2016-07-27
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As legislators and sectarian politicians in Iraq argue over a new constitution, they have frequently cited the role of Islam -- and Islamic law -- as a major sticking point.

The debate comes at a time when Muslims around the world are divided over exactly how to define and apply Islamic law, or Sharia, as it is known in Arabic. The fundamental challenge, scholars say, is that the centuries-old legal tradition of Sharia, particularly in the Sunni world, has not coherently reinvented itself for modern times.

In its broadest sense, Sharia is a system of laws based on the Quran and the life of the Prophet Muhammad. Like other legal systems, it has been elaborated on and debated by trained scholars over the years. The result? Competing schools of legal thought over a body of work that primarily addressed the concerns of Muslim life beginning in the seventh and eighth centuries.

Across the Muslim world, Sharia plays out in different ways, depending on whether the local government is secular, strictly Islamist or somewhere in between. It also depends on how local Muslim scholars interpret the law.

"The role of Islamic law today is greatly reduced, except in a handful of countries like Saudi Arabia, Iran and the small Gulf states," said Frank Vogel, director of the Islamic Legal Studies program at Harvard Law School.

Of the 44 majority-Muslim nations around the world, only 10 declare themselves Islamic states, according to a March report by the U.S. Commission on International Religious Freedom. Those countries, such as Iran and Saudi Arabia, try to weave Sharia into most aspects of daily life. Other more moderate states, like Jordan, declare Islam the official religion but apply Sharia only in limited cases, often involving family law.

"They may impact women unfairly, but many core Muslim values -- about family structure and sexual relations -- are caught up in family law, and it's hard for the state to venture into that area and alter what is seen as fundamental," said Vogel.

Then there are places like Tunisia, where Islam is the state religion but aspects of Sharia -- polygamy, for example -- have been outlawed. Still more countries, including Turkey, are officially secular and have downplayed their Muslim identity. Others with mixed populations, like Nigeria, allow Sharia to be used only in predominantly Muslim areas.

Why isn't Sharia already the law of the land in Muslim majority countries?

One answer, said Joseph Lowry, an expert on early Islamic law at the University of Pennsylvania, is that "colonialism radically disrupted the system of classical Islamic law."

As universities and other secular institutions arrived in the Muslim world, religious higher learning was marginalized. But in areas where colonial forces were less pronounced -- mostly Shiite areas -- scholars were better able to maintain their legal traditions, Lowry said.

Some of that is changing. In places where Muslims have grown discontent under Western-style secular governments -- Egypt is a good example -- increasing numbers have called for a return to Islamic law. "They invoke Islamic law as a symbol of opposition," said Lowry. "That's understandable, but it makes it difficult to implement."

But like a pre-modern traveler arriving in the 21st century, Islamic laws that flourished in the early centuries after the Prophet Muhammad's death do not fit neatly into the complex puzzle of modern society. "Historically the interpretation of Islamic law was in the hands of scholars, not government officials," explained John Voll, professor of Islamic history at Georgetown University.

Politically active Muslims, or Islamists, who want state-implemented Sharia have rushed to simplify complex medieval jurisprudence to meet the demands of modern government.

The result, said Voll, is often what he called "bookshelf Sharia." "That's the assumption of the Islamist program: that you can pull a book off the shelf called `Sharia law' and find an answer to everything," he said.

In drafting their constitution, Iraqis have fallen back on a long-established principle in Sharia law, said Vogel of Harvard Law: that the state can adopt any useful measure as long it does not directly contradict the Quran and the traditions of Muhammad -- the two main sources of Islamic law.

That idea can been seen in Chapter One, Article Two, of the constitutional draft released Monday (Aug. 22), which states that "no law may contradict Islamic standards," according to an initial translation by the Associated Press.

Although the same article also states that no law may contradict either "democratic principles" or other "essential rights and freedoms" mentioned elsewhere in the constitution, Vogel said the minimalist test of not crossing Islamic standards may prove problematic.

"Treating women as identical in every respect to men might be seen as contradicting Islamic law," said Vogel. Sharia law has traditionally accorded men and women different responsibilities, and therefore different rights.

The same issue would apply to Islamic corporal punishments, such as cutting off the hand of an unrepentant thief, he said. "The state might not want to apply that punishment, but it would be hard to make it illegal."

Judges and legislators in Iraq, or any modern country enacting Islamic law, would hold the power to translate the centuries-old legal tradition into everyday law. But Imam Feisal Abdul Rauf, religious leader of a Manhattan mosque and author of "What's Right With Islam," worried that few have the learning and sophistication to do the job right. "Most judges don't know what they are doing," he said.

A recent example was the case of Amina Lawal, a Nigerian divorcee accused of adultery who was sentenced to be stoned to death by a local Sharia court. Her conviction was overturned by a Sharia appeals court because it did not meet a basic Quranic requirement: that the prosecution present four witnesses to the sexual act.

What the Muslim world needs now, said Abdul Rauf, is a renaissance of Islamic law, one inspired by the dynamic era of early Muslim scholarship, when jurists agreed that as circumstances evolve, so must the law.

In other words, Rauf said, the Muslim world needs an "Islamic bar association." "We need a new consensus of Islamic scholarship in the modern world."

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