What is Sharia?
Below is the speech given by Professor Hans Jansen on July 9, 2012 at the Brussels Conference.
What is Sharia, where does it come from, and why does it matter so much?
By Professor Dr. Johannes Jansen
Brussels, ICLA, July 9, 2012
The Islamic Sharia is a system of law. It is a collection of prohibitions, admonitions and commands about human behavior. The Sharia is not an internal matter that only concerns Islam and Muslims. The Sharia includes a large number of provisions about people who are not Muslims. These rules are usually prohibitions that carry severe penalties if violated. These provisions of the Sharia make life unsafe and uncertain for someone who lives under Sharia law and who is not a Muslim.
Under Sharia law, someone who is not a Muslim possesses no inalienable rights. If I am wrong here, I will be relieved, and happy to stand corrected and receive your e-mails pointing out why I am wrong. But if I am right, a prisoner in Guantanamo Bay possesses more rights than a Jew or a Christian who lives under Sharia law.
Unlike the legal systems of most modern nation states, Sharia law is not subject to democratic supervision. Like international law and rabbinic law, Sharia law is an academic affair: experts discuss and debate the rules until they reach an agreement. Sharia law does not know a parliament or a government that acts as legislator, but the rules of the Sharia come into being by being agreed upon by the experts, that is, the Islamic religious leaders, the professional Muslims, the Ulama, Ayatollahs, or whatever these dignitaries are called.
Like me, most of you will be only superficially familiar with international law. The pretensions of international law have never been put to the test of a free and democratic vote. It was, to say the least, interesting to note how often the accusers of Geert Wilders in 2010 and 2011 appealed to what they regarded as generally accepted international law in order to silence Geert Wilders. As international law demonstrates, communities of academic specialists, in their isolation, have a tendency to develop a degree of pedantry that an elected lawgiver could never afford. Up to a point, this is exactly what has happened to the Sharia.
Religions are not democratic even if they sometimes may preach or tolerate democracy. Hence, the way in which the rules of Islamic law come into being is undemocratic. This implies that allowing the Sharia, or a part of it, to be the law of the land in a Western nation will diminish the democratic character of that nation. It means giving away legislative power to unelected self-appointed men, who are unknown and anonymous, who operate from far-away mosques in Pakistan or Afghanistan. In a democracy, this is not the ideal arrangement. One may have legitimate religious reasons to nevertheless prefer such an arrangement, but it entails something worse than taxation without representation; it entails legislation without representation.
Western policymakers do not take Sharia law too seriously because it is an academic and religious affair, a system of law that springs not from the power of a state but from the minds of religious scholars. In the Muslim world, to the contrary, the authority of the Sharia is overwhelming. The colossal prestige of the Sharia in the world of Islam is easy to explain: Islamic theology identifies Sharia law with the will of God; and Sharia specialists are the religious leaders of the Islamic community. No government in the Muslim world can afford to alienate these specialists of religious law if it wants to remain in power.
Each and every Islamic country nurtures its own equilibrium between its government and its religious specialists. This ever-changing equilibrium is the stuff of PhD-dissertations. Nevertheless, most Islamic countries possess legal systems that are influenced by, but not identical with, traditional Sharia law. To the leaders of the radical Islamic movements this non-identity of national law and Sharia law is a permanent source of anger. The smallest discrepancy between Sharia law and the law of the land is permanent fuel to the fire of their propaganda machines since such a difference supplies proof that a human lawgiver wanted to take Gods place, and attempted to improve on Gods work, which is blasphemy since God must remain the only law-giver.
Sharia law is not a practical system of law developed in courts. It is the product of the deliberations of scholars, and it does not spring from the practical concerns of judges, barristers, prosecutors or defenders. Consequently, Sharia law is poor on procedure. It is a theoretical, abstract system of law thought out in academies. This explains most of its weaknesses.
Nevertheless, Muslim theology claims that Sharia law is divine. If unfamiliar new questions arise for which the Sharia has to provide an answer, Sharia specialists, at least in theory, put forward a solution that is based upon the four principles or ‘roots’, of the Sharia. These four principles will reemerge again and again in all discussions concerning the Sharia. They are Koran, Hadith, Analogy and Agreement.
