Maybe it's an only-in-America sort of irony: A prominent scholar who happens to be Jewish makes the case for more Islamic sharia law in Muslim-majority states, while another distinguished legal scholar, a devout Muslim, argues that the best thing for those states, and for sharia, is to keep them separate.
But beyond the little irony, there is much at stake in the difference of opinion that emerges from their respective books: Noah Feldman's The Fall and Rise of the Islamic State and Abdullah Ahmed An-Na'im's Islam and the Secular State: Negotiating the Future of Shari'a. That difference is of such crucial importance, in fact, that its wise resolution should be of great concern to all who claim to be interested in the cause of promoting democracy in the predominantly Muslim parts of the world.
Both authors are distinguished scholars in their field. Feldman, a prolific writer (What We Owe Iraq, Divided by God) and professor at Harvard Law School, served as an adviser to the Iraqi Governing Council when it was drafting an interim constitution for the post-Saddam Hussein state. He once notably testified before a U.S. Senate committee that efforts to keep sharia entirely out of Iraq's Constitution would probably guarantee that Iraq would have no constitution at all.
An-Na'im's credentials are equally impressive. A professor of law at Emory University, he was a prominent voice in the Islamic reform movement in his native Sudan until the growing political power of religious fundamentalists forced him out of the country in 1985. At Emory and in his earlier work at Human Rights Watch, An-Na'im has devoted himself to reviving and advancing methods of interpreting sharia to reveal what he believes is its basic consistency with international standards of human rights.
For all that they differ over, both men think that defining sharia itself is crucial not only to their respective arguments but also to finding a healthy place for religion, and religious authority, in predominantly Muslim nations. If sharia is thought to be only a fixed set of laws, prescriptions, punishments (including those vaguely medieval ordinances about cutting off the hands of thieves and stoning adulterers), then, both scholars agree, there is little hope either for its being the basis of a constitutional democracy or for making it compatible with universal standards of human rights. But if it is something else or more—an ethos, a source of moral principles, a way toward sacred truth—that is made available to human beings through the ever changing, ever evolving interpretations of the sacred texts (the Koran and the hadith, or accounts of the acts and words of the Prophet), then there is hope that sharia and constitutional democracy are compatible.
An-Na'im's book goes more deeply into the meaning of sharia than does Feldman's. And even though Feldman's book has a different focus, its somewhat cursory treatment of the question raises concerns about his thoughts on the desirability and even the possibility of Islamic states. Na'im's closer examination strengthens his argument that in our times, secular states—and certainly not Islamic states—provide the only political conditions under which Muslims can truly live in accordance with sharia.
That is not to deny the strengths of Feldman's book, particularly its concise and thoughtful history of the evolution of the Islamic legal system from the time of the first caliphs (the successors to the prophet Muhammad) to our own. Above all, he illuminates the arrangement in which a largely self-selected body of scholars and jurists—known for their ability to interpret the Koran and hadith and eventually organized into various schools of jurisprudence—served as an effective counterweight to the otherwise unchecked power of the caliphs and sultans who ruled the various Muslim empires. Precisely because the principles of sharia were made accessible through the scholars, the scholars helped legitimize rulers whose responsibility was to command the good and to prohibit the bad. But while the scholars legitimized the rulers, they also moderated their power precisely by defining what was Islamically correct or incorrect—including levels and forms of taxation and the right of property ownership. Worldly Muslim rulers had to respect them and often gave them financial support.