Islam and Democracy:
Sharia Law in the Modern Middle East
For many Americans, the term “Sharia” or “Sharia law” conjures negative images of harsh punishments, men with long beards, oppressed women fully covered, and Islamic terrorism. However, this may only be because Americans are not familiar with the true meaning and history of Sharia. In reality, recent years of internal struggle within many Middle Eastern states have led to political tyranny, extremism, and radical interpretations of Sharia that have profoundly distorted Western understanding of this term. Due to its historical roots, Sharia law remains an inseparable component of the Islamic world today, and therefore it is crucial for understanding the causes of the current political crisis. It is essential that US policymakers intent on engaging with actors in the Middle East comprehend Sharia, including the sources of the law, the traditional Sharia system, its historical development, and ultimately how Sharia has manifested in the modern era. Through increased understanding of the foundations of Middle Eastern law and society, the US may be better able to promote democratic reforms that are compatible with traditional Sharia, ultimately tempering US security concerns and advancing humanitarianism, law, and justice in the region.
In the literal Arabic translation, Sharia means “the path” and according to its original definition, Sharia law encompasses the framework for governing religion and morality in Islamic societies. Sharia deals with many different aspects of life within society, ranging from marriage and crime, to prayer and everyday hygiene. As the scholar Wael Hallaq explains, Islamic law “has an all-encompassing interest in human acts.” The legal system Sharia established to enforce these norms encouraged both the individual and the society to live in peace.
What differentiates Sharia from other systems of law are the sources of jurisprudence. According to Sharia, the most important sources of the law are key texts from the Islamic tradition: the Quran and the Sunna. The Quran is considered by followers of Islam to be the word of God as spoken to the Prophet Muhammed, and the Sunna is a record of Muhammed’s teaching, deeds, and lessons. The Quran provides roughly 500 legal verses intended to describe proper human conduct, and the Sunna includes over 5,000 phrases, known as hadiths, that have been determined by scholars and legal experts in the Sharia system to be prescriptive in nature.
These texts alone do not provide the complete system of Sharia law as many of the texts are ambiguous and are difficult to apply directly to legal issues. Thus, another key process of Sharia is ijtihad or interpretation. Hallaq explains that according to early followers of Islam, Sharia developed to involve guidance from the texts as well as interpretation by experts in the Islamic tradition since God gave humans the gift of rational thinking. “This combination, viewed as a marriage between reason and revelation, was the ultimate source of the law.” Essential to this process were the mufti or author-jurists, the qadi or Muslim judge, and the legal scholar. Besides the Quran and the Sunna, experts also considered other factors when developing answers to legal questions, such as consensus of the ummah (Islamic community), analogies, and local customs and traditions. All these sources contributed to the interpretation and reasoning process of the jurist in each case.
In centuries following the founding of Islam (610 C.E.), several schools of Islamic jurisprudence (fiqh) formed. Each emphasized the different sources of Sharia to varying degrees. Schools of jurisprudence varied due to geographic, cultural, and sociological differences across the Islamic world. For example, the recognized schools within Sunni Islam include Hanafi, Maliki, Shafi’i and Hanbali, each one named for its founding jurist. They are prominent in different geographic regions depending on the societies who adopted the school as the common law. This demonstrates yet another unique feature of Sharia law: there can be many different opinions, and no single school of jurisprudence has a monopoly over the proper understanding or application of the law. Traditional Sharia practiced legal pluralism, which provided flexibility and adaptability to highly diverse societies and regions, as well as the ability to change and develop over time. As Hallaq explains, Sharia was a “continuously renewed exercise in interpretation… The law was mostly a juristic guide which allowed resolution of specific situations due to consideration of its unique facts.” Islamic law utilized the divine texts, but it was not fully developed until interpreted within the context of social reality. Sharia was ultimately a grassroots, bottom-up legal system, practiced by local communities according to their preferences and traditions, and nurtured by a culture of self-governance and self-rule.
