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MUSTAFA AKYOL > Why shariah was once great

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The word “shariah,” which simply stands for Islamic law, is quite toxic in our day and age. Western media is full of condemnations of if, whereas some states – such as the U.S. state of Oklahoma – have passed laws that “preempt” its use. 

I often find this shariah frenzy absurd and tie it to either ignorance or prejudice, but I also admit that it is not totally baseless. For some terrible human rights violations are committed in today’s world by those who claim to implement the sharia: Women can be relegated to second-class status, while “heretics” or “apostates” can be severly punished for their mere beliefs and opinions. Those who condemn these brutal implications of the shariah as “medieval” certainly have a point.

However, if we had a chance to beam ourselves back to the medieval age, shariah would look quite different. It would, arguably, rather look like a very advanced legal system, based on reason, deliberation and a genuine concern for human rights. 

Some of the support for this claim comes from a brand-new book that I have just finished reading: “Heaven on Earth: A Journey Through Shari’a Law from the Deserts of Ancient Arabia to the Streets of the Modern Muslim World.” Its writer, British lawyer Sadakat Kadri, has done a superb job of explaining how Islamic law has evolved over the centuries and which fateful turns it has taken.

Kadri’s book covers a wide range of topics, but some of the medieval contrasts he points out between Islam and Europe are among the most interesting. One of them is how guilt or innocence was “proven” a millenium ago. “The cutting edge of Norman and German jurisprudence,” for example, was “obliging any man accused of seducing someone else’s wife to prove his innocence by asking God to help him [endure] a red-iron without injury.” 

Islamic jurists, however, had never “thought miracles a sound basis for a judicial system.” Instead, Islamic courts would rely on “elaborate witness qualifications and evidential rules.” Islamic law had also elaborated the rights of the accused, as Kadri states: 

“A treatise written in Seville in the early twelfth century [by Muslim jurists] warned guards against unauthorized brutality and affirmed a right in prisoners to receive visitors and have their cases heard quickly. It also recorded what is arguably the first statement due process in European history: ‘No agent of the state may imprison an individual without the authorization of a judge and governor.’”

The shariah’s “due process” also ruled out torture, which was the standard method of interrogation in Europe until modern times. Jurists from the Hanafi school, the most liberal-leaning of the four main Sunni branches, had even proposed that “a judge who extorted confession in a capital case was himself liable to execution.”

The punishments of the shariah, too, were softer when compared to those in Europe, until as late as the 18th century. That was why the officials of the British East India Company, which colonized parts of the subcontinent in 1750s, would find Islamic law “unduly lenient” and devoid of enough provisions for capital punishment. 

Things, of course, are totally different today, as Western law is often the standard bearer of justice, liberty and civility, in strong contrast to most Muslim-majority countries. But this tragedy is not due to the religious foundations of the Islamic civilization; it is rather due to the failure of modern Muslims to understand those foundations and reinterpret them in a modern context.

June/16/2012

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