Noah Feldman prefaces his plea for the Shariah in his recent article for The New York Times Magazine (“Why Shariah?“) with a reference to the proposal recently made by the Archbishop of Canterbury to allow the Shariah and Jewish law to be considered in voluntary family and arbitration courts. The Archbishop and the Professor are addressing very different issues, however. The situation of a Muslim religious minority having the option of voluntary recourse to arbitration or court settlement in Europe, as proposed by the former, cannot be responsibly compared with that of a Muslim majority using the coercive power of the state to stone women accused of adultery in Nigeria, or to perpetuate patriarchal domination in Pakistan by keeping even those women who are eventually acquitted by superior courts in shackles and behind bars for many years.
In this article, presumably as a forerunner of his new book, Feldman extends the paternalism of the failed American empire in What We Owe Iraq to the entire Muslim world by telling the Muslims how good they really are; surely they would not realize this without the American law professor telling them. In telling them, he displays one of the worst examples of Orientalism.
We are given a précis of Islamic law and what Feldman calls its ‘constitutional theory’ without any sense of historical variation—the kind that can pass as an answer to a quiz in Islamic Civ. 101—to prove there was the rule of law in Islamic history. Feldman projects his construction into the mind of the contemporary Islamists as the meaning of Shariah, and then asks: Could they be right?!
Do the Muslims who demand “the execution of the Shariah” really mean the rule of law? Of course different Muslims mean different things, and many don’t know exactly what they mean but recognize the sentiment behind it. But Feldman does not offer any evidence that what he thinks Muslims ought to think on the basis of his précis is what they really think. The legal evidence we have from the countries in which it has been tried suggests that the demands for the implementation of the Shariah primarily means that of its penal code (hudud) with severe punishments for adultery, theft and blasphemy which gravely disadvantage the women, the poor and the religiously deviant, and has no constitutional component. The sociological evidence suggests that the ideological demand for the Shariah as the basis of the constitution and source of all laws appeals to the puritanical moralism strengthened by the resurgence of Islam that sees divinely-ordained severe punishment as the most effective way of stopping the moral corruption and libertinism coming from the West. The legal aspect is much better documented than the sociological one, and there is ample evidence where the Islamists have succeeded in establishing the Shariah as the source of law as in Pakistan, the Sudan, Iran and Nigeria. Can a professor of law be excused for not having read about any of this in the press or reports from human rights organizations on the subject of his specialization?
All this does not mean that Muslims do not call for the rule of law. They have done so for at least a hundred and fifty years; but they have said exactly what they meant. If Professor Feldman had studied modern constitutional history of the Middle East, he would have known that the mottos were ‘the rule of law (qānun),’ ‘limited government (mashrutiyya[t])’ and ‘government limited by law (qānun)’. The key term in the nineteenth and early twentieth century was Qanun, public law or state law (the same Greek word ‘Canon’, is used for church law in the West), and not Shariah or divine law. Feldman misses all of this and instead presents the Ottoman constitution as the imitation of the West and the root of the present evil of authoritarianism in the Middle East. This is a pity, especially as he did not even have to go that far back in history. If he had read the newspapers about Iran’s reformist President Khatami (1997-2005), himself a Muslim cleric, he would have known that the correct term for the rule of law is still the same.
The two Muslim organizations with over 30 million members each in Indonesia do not think “Shariah means the rule of law.” They mean what you and I mean, and amended the Indonesian Constitution between 1999 and 2002 to uphold the separation of religion and the state. Nor do the leaders of the Justice and Development Party, currently in power in Turkey, mean what Professor Feldman paternalistically tells them they really mean. Last but not least, a current trend in the constitutionalist writings and proposals of the Muslim Brotherhood in Egypt has returned to the pre-ideological constitutionalist advocacy of the rule of law as that of Qanun, with the Shariah as a limitation and a source of reference to state law. In short, there are many Muslims who know what they are doing without being told what they really mean.
Nor does it mean that a powerful argument for making the Shariah a limitation on government and a source of law cannot and has not been made. As a matter of historical fact, it was—and long before the coming of Islamism and Islamic political ideologies. The argument carried the day and the Shariah was drawn upon in the writing of the civil codes of Iran (1928 and 1935) and of Egypt (1948), which served as the model for most other Arab countries of the Middle East. The photos of the orderly Egyptian family court rooms that are incongruously produced to support Feldman’s argument in fact represent institutional results of the previous wave of the movement for the rule of law which did not use the Shariah as a motto. The Islamist urge to reinvent the wheel must therefore have other reasons than the yearning for the rule of law.