– “Islamic Law” – A Reality Check.

(© Zubair Qamar 2013)

Does Today’s “Islamic State” Mimic the Early Muslims?

To demonstrate that Islamism today is not rooted in classical Sunni tradition, one can examine the nature of the “Islamic State” today in its various forms. These “Islamic States” are very much unlike the Islamic State in classical Islam. While Islamists today claim to emulate the Prophet Muhammad and the early Muslims of the Salaf, there was no Islamic State like the one Islamists envision today. Scholar and professor, Khalid Blankenship, says,

“The state established by the Prophet Muhammad…in al-Madinah was extremely rudimentary and lacked any of the institutionalization connected with the modern state.”

The Qur’an itself, Blankenship says, “never refers to the Muslim polity as a state, and the only complimentary reference to khalifah, the later title of caliph, is in one verse referring to the Prophet Dawud.” The “Shari’ah-based state,” he says, “as usually envisioned by its modern supporters never really existed before, and especially not as an institutional state.”[[1]]

Similarly, Wael Hallaq, author of The Impossible State: Islam, Politics, and Modernity’s Moral Predicament, says,

“…to resort to such a usage as ‘Islamic state’ – as an entity having existed in history – is not only to indulge in anachronistic thinking but also to misunderstand the structural and qualitative differences between the modern state and its ‘predecessors’” […].[[2]]

Because Islamists imagine they have an Islamic State similar to early times does not make it so. The current “Islamic State” is modeled after the modern nation-state, a foreign “Western” import and product of colonialism alien to classical Islamic tradition.

The Adoption of Islamic Law Today

How about Shari’ah (Islamic Law)? Islamist movements today claim to want Shari’ah Law but without the religious scholars which directly contradicts Shari’ah Law as seen in classical Sunni history in which religious scholars took center stage. But how much is Islamic Law followed today? Do all “Muslim” governments support Islamic Law?

“Of the forty-six countries where Muslims constitute the majority of the population,” Grote and Roder say, “only ten declare themselves to be Islamic states in their constitutions.”[[3]]

This is only about 22 percent of the majority Muslim countries, which means that most of these countries (about 78 percent) do not declare themselves as Islamic States. Furthermore,

“most countries have settled for a more moderate version of Islamic constitutionalism declaring Islam as the official religion of the state, but stopping short of proclaiming the country an Islamic state.”[[4]]

Similarly, Jan Michiel Otto, author of Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and EU Foreign Policy, says,

“[I]n the majority of Muslim countries over the last 150 years, most laws, legal institutions and processes have evolved independently of sharia. The governments of most Muslim countries have for decades” and that “classical sharia has had little noteworthy influence in most areas of law.”[[5]]

Even when described as countries that have “Islamic Law,” secular jurists have outdone religious jurists in the new scheme of the unclassical “Muslim State”:

“States have enacted their sharia as national law, outranking the religious scholars who were the traditional keepers of ‘the’ sharia. Jurists, trained at secular faculties became the new ‘masters of law.’”[[6]]

Classical Sunni jurists did not train at secular facilities.

Islamic Theocracy is Antithetical to Sunni Tradition

While most Islamists have marginalized the role of religious scholars, the roles of religious scholar and ruler were combined in the person of Ayatollah Khomeini when he imposed the Vilayet-e-Faqih, or “Guardianship of the Jurist.” This gave the jurist executive authority analogous to a caliph or sultan of past who was responsible for political – not religious – matters. This is unprecedented in Islamic tradition and is yet another example of how modern manifestations of “Islamic” governance today deviate from the tradition of Muslim governments of the past.

Shari’ah’s Penal Code

Most Muslim countries today that include the Islamic criminal code law within modern criminal codes have, in recent years, “become increasingly hesitant when it comes to actually carrying out the more serious hadd punishments.”[[7]]

The hudūd (sing. hadd) punishments are perhaps the most controversial aspects of Islamic Law and include punishment for theft (sariqa), brigandage (hirabah), illicit sexual intercourse (zina), false accusation of sexual intercourse (qadhf), and drinking alcohol (shurb al-khamr).

The few countries today that frequently implement the hudūd, including Afghanistan (when under the Taliban) and Saudi Arabia, are exceptions to the rarity of its implementation by most Muslim countries today, and also by Muslims in the classical Sunni tradition.

