Sharia Travels? On Sharia Debate in the West from an Iranian-Islam Perspective

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.