What is the Future of the Islamic Legislation “Shari’a”?

In Salon Ibn Rushd by CIHRS

The question about the future of the Islamic legislation, or Shari’a in the Islamic world, whether it is Arab or not, is currently a strong issue, especially after the failure of the trials to apply Islamic regimes in Sudan, Algeria and Iran in creating any economic or political progress in these countries. The regimes also abused many of their citizens’ human rights.

In an effort to identify the possible answers to this question, the Cairo Center for Human Rights studies invited the well-known Sudanese scholar Dr. Abd-Allah Al-Naieem, the professor at the faculty of law in Emory University in the US on May 13th of 2005. The invitation was for Dr. Al-Naieem to run an intellectual conversation with a group of scholars and specialist researchers about the main points of his intellectual project about the future of the Shari’a. The project takes Egypt, India, turkey and Indonesia as research fields.

At the beginning, Al-Naieem assured that his project is not only an academic study, but an intellectual project which aims at social and political change in Islamic societies. He said that the project came from his being a Muslim and a citizen concerned with the current status of our societies.

Al-Naieem also expressed his appreciation of the fact that the future allows no room for the application of the Islamic Shari’a, pointing out that a nation applying the Shari’a as official laws and policies is a conceptually unbalanced and recent idea. He added that the field of the Islamic Shari’a in the future is the social range and not in a country’s political and legislative bodies. He also assured his belief that nations have always been secular in Islamic history. It is therefore not true that secularism came from the west, but that it is rather a fundamental concept in our society and historical experience. The only condition is that secularism be understood as every society’s experience in balancing the relationship between religion, country and society, and that there is no one rule for this relationship that applies to all societies.

It is also important to understand that any trial to transfer the secularization experience from one society to another is destined to fail.

From another side, Al-Naieem added that the concept of an “Islamic nation” is in itself a contradiction, since there can be no Islamic nation. This is because a nation is a political establishment that is not based on belief, and should not have one, but the belief should be in those who rule the nation. If we talk about the beliefs of those ruling the country then we talk about politics and not about Islam being the belief of the nation itself.

Al-Naieem then moved to talking about the Islamic Shari’a, assuring that the Shari’a cannot be codified since the process of codification itself drops the Shari’a concept from the proposed project, since by codifying the Shari’a, the code becomes the nation’s belief and not the Shari’a itself since the Shari’a is varying and changing in its understanding. Therefore the codification causes the choosing of one point of view. What is then applied is the nation’s political will and not the Shari’a.

Al-Naieem continued by saying that the Islamic Shari’a is cumulative through the generations, and that no religious doctrine can be considered correct unless many consecutive generations of Muslims agree on its validity, therefore there is no one entity that give doctrines their validity. The legislative process from an Islamic perspective therefore depends on unanimity and accumulation through generations. The greatest proof of this is that Islamic history has witnessed doctrines that became extinct and others that grew and spread because they gained the approval and unanimity of Muslims throughout the generations. The idea of a legislative establishment that can codify the Islamic Shari’a immediately is an idea which is foreign from the Shari’a itself. Therefore the possibility of applying the Islamic Shari’a is conceptually impossible, and any allegation that what is applied is the Islamic Shari’a is a false and devised allegation. This is because the idea of a nationalist country in the area is a new idea and is foreign to the Arab area and culture; it is European and is a country with all authority resting in its hands and that controls people’s lives in a way that was never witnessed in Islamic history since the pre-colonization nation was an empirical nation far from the reality of local communities. A local community’s ability to monopolize its own understanding of the Shari’a was the basis for operations and so on. That is why Al-Naieem assures that the centralization of government and the possibility of legislation through codification and execution through official national bodies is a new idea from the time of colonization and is foreign to Islamic societies.

Al-Naieem also assures the necessity of institutionally separating between religion and state, and that the country should not apply the Islamic Shari’a or claim to apply it since that is impossible. The country should not also be given the sanctity of claiming that it applies the Islamic Shari’a in order to prevent the political opposition from fulfilling its role. Even though all regimes are political and nothing more, it is vital to assure that the effect of the Islamic Shari’a and religion will continue in a central and essential way in the life of Islamic societies. Religion and politics can’t therefore be separated. They have to be firmly separated, however since any mixing between them creates adversity, and the Sudanese people have paid a large price for this adversity.