Reformist Muslim scholar, Tariq Ramadan, who has called for a moratorium on corporal punishment, stoning, and death penalty, says,

“The majority of the ulamâ’ – or scholars – “historically and today, are of the opinion that these penalties are on the whole Islamic but that the conditions under which they should be implemented are nearly impossible to reestablish. These penalties, therefore, are ‘almost never applicable.’”[[8]]

Before the toppling of Egypt’s Islamist government in 2013, even Egypt’s Islamists did not appear to take Shari’ah’s penal code seriously. The lack of rigidity and seriousness of applying such punishments was clear when Egypt’s general prosecutor in April 2013 had announced that he had canceled the order to lash Mohamed Ragab who was intoxicated by alcohol, and who had been sentenced to lashing by the village prosecutor. The village prosecutor was suspended and an investigation was launched. Mike Giglio of The Daily Beast says,

“In Ragab’s case, the government acted swiftly to stop Sharia from being applied” and “analysts say that Ragab’s case helps to illustrate Morsi’s difficult balancing act on religion: while he and his allies may push Sharia in their politics, they are wary of seeing it put into practice now.”

Giglio then quotes Shadi Hamid, director of research at the Brookings Doha Center:

“The actual implementation of Islamic law is not on the [government’s] agenda right now,”

and

“They’re careful not to overreach.”[[9]]

This is a specific example that illustrates how the social and political contexts weaken Islamist ideology, including their purported interest in applying Shari’ah to the masses. Nathan Brown, professor of political science and international affairs at George Washington University, says

“Egypt is not following Iran’s path toward theocracy in spite of changes wrought by the infusion of religion into politics,”

and

Clerics are not gaining positions of political power.”[[10]]

How seriously then was the Muslim Brotherhood about imposing Shari’ah through a supposedly rigid ideology? Not very serious, it seems. The exaggeration of ideology in counter-terrorism studies will be examined in a separate, soon-to-be-published, post.


[[1]] Khalid Blankinship, “Is an Islamic State Just a Form of Muslim Zionism?,” Lamppost Productions, November 1, 2011, accessed May 23, 2013, http://www.lamppostproductions.com/?p=3226

[[2]] W. Hallaq, op. cit.,pp. 48-49.

[[3]] R. Grote and R. Tilmann, op. cit., p 10.  The 46 majority Muslim countries are “Afghanistan, Albania, Algeria, Azerbaijan, Bahrain, Bangladesh, Burkina Faso, Brunei, Chad, Comoros, Djibouti, Egypt, the Gambia, Guinea, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kyrgyztan, Kosovo, Kuwait, Lebanon, Libya, Maldives, Malaysia, Mali, Mauritania, Morocco, Niger, Nigeria, Oman, Pakistan, Qatar, Saudi Arabia, Senegal, Sierra Leone, Somalia, Syria, Sudan, Tajikistan, Tunisia, Turkey, Turkmenistan, United Arab Emirates, and Yemen. Muslims are also the majority in the Palestinian Territories and Western Sahara.” The ten countries that declare themselves Islamic States are Iran, Pakistan, Saudi Arabia, Afghanistan, Bahrain, Brunei, Maldives, Mauritania, Oman, and Yemen.

[[4]] R. Grote and R. Tilmann, op. cit., p 10.  These countries include Algeria, Bangladesh, Comoros, Egypt, Iraq, Jordan, Libya, Malaysia, Morocco, Qatar, United Arab Emirates, and Tunisia.

[[5]] Jan Michiel, Otto, Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and EU Foreign Policy (Leiden University Press, 2008.), accessed May 25, 2013,

https://openaccess.leidenuniv.nl/bitstream/handle/1887/20694/Sharia%20and%20national%20Law%20in%20Muslim%20countries.pdf?sequence=6

[[6]]Ibid.

[[7]]Ibid.

[[8]] Tariq Ramadan, “An International Call for Moratorium on Corporal Punishment, Stoning and the Death Penalty in the Islamic World,” April 5, 2005, accessed May 25, 2013, http://www.tariqramadan.com/spip.php?article264&lang=fr

[[9]] Mike, Giglio, “Eighty Lashes for Drinking? Egyptian Court Ruling Puts Sharia in the Spotlight,” The Daily Beast, April 25, 2013, accessed May 29, 2013,

http://www.thedailybeast.com/articles/2013/04/25/eighty-lashes-for-drinking-egyptian-court-ruling-puts-sharia-in-the-spotlight.html

[[10]] Nathan, Brown, “Islam and Politics in the New Egypt,” April 23, 2013, accessed June 2, 2013,

http://carnegieendowment.org/2013/04/23/islam-and-politics-in-new-egypt/g0se#

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