Friday, January 2, 2015

Barend Vlaardingerbroek: The rise and rise of the Sharia


The past few years – 2014 in particular – have been trying ones for humankind.  On the geopolitical scene, we have seen the re-emergence of the Cold War and the alarming resurgence of international Islamist extremism. At the domestic level, growing numbers of people feel increasingly disenfranchised by laws, regulations and rulings that they view as irrational or unfair (or just plain stupid). 

Many people in both developed and developing countries are losing faith in the structures and institutions of governance – the legislature, the executive, the bureaucracy, the courts. But there is one institution that has been going from strength to strength over the past couple of decades and 2015 is likely to be yet another good year for it: Sharia law.

The Sharia (also spelt Shari’a and Shariyah) is the law of Islam. In Muslim countries, it may form the mainstay of the legal system such as in Saudi Arabia, or operate as a parallel system alongside a ‘Western’ legal structure. In Indonesia, it is the law of the province of Aceh as part of their greater autonomy deal with Jakarta. It has steadily encroached on the legal systems of some countries including Malaysia and Pakistan where it rivals British-derived law for supremacy.

Contrary to what appears to be a widely held belief in the West, it is not a simple matter of the Sharia being imposed by insurgent paramilitary groups or by illicit Islamist governments – in counties as disparate as Afghanistan,  Pakistan, Malaysia and Nigeria, many ordinary people clamour for the (re)instatement of Sharia law and preferentially avail themselves of it where the option presents itself. There is a thriving Sharia court system in the UK, and it is not only Muslims who use it. There is currently under consideration a proposal to incorporate the Sharia courts into the mainstream British judicial system, a suggestion that has evoked vigorous opposition from a variety of groups who have launched a ‘One Law For All’ campaign (does that ring any bells?!).

The European Court of Human Rights following the case of Rafeh Partisi and others v Turkey 2001 declared the Sharia to be incompatible with “fundamental principles of democracy”. And yet the Sharia is evidently on a roll. What is its appeal to so many, both educated and uneducated, in countries both highly and poorly developed?

When confronted with the term ‘Sharia’, most Westerners respond with references to some of the well-publicised punishments such as lashing,  amputation and stoning. They may also tell you how it legitimises slavery and the oppression of women. Some may add that it sanctions ISIS-style mass murder.

Consider the following:

Kill every male ... and kill every woman that has known a man by lying with him ... But all the virgins ... keep alive for yourselves. 

[If] the tokens of virginity be not found for the [betrothed] damsel .. they shall bring [her] to the door of the father’s house, and the men of her city shall stone her [to death]... 

 [If] the wife [of a man] draweth near to deliver her husband out of the hand of him that smiteth him, and ... takes him by [his genitals], then thou shalt cut off her hand ...             

When a man sells his daughter as a slave, she will not be freed at the end of six years as the men are. If she does not please the man who bought her, he may allow her to be bought back.

Now if your gall is rising and you’re muttering dire curses aimed at Islam, I’m sorry to have to tell you that I have just played a trick on you. The above quotations are actually from Mosaic law and have been taken straight out of the Bible (Numbers 31: 18, Deuteronomy 22: 20-21, Deuteronomy 25:12 and Exodus 21:7 respectively; English transliterations vary).

You see, the Sharia is a member of the Middle Eastern law family, and has a lot in common with other Middle Eastern legal codes including the Mosaic one. It is part of a tradition that goes back at least four millennia, the earliest known regional law code known being that of Ur-Nammur (800 years before Hammurabi) fragments of which  were discovered in 1988. The early compilation of the Sharia drew on millennia of regional legal development.

Most ancient Middle Eastern codes were long extinct by the time of the Sharia. What remained became peripheralised or displaced by the Sharia itself during the period of the great Islamic civilisations or, later, Western law brought in during the colonial era, particularly in the major cities. Although put under pressure by introduced law, the Sharia persisted. One reason for this tenacity is its integral and comprehensive role in Muslim society. The Sharia is much more than just a system of law. It is an instruction manual for living at the individual, communal and even international levels. It dictates everything from your morning ablutions after getting out of bed to the conduct of relations between nations. Where there is Islam, there is Sharia in essence if not necessarily in institutional substance.

From a pragmatic legal perspective, Sharia law definitely ‘works’. As a codified system it clearly spells out not only what the wrongs are but also what consequences they invoke. It is evidence-based – it was lightyears ahead of the sham that passed for law in most of mediaeval Europe – and is administered by learned judges and counsels who apply rigorous procedures. These procedures are thorough but efficient and the Sharia abides firmly by the need for justice to be seen to be done – there may be only minutes between a verdict and a public flogging. Letting the victims of crime have a say in the punishment – a practice that some Common Law systems are gingerly starting to give serious consideration – is an established aspect of Sharia procedure.

