public good allows conservative Muslims to participate in non-Muslim politics in order to advance Islam.
One of Ahmed’s Powerpoints stated, “Gender: The Greatest Challenge to Islamic Reform.” “Gender pervades every part of Islamic law,” he explained, a law that was traditionally patriarchal. The Quran, for example 4:11, prescribes half the inheritance for women as for men.
Nonetheless, Sharia’s past malleability made Ahmed optimistic that in Islam, “any law, no matter how entrenched it seems in Muslim texts, can be reformed.” To this end, he is developing an application allowing popular citation of legal arguments and sources in order to “democratize” and “crowdsource Sharia.” That way, less educated and “state-sponsored ulama” (religious scholars) will “not have a monopoly on Islamic law.”
Ahmed himself would like to “get less religion” in Muslim governance, but Sharia is not going to disappear from Muslim societies anytime soon, including pertinent national constitution clauses. An “overwhelming number” of surveyed Muslims expressed a belief in Sharia, often including corporal punishment, as divine. Alternatively, millions of Muslims sought an Islamic theological basis to justify their support for human rights norms such as gender equality. “Context driving law is not just legitimate, it’s inevitable,” he concluded.
Ahmed’s illuminating and refreshingly honest examination of Sharia raised several important concerns surrounding Islamic law and its reform. On one hand, critical examination of Sharia’s past could cause many Muslims to be as reform-minded as Ahmed and to reject Sharia as a divinely-ordained, unalterable legal code that demands future application. On the other hand, Sharia contains serious moral failings not easily resolved even with the most sophisticated (or sophistic) Islamic theological and legal arguments.
As presented by Ahmed, Islamic law suffers from an unwieldy, unstable, and incoherent structure stemming from Islam’s doctrinal foundations. As one of his slides stated, Islam’s arbitrary conception of God is “beyond our moral code.” Islamic norms then derive from Muhammad, who “is supposed to be the pristine believer” in Islamic teaching and thus, according to some Islamic teachings, incapable of sin. On the basis of the life of this seventh-century desert dweller, Islamic law has accepted slavery while possessing an “unnecessary amount of information on the law of wells.” Developing modern legal standards for a free society within such a body of law will be difficult indeed, which is why Ahmed’s insistence on reform is so important.
Andrew E. Harrod is a freelance researcher and writer who holds a PhD from the Fletcher School of Law and Diplomacy and a JD from George Washington University Law School. He is a fellow with the Lawfare Project; follow him on twitter at @AEHarrod. He wrote this essay for Campus Watch, a project of the Middle East Forum.