The fourth root, Agreement or Consensus, is for all practical purposes the most important criterion. Once a consensus has emerged it becomes unnecessary to consult the other sources. Theory and theology, however, attach the greatest value to the authority of the first of these four roots, to the Koran, but in practice the wording of the Koran may have to be supplemented or interpreted by the other sources, or by another passage from the Koran itself.
Here we meet with an important principle from both Sharia law and Koran interpretation. This principle, ‘abrogation’, naskh in Arabic, is often misunderstood. ‘Abrogation’ means that a verse from the Koran that was revealed early might be repealed, or ‘abrogated’, by a verse that came down at a later point in time. Sometimes even an element from one of the other three sources can abrogate the contents of a verse from the Koran. Muslim scholars analyze all possible cases in depth.
The most famous example of abrogation is of concern to anyone who is not a Muslim: the abrogation of Sura 109, a Sura from the Mecca period that preaches religious tolerance. This Sura is abrogated by later verses from Medina that command the Muslims to fight and kill the unbelievers wherever they find them.
Whatever problem Sharia scholars are confronted with, in a few generations they will work out an agreement; and then Muhammad’s directive applies that ‘God will not permit [his] people to agree on an error’, lan tagtami? ummatii ?alaa dalaal.
This important directive plays a central role in the Sharia system. Its application has a number of unforeseen consequences. Abolishing a Sharia regulation on which agreement had been reached, implies that Muhammad’s umma did go wrong. But according to Islam’s Prophet, it did not. Hence, it is out of the question to go back on regulations once they are agreed upon. Examples of cases where this creates difficulties and embarrassment are numerous: just think of the Sharia punishments for apostasy, adultery or theft.
A famous example of abrogation is the prohibition of wine. In early verses, the Koran speaks well of wine; later verses forbid wine. But how do we know which verse comes first? This we can only know from the Muslim Sharia experts. How do they know? Well, since wine is forbidden, the verse that forbids wine must be later than the verse that praises wine. Outsiders will suspect circularity, but to traditional Muslims this all enjoys the support of the Most High, and reconfirms that they would be at loss without the scholarship and learning of the experts who embody religious authority in Islam.
The friends of Islam see the alleged flexibility of Islamic law as an indication of its humane and liberal character. This, however, is a mistake. Flexible laws are not humane but dangerous, since citizens do not know for what they can be arrested and executed. Islamic law, flexible as it is reported to be, is unanimous on a large number of points. Agreement, consensus, that is what the system is build upon. No important disagreements exist on the points of law that are important to whoever is not a Muslim, whatever the friends of Islam may say. Not respecting the majesty of Muhammad, the Prophet of Islam, is generally seen as a capital crime. If the courts or the governments do not execute the offender, spontaneous informal volunteers may feel justified to take this task upon their shoulders, whatever the cost to them personally.
Modern Western scholars have called into doubt the origins of the Sharia. They believe that the Sharia is the continuation of Roman provincial law as it was in force in the Roman Empire in the Middle East on the eve of the Arab conquests. A number of 20th century scholars wrote about the relationship between Roman and Islamic law. It is easy to see that the figure of the mufti is a continuation of the scholar of jurisprudence well known from Roman law, and other examples abound.
Strong influence from Talmudic rabbinic law on the Sharia is undeniable, and no miracle, since the Talmud and the Sharia both came into being in Iraq, in roughly the same period, 7th till 9th century AD. Fatwa’s are, of course, the exact functional equivalent of the rabbinic teshuvot, and the responsa from Roman law.
Muslims believe that their religious specialists derived the rules of the Sharia from its four sources: Koran, Hadith, Analogy and Consensus. However, modern Western scholars have come to believe that the rules of the Sharia were not derived from the four ‘roots’, but that the rules and provisions were anchored in these four ‘roots’ only in retrospect. This is again the stuff of PhD-dissertations. These academic questions, however, should not detain us here, we have a more important duty: to explain why we should concentrate on the Sharia, and not on the Koran or Muhammad, when we want to defend ourselves against the onslaught of Islam.
Modern Western scholarship on the Koran and the life of Muhammad has made great progress since the turn of the century. Consequently the traditional positions concerning Muhammad and the Koran have shown themselves to be untenable.
