The enforcement of sharia: Impossible, unviable

The enforcement of sharia: Impossible, unviable

Debate over the Islamic sharia law has resurfaced among Muslims
in Indonesia following the October terrorist attacks in Bali,
which further tainted the image of Islam and Muslims. Noted
American Muslim scholar Abdullahi Ahmed An-Na'im, a professor of
law at Emory University in Atlanta, Georgia, speaks to The
Jakarta Post's Muhammad Nafik about the issue before addressing a
seminar on sharia and human rights at the Syarif Hidayatullah
State Islamic University in Jakarta on Saturday. The following is
an excerpt from the interview:

Muslims in Indonesia have again engaged in heavy debate over
the imposition of the sharia law. A certain group has even issued
a death fatwa (religious ruling) upon a Muslim who has been
openly critical, due to the differences in their views. What are
your comments on these recent developments?

I've followed it on the news, but I don't have details on the
debate in Indonesia. It's a common debate that has also been
going on for many years in other Muslim countries like Sudan,
Nigeria and Pakistan. I think the question lies in the manner of
the debate itself, that we have to respect our differences and to
be tolerant of others. Intimidations and charges of heresy,
apostasy and such are unproductive, negative and un-Islamic.

In regards to the debate on sharia, I hope Indonesians will
benefit from the bad experiences of others, such as Sudan, who
have made mistakes. They need not repeat those mistakes. The
reality of Indonesian society is that it is so diverse and
pluralistic. The only choice should be an acceptance of
differences, tolerance and peace. Democracy is absolutely the
best choice, democracy not only in government, but also in the
way the people interact with each other. If I disagree with you
and I use violence against you, I cannot hope the government to
be democratic, because I'm undemocratic myself. Islam is a
religion based on democracy, but Muslims throughout history have
failed to live up to this ideal because of human nature and
hunger for power, and all tend to blame the mistake on religion.

I am optimistic that Indonesia, which has come through a
militaristic regime and a political system ruled by a single
party, as well as other undemocratic experiences, is making its
own way towards a permanent and secure state of democracy. For
me, it's hopeful sign.

Many say that an Islamic state is not recognized in the Koran,
nor was it recognized during the rule of the Prophet Muhammad. It
is said the idea surfaced only recently, centuries after his
death. Could you explain this?

Muslim history clearly shows that an Islamic state is not a
valid idea. It's all political and it was created in the struggle
for power. To call a state an "Islamic" state is to create a
condition of intimidation, because if I control this state I can
say that if you disagree with me, you disagree with Allah. As we
can see today in Saudi Arabia, Afghanistan, Iran or Nigeria,
Islam is used as a front for a political struggle; this is wrong.

It is very dangerous to call any state an Islamic state, or to
enforce sharia, because for Muslims, sharia is divine revelation
that is understood by human beings. On the other hand, people
disagree about this. That's why we have so many madzahib (schools
of Islamic jurisprudence) who are at odds with each other.

If a state applies sharia, it will choose only one among many
opinions. This means denying Muslims the freedom of choosing
among the different opinions of madzahib. And if you disagree
with that sharia, you are kafir (infidel). It is dangerous, un-
Islamic and undemocratic. In my view, sharia cannot be enforced
as a positive legislation and remain the source of a religiously
sanctioned normative system.

An Islamic state is conceptually impossible because as a
political institution, a state cannot be characterized as either
Islamic or non-Islamic. Moreover, in view of the nature and role
of the state in the modern global context, an Islamic state would
not be practically viable.

Those calling for the application of sharia by imposing hudud
or qishas (severe Islamic punishment, such as cutting off the
hand or a death penalty) are hypocritical because they are
selective in choosing some elements of sharia and overlooking
others.

Sharia is about justice and fairness. Sharia is about the
state providing essential services to the community. If we have a
state that is just, which provides the needs of all the people,
and in which the rich is responsible for the poor, then we have
come to a point where we may speak of sharia. Until we do achieve
such a state, however, we should not talk about sharia.

The term "sharia" is often misused because it is a law of
Islam as understood by each Muslim generation for itself. When
people talk about sharia, they talk about the only possible law
of Islam as understood by Muslims centuries ago. So, if by sharia
we mean the law of Islam, it is relevant and important today. But
if we mean sharia as it was understood thousands of years ago, it
is not applicable today. For Muslims in Indonesia, they should
engage in debate about what the Koran and Sunnah mean. This will
be a sharia relevant today.

Then, can sharia be produced and adopted through deliberations
among Muslims and the public at large?

Exactly. We can argue the meanings of sharia, the Koran and
hadith (traditional collection of stories on Muhammad's words and
deeds). This is the way to understanding sharia as it was in the
past. It should also be the way to understanding sharia today.

To say that sharia is exactly the way Imam Syafi'i studied and
understood eight centuries ago is wrong. Syafi'i was one of the
founders of sharia at that time. He created usulul fiqh, which is
the way by which sharia is understood from sources. Syafi'i said
two things: One was that he understood and pronounced an opinion
when he lived in Iraq according to local conditions there. But
when he was in Egypt, he expressed an opinion according to local
conditions there, too. If sharia was a single model, it should
not have changed from Iraq to Egypt. The fact is that although he
was a respected scholar, he was willing to change his opinions.
So, it is very clear that his opinions were based on the
contexts, and not on an absolute sharia.

The second point was that Syafi'i used to say, "I think I am
right," and "That's my opinion." He was the Muslim scholar with
the highest understanding of Islam, but he was ready to stand by
his opinion and at the same time he was willing to accept the
possibility that, as a human being, he could be wrong. Today,
people are glad to be followers of Syafi'i, but are not willing
to say they could be wrong. Those who claim to know it all and
dictate their opinions upon others are betraying Syafi'i. They
are acting against his example.

Many scholars say Islamic values are universal, and could be
found in Christianity, Hinduism, Buddhism and other religions.
What are your thoughts on this?

It's absolutely true. Muslims do not have a monopoly on truth.
In fact, Prophet Muhammad respected the religious traditions of
other people. When the Prophet settled the problem of the Jews,
he ruled according to Jewish, not Islamic, law. It shows that
Muhammad did not maintain that only Muslims know what is right.

Now, as in this nation of Indonesia that consists of many
varieties of Muslims and non-Muslims, if one fights to maintain
that one opinion is right and others wrong, living together will
become impossible, because the issue will become "you kill me or
I kill you", should others not follow the opinion of one. This is
not Islamic.