To be quite frank, if I lived in the UK and had a commercial dispute with a Muslim business owner, I’d likely opt for a Sharia court. On the UK Sharia court website you’ll find lists of types of cases and fees, which are very moderate. They don’t shilly-shally around so I could expect a prompt hearing and rapid conclusion, and I have no doubt that it would be a fair one. (Not that I could live under the Sharia. For one thing, I’d likely get nailed for blasphemy, which is a capital offence. For another, I like my Scotch.)

What do people in general want from their judicial system? They want a system that is accessible and transparent, is defined by clear rules and procedures, promptly reaches a conclusion, and rapidly punishes the wrongdoer, thereby bringing about closure. Sharia law scores highly on these criteria. Western law, on the other hand, tends to be regarded by people in most developing countries (and by growing numbers in developed countries) as esoteric and cumbersome, procedurally opaque (and full of dodges that smart-aleck lawyers can make use of for clients who can afford them), and is often seen as pussyfooting around to shield the wrongdoer from the rightful consequences of his/her actions while making life hell for the victims. Not to mention the corruption that often mars the judicial systems of developing countries.

People also want their legal system to represent and promote the values that underpin social norms and mores. Many people in the Muslim world look with consternation at the way in which Western law ignores ‘moral crimes’ such as (in their view) adultery and homosexuality. What kind of law is it, they ask, that permits or even condones behaviour that erodes the very fabric of society? Given the conservative social and moral views that prevail in these societies, it is little wonder that many have come to treat Western law, which they regard as having jettisoned its moral compass, with increasing contempt. The Sharia, on the other hand, most certainly has not lost its moral direction; on the contrary, it enforces the moral code.

Defenders of Sharia law among the educated, overtly westernised classes are not hard to find. One female student of mine defended the rule that a woman’s testimony in a Sharia court carries only half the weight of a man’s on the basis that women are by nature more emotional, and backed this up with neuroscience (the relative size of the part of the brain where the emotions arise). A mature-age female student in the course of a private conversation looked at me pityingly when I was moaning about same-sex marriage (which I am opposed to as a matter of legal principle) and said, “That’s what happens when you decriminalise homosexuality. Under Sharia law, the possibility of two men marrying would never arise.” And indeed it wouldn’t, for homosexuality between men is punishable by death in Sharia law (as in Mosaic law).

To labour the point, yes, there are situations such as in areas controlled by ISIS and Boko Haram where the Sharia is foisted on people, but the fact of the matter is that many of those people wanted  Sharia law to begin with, as do many of their compatriots who live under more modern jurisdictions. The Sharia embodies their values and attitudes, not those of any foreign cultural world view. Nothing makes more sense to most Muslims than for a Muslim society to be governed by an Islamic government and Islamic law based on Islamic values.

Isn’t it a right of peoples under the doctrine of self-determination to choose what legal system they want to live under? Well, yes, but. The ‘but’ comes in when we consider universal human rights that transcend the idiosyncrasies of domestic legislation. The European Court of Human Rights has made it clear that the ‘margin of appreciation’ (the leeway that nation-states have under international law) does not extend to being able to entrench in domestic law norms that are clearly incompatible with fundamental principles such as gender equality. If the Sharia is indeed incompatible with basic universal human rights maxims – which, judging by the reticence of a number of Muslim countries to sign up to international covenants concerning women’s rights and sexual rights, it would appear to be – then it could be argued that this aspect of the right of self-determination has been overridden. But this is an abstract argument and it certainly won’t stop people wanting Sharia.

At the core of the issue is a fundamental ‘West-East’ divergence in the conceptualisation of human rights and responsibilities, and this won’t be going away any time soon – if anything, the divide appears to be both widening and deepening. Until Western law and the values it is based on assert themselves as constituting a superior alternative – which will involve gaining moral authority in people’s eyes, a tall order in Muslim society if ever there was – the momentum behind the resurgence of the Sharia in largely Muslim societies will only increase. Yes, I think 2015 will be another good year for the Sharia – and it won’t end there.


Barend Vlaardingerbroek BSc (Auckland), BA, BEdSt (Queensland), DipCommonLaw, PGDipLaws (London), MAppSc (Curtin), PhD (Otago), is associate professor of education at the American University of Beirut and a regular contributor to Breaking Views on geopolitical and social issues. Feedback welcome at bv00@aub.edu.lb

1 comment:

david said...

Laws are codification of a society's values. Those values have changed over time and to a large extent our laws have changed with them. Sharia hasn't. But you are right that Sharia better reflects the values of many people. In fact in South Asia (for example) the Sharia is actually more progressive in its treatment of women than the traditional cultures. In the Philippines where divorce is prohibited by law, Catholic women go to the Sharia court to get a divorce (which is then recognised by the state).