from From the Potomac to the Euphrates and Middle East Program

Islamic Law and Justice for All?

April 17, 2012

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My dear friend, Nervana Mahmoud, an Egyptian-born doctor in the UK, is a keen observer of events in Egypt and the Middle East.  Her post on Islamic law and constitutions in the region is extraordinarily interesting.  Enjoy….

I once asked a Salafi acquaintance what he thought of Bouazizi. He paused for a moment then said: “He committed a major sin; he deserves the punishment of hell.” Then he added, “God has made from his bad action, something good.” I later asked a Muslim Brotherhood supporter the same question and his reply was roughly the same, except that he added “probably” to his verdict, showing slightly more sympathy and understanding.

Bouazizi, the Tunisian fruit vendor, did not just inadvertently unleash a wave of revolts throughout the Arab world; he also indirectly rekindled a heated debate about the compatibility of Islamic Sharia law and democracy. The debate is ongoing in Tunisia following the Islamic Ennahada party’s decision to rule out Sharia as a basis for the country’s new constitution and in Egypt where the Muslim Brotherhood asserted that implementing Sharia law is the group’s aim and final objective.

The fundamental goals of Sharia, known in Arabic as maqasid, aim to preserve the five essential elements of Islamic society: religion, life, intellect, lineage and property. These broad categories are in tune with basic human values, and they do not contradict the principles of democracy. However, for Sharia to be a viable model for constitutional law, its interpretation has to be reformative, meaning that it must achieve moral and spiritual virtues by incorporating a balance between rights and rules.

For example, in the classical maqasid, in order to establish religion, spirituality needed to be maintained and protected by following the divine law, as mentioned in the Koran and Hadith, and by adhering to Islamic rituals. This raises the question of enforcement: what about the freedom to leave religion altogether, which many scholars consider apostasy? Would the constitution include clear legislation to protect people’s individual choice of religion? Will a maqasid-based constitution punish people who opt not to fast or who avoid paying zakat (alms-tax)? Mandatory zakat was an idea floated by some Brotherhood members, only to be denied later.

The second maqasid is aimed to preserve life. The way to protect it is through the enforcement of prescribed penalties provided by the divine law. For example, murder, adultery, false accusation, and suicide are prohibited in Islam. Again, how will an Islamic constitution deal with adultery, honor killings, and female genital mutilation? During their visit to Washington, the Muslim Brotherhood delegates were very defensive when asked about clitoridectomy.

The third maqasid is aimed at protecting the intellect, namely against anything that hinders the intellect’s ability to function properly. In this regard, alcohol or any similar substance should be prohibited. With this in mind, how far would the “Islamic” government go to impose an alcohol ban, and what would the penalty for breaking this law?

The list of questions goes on. For example, how would a Sharia–based constitution define “morality,” and how would an Islamic government impose it? Regarding the economy, how would the future Islamic government reform the banking system? How would non-Muslims fit in? Would they be forced to accept the same legislations?

There were several attempts to view maqasid in a modern perspective, starting with Muhammad al-Tahir Ibn Ashur in 1946 who expressed the need for an objective-based approach to Islamic law in light of modern realities. Other works by Gamal Attia and Jasser Auda even advocated reform and the idea that the maqasid should be viewed as a dynamic, rather than a static, process.

Sadly, in the current polarized atmosphere in Egypt, the interpretation of maqasid varies drastically, with many parties still resisting any liberal or dynamic interpretation, preferring a cut and paste version of the sixth century model. This is precisely why my Salafi and Muslim Brotherhood acquaintance viewed the Almighty as a bureaucrat who would doom Bouazizi to hell. Ironically, both applauded Sheikh Qaradawi’s fatwa that sanctioned suicide in order to kill Jews in Palestine.

Adopting maqasid as a road-map for the new Egyptian constitution is not as easy as the Muslim Brotherhood makes it out to be. What the Prophet Muhammad presented to the world in the sixth century was a clear, progressive enlightened project that was far more advanced than what Arabs had before. In order to achieve the same results in the 21st century, Islamist parties should provide a new platform that is neither ambiguous nor regressive. This platform should maintain the delicate balance between the rights of individuals and their duties within  “Islamic” society in order to prevent hypocrisy, underground decadence (such as physical relations outside the realm of marriage and consumption of alcohol), and religious bipolar behavior that currently plagues many Muslim societies.

The Muslim Brotherhood still has a long road ahead to convince the public that its renaissance project is the way to go. Sticking to general slogans of justice and morality is simply not enough. As the parliamentary majority, the Brotherhood has a duty to engage the public in a debate about the interpretation and implementation of Sharia law in society. This debate may be awkward, difficult, and daunting, but the dialogue is essential to ensure that Bouazizi and the thousands of revolutionary martyrs who dreamed about freedom, equality, and justice did not die in vain.