In his contribution, Dr. Yosry Mustafa, the social studies researcher, assured his anxiety concerning the dependence of Al-Naieem’s theory on cultural rather than social analysis. He also pointed out the importance of specifying the meanings of some concepts such as the meaning of “country” and “politics”, especially that separating between religion and state and, at the same time, assuring the connection between religion and state makes us wonder whether what is meant by country is the government or national establishments or the institutional structure, also whether politics means the political party structures or political activity in general. Dr. Mustafa also wondered about the space the Shari’a should represent in society according to Al-Naieem’s theory, whether through the family, or to include schools as educational facilities, therefore moving the Shari’a from society to one of the nation’s educational establishments.

From his side, Dr. Abd-El-Mo’ty Bayoumy, the former chief of the faculty of religious origins and the member of the Islamic Research Council, pointed out the importance of separating between religious education and the Shari’a, assuring that everything Dr. Al-Naieem talked about concerned Shari’a, but meant religious education. Dr. Bayoumy also refused what Dr. Al-Naieem said concerning the fact that there is no future for the Islamic Shari’a on a national level whether on a political or law-making level. He justified his opinion by saying that the Shari’a is completely ready to accept any changes in any time and place. Bayoumy also rejected the saying that the country has been secular throughout Islamic history, assuring that the age of a nation in Islam does not exceed a hundred and thirty years, assuring that what is fundamental in Islam is the freedom of legislation and not secularism. Islam, according to Bayoumy, gives man a freedom to legislate according to political and social changes so that an Islamic nation would appear civil, and yet it is committed to fundamental public rules and revealed humane principals, since they are humane and divine at the same time. Bayoumy also criticized the saying that there must be a firm separation between religion and state, assuring that there will be no rising of the Islamic world unless by applying the Shari’a.

Dr. Bayoumy considered that limiting the Shari’a to society forms a contradiction in Al-Naieem’s project, even though Bayoumy admitted that “any trial to apply the Islamic Shari’a until now has been a failure”.

From his side, Dr. Mahmoud Ismail, the specialist researcher in the sociology of Islamic thought, assured that the basis of conflict is in the necessity of separating between Islam as a doctrine and Islam as legislation. He said that Islam as a doctrine doesn’t raise any conflict in our public or private life and no field for change in it anyways. The conflict, therefore, is in the concept of the Shari’a. He pointed out that he agrees with Dr. Al-Naieem concerning politics and what reality proved whether in Sudan or anywhere where rigorous Islamic movements have practiced political activities that misrepresented Islam. Dr. Ismail also agreed with Al-Naieem’s theory concerning the condemnation on the negative role of the Al-Sultan religious scholars in all ages who misused, and still misuse
Islam, and also hinder any trials for renewal in the Islamic field. He added that there is nothing in the Qur’an or Sunnah regarding the presence of a particular Islamic political regime, and all that exists is simply the concept of consultation.

From another side, Dr. Ismail considered that Al-Naieem’s theory called for neglecting the Shari’a and continuing from where the west stopped. This caused him to review the possibilities of the Shari’a as appeared in the Islamic experiences through the ages (Ibn-Roshd, Ibn-Hazm, El-Safa Brothers, and Iran), and on that basis rejected Al-Naieem’s theory asking for deeper insight into Islamic history and heritage in which our goal can be found.

In his talk, Dr. Haydar Ibrahim, the professor of sociology and the manager of the Sudanese Research Center, raised the question of the relationship between the Holy Scripture and the actual Muslim practices throughout their history. He pointed out that the criticisms directed at the to the practices of Islamic attempts at government are often answered by saying that these attempts were not applying the true or correct Islamic Shari’a, which makes it necessary to try and find answers to the questions of why the “true Shari’a” was not applied and the question about what society applies of the Shari’a and how it applies it. He pointed out to the importance of seeking out answers to these questions in the search for the future of the Islamic Shari’a, especially after the failure of the Islamic project in Algeria, Pakistan and Sudan, as well as Iran by its return to a scholar state and preventing reformists from participating in elections.

Dr. Haydar Ibrahim clarified that there is a difference between the terms “secularism” and “secularization”, pointing out that while secularism is a western concept which raises suspicion in Muslim communities, what he sees fit for Islam is the concept of secularization, on the basis that the closer religion is to people’s everyday life practices, the more secularized the religion is. He added that the phrase “Islam is religion and state”, in spite of being one of the phrases that most criticize secularization, but it is in itself a paradox since it a “secularizationist” phrase since it means the relationship between religion and people’s everyday life. He pointed out to the antimony in the phrase “Islam is religion and state” since the boundary between them means that there is a difference between it being a religion and it being a state, while if they had settled for it being a religion it would have included it being a state due to its connection to people’s everyday life.

Dr. Haydar Ibrahim also pointed out another paradox in the reality of Islamic communities. He noticed the more religious the regime, the less was the community, being far from religion, like in Sudan. And the more liberal the regime, the more religious the people, like in Egypt. This made him sure that the reality of this the situation according to this paradox separates religion from state.

