28/10/2011

Sharia and the West: between prejudice and legitimate concerns

Sharia, a word that has troubled Western capital cities, raised concerns among public opinion and awoke the regular Islamophobic diatribes of Islam. Literally, the Sharia is the way, the common thread in life, rather than being just the Islamic law, it includes the precepts of the Koran, the Sunna (the Prophet’s tradition) and it is supposed to govern personal and family status as well as the criminal and public laws.

These interrogations about the sudden introduction of Sharia and its implications appeared after a statement, a clumsy one, of Mustafa Abdeljallil, president of the National Transitional Council (CNT) of Libya. This statement revealed that the Sharia will be the « main source of legislation » in the post-Qadhafi Libya. The recent victory (over 41% of votes) of the Islamist party Ennahda in Tunisia and the rise of the Muslim Brotherhood in Egypt has only fueled suspicions and increased the fear of radical Islam.

In the collective imagination, Sharia is often equated with stoning or polygamy. But actually the Sharia is the basis of law in many Arab countries constitutions. This is the case in Egypt since 1980, in Tunisia, where the first article of the Constitution states that Islam is the religion of the state. In Syria, the case law  relies on Islamic principles. Sharia is not a fixed set of laws. Its application depends on the interpretation that is made of it. The main distinction made in the Sharia between absolute and subjective principles is the key to its implementation. While the absolute principles are immutable, the subjective ones are subject to interpretation by the judge, case law can make the principles of Islamic sharia evolve, according to the evolution of society. Egyptian Constitutional Court has never clearly defined these absolute principles. A relative principle can be subject to an scalable interpretation and therefore an open one.

Apart from Saudi Arabia and Sudan, where Sharia is a part of the Penal Code, elsewhere it applies generally to family law and Islamic finance. Interpretations also vary according to different schools of case law in Sunni Islam, Saudi Arabia belonging to Wahhabi, the most rigorous of all.

Sharia law is not synonymous with lashing, stoning of adulterous women and hands cut off for theft, there is a large range of options between its blind application and its rejection.

Let’s put aside the effects of announcement, the idées reçues and the intellectual shortcuts to have a look at the facts as they are. The statement of the Libyan TNC, which has a political agenda much more than a societal or a religious one, informs us that the Sharia will be the source of the Libyan law, as it is the case in most Muslim countries. There is no indication that it will be strictly enforced. In Tunisia, the people spoke at a free and democratic election with record turnout. The ongoing negotiations between the various parties to form a coalition seem to reflect the will of Ennahda to submit to the rules of democracy.

It is not about being naive, one cannot ignore the weight of conservatism and tribalism in Libya. We must remain vigilant regarding the respect of fundamental freedoms, including gender equality, the protection of religious minorities, freedom of conscience . While rediscovering that Tunisia is a Muslim country, we should not content with the opposition between secularists and Islamists. An Islamist party does not automatically aim to the introduction of Sharia into the Constitution, just like the AKP in Turkey proves it.

The question is not whether we will regret Kadhafi and Ben Ali but the challenge is to trust the democratic aspirations of those people who have won the freedom to choose their leaders and their political system. It is not our responsibility to make judgments but to support them with as much fervor as we supported their fallen dictators for decades …

Dalila Bernard