Islam without Extremes: A Muslim Case for Liberty (9 page)

What is needed, then, is a rule of law whose purpose is to protect not the ruler or a privileged class but the rights of each individual. This was, notably, what law meant in Islamdom. And the key concept was what has recently become a dirty word: the Shariah. Strictly speaking,
Shariah
translates to “the way” or “the path,” but the historic meaning it acquired is “Islamic law,” as developed by Muslim scholars in reference to the Qur’an and the tradition of the Prophet.

This definition of the Shariah is common knowledge, but the key point that it underlines often goes without notice: the fact that the Shariah was developed (or, more precisely, “discovered”) by scholars means that it was not dictated by the state. If it had been dictated by the state, it probably would be like Roman law, which began by noting, “The prince is not bound by law.”
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But in Islamdom, all rulers were deeply bound by the law, for the law existed before, and stood above, their reign. That is why immunity from prosecution—which is enjoyed to this day by monarchs, heads of state, members of legislatures, and diplomats in other legal systems—is totally absent in the Shariah. Under the latter, no one is immune, and everyone is equal.
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As a result, right from the genesis of Islam, the Shariah acted as a constraint on arbitrary rule and became the guardian of justice. After the initial thirty years under the Rightly Guided Caliphs, the political leadership of the
umma
passed to dynasties, whose members often ruled not with the highest morals but with what St. Augustine called
libido dominandi,
lust for power. It was the Shariah, and the scholars who upheld it, that would stand against their tyranny and defend the rights of the people. (For that reason, most Muslim societies have a deep-seated respect for the Shariah—a respect that often puzzles Westerners.) Some liberal theorists have seen a parallelism between this function of Islamic law and the “natural law” tradition of Europe, on which the liberal political tradition rested.
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In reality, the theory did not always work. There were occasions when scholars gave in to the demands of temporal authorities and lent them support for their ambitions.
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But there were other times when they acted as a firm check on despotism. When Ala-ud-din Khilji, a fourteenth-century Muslim ruler in India, wanted to overtax his wealthy Hindu subjects, he was dissuaded by his top scholar because doing so would violate the property rights recognized by Islam. “Whenever I want to consolidate my rule,” Khilji complained, “someone tells me that this is against the Shariah.”
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Similarly, in the Ottoman Empire, between the fourteenth and the early twentieth centuries, the Shariah served “not [as] a tool of the upper class,” in the words of Israeli historian Haim Gerber, but as “a means for people of the lower classes to defend themselves against possible encroachments by the elite.”
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Gerber, who studied seventeenth- and eighteenth-century Ottoman court decisions, points to examples of Ottoman
muftis
(official jurists) who, despite being paid by the government, “did not hesitate to speak out against the government when [they] came face to face with an injustice.”
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An interesting case was a reply given by an Ottoman mufti of the seventeenth century to a local governor in Palestine who wanted to force immigrants in the town of Lydd (today’s Lod) to return to their villages. The mufti’s
fatwa
(religious opinion) read:

It is not permissible to force them to emigrate from a town they have taken to be their home, and to which they have become accustomed . . . for the believer is the lord of his soul; he may live in whichever country he sees fit and in whichever town he chooses. In no nation or religious community is it permissible to harass them and force them to go out.
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According to Gerber, the Shariah principle here was unmistakably individualist: “The rights of the state are depicted as opposed to the rights of the individual, and the latter are found to be superior.”
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That’s why, throughout the Ottoman centuries, when the sultan or local governors dared to violate the rights of their subjects, crowds would start protests by chanting, “We want Shariah!” They were simply asking for justice.

S
TONES,
L
ASHES, AND
S
WORDS

Most contemporary Westerners who hear anything positive about the Shariah immediately tend to ask, “But isn’t the Shariah a very brutal legal system that orders lashings, the severing of hands, or even the stoning of criminals?” They would be right to raise that objection, because most contemporary Muslims who claim to implement the Shariah cling to its medieval forms, which include corporal punishments that are indeed brutal by modern standards.

But in the Middle Ages, the standards were much different and Islamic law was in fact offering “the most liberal and humane legal principles available anywhere in the world,” according to Noah Feldman, a professor at Harvard Law School.
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Feldman also notes that the harsh corporal punishments of the Shariah required very high standards of proof and were designed for a specific context:

