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.
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.
But An-Na'im goes further. A secular state is best for a Muslim-majority nation, he says, not only because it allows true religion to flourish but also because it fosters bringing universal standards of human rights to the critical task of interpreting and applying sharia. For example, it emboldens the faithful to give greater weight to those parts of the Koran that stress the universality of the faith (the so-called Meccan phase of the Prophet's teaching) rather than those parts of the Koran that came out when Islam was under siege from enemies (the Medina phase) and emphasized rather harsh teachings about non-Muslims and apostates.
An-Na'im is no utopian. He understands that the struggle over the meaning of sharia will not necessarily go the way he thinks and hopes it should. He also knows that in secular states, there will always be a negotiation, and sometimes an open struggle, between those who want to impose their religious beliefs on the entire society and those who want religion completely removed from the public sphere. Between those two groups of fundamentalists—religious and secular—there is a great majority that understands that negotiation among contending ultimate positions is what democracy is really about. To deny that possibility to majority-Muslim nations by acceding too quickly to the agenda of the Islamists would be a mighty blow, An-Na'im believes, not only to the cause of democracy and human rights but also to the future vitality of Islam.