Advocates of conventional orthodox Muslim societies that resist the adaptation to Western lifestyle and values attribute a high priority to the implementation of legal principles as represented in the Sharia. According to them, only a true Islamic set of laws that is based upon and inspired by the sources of Muslim faith can guarantee the maintenance of Muslim societies and prevent their gradual westernization.
On the other side, it is the reform camp within the Muslim world as well advocates of reform from outside that spearhead the movement aimed at changing the conventional legal proceeding as exercised in many Muslim countries. They argue that only a modern judicial practice can bring about change, modernization and progress in all important fields of life. Therefore, the debate on the Sharia is of paramount importance to the Muslim world and outranks all debated issues in view of a safe, stable and prosperous Islamic world. It is in the centre of the cultural battlefield and therefore draws much attention in- and outside the Islamic world.
However, the debate on the Sharia issue often is superficial and marked by political intentions and religious prejudices. As a consequence, several of the key elements of such a debate are either neglected or circumvented. In other words, an honest scholarly-led debate based on facts and focused on the real needs of the Islamic world as necessary as it is – does not yet take place.
Those facts which are to serve as points of orientation are easy to enlist, as the present work has shown. They should be taken into consideration from both sides - Muslim scholars as well as representatives from outside the Islamic world. A view from within the Islamic world needs to include and acknowledge the following three points:
It is more than doubtful to talk about the Islamic world as one civilisation because it covers such a vast field of different territories, ethnicities, and cultures. They all have their own cultural background and traditions that have become part of an, at least, localised jurisprudence. Therefore, it is impossible to talk about one Sharia. One should rather allude to different approaches to the Islamic system of laws.
Furthermore, the Islamic jurisprudence is by no means based upon a strictly codified law that could be compared to modern standards. It rather is a divine law inspired by Allah and almost exclusively based on the latter interpretation of the followers of the Prophet. In short, an Islamic legal book such as the German BGB does not exist.
A third point that needs to be made is the fact that there has never been a long period of Islamic history in which an un-compromised “core”-Sharia was implemented. Legal proceeding has always been adapted to the needs and demands of the particular Muslim rulers or governments. This is not just true with the beginning European influence but had been the case earlier on already.
Therefore, one can state that the call for a return to the “Golden Age of Islam” as advocated by orthodox thinkers within the Muslim world is somewhat hypocritical because it refuses to acknowledge the true historical development of Islam and the Sharia and draws an illusion without any link to the historic truth and the demands of a modern society.
But it is not just the radical or fundamental fractions from within Muslim societies that use superficial attitudes and popular images in order to strengthen their points of view. Western civilisations commit the same error by reducing Islam and especially the Islamic criminal law to popular stereotypes without acknowledging the historic and also (at least partly) the legal validity of the set of laws as such. People from the Western hemisphere, should take the following remarks into consideration when giving an opinion on the Islamic Sharia:
The Western civilisation is the only one in world history that has managed to implement its particular sets of values and its ideas concerning public life as such on a worldwide scale. Today, this process is described as globalisation but in fact it roots in the European expansion movement that had started in the 16th century already. Consequently, Westerners too often assume that other civilisations will automatically and voluntarily throw their set of traditions and values overboard if they do not meet Western standards and expectations. This is, however, neither a realistic nor a fair prospect and therefore it is hardly surprising if Western influence meets such a fierce resistance in several countries. This is especially true in Muslim countries that have their own glamorous civilisation that once used to be far ahead of any European equivalent.
A possible solution is, as so often, a compromising attitude of all parties involved. This compromise, however, should rather be focused on the demands and needs of the Muslim world than on the claims of European and American societies to implement “stante pede” Western legal standards. As a matter of fact, a modern Islamic jurisdiction can in most cases meet the claims and considerations that resulted from Islam and its tradition without contradicting modern human and civil rights standards.
A starting point could be a general reconsideration of all sources of Islamic jurisprudence that would take would have to be based on the original sources of any Islamic legal proceeding. Starting with this idea of going ‘ad fontes’, one has to see and interpret those sources in the light of contemporary conditions and circumstances, as several Islamic scholars have already done. This effort should be made from within the Islamic world and not infused from outside in order to make it easier for the members of such a legal community to accept. Any system of laws, no matter how it is structured, is only as good as it is accepted by a majority. Besides Islamic predominance on any effort of change that needs to be made, western Islam- and legal scholars could assist if asked. But under no circumstances should western legal proceeding be taken as the one and only possible model.
Many countries already apply modern law codes and accept standards set by human rights conventions and the United Nations. Those examples show what is possible without removing the Muslim faith and values from those societies. An effort to implement modern norms and values even in view of controversial issues such as religious tolerance, women’s rights and others can be successful if it comes from within and not outside and looks promising to those that have to accept and live with it. Without over-generalising this statement one only needs to look at countries such as Turkey where the possible admission to the European Union and the already advanced integration into the western world’s community (NATO membership is but one example) has led to the acceptance of many legal standards that are acceptable by Western standards. Even if Turkey is and has always been a special case within the Muslim community, it could serve as an example. Other predominantly Muslim countries, especially in South East Asia, also show what is possible.
Contrarily to the countries just referred to one needs to look at Saudi Arabia and Iran, among others, that prove to be much more afflicted with many tensions. Those are visible in view of the relationship and attitudes towards the West but also from within their own societies. One important reason for those tensions is the effort made in those countries to live a true Muslim’s life (or rather what they believe it to be), including the adherence to major legal principles implied by the Sharia. In the long run, it is a hypocritical effort which does not pay off. A society eager to conserve or recreate a legal standard which takes the supposedly glorious past as inspiration is doomed to fail. Instead, one needs to confront the present and try to meet the challenges of the future.
This does not, however, include the negation and eradication of everything that has constituted the old system of laws. Instead, one needs to reconcile the legal traditions of the Muslim world with the demands of today’s world. This will serve everybody: At first, the Muslim world itself that needs to create more stable and prosperous societies. A modern legal constitution is of paramount importance within this effort. But also the West will benefit from it in terms of economics and foreign policy.
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