Beginning in 18th century British India, Sharia law was gradually replaced by Western legal practices, characterized by the codification, homogenization, bureaucratization, and centralization of legal and political authority. Sharia law in its original form could not survive the rapid transformations wrought by the adoption of the nation-state system across the Islamic world. The forces of modernization and Western influence caused the “structural dismantling of the Sharia legal system, and left behind a distorted and gradually diminishing veneer of Islamic law.” From the early caliphates to the late Ottoman sultanate, Islamic empires had established traditional Sharia-based political and legal authority. When the concept of a centralized nation-state’s Western legal code replaced caliphal administrative and localized Sharia law, the outcome radically altered the practice of Sharia. Where before the law was unique to each tribe, clan, or village, the nation-state codified and homogenized the law through a centralized governing apparatus. Traditional Sharia was law provided by God that could be interpreted and enforced by civil society, whereas Western legal systems prescribed authority through written constitutions, bureaucracy, and elected representatives.
Sharia’s decline was accelerated in the aftermath of World War I, when secular nationalist governments, such as Turkey under Kemal Ataturk, sought to modernize the state by centralizing government authority and establishing Western legal customs. The post-World War II era in the Middle East was defined by the rise of autocratic regimes, both monarchies and secular-nationalist systems of governance. These states were often oppressive, economically backward, and ruled without adherence to traditional Islamic law. These factors combined to create radical or revolutionary movements, the most powerful of which were the Islamists who adopted the views of Sayyid Qutb, the Egyptian intellectual and Muslim Brotherhood leader considered by many to be one of the founders of modern Islamism. Qutb expounds in his Milestones and In the Shade of the Quran how democracy and Islam will forever be incompatible, as “democracy requires human legislation, and the very act of making law places human sovereignty above that of God, who alone is sovereign.” Islamist supporters of Qutb have influence in nearly every Middle Eastern country to varying degrees. Their goal is to reestablish Islamic law and to Islamize society by rejecting Western ideas and values that have pervaded Islamic society in previous centuries. In its most radical manifestations, groups espouse the violent duty of jihad to usher in this Islamist utopia. Militant groups like al Qaeda and the Islamic State engage in terrorist activity to mobilize and transform the global Islamic community. While representing a fraction of Islamic society, these groups significantly influence the region by creating political conflict and social turmoil.
Most modern Islamic states do not practice traditional forms of Sharia, and many governments that claim to enforce Sharia law are among the most intolerant, inflexible, and dictatorial on the globe. For the most part, Sharia today is limited to the realm of family law, a jurisdiction of limited concern for the modern-state (unless taxes are involved). As a result, legal issues such as divorce, inheritance, and women’s role within society now form the primary and most fervently protected aspects of Sharia. These legal areas went largely unchallenged by Western legal tradition and the nation-state political system. Thus, these issues have come to represent fixed cultural symbols for Islamic society, whose members have born witness to sweeping transformations to its legal traditions driven by outside influence, as well as its social, economic, and political structures. The loss of traditional Sharia has subsequently garnered zealous and sometimes radical attachment to these issues, which are staunchly guarded by many as the last remnants of an Islamic way of life.
Divergence over proper interpretation and implementation of Sharia law drives much of the political conflict in the Middle East today. If US policymakers seek to advance democratic governance in the Middle East, they must then gain a deeper and more complete understanding of the role Sharia law plays in Islamic society. Western conception of Sharia governance typically resembles the Qutbist school, believing that Islamic law and democracy are inherently incompatible. On the contrary, traditional Sharia law included many customs that would support democratic systems, such as pluralism, flexibility, consensus, and the traditions of independence and self-rule. Tauseef Ahmad Parray, a professor in Islamic Studies and Democracy at Aligarh Muslim University in India, concurs, noting that, “the Islamic heritage of Sharia provides a foundation for developing authentically Islamic forms of democracy based on the operational key concepts and on the values and qualities inherent in it.” He explains how modern scholars can use concepts including shura, khilafah, ijma, and ijtihad to create a foundation for Islamic democracy. Parray represents a community of reformist/modernist intellectuals who embrace democracy and increasingly push for governing systems that bridge the gap between these Islamic concepts and democratic processes.
Security issues stemming from violent jihadist groups and militaristic Islamic regimes necessitate US policies that will build peace in the Islamic world. US foreign policy must address and confront the historic role of Sharia in the modern Middle East, while Islamic societies must be willing to adapt the Sharia system to the nation-state system so that it can be applied in the modern era. Given these realities, the US should not fear engagement with political parties that advocate for implementation of Sharia, as long as those parties accept reformist interpretations and democratic practices. The US should encourage reformist voices in Islamic society by identifying religious figures, political leaders, and scholars working to create harmony between democracy and Sharia. Much of this process must occur organically within Islamic society, however. While the US should support such voices, these figures must assume a greater role of expressing the views and values of the broader community to better reflect social realities.
