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Reforming Islam and Islamic Law

Muhammad Sa‘id Al-‘Ashmawi
Document type:
Articles and Essays

Reforming Islam and Islamic Law

Muhammad Sa‘id Al-‘Ashmawi


Former Chief Justice of the High Court of Cairo, Egypt, he is widely recognized for the forcefulness of his writings in the struggle to redefine Islam in the modern world. His refutation and condemnation of Islamic fundamentalists and extremists earned him praise from many liberals as well as criticism from conservative Muslims, and death threats from extremists in Egypt.

‘Al-Ashmawi summarizes the orientations of the original rationalist school in Islamic history, the Mu‘tazilah, and its rival movement, the Asha‘irah, which ultimately prevailed. He believes that the victory of the latter led to the demise of the principles of causality and free will in Islamic thought, and he calls for a return to the rationalist tradition. Without this, he has little hope for the flowering of human rights in Islamic societies. He thus calls for “an Islamic reformation,” reminiscent of Fyzee’s call for “a newer, ‘Protestant’ Islam.” Al-‘Ashmawi states boldly his wish for an Islam that “places man in history.”

Reforming Islam and Law

Despite the fact that Islam dawned in a desert environment, it carried the potential to create a vast civilization. When the Arabs conquered Persia, Syria and Egypt in the first century of Islam, they were faced with well-established civilizations and superpowers of the day. The Arabs lost no time in selecting the most pertinent endowments of each civilization for the new civilization they intended to establish. In time, Islam itself became a well-established civilization, spreading across most of the Middle East. This civilization respected ethics and humanity.

Over the centuries a variety of schools were founded propounding various legal rules, theologies and philosophies. Unfortunately, their debates often raged over minor matters that were difficult to prove. The mū‘atazīla, or withdrawers, thought rationally but stressed that the Qur'ān is created and not eternal. Opposing the mū‘atazīla were the traditionalists, who deemed the Qur'ān eternal and uncreated. Had the debate centered on the historical context of the Qur'ān, the debate would have been profitable and effective. Instead, the debate moved from the philosophical sphere into the political sphere. Under Caliph Ma‘amun (813–833 c.e./198–218 a.h.), the mū‘atazīla came to power. Despite their advocacy of rationalism, they sought to impose their doctrine with the backing of state force.

A few years later, the mū‘atazīla were ousted from power and were replaced by the traditionalists. Wary of the mū‘atazīla, the traditionalists judged reason and the mind dangerous, liable to arouse strange ideas to be applied with force. Led by theologians Ashaari (873–941 c.e.) and Al-Ghazzali (1059–1111 c.e./606 a.h.) the traditionalists argued that since God is omnipotent and ruler over all, the mind, reason and causality could effect nothing and man's actions are acts of God not of the individual. Al-Ghazzali added that there was only one causality—that of God. Fire is not caused by striking a match, nor wetness by throwing water. Both fire and water are the products of the will of God. Thus, everything is owned by God, and man, reason and causality are active agents; they are mere illusions to delude mankind.

Al-Ghazzali set down his ideas in his book The Revival of Religious Sciences, in which he classified all human activities in chapters replete with citations from fabricated prophetic traditions. Al-Ghazzali's book was deemed the core of Islam and not a book written by man, despite its reliance on fabrication. With the loss of causality and free will, the Islamic mind closed, and Islam lost its vitality and potential for development. Thereafter, Islam, as a philosophical system, slipped into degeneration.

Two hundred years ago Muslims were rudely awakened by European enlightenment. With the French invasion of Egypt in 1798–1800 c.e., Egypt, and later the rest of the Middle East, felt the shock of Western civilization. Egypt led in the renewal of spirit and mind. Egyptian youth were dispatched to the universities of Europe. Egyptian confidence and know-how returned, and soon Egypt felt competent to rule in place of the Western powers that occupied its land. In Egypt's battle for liberation, Western colonization was viewed by some people as a second round of the Crusades, sparking enmity against the West.

For the past three decades the West has been transformed into a global civilization, while the Islamic world has produced little or nothing at all. Paradoxically, many Muslims curse international civilization as a neo-Western invasion, yet surround themselves with Western technology (products, gadgets). Muslims, particularly those in the Gulf, indulged in Western technology in a way that could have been a boon to Islamic power and mind but instead became its bane. The passive acquisition of technology or gadgets, dislocated from the science of production, monopolized Islamic activities without refining the mind. Even today, this lack of refinement besets the Islamic world. Electronic means of communication—from airplanes to faxes—have reduced the meaning of time and space, leaving only the unfilled vacuum of leisure.

Many Muslims have called for the reform of Islam, but differ about how to set about it. One proposal calls for a return to the Golden Age in which contact with international civilization is severed. This reform, however, provides no solution as to how to make do without lasers, airplanes and telephones. This proposal advocates blind faith, giving rise to a false feeling of peace.