In comment on some of what was said, Abd-Allah Al-Naieem assured that what Dr. Haydar Ibrahim said about that the reality of the situation is the separation of religion from state in light of the experiences of Egypt and Sudan (a religious community and a non-religious regime). Al-Naieem also pointed out that this is the way it has been throughout history and that what we have suffered from religious regimes relates to that the reality of the separation between religion and state has not been thoroughly studies intellectually.

Al-Naieem considered the discernment between Shari’a and teaching “Fekh”, because they are in all circumstances – whether they are discerned or not – the result of the human understanding of religious texts. He also said that the terms Shari’a and Fekh are results of the human thinking, pointing out that the prophet did not leave any direct document that this was Shari’a and that was Fekh. The term Shari’a is also in itself a modern term which did not appear in books of Islamic teaching for three centuries.

He asked that the audience discuss what he talked about from the viewpoint of the importance of realizing that we are in a serious crisis that is that Islam is absent and there is no proof more than the millions of Muslims surrounding the occupied Iraq. He assured that the occupation is in our minds because we still live in the mix-up of those alleging to have done what generations of Muslims along fifteen centuries from the time of the prophet “peace be upon him” were not able to do, which is to have an Islamic nation, which some claim to have achieved now.

Al-Naieem also pointed out that the human understanding is at the center of the religious experience, and that Allah did not legislate for Himself but for mankind. He said that the Shari’a is perfect because it is Allah’s legislation for mankind. He also said that it cannot be understood or practiced except through people and is worthless except in people’s lives.

In a second round of debate, the researcher Ahmed Rasem Al-Nafis pointed out that the failure of the Othmanian Caliphate was a quake that awakened the Islamic world to find that it was not fulfilling the Islamic Shari’a, wondering when the Shari’a was actually applied, and whether we are now a non-Islamic state. Al-Nafis assured that we are Islamic countries but are non-democratic countries since the Islamic world established the Islamic thought by prohibiting political opposition by considering it a deviation from the pack. He also pointed out, concerning the call to separate religion from state, that it was impossible that any Islamic country would accept the idea of giving up its power over the religious establishment and its use of it as a tool not less important that an intelligence agency.

Dr. Ahmed Salem, the philosophy teacher at the faculty of Arts in Tanta, however, saw that Al-Naieem’s theory is a superior project that would not change anything in the reality of our society. He based this on saying that the Arab Islamic mentality is a normative society that measures everything as being admissible or forbidden, and that the role of religious persons far outweighs that of academics and scholars. Also, the project would not change anything in the reality of our Arab communities unless by changing the normative mentality, which is impossible.

From another side, he pointed out that what the Shari’a can run of national affairs is but a small part of the laws needed by the nation as an establishment. The rest of a countries’ legal needs, however, have to be fulfilled by conditional laws that the country has to lay down.

Dr. Yasser Konsowa, the philosophy teacher at the faculty of Arts in Tanta, pointed to the Malaysian experience, which is summed up in Mahatir Mohamed’s phrase “When I pray I turn my face to the Kaaba, and when I am dealing economically, I turn my face to the New York stock market”, is one of the projects nominated to be applied in Islamic communities. He pointed out that the question of harmony between the Shari’a and secularism is an old question being renewed, but what is interesting is that it is always raised by an outward motive and not stemming from an internal trail at self-improvement.

Magdy Al-Naieem, the executive manager of the Cairo Center for Human Rights Studies, pointed out that the call to apply the Shari’a is a very costly project theoretically, proving this by pointing out the great numbers of victims of the trials in Afghanistan, Iran, Sudan and Algeria. This is what raises the question of the reasons that cause the ruling elite to adopt the call to apply the Shari’a when their regimes go through crises that threaten their projects and competence to rule like what happened in “Al-Nemairy’s Sudan and Sadat’s Egypt”. He wondered whether the Shari’a can bring to any secular intellectual project, and about the possibility of Abd-Allah Al-Naieem’s project winning over other Islamic intellectual projects in reality.

Professor Dr. Hoda Al-Sadda, the sociology teacher, agreed with Abd-Allah Al-Naieem’s theory but raised a question about what can be based on saying that the Shari’a has a future in society but no future in state establishments, nonetheless concerning the law of personal affairs. She said that what comes to mind is the state in Iraq if the personal affairs laws were and everything was left to doctrines.

From her side, Dr. Mona Tolba, the professor in the faculty of Arts in Ain Shams University wondered that if Islamists admit the failure of the Islamic regimes that have reached power so far, then why the extreme adherence to political projects if their failure has been proved.

