Traveling Sharia was a metaphor that emerged during
the first seminar of the Humanities Section of the Max-Planck Society (MPS) on Islam-Forschung (Research on Islam) hosted by the Max-Planck Institute for Social Anthropology in Halle/Saale, Germany.
A subsequent event, coordinated by Dr Silvia Tellenbach, the Head of Islamic Law Section at the MPI-Freiburg, was hosted by the MPI in Freiburg in the framework of the
30th German Oriental Studies Congress, coordinated by University of Freiburg
on the occasion of its 550th anniversary. The aim of these two exploratory
seminars has been to inquire into the possibilities and perspectives on
Islam-Forschung (Islam Research) within different Institutes of the MPS working
in the humanities. Prof. Günther Schlee, the Director of the MPI in Halle and a leading
German anthropologist who has conducted several research projects in African-Islamic
countries, continuously tries to develop this developing interdisciplinary
topic across related Institutes. From a post revolutionary Iranian-Islam perspective, I find his anthropological research on the question of how enemies are made, a throughly insightful scholarly piece. How the nascent work in Islam Research within
the MPS will find its way in the German tradition of Oriental Studies is as yet
an open question. However, it is clear that this kind of research which engages
different institutes with different research priorities and topics requires
much more deliberation, in particular about methodological questions.
Jürgen Habermas’s thoughts on the role of religious discourses in the
postsecular societies of the West are closely related to this issue. Just one
month after 11 September, while accepting the Peace Price of the German
Publishers and Booksellers Association on 14 October 2001, Habermas, under the title of Knowledge and Faith, focused
particularly on this issue. The idea of post-secular societies and their
exigencies for today’s western societies is new and needs to be further
articulated. Once again, in the April issue of the German journal Blätter für deutsche und internationale Politik,
Habermas has published an article titled "Die Dialektik der Säkularisierung" (Download Full text of Habermas Article here)
In this article he wades into the current debate on Sharia
in the West by focusing on the aftermath of the recent speech delivered by
Dr Rowan Williams, the Archbishop of Canterbury,
who said that acceptance or recognition of some aspects of Sharia law in
western legal systems is inevitable. Habermas supports the idea in his article.
In the "Dialectics of Secularisation," he argues that Europe must adopt an inclusive, critical discussion on
the role that religion plays in public life through a dialogue in which all
parties cooperate as equals for the purpose of achieving understanding. He
sharply criticizes the argument of secularists who are keen to exclude
religious discourses from liberal-civil discourse, saying that religious faith
has the right to inform public life about its worldviews and conceptions.
However, he also chided multiculturalists who would permit exclusion and
discrimination in the name of religious dogma. Habermas accepts the contention
of secularists who insist on the “absolute essentialness of equal inclusion of
all citizens in civil society.” He adds, “religious citizens and religious
communities should not only assimilate on the surface level. They must embrace
the secular legitimisation of the community within the premises of their own
belief”.
Given the recent controversies around the Sharia debate in
Germany after the Frankfurter's Judge justifications, arguing according to
classical Sharia interpretations, for rejecting a divorce case initiated by a
German-Muslim woman, and especially the recent speech of the Archbishop of
Canterbury regarding Sharia law, I think it would perhaps be useful for western
scholars and the public alike to bring new insights from the Islamic tradition
of jurisprudence to this issue. In this context I would like to make some points
(*).
Taking a
humanistic approach to Islam, I consider the current hot debate on Sharia in
western societies as a blessing for advocates of discourses of freedom in the
Muslim world. Disregarding the controversy around the finer points of his
actual statement about Sharia in Britain, Williams’ effort to broach
the issue publicly is a major step towards creating a ‘dialogue among cultures and civilizations’. While former Iranian president Khatami nominally initiated this
ambitious-sounding project some years ago, it has become clear that making
dialogue is the business of democratic institutions and individuals, not of
organized power. What distinguishes the
Archbishop from most of his critics is that he is able to discern between
competing interpretations and practices of Sharia and can consider the concept
critically. Most of his critics,
however, seem trapped in monolithic understandings that simply equate Islamic
law with the suppression of women and the violent retributive and medieval
forms of punishment that are practiced in countries like Saudi Arabia and Iran.
This debate is not really about whether there should be
parallel legal systems in Germany, Britain or France.
