Seeing Sharia Through the Prism of Serious Western Scholarship
According to the most authoritative 20th century Western Islamic legal scholar, Joseph Schacht (d. 1969), the Sharia, or “clear path to be followed,” is the “canon law of Islam,” which “denotes all the individual prescriptions composing it.” Schacht traces the use of the term Sharia to Koranic verses such as 45:18, 42:13, 42:21, and 5:48, noting an “old definition” of the Sharia by the seminal Koranic commentator and early Muslim historian Tabari (d. 923), as comprising the law of inheritance, various commandments and prohibitions, and the so-called “hadd” punishments. These latter draconian punishments, defined by the Muslim prophet Muhammad either in the Koran, or the hadith (the canonical collections of Muhammad’s deeds and pronouncements), included: (lethal) stoning for adultery; death for apostasy; death for highway robbery, when accompanied by murder of the robbery victim; for simple highway robbery, the loss of hands and feet; for simple theft, cutting off of the right hand; for “fornication,” a hundred lashes; for drinking wine, eighty lashes. As Schacht further notes, Sharia ultimately evolved to become “understood [as] the totality of Allah’s commandments relating to the activities of man.” The holistic Sharia, he continues, is nothing less than Islam’s quintessence, “the Sharia is the most characteristic phenomenon of Islamic thought and forms the nucleus of Islam itself.” But Schacht then delineates additional salient characteristics of the Sharia which have created historically insurmountable obstacles to its reform, through our present era:
Allah’s law is not to be penetrated by the intelligence … i.e., man has to accept it without criticism, with its apparent inconsistencies and its incomprehensible decrees, as wisdom into which it is impossible to enquire [inquire]. One must not look in it for causes in our sense, nor for principles; it is based on the will of Allah which is bound by no principles, therefore evasions are considered as a permissible means put at one’s disposal by Allah himself.
Muslim law … has always been considered by its followers as something elevated, high above human wisdom, and as a matter of fact human logic or system has little share in it.
For this very reason, the Sharia is not “law” in the modern sense of the word, any more than it is on account of its subject matter. It comprises without restriction, as an infallible doctrine of duties the whole of the religious, political, social, domestic and private life of those who profess Islam, and the activities of the tolerated members of other faiths so far as they may not be detrimental to Islam.
Independently endorsing Schacht’s views, Professor Carl Brockelmann (1868-1956), the renowned scholar of Semitic languages, and arguably the foremost Orientalist of his generation, made these candid observations about the Sharia’s injunctions pertaining to jihad, and penal law, in 1939 — Islamic Law being “valid” eternally, and all too widely applied in Brockelmann’s era, till now:
The Muslim may show only hostility to infidels when encountered: war against them is a religious duty. Idol-worshippers must always be attacked without more ado, Jews and Christians, however, only after they have ignored a summons made three times, to accept Islam. After defeat the men are to be killed, women and children sold into slavery. Whoever is killed in the Holy War [Jihad] is sure of paradise, as a martyr. In addition, it is permitted to conclude treaties with Jews and Christians, following the example of the Prophet; later on the Parsee Zoroastrians were placed on the same level as these “People of the Book.” But the obligation of the Holy War is merely postponed by such contracts, not annulled.
The penal code of Islam has remained on a rather primitive level and only marks a slight advance over the ancient pagan concepts of law. The murderer is subject to death through blood vengeance; manslaughter through negligence is recompensed by an indemnity to the survivors. Bodily injuries may be atoned for by the culprit according to the principles of lex talionis — but the culprit may also redeem himself by paying damages. Theft is punished by amputation of the right hand, in case of relapse by additional maiming. Adultery is punished by a hundred strokes of the lash; but if an infidel seduces a Muslim woman, he is subject to the death penalty. Blasphemy with respect to God [Allah], the Prophet, and his predecessors is punished by death, as is defection from Islam, if the culprit persists in his disbelief.
Another important mid-20th century scholar of Islamic Law, G.H. Bousquet (d. 1978), explained how Islam’s unique institution of jihad war, and its eternal quest to impose the Sharia on all of humanity, represented a “dual” totalitarianism. Writing in 1950, Bousquet further warned that these ancient Muslim doctrines remained vibrant, and relevant to the modern era:
Islam first came before the world as a doubly totalitarian system. It claimed to impose itself on the whole world and it claimed also, by the divinely appointed Muhammadan law, by the principles of fiqh, to regulate down to the smallest details the whole life of the Islamic community and of every individual believer … Viewed from this angle, the study of Muhammadan Law (dry and forbidding though it may appear to be to those who confine themselves to the indispensable study of the fiqh), is of great importance to the world of today.
Two prominent, enduring trends have reinforced this doctrinal, Sharia-based totalitarianism.