Before the modern era, no society had what we would today call a fully developed police department, and the classical Islamic constitutional order typically had just a handful of officers responsible for enforcement of ordinary laws. Extreme and visible punishments serve as salient reminders to the public to follow the law. More important, if the odds of being caught and punished for wrongdoing are low, as they typically will be in a society without a police force, then the punishment must be set high to produce something approximating the right amount of deterrence. The corporal punishments of the shari’a were clearly designed originally for such a world of very limited enforcement—much like the English common law that punished every felony with death.
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“From a pre-modern view,” concurs historian Marshall Hodgson, the Shariah was actually “mild.” In an age when torture was the standard procedure for dealing with suspects, Islamic law even “seemed dangerously soft on criminals.”
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It is also important to note that enacting corporal punishment in lieu of prison terms was the only viable solution in the milieu into which Islam was born. In the Arabian Desert, imprisonment was a highly impractical, almost impossible, procedure: “It could be more burdensome to those who applied it than to those subjected to it.”
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Today, the problem is that most contemporary proponents of the Shariah overlook these historical circumstances and insist on a literal implementation that does not pay attention to its purposes. Imam al-Shatibi in the fourteenth century had sorted out the purposes, or “higher objectives,” of the Shariah, listing them simply as the protection of five fundamental values: life, religion, property, progeny, and the intellect.
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Modern theologians such as the late Fazlur Rahman, the Pakistani-born scholar of Islamic law, have long been arguing that Muslims today need to reform the Shariah by taking these “higher objectives” as the unchanging norm, not the actual practices through which these objectives were realized a millennium ago.
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Other problems in the Shariah, such as misogyny, come from the fact that Islamic law incorporated a great many medieval attitudes, customs, and traditions during its formative centuries. Stoning, which has no basis in the Qur’an, probably came from Judaism.
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In the upcoming chapters, we will see how this post-Qur’anic hardening of Islamic law occurred.

T
HE
R
ULES OF
E
NGAGEMENT

Another common concern nowadays in the West about Islam, and especially about Shariah-minded Muslims, is terrorism. Yet, in the Middle Ages, the Shariah was in fact a bulwark against what we would now call “terrorism”: the intentional targeting of enemy noncombatants. Islamic scholars had worked out a detailed theory of “just war,” which took great pains to honor and protect civilian lives. Bernard Lewis, the eminent historian of the Middle East, notes the following:

Fighters in a jihad are enjoined not to kill women, children, and the aged unless they attack first, not to torture or mutilate prisoners, to give fair warning of the resumption of hostilities after a truce, and to honor agreements. The medieval jurists and theologians discuss at some length the rules of warfare, including questions such as which weapons are permitted and which are not. There is even some discussion in medieval texts of the lawfulness of missile and chemical warfare, the one relating to mangonels [missile throwers] and catapults, the other to poison-tipped arrows and the poisoning of enemy water supplies. . . . Some jurists permit, some restrict, some disapprove of the use of these weapons. The stated reason for concern is the indiscriminate casualties that they inflict.
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“At no point do the basic texts of Islam enjoin terrorism and murder,” Lewis adds. “At no point . . . do they even consider the random slaughter of uninvolved bystanders.”
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Islamic scholars had unambiguously opposed the intentional killing of noncombatants, because the Qur’an ordered: “Fight in the Way of God against those who fight you, but do not go beyond the limits.”
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And the Prophet was on record for having ordered his troops: “Do not kill the very old, the infant, the child, or the woman.”
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Thence came the Islamic rules of war, something today’s Islamist terrorists are working hard to ignore or bypass.
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The medieval Islamic concern for moral warfare is most apparent when contrasted with the wanton killing practiced by some of the Muslims’ enemies, such as the Mongol invaders and the Crusaders. When the Crusaders sacked Jerusalem in 1099, they slaughtered the local population indiscriminately. “They killed all the Saracens and the Turks they found,” wrote a contemporary historian. “They killed everyone whether male or female.”
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Similar atrocities continued under later Crusaders, such as Richard the Lionheart, who ordered that some 2,700 Muslims, including women and children, be put to the sword one by one at the Castle of Acre.

In return, Muslim forces led by Saladin (in Arabic,
Salahaddin
, “the Righteousness of Religion”) not only spared noncombatants but also released many prisoners of war. When Saladin reconquered Jerusalem in 1187, the city was unharmed, and only the “Franks,” the Christians from Europe, were expelled, whereas Eastern Christians were allowed to stay. A modest ransom was assessed, but those who could not afford it were excused. Saladin even paid for the ransom of some of the Franks, as his personal almsgiving. The Christians were so positively impressed by this humaneness that legends flourished in Europe that Saladin had been baptized a Christian and had been dubbed a Christian knight.
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He was, in fact, simply a Muslim ruler who abided by the Shariah.

T
HE
I
SLAMIC
F
REE
M
ARKET
—
AND
I
TS
I
NVENTIONS

Another blessing of the Shariah was the protection of property rights. Should a ruler be tempted to usurp property, he was blocked by “the shari’a’s acknowledgment of the sanctity of private property and its corresponding prohibition of theft.”
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To further consolidate the protection of law, the scholars had developed a version of the legal doctrine of trusts. This allowed the transmission of wealth across generations through the creation of the charitable foundation, the
waqf,
which was legally immune from governmental interference.
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The result was “a vigorous and robust civil society,” including charities, hospitals, and schools—all supported by the private foundations that were under the Shariah’s protection.
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