A second proposal calls for the wholesale adoption of modern technology so that the Islamic world can be absorbed into international civilization. While the first proposal seeks to return the Islamic world to the ideas of Ashaari and Al-Ghazzali, the second proposal struggles to embrace the new reality of contemporary civilization.

A third proposal for reform, which I advocate, fails between the two extremes. This proposal calls for a revival of Islamic mind, ethics and human rights and an integration of these with contemporary civilization so that we can share effectively in developing civilization instead of merely consuming it. This reform calls for the abandonment of the Ashaari and Al-Ghazzali doctrine. Instead Muslims should respect causality and the potential of man, without which thinking, invention and science are void. Man, not God, must be made responsible for his works. This understanding places man in history. Religious ideas evolve, moving in time and space, through history and place.

In addition, this proposal cares deeply for human rights, even if the term was not coined by Islamic civilization. Human rights ensure that every Muslim may speak according to what he believes. Human rights ensure that every Muslim respect the human brotherhood and recognize that God is for all human beings—good and evil, believers and unbelievers. This proposal advocates employing the technology of civilization while integrating it with true Islamic values. The notion of participating in humanity's technological evolution and respecting human rights is slowly but surely taking root in the Islamic world. However, at the same time, its advocates have become a target for militants. Militants have created movements of terror across the Islamic world and have disseminated their practices abroad. By their misdeeds they have distorted the image of Islam, and isolated Muslims from history. Those who seek to adapt the Islamic world, to accommodate contemporary civilization, are attacked and intimidated into silence. Those, such as myself, who seek to grasp the technology of contemporary civilization and blend it with Islamic identity are also attacked and intimidated into silence.

The Islamic world has been torn between the liberals and the militants. Unfortunately, few Muslims have put forward strategies to heal the divisions. Meanwhile the world continues evolving apace, augmenting its capacities by the minute, leaving the vast morass of Muslims to detach themselves from time and space by their behavior, moving nowhere but backward. Muslims opt not for sharing, but for resisting civilization, opposing its forces and consuming its products, then reacting to this consumption by violence against themselves, their society and the world. In addition, Islamic religious institutions operate de facto and religious officials defend their wealth and align themselves with militants and reactionaries against progress.

Moreover, in Egypt, the moderates and enlightened are subject to punishment by the nation's legislation. Under Article 98(f) of the penal code, it states, “Whosoever writes against the deity or vilifies it or any of its sects, should be imprisoned for no less than six months and no more than five years, or be fined E£500.” Militant Muslims, who include religious authorities, have implored the government to bring the moderates and enlightened to trial charged with infringement of Article 98. Since religious officials hold that they are the sole legitimate representatives of Islam, they consider any vilification of themselves to be a vilification of Islam. Thus, they call on the government to apply the article on all who preach or write against their closed and narrow-minded instructions. . . .

Similarly Article 161 of the penal code punishes with imprisonment for three years and a fine ranging from E£100 to E£500 all who publish anything judged against any faith accepted in Egypt. Islam, Christianity and Judaism are all faiths accepted in Egypt but only militant Muslims turn to Article 161 to punish their opponents. Militant Muslims see the moderates and enlightened as assaulting Islam itself rather than seeking its reform, In most of the Islamic world, the situation has become critical. Without an Islamic reformation—renewal of the Islamic mind, ethical code and respect for human rights—Muslims will be excluded from the international community and be severed from its time and history. Articles 98 and 161 must be annulled from Egyptian law. Legal license for militants and religious officials to intimidate intellectuals in the Muslim world must be curtailed. The way should be cleared for reformists to express their ideas through the media and press without intimidation, threat or prosecution. Without this, I fear for the future of Islam and humanity.

Islamic Law and Human Rights

Human rights, the expression and the concept, were never known during the medieval period when Islamic law was first established. Human rights, as a claim by any person, such as the right to worship as one chooses, the right to free speech, etc., were initially declared during the French Revolution (1789 C.E.). In time, the concept became widely accepted, especially when the human race suffered from the denial of human rights by totalitarian governments, fascistic parties, misleading media and tyranny in general. Today, human rights constitute an international call and a humanitarian creed to liberate people from any fear or tyranny, to free our capacities from any obstacles so that we may live in peace, spread peace and interrelate with the community, humanity and the cosmos.

It is necessary to realize that Muslims have neither one unified attitude toward Islamic law nor one clear understanding about human rights. Actually, in the Islamic world today, there are two movements, each one with its own understanding of Islamic law and human rights. As previously discussed, the first is fanatical, extremist and militant; the second is liberal, intellectual and enlightened.