In tandem with this policy of reviving the more traditional forms of Sharia, the fundamentalist ideology that produces violent jihadists must be discredited. This objective will entail efforts to counter the ideology itself, while also incorporating strategies to remove the multitude of grievances toward modernity, as well as the environments in which those grievances fester. Economic growth, access to education, foreign aid, and competent governance are some of the mechanisms through which such grievances will be addressed. States in the region must begin to implement an Islamic form of democracy in order to stymie the growth of extremism. This would advance the assertion that Islamic democracy is viable and that democracy represents the best form of government for traditional Sharia to thrive. Such reforms would allow the Islamic world and the West to reconcile their historical animosity, as it would expand efforts toward “humanitarianism, justice, and peace on genuine and reasonable ground… instead of clash and conflict, it is an endeavor of bridging the gap and building harmonious relationship between civilizations.” It is also vital that the people living in these societies support such changes. The US can assist by building relations with amicable regimes and offering trade, investment, and foreign aid, but as mentioned, the process starts with organic reform. Policymakers must remember Madeline Albright’s warning, that “democracy is not a gift delivered by God or by the United States; it is a system of government that each country may choose to develop at its own pace and in its own way.” Democracy will not come to the Islamic world by the barrel of a gun, but through consistent diplomacy, security cooperation, and economic partnerships.
Sharia was once the lifeblood of the Islamic world, animating daily life through religious and moral teachings that were inseparable from the realm of law and politics. Modernization and the nation-state system dramatically transformed the traditional Sharia, and Islamic societies have since struggled to adapt Sharia law to the modern realities of political and legal authority. Conflict has defined the region for much of the last century, allowing tyrants and terrorists to usurp and distort the meaning of Sharia for their own impulses. From the perspective of US foreign policy, Sharia law remains a crucial concept to bear in mind when assessing our relationship with the Islamic world. By promoting democratic reforms that are compatible with traditional Sharia, the US can temper security concerns while also developing common objectives of humanitarianism, law, and justice.
Albright, Madeleine. The Mighty and the Almighty. New York: Harper Collins, 2006.
Bernard, Cheryl. “’Moderate’ Islam Isn’t Working,” The National Interest. December 20, 2015. http://nationalinterest.org/feature/moderate-islam-isnt-working-14693?page=3.
Gerges, Fawaz. The Far Enemy: Why Jihad Went Global. Cambridge University Press, 2009.
Hallaq, Wael. An Introduction to Islamic Law. Cambridge University Press, 2009.
Hefner, Robert. Shari’a Politics: Islamic Law and Society in the Modern World. Indiana University Press, 2011.
Parray, Tauseef Ahmad. “’Islamic Democracy’ or Democracy in Islam: Some Key Operational Democratic Concepts and Notions.” World Journal of Islamic History and Civilization 2, (2012): 66-86 http://s3.amazonaws.com/academia.edu.
“What is Shariah? Major Sources and Principles of Islamic Law,” The Islam Project, http://www.islamproject.org/education/D01_IslamicLaw.htm.
 Wael Hallaq, An Introduction to Islamic Law, (Cambridge University Press, 2009), 19.
 Hallaq, Islamic Law, 15.
 The Islam Project, http://www.islamproject.org/education/D01_IslamicLaw.htm.
 Hallaq, Islamic Law, 166-167.
 Ibid, 167-168.
 Hallaq, Islamic Law, 140.
 Fawaz Gergez, The Far Enemy: Why Jihad Went Global (Cambridge University Press, 2009), 7.
 Robert Hefner, Shari’a Politics: Islamic Law and Society in the Modern World (Indiana University Press, 2011), 6.
 Tauseef Ahmad Parray, “’Islamic Democracy’ or Democracy in Islam: Some Key Operational Democratic Concepts and Notions,” World Journal of Islamic History and Civilization, 2 (2): 66-86, 2012.
 Cheryl Bernard, “’Moderate’ Islam Isn’t Working,” The National Interest, December 20, 2015, http://nationalinterest.org/feature/moderate-islam-isnt-working-14693?page=3.
 Parray, Islamic Democracy.
 Madeleine Albright, The Mighty and the Almighty (New York: Harper Collins, 2006), 230.