Rehabilitating the Sharia

The Iranian revolution took place in 1979, as the Soviet Union went into Afghanistan. These events accelerated the resurgence of Islamic activism, at the expense of socialism. Resistance to the Soviet occupation took place in Afghanistan, while a social upheaval accompanied the Iranian revolution. The events in Iran and elsewhere in the Muslim world were not merely a reaction against the culture of the West, but driven by a multitude of factors.(B. Sultan B. Ali Al-Muhairi, "Islamisation and Modernisation within the UAE Penal Law, ALQ, V. 11, No. 1, Brill, 1996) These encompassed disenchantment with secular blueprints for reform in post-independence Muslim states. The calls to implement the hudud in Muslim lands were a part of the quest for dignity and self-determination. The problem was that the penal code they were enacting was marred. For penal law as misunderstood by politicized jurists was derived through politicized jurisprudence. Politicized jurisprudence rests on presuppositions that defy the preeminence of revelation as a root of the sharia. It is essential to preserve the preeminence of the Book of Allah at all times as the exclusive root of religious law. The fusion of tradition with revelation resulted in confusion. It was an expression of scriptural shirk. In keeping with the perception of tradition as "revelation," it was asserted that tradition is sacred. But the fuqaha treated tradition as more than just revelation understood as wahy. They also treated as "sent down" by Allah or tanzil. That the fuqaha treated tradition not just as wahy but also as tanzil is attested to by their deriving penal laws from tradition. They were forced to treat tradition not just as wahy (inspiration) but as tanzil, (what Allah sent down) for verses 44, 45 and 47 of al-Maida make it plain that whoever who judges by (draws legislation from) what is not tanzil is a kafir, a zalim and a fasiq. But are traditions tanzil? Traditions are not the words of Allah. They are not even the words of the messenger. They are paraphrases of paraphrases of words ascribed to the prophet, recorded in defiance of the prohibition of doing so by Allah as well as the prophet. The confusion of tradition with revelation, embedded in jurisprudence on the unwarranted assumption that tradition is tanzil enabled extreme punishments to enter penal law. Enforcing legislation without a grounding in revelation, however, will unavoidably result in miscarriages of justice. The poor perception of Islam is exacerbated by penal legislation, particularly the death penalties for adultery and apostasy. The death penalty for adultery is unwarranted, as the Book of Allah prescribes lashing, based upon the testimony of four reliable witnesses. The death penalty for apostasy encroaches upon the freedom of religion and likewise remains without foundation in revelation. From the perspective of the Book of Allah, both punishments are ultra vires and thus unenforceable. Enforcing them would entail miscarriage of justice, and the perpetration of murder. This would require being dealt with accordingly. The sharia is expected to protect people from crime, not to cause the administrators justice to commit crime. Both punishments result from the breakdown of reason. For traditionists treat the use of reason in religion as treason. By depriving the umma of recourse to reason, the ulama withdrew the umma from of the ranks of the muakallafuna, rational and responsible persons. Refraining from the use of reason ensured that Muslims would misunderstand the teaching of revelation. It also ensured that the Muslim umma would fall behind the rest of the world in all empirical pursuits and technology. The backwardness resulting from anti-rationalism rendered the umma vulnerable to external assaults. The umma ended up being "protected" by non-Musli...