Whether Muhammad really existed, is more uncertain than ever. Two centuries of patient scholarship have created serious doubts about the historicity of the prophet of Islam. These doubts will not go away, no matter how small and insignificant the number of academics that works in this field may be.
The general picture which the Koran and the Islamic tradition offer of the setting in which Muhammad worked, first as a prophet, then as both a prophet and a statesman, the general picture of Mecca and Medina in the beginning of the 7th century AD, is not confirmed by the results of archeological research and inscriptions as far as these are available. This, of course, may change when research progresses but it is not a good sign, especially since what has been found, at first sight appears to contradict the traditional views.
The literary tradition about Muhammad’s biography does look like an unsystematic collection of mutually contradicting sermons that nevertheless all want to convince the audience that a certain Muhammad was the Messenger of God. The literary material that has been preserved does not look like an historical record at all. This is not necessarily fatal, but it is not a good sign. Numismatics does not confirm Islam’s version of the early history of Islam. This by itself is not conclusive, but it is not a good sign. There are discrepancies between what we know about the ancient Arab calendar and the reported stories about Muhammad. This needs not be fatal, but it comes close to being so.
True Muslims, however, do not share these doubts about their beloved prophet. The guild of Muslim religious leaders, on the other hand, will go further than simply not sharing these doubts; they will be infuriated when modern Western scholars unmask the Muslim version of the early history of Islam as a narrative created by theological necessities, as sermons that are disguised as history. It goes without saying that many Muslims will be ready to put on heavy armor to defend their religion against such attacks.
There is, however, one point of entry into the Islamic armor that sounds as pious and as Islamic as these things go. It may even be effective. The Koran unequivocally states that it is written in clear Arabic language, lisaan ?arabii mubiin. ‘Well’, one is bound to ask, ‘Why, if this is true, do we need Koran commentaries that run into thousands of pages?
This question is awkward already, but we have to pose an even more embarrassing one concerning the authority of the ancient founding fathers of the Sharia: the four giants al-Shaafi?ii, Abu Haniifa, Malik and Ahmad ibn Hanbal, all close to 800 AD; all, except Malik, geographically connected to Iraq: ‘Why do we need these four Sharia scholars to inform us which acts Islam forbids and prescribes?’. ‘If the Koran is clear, why do we need these luminaries? What did they know more than the prophet Muhammad? What did they know that is not in the clear verses of the Koran?’
These questions do not necessarily make the average Muslim laymen angry. Nevertheless, they will enrage Muslim Sharia scholars. Since these men play the role the clergy plays in Christianity, they are a force to be reckoned with. They are no doubt a spiritual force, but some of their youthful supporters do not care much about the distinction between soul and body, and do not hesitate to take all necessary steps to enforce compliance with the wishes of these clergymen.
Muslim laymen, as a rule, assent to whatever the professional Muslims teach and preach. The power that this guild of Islamic Sharia experts exercises over its flock is amazing and has no equal in history. It is based on social pressure. It operates in the simplest way imaginable: carrying out the prescripts of one’s religion creates prestige amongst coreligionists. This is the case in all religious systems. Hence, in the case of Islam, Muslims will admire anyone who acts in the Islamic way. Who defines how that way runs? It is the Islamic clergy that exercises the final authority on which behavior constitutes Islamic behavior.
This would not matter to us if Islam did not boast to be able and willing to destroy the West. In order to defend the West against Islam it is this chain of granting prestige and authority that has to be attacked, and this attack had better take place at its weakest point: the basis of the authority of the clergy. This clerical authority is based on the Sharia. However, the authority of the Sharia implies that Muhammad, the prophet of Islam, was more or less a simpleton, and that the Koran is a vague and simplistic piece of pious prose that lacks the information man needs to be saved from the fires of Hell — only the clergy knows how man can be saved, and this by virtue of its knowledge of the Sharia, not by virtue of its knowledge of the Koran.
The elevated position of the Sharia in the world of Islam, we might argue, can only be understood as a belittlement of the Koran and Muhammad. Once we can make our Muslim and our dhimmi opponents see this, we may have influenced them. The question we should ask as soon as an appeal to a Sharia law book is being made is: ‘What do the Muslim scribes and scholars, all of them human, none of them a prophet, know more than Muhammad and His companions knew?’