It is about how, in a diverse society, different systems accommodate and engage
one another. Mutual influence is already
in practice, for example, in financial institutions and Islamic banks. There are also historical precedents, and
throughout the colonial period there was an active exchange between common and
Sharia law in India
and other colonies. The real issue, for
some of Dr William’s opponents, is rather whether the accommodation of certain
aspects of Sharia law could (re)legalize discrimination based on gender or
belief, or whether in general such an approach might compromise years of
struggle to enshrine principles of human rights in secular law.
But to have this debate, we need to understand the meanings
of Sharia itself. The word has at least
three meanings in traditional Islamic legal discourses: the principles of
religion, the laws expressed by God in the sacred texts of Islam, and the
understanding of Muslim legal scholars arrived at through a particular
methodology of reasoning. Even within
these meanings, we face competing forms of Sharia. The traditionalist
interpretation, which is overwhelmingly a power-based legal discourse and largely reflects the cultural norms
and values of patriarchal culture and despotic political systems, currently
dominates in the Islamic world. The alternative interpretation, which is
freedom-based, emphasizes the role of both law and faith in extending and
defending human rights.
With this in mind, we can revisit the Archbishop’s comments.
He in fact raises two important questions. First, how many different forms can
Sharia law take? Second, can or should there be any place for Sharia law in a
pluralist, multi-ethnic society like the UK today? Williams has very
courageously opened a new debate about the development of western liberal-secular legal systems in an
increasingly diversified and multi-cultural society. Let us assume his argument is that in order
to increase social cohesion and solidarity, we must accommodate certain aspects
or interpretations of Islamic law into the common law or German civil law so long as this does not
lead to the violation of human rights.
But which Sharia might he be referring to? The existing
traditional Sharia, with its power-based theology and its interest in
retributive justice, is no option. An alternative, freedom-based Sharia might
be – but what would it look like in practice? We have historical examples to
consider, the most obvious being the discourses of Islamic law that were
introduced, and very rapidly repressed, in the early months of the 1979 Iranian
Revolution. During this time, Abolhassan Banisadr, the first president of Iran,
developed an indigenous alternative, freedom-based conception of Sharia that is organized
around five principles. Three of these are directly relevant for our current
debate.
First, “let there be no compulsion in religion" While
inspired by the Koran (2:256), this guiding principle in modern law-making
would have formed the basis for the protection of religious freedom, and belief
in general, by removing any imposition or force on any type of belief.
Second, according to the Koran, the guiding principles of
“punishment” are in fact mitigation and forgiveness (Koran: 2.178). As such,
under Sharia law capital punishment must be abolished and all other
retributive, humiliating and violent punishments be replaced with restitutive
and humanist ones.
The third principle is called "hifzh al-aql”, which means “protection
of thought and freedom of conscience”. There is no “apostasy” here, no
punishment for those who “leave” Islam or any other faith. The concept of
apostasy was introduced into Islam by theologians functioning within a
discourse of power. In this alternative interpretation, there can be no crime
of belief.
This vision of a freedom-based Sharia failed to establish itself in Iran,
and was soon replaced by a violent power-based version after Banisadr’s
removal. But it set a precedent and
represents an unfinished project. To advance it, we need a more sophisticated
use of Ijtihad (the independent interpretation of Islamic legal sources, primarily
the Koran). We need to develop a methodological
approach to Islamic law and its relation to religious and political power, and
studies into how these relations have led to the exploitation of this law in
order to justify intolerable levels of violence.
There are now renewed possibilities for this work to flourish; Dr Williams’
comments and his critical approach to the concept of Sharia law within the western
societies offers progressive Muslim intellectuals the opportunity to openly
challenge the legal and theological foundations of traditional Sharia. Instead of attacking the Archbishop and
subjecting him to a barrage of unreflective and anti-dialogical criticism, we
therefore should commend his intellectual and religious tolerance and insight,
and his willingness to initiate a genuinely democratic dialogue of legal cultures. At last, there is a
well-positioned person in Britain
who has the intellectual might and courage to enter such ongoing dialogue with
his Muslim peers.
*My friend Dr. Mahmoud Delkhasteh, who
is an expert in the Iranian Revolution and the political sociology of
religion and currently teaches at Kingston
University (London) has
read and contributed to this post.
Comments