From anther side she clarified that there is a fallacy in considering that the Shari’a is the Islamic Egyptian culture, pointing out that what defines the Arab Islamic identity is the literature and art and architecture and that the Shari’a is the weakest link in that identity.

In his answer, Dr. Abd-Allah Al-Naieem clarified that saying that his project is superior does not diminish its importance, but that its necessity lies in it being a project that aims at changing people’s understanding which is the shortest way no matter how long it takes or how hard it is.

From another side Al-Naieem assured that what he proposed means that any law can be legislated but not by being considered legitimate but for objective reasons since it would express the country’s political will, which would stop it from being considered Shari’a. An example of this is that Egypt’s political will chose from the Shari’a what serves its political course. It legalized the female divorce law within the laws of personal affairs which made it a law of objective conditions not according to the Shari’a since the process itself conceptually contradicts the Shari’a.

From his side, Dr. Anwar Mogheeth, the professor of philosophy, directed attention to Al-Naieem’s warning of applying the Shari’a comes from his interpretation of Muslim’s trials to rule in many countries. He also discredited the truth of the fact that the normal person leans towards the Shari’a, assuring that a normal man, when asked, would not ask for anything other than modern elections and limiting the rule of presidents to one or two periods and fulfilling the needs of the poor, which is not related to Islam but does not contradict it, since Islam accepts democracy, even if it is a western concept, so why would it not disapprove with secularism saying that it is a western concept. Mogheeth also added that connecting between religion and state has no justification except justifying the authority over the people in Islamic countries. From another side, Mogheeth added that Al-Naieem’s secularism is incomplete since it presents reform from religious scripture and from a liberal Islamic understanding, although reform can be presented completely independent of the religious framework so it is a complete secularism.

Dr. Esmat Nassar, the head of the philiosphy department in the faculty of Arts in Bani-Suef, pointed out that, in his opinion, the Turkish trial proves that abandoning Islam did not make the western civilization accept it or the European secularism embrace it.

Hany Nissera, the researcher of Islamic philosophy, wondered if Dr. Al-Naieem’s theory saying that there is no future for the Islamic Shari’a in state contradicts the situation in the area, where there are American and Israeli violations of the simplest Arab human rights and the occupation of Iraq, which gives a lot of support to legalizing the presence of local movements and their standing up against the lines of occupation resistance at the time, and he points to the possibility of them wining the bet of the future.

Dr. Heba Raouf, the assistant teacher at the faculty of Economics and Political Sciences, pointed out that, in spite of the difference between what she sees and what Dr. Al-Naieem proposes, some thoughts are sometimes common. She pointed out that, presently, she has a thought that sees the state currently as an authoritarian, military establishment that cannot apply the Islamic Shari’a and that the problem is in the concept of the “state” and not it the concept of “Islamic”. From another point, she pointed out that the conflict in dealing with the new international system does not lie in politics or in Islamic movements but in the economic factor, which is represented in the strength of the Islamic trade market which does not want to adapt to the open market in the shadow of the new international system.

Dr. Hassan Tolb, the professor of philosophy at Helwan University, refused the allegation that states that Christianity had no legislation, which gave it the revival in renaissance times. He assured that it had a Shari’a that justified the “search courts” with which Europe struggled in the Middle Ages, but the revival didn’t come in the Christian world except because it started to criticize the doctrine and reflect on it, which allowed it then to criticize the legislation. He pointed out that there are tries in the Arab Islamic world to criticize and reflect on the doctrine to make it possible to criticize the Shari’a, these trials were done by Abi-Alaa’ El-Me’ary and Saleh-Ben-Abd-El-Kodoos, but the second occupation prevented the continuation of these trials.

The writer of these lines offered his view pointing out that the Sudanese experience is presenting to us in Cairo now two intellectual directions. The first was Dr. Abd-Allah Aly Ibrahim who announced his change from the communist Sudanese party to unifying with Al-Turaby’s thought in his book “Shari’a and Modernity”. The second is what is expressed by Dr. Abd-Allah Al-Naieem’s theory since, if the first opinion is a direct support for the Islamic movements, Al-Naieem’s theory supports Muslims more than it supports the Islamists themselves. The writer also added that Al-Naieem’s theory is not a call to secularization but is a call to a secular basis of Islam stemming from the belief in the presence of the values of Islam and secularism in people and cannot be separated, but what has to be strictly separated are religious regimes and secular regimes. The theory is therefore from a Muslim background but is not strictly Islamic, and it only has two aims, which are to fulfill equality between Muslims and non-Muslims and men and women.

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