Recent events in the Muslim world have occupied front page news for weeks. Between the violence generated by the cartoons depicting the Prophet Muhammad, and the recent capital case against the Afghan who converted from Islam to Christianity, questions about the nature and humanity of Islamic law loom large. Each instance, however, seems to be a symptom of a larger problem: namely, defining what Sharia is and its place in modern constitutional society.
In the Afghan apostate case, for instance, the judge was in an unenviable position. Article 1 of the Afghan constitution states that Afghanistan is an Islamic republic. Article 2 declares Islam to be the state religion, while subsection (2) states that religious minorities are free to exercise their faith “within the limits of the provisions of law.”
This begs the question: what defines those limits? Article 3 states unequivocally what those limits are: No law can contravene Islamic law. Consequently, a Muslim can live in Afghanistan in peace. A non-Muslim can also live in Afghanistan without suffering persecution for his or her faith. But if a Muslim converts to Christianity, this violates general provisions of Islamic law; any law drafted under Article 2(2) that protects the apostate would violate Article 3.
For as long as Article 2(2) is read in light of Article 3, Sharia rules requiring execution will trump legislation protecting religious freedom for converts from Islam to other faiths.
Certainly under Article 129, the President must approve any judicial decision that involves capital punishment. But if the court were to sentence the apostate to death, and Hamid Karzai failed to approve the sentence, his omission might be seen as undermining the independence of the judiciary as asserted under Article 116. Notably the constitution allows Karzai to undermine the judicial sentence. But if he were to do so, especially in light of extra-legal, political pressure, he may have a negative effect on the development of democratic institutions of justice in the long run.
The Afghan apostasy case, therefore, raises fundamental questions about law, development and the accommodation of cultural values held by a particular society. Whether a constitution embraces Sharia because of domestic Islamization campaigns, or political compromises between occupying forces and local rulers, we are left with a question of definition. What is Sharia and who defines it? Or in other words, to borrow from the late H.L.A. Hart, what is the concept of Sharia, and who can be an expert in the tradition? Certainly the dominant topos of Sharia is of fixed antiquated rules that are meant to reflect the will of God. The expert is someone who can read medieval books and pronounce the majority rule of decision. And yet this particular image contradicts the history of Islamic law in the medieval Muslim world, prior to Islamization campaigns, nationalism, and colonialism.
In the medieval world, Islamic law was more than just doctrine written in text. It involved adjudicating disputes in light of both text and context. There is a historical discontinuity between the Islamic rule of law that once existed, and the tyranny of Islamic legal rules that prevails in contemporary discourse.
Beyond the conceptual disconnect, there is a larger question of the continued meaningfulness of the rule against apostasy. The concern with apostasy arose in the early period of Islam, during the caliphate of Abu Bakr (r. 632-634). He was the first caliph, taking power upon the death of Prophet Muhammad. During Muhammad’s life, the Arabian Peninsula was conquered and various tribes pledged loyalty to Muhammad, adopted Islam, and paid taxes to the public treasury. Upon Muhammad’s death, many of these tribes believed the agreements were no longer valid, and ceased to pay taxes or pledge loyalty. Abu Bakr then faced the first test of the nascent Islamic polity: is Islam going to be a religious message for the local few, or was Islam meant to be something more? He adopted the latter course and spent his two years as caliph fighting to keep the nascent polity together.
Significantly, later Islamic historians collectively called these battles the Ridda Wars, or the Wars of Apostasy. But why apostasy? Many of these tribes remained Muslim but refused to pay taxes to the central treasury. Arguably, apostasy in this early period was not simply about a matter of conscience; apostasy was an act of treason. Where contemporary societies operate on secular default values, religious identity is a private affair, whereas citizenship (as a form of political identity and belonging) ideally is judged on different grounds. But in societies where religious identity overlaps with political identity, apostasy and its punishments assume a more nuanced meaning.
One may agree or disagree with the military campaigns against Afghanistan and Iraq, and with the efforts by various Western governments to shape the social, institutional and constitutional fabric of these societies. But regardless of one’s political opinions, the fact remains that the administration of justice in these countries has been and will continue to be affected by the role Sharia is allowed to play. How one understands the Islamic legal past and its relevance/coherence in the modern nation state will fundamentally affect the kinds of accommodations that can be reached where ideals and values collide Whether one considers Sharia arbitration in Ontario, the Danish cartoon controversy, or the Afghan apostate case, the issue linking all of them concerns how Sharia is understood, by whom, and in light of what concept of law? This issue is only further complicated by the fact that issues of Sharia law arise in the wake of colonial occupation, imposed constitutions, and nascent institutions that have yet to find a real footing in their societies.