The Shariah Was Made For Man -- And Not Man For The Shariah

The fundamentalists do not realize that their blind literalism could lead them to follow the letter of the law, but betray its intents.
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As Islamist parties emerge victorious from Arab ballots, some are having second thoughts about the Arab Spring. The widespread concern is that post-dictatorial Middle Eastern states will turn into illiberal democracies rather than liberal ones. And while the threat of illiberal democracy is valid for any late-democratizing country -- just look at Mr. Putin's Russia -- the Middle East bears an additional and unique risk: Islamic law, or the shariah, which might imply corporal punishments for criminals, degradation of women, and persecution of perceived impiety, blasphemy or apostasy.

In the face of this risk, a remedy is often hoped in the power of pragmatism. For example, Egypt's triumphant Freedom and Justice Party, an extension of the Muslim Brotherhood, will ruin the country's tourism industry if it bans alcohol. Incumbent Islamists who will have to deliver to their people will face such challenges, the hope goes, and be forced to soften some of their rigid standards.

Besides pragmatism, however, there is another source that the more progressive Islamists such as Rachid Ghannouchi, the leader of Tunisia's Ennahda, seem willing to utilize for modernizing their future vision: simply a non-literalist approach to the sharia, which will focus on its "intents" rather than the medieval means that were used to serve those intents.

The basis for this non-literal approach goes back to Imam Shatibi, a scholar from the 14th century Muslim Spain. In his magnum opus, Higher Objectives and Intents of Islamic Law, Shatibi studied the whole shariah carefully, and concluded that all its decrees could be rendered to the protection of five fundamental values: Life, religion, property, progeny and reason.

If these intents (maqasid) of Islamic law are taken as its ever-valid content, but the means of these intents are allowed to vary according to time and milieu, as some theologians suggest, then there opens ample ground for reform. Corporal punishments, for example, can be explained as resulting from historical necessity. For instance, in 7th century Arabia, there were neither any correctional facilities nor any bureaucracy to run them. But now we live in a different world.

Or the seemingly misogynistic sayings of Prophet Muhammad, such as his advice that women should not travel alone, can be explained as reasonable precautions in his historical context: In 7th century Arabia, an unprotected woman wandering in the desert would easily fall prey to brigandage. In the modern world, however, both law enforcement and means of travel have improved immensely -- and therefore the Saudi ban on women's driving can be declared absurd.

Islamic history presents examples showing how this non-literalist understanding of the sharia allowed imported adaptations. One exemplary period that I focus on in my book is the late Ottoman Empire, the very seat of the last Islamic caliphate, that rendered most corporal punishments in shariah obsolete, replacing them with fines and prison terms. In the 19th century, Ottoman Islamic scholars explicitly acknowledged "laws should change as times change." They blessed important liberal reforms -- Jews and Christians acquired equal citizenship, laws that banned apostasy were abandoned, and an elected parliament was opened. In the works of Islamic liberals such as Namik Kemal (1840 -1888), whose ideas led the ground for the Ottoman Constitution of 1876, the shariah had turned into a doctrine of God-given "inalienable rights of men" -- a basis for liberty, not a threat to it.

However, the post-Ottoman Middle East was drawn into a political and cultural crisis, and Islamist movements emerged with a reactionary zeal. Ultra-literalist Salafis grew into a potent force, and instead of reforming the medieval sharia to adapt to the modern world, they forced the modern world to adapt to the medieval shariah.

These fundamentalists did not realize that their blind literalism could lead them to follow the letter of the law, but betray its intents. For example, the Qur'anic requirement to bring four witnesses to prove an accusation of adultery, whose explicit purpose is to protect women from libel, could turn into a protection for rapists in Pakistan. Or the obsession to separate the sexes could produce ridiculous fatwas in Egypt, such as that a man and woman can work in the same office space only if the woman, in order to establish a maternal relation, breast-feeds the man.

The Western civilization is familiar with a version of this problem from its own canon: The frequent criticism that Jesus brings in the New Testament to the Pharisees, a conservative and literalist Jewish sect of that time, is very relevant. The Pharisees, Jesus noted, were obsessing about the minute details of religious law but leaving undone "the weightier matters of law" such as "justice, and mercy, and faith." "The Sabbath was made for man," Jesus also proclaimed, turning the Pharisee mindset upside down, "and not man for the Sabbath."

The future of freedom in the Islamic civilization partly lies in a similar insight -- that the shariah was made for man, and not man for the shariah. Luckily, the sources that will help nurture that insight are more abundant in Islamic theology and jurisprudence than what is often thought.

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