Allow one example of how Sharia and clergy operate. In 2006/2007, a Dutch comedian got into trouble with an Islamic activist about the Theo van Gogh assassination. The comedian, on his own initiative, then consulted a local Amsterdam Imam and the board of his mosque, asking them directly whether they wanted to kill him. The Imam only looked stern, and did not say anything, acting as if he did not understand Dutch — which perhaps he did not. However, a smiling board member assured the comedian that they had no plans to kill him, because ‘for such things we have the radicals’. This perfectly illustrates the situation. The majority is silent, the Imam limits himself to looking dignified, his direct supporters bring the bad news, and the elite soldiers, true commandos, true mujahidin, do the dirty work.
Governments hesitate to resist these commandos; those under attack usually have to defend themselves. It is best to fight back indirectly, and try to influence Muslims into realizing that over the centuries an ever-widening gap has opened up between what they sincerely and sometimes naively see as Islam and the accumulated prescripts and restrictions the clergy wants to see applied. We should ask Muslim laymen again and again what the human writers of the Sharia handbooks know more than the archangel Gabriel when he revealed the Koran to Muhammad?
The Koran brings bad news to someone who does not want to submit to Islam, but as explicit as the Sharia it is not. We may, moreover, freely criticize recently annotated and revised Sharia handbooks, nothing in our laws and customs forbids us to do so. However, criticizing an ancient holy text can easily be portrayed as uncivilized. The many contemporary Sharia handbooks are, to the contrary, fair game. Their authors are only human, men like you and me. But the writers of these Sharia books certainly claim to know more than all the prophets and archangels combined.
Here the friends of Islam will cleverly try to undermine our trustworthiness. When we appeal to an ancient classic Sharia handbook, and point to its bloodthirsty and explicit contents, they will say: ‘Oh, well, this is an old book, not relevant any longer, no normal average Muslim knows of this book’. When we quote modern contemporary sources of a similar nature, they will say: ‘Well, this is a recent innovation that has no meaning for the general picture of Islam’. If we quote both old and new sources, they will say that we bore them by repeating multiple irrelevancies. A strong stomach is an absolute requisite for anyone who joins such debates.
One of our problems with Islam is the Western understanding of freedom of religion. Most Westerners do not realize this, but religions are dissimilar. Every act that can be imagined is either prohibited or made obligatory by at least one of the hundreds of religions our planet is graced with. Hence, freedom of religion, if it means that every religion can have its way, is not possible. When my professor in my first year at the University explained this, I did not believe him, and asked whether something as innocent as drinking tap water could be the subject of a religious prohibition. He answered that he did not know of an example but at the same time he assured me that if I started looking I would find one. And right he was: Hinduism has a caste that may only drink water pulled up from a well by a clay jug; they regard drinking tap water as haraam.
In Europe and America, however, the extant religions are comparatively similar, and usually somehow connected to the Bible. Hence Europeans and Americans tend to believe that there is no harm in letting a religion have its way since ‘deep down all religions are the same’. This is a misunderstanding. There is nothing that is common to all religions.
Freedom of religion, if it means that any form of religion can have its way, is a recipe for civil war. What our wise forefathers meant when they advocated freedom of religion should be reformulated. What they meant can only have been freedom of opinion and freedom of worship. Since they were unfamiliar with religions that were essentially different, and since they tired from going to war about beliefs and forms of worship, and since they were unfamiliar with the full specter of global religious variety, they formulated their convictions, however right they were, in a way that today is confusing and creates serious problems for freedom, science, justice, health and politics.
Not all is well, but many if not most Muslims are too humane to be willing to execute all commands the Sharia imposes. Let us help them by pointing out that that the Koran may well be the word of God — this, after all, is untestable, but that the Sharia is the work of men, even according to the teachings of Islam. To remain free from Sharia law, we may eventually have to fight, but then, freedom is not for free.
Prof. Dr. Hans Jansen is a Dutch scholar of Arabic and Middle Eastern studies. He was a witness for the defence in the Geert Wilders process two years ago.
For Prof. Dr. Jansen’s CV, please see www.arabistjansen.nl/.