The first movement, namely the fanatical, extremist, militant, believes that Islamic rights are primary to human rights. What are Islamic rights? It is a question answered only by the fanatics, the extremists and the militants, and specifically defined and detailed by their leaders, who believe they monopolize the truth and are entitled by God to impose the truth forcefully, even by the sword in jihād or holy war. They believe that Islamic law is revealed from God, without making any distinction between Islamic law and Islamic jurisprudence. God, they say, knows humankind and society better than man, and God revealed Islamic law to be enforced upon man for his own benefit and that of society. This movement argues that applying Islamic law strictly would refine society, instill justice and spread prosperity. They believe that neither humanity nor society has the right to legislate themselves. Laws were already legislated by God in the Qur'ān for all human beings, anytime and in every place.

Democracy is thought to be a Western system, not Islamic, according to this movement, and is considered heresy. The Islamic political system is based on shūra (consultation), which means that the ruler (the Caliph or the Imam) has the right to appoint counselors to offer advice when he wants it. However, he is not obliged to take their advice, even if there is consensus among them. His decision is seen as infallible, whether de jure (in the Shī‘ite doctrine) or de facto (in the Sunnite doctrine). To the fanati-cal, extremist militant movement, humanity has no right to choose their own faith, unless they are non-Muslims and convert to Islam. And Muslims have no right to convert from Islam or else they will be subject to the death penalty.

This movement believes that no one has the right to free opinion or free speech. They believe that Muslims should mold themselves according to the traditions of their sect or community or group. They are to suppress their opinions and bond themselves to the community. Any different opinion expressed is considered an act against God and against the community. Such a person is considered to be at war with God and the community; thus, subject to the death penalty or to being murdered by any Muslim.

This movement believes that non-Muslims living in an Islamic country are obliged to behave the same as a Muslim and not to act, speak or declare a viewpoint that might be considered against Islam or Islamic traditions or the Islamic community. As part of the minority, non-Muslims have to obey the majority. And in non-Islamic countries, the majority—non-Muslims—are to behave toward minority Muslims as if Muslims were in an Islamic country, otherwise the fanatic, extremist militants claim discrimination.

This movement believes women are under the custody of a man, whether he be her father, brother, husband or son. A woman has no right to leave the house without permission from her custodian. If she is married, she has no right to work unless she has her husband's permission and then only in certain jobs, such as teaching girls, caring for women, and the like. A woman has no right to wear what she wants. She must don the veil or the chadoor (in Iran), and if she does not, she could be considered a heretic, which is punishable by death (as was declared in Iran). A woman has no right to drive a car, and if she does, she will be considered a rebel against the community, endangering herself and her husband, which happened in Saudi Arabia.

The liberal, intellectual, enlightened movement has another approach and totally different concepts and ideas about Islamic law and human rights. To this movement, human rights never contradict Islamic law. This movement stresses that there is a distinction between Islamic law and Islamic jurisprudence.

This movement believes that not all the legal rules mentioned in the Qur'ān are permanent, that some of them are temporary. A very specific example is slavery and slavery harems. Slavery and slave harems were mentioned in the Qur'ān; as previously cited, they were not abrogated, yet they are not applied today and are forbidden by law. Even though the principle was not clear to him and to the Muslims of his time, the second Caliph, ‘Umar, stopped applying certain rules from the Qur'ān.

This movement believes that everyone has a share in political life. Public discussions and laws should be implemented only after extensive discussion and an open and free process of voting. Democracy is a must at every level and in every unit of society.

This movement believes that political actions are mere civil actions, not religious actions. The head of the state, ministers (state secretaries), governors and all other civil servants are not infallible. Their acts can be criticized and even canceled, if necessary.

This movement believes that all people have the right to choose their own faith without being threatened by the death penalty. Verses stating freedom of choosing one's faith have not been and never were abrogated from the Qur'ān. According to the Qur'ān, forcing someone to be or to become a Muslim against his will is distorting the meaning and the spirit of Islam and is a denial of human rights. Islam has no need for hypocrites or oppressed nonfree people.

This movement believes that everyone has the right to free speech and to express ideas and opinions the way he or she chooses. If these opinions prove to be correct, they will benefit all the community; if not, they should be debated decently and not suppressed by any means.

Finally, this movement believes that men and women have equal rights—the right to free speech, the right to work, and to drive a car. Women should never be under the custody of anyone. If humanity has obligations to God, it also has rights. Humanity's first and major right is to be free, with free mind and free conscience, rather than enslaved by anyone, any political power, any religious group or any false media.

To the liberal, intellectual, enlightened movement, jihād is self-control. If jihād is applied to war, it should only be applied for self-defense. To the liberal, intellectual, enlightened movement, each human being is a word of God and is entitled to every human right. To this movement, justice precedes punishment, the spirit is more important than the text and humanity is one community.

Bibliography references:

From Against Islamic Extremism, ed. Carolyn Fluehr-Lobban (Gainesville, FL: University of Florida Press, 2001), pp. 119–26. Find it in your Library

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