Shariah was made for man

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. Vladimir 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 for 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 Rached Ghannouchi, the leader of Tunisia’s Ennahda, seem willing to utilize for modernizing their future vision: simply a non-literalist approach to the shariah, 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 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 as 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: In seventh-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 seventh-century Arabia, an unprotected woman wandering in the desert would easily fall prey to brigands. 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.

These fundamentalists who disregard these nuances do not realize that their blind literalism could lead them to follow the letter of the law, but betray its intents. For example, the Quranic 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. 

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 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 tradition than what is often thought.

* For all of Mustafa Akyol’s works, including his recent book, ‘Islam without Extremes: A Muslim Case for Liberty,’ visit his blog, TheWhitePath.com. On Twitter, follow him at @AkyolinEnglish.