That system began to fall apart in the late Ottoman Empire, when 19th-century reformers produced a comprehensive code of the civil law of sharia, fashioning something that was intended to approximate European codes of law and often incorporating elements of those codes. Civil jurists without traditional religious training became the primary enforcers of this code. The traditional scholar-jurists did not disappear and, in fact, continued to have much influence in the realm of family and personal law. But their interpretations of the sacred texts were no longer the primary means by which sharia was understood and applied to the workings of the state and civil society. Sharia was now applied primarily through the code. But without a strong legislature or an independent judiciary to speak for the code, rulers could simply ignore or suspend it when they wanted to. Which is what they did. And similar things happened in postcolonial Muslim-majority nations, where laws combining elements of sharia and European codes provided constitutional arrangements that autocratic rulers could dissolve or ignore at will.
Feldman thinks that the restoration of the authority of sharia in modern Muslim-majority nations might be the only way for them to move beyond their current democracy deficits. But that is a fragile hope. At the moment, of course, the biggest backers of the idea are the Islamists and their various political parties, including the Muslim Brotherhood, Hamas, and Hizb ut-Tahrir (Party of Liberation). Islamists now brightly talk about Islam and democracy, but many observers fear that they would use open elections to install repressive theocratic regimes drawing on the most conservative interpretations of sharia as the basis of their new constitutional orders. Islamists, when questioned on how they would treat women or non-Muslim minorities in Islamic states, tend to respond vaguely or evasively. Feldman is not so naive as to give them a free pass. Nor does he ignore the democratic deficiencies of the two nations, Iran and Saudi Arabia, that have sharia as the law of the land. While saying that principles of sharia will have to become part of the constitutional fabric of modern Islamic states, he adds that this will work only if Islamists find new institutions to give life to sharia, whether it is an Islamically oriented legislature or a court with the power of Islamic judicial review. How guarantees of democracy and all citizens' rights are to be achieved in an Islamic state is not entirely clear.
Hence the value of An-Na'im's book, which argues that a modern Islamic state, whether democratic in name or not, is bad for all its citizens, including Muslims. An-Na'im makes the case that such a state will ultimately weaken the ability of Muslims to live their lives in accordance with sharia, precisely because a constitutional arrangement based in whole or in part on sharia will be grounded in one and only one interpretation of sharia. And because interpretations are not divine but human and also because they are subject to changing cultural and historical conditions, that one interpretation, if ratified and enforced by the state, would invalidate all other human interpretations of divine will. It would effectively kill the reality of faithful Muslims' spiritual lives: their ongoing efforts to understand and apply the eternal principles of their religion to the problems and decisions that arise in an ever changing world. This situation, he explains, would be a debasement of what prevailed even in classic Islamic empires, where the variety of scholarly schools of interpretation allowed for competing understandings of the sacred teaching.
For those reasons, An-Na'im says that a secular state founded upon no explicitly religious principles is best for the true practice of religion. But he does not believe that Islam will have no influence on the civic life of a Muslim-majority secular state. It will have that influence through politics—the election and appointment of representatives and officials of the state through the collective will of people whose values are shaped by, among other things, religious principles. But to have influence in the public sphere, the values of Muslims will have to be articulated in terms of what he calls "civic reason," language that supports policies and programs for the good of all citizens and respects the rights of minorities.