In the preceding section we looked at some major disadvantages to the Islamist version of shari’a. To readers still unconvinced of the distinction between Islamism and Islam or between classical and Islamist shari’a, I offer the following deliberation.
In Islam there is supposed to be only one caliph- state, but at times—
such as the tenth century— there existed three caliphates (in Baghdad, Cairo, and Córdoba) at war with one another. Nowhere in Islamic society was there any cultural concept of separation of church and state, nor was the mosque an institution of its own like the Christian Church. The found er of historical sociology, Barrington Moore, wrote in The Social Origins of Dictatorship and Democracy that feudal Eu rope accommodated autonomous institutions in a kind of preexisting separation of church and state that
172 Islamism and Law
facilitated secularization in the West. There is no such thing in Islam. In fact, Islam throughout history has been more than a state religion in the modern Eu ro pe an sense, in that it affects not only rulers but everyday life.
Thus law and shari’a— understood as “way of life”— were essentially syn-onymous. Still, many points distinguish classical shari’a from the contem-porary shari’a of Islamism. Practically, as Joseph Schacht has argued, there was a separation between shari’a and siyasa, politics. In addition, classical Islam proceeded from moral teachings and matters of ritual, and the judges who administered local law were expected to use these moral teachings in-de pen in-dently to arrive at resolutions within a body of accepted pre ce in-dents and traditions. In contrast, Islamism creates a rigid exclusionary behavioral code with the intent of coercing people into compliance ( just as Hannah Arendt understood the relation between indoctrination and coercion), not using shari’a as “law” but declaring the law of the movement to be shari’a.
This coercion is a totalitarian feature that never existed in traditional Islam.
At this point we are compelled to ask, given the public popularity of shari’a, whether there are any grounds for moderation. Can shari’a be reformed or reduced to ethics, rather than abandoned altogether in an age of globalization? This is not only a most delicate issue but also a highly pertinent one, given that the return of the sacred is powerfully combined with the revival in non- Western civilizations of their cultural and legal traditions— however invented they may be. In Islamic societies with ad-vanced legal systems, such as Turkey, this revival creates confl ict between Islamists and secular modernists, who refuse shari’a altogether.
To cope with this situation, one needs to revive traditions of cross- cultural international ethics. This is more promising than the contradictory proposition of Abdullahi An- Na’im, who was a reformer, but recently under-went a sea change; he wants to have his cake and eat it. In Islam and the Secular State, in which he discusses “the future of shari’a,” An- Na’im com-bines his approval of shari’a, which he calls “a source of liberation and self- realization,” with a plea for a “secular state.” Unbelievably, he believes that this is consonant with a rejection of “the secularization of society.” 54 More consistent is the approach of the German legal phi los o pher Theodor Viehweg, who argues that “[Eu ro pe an] legal terminology prefers the assertive to the
Islamism and Law 173
instructive form of expression for constructing a legal reality of its own.” 55 Islamic legal terminology, on the other hand, constantly uses the instructive form: interpretations of the Qur’an, the primary source of Islamic law, ex-pressly articulate what is halal and haram, what is permitted and what is forbidden. Despite these differences, however, similarities exist in the way both traditions handle legal text. These similarities are important if an in-ternational society based on common norms, values, and laws is to be real-ized and civilizations with divergent legal traditions are to be prevented from drifting apart in an intensifying pro cess of cultural fragmentation.
The Kantian idea of demo cratic peace based on common constitutional standards offers a platform for culturally establishing an international, legally anchored consensus among civilizations. Such a platform would materially substantiate the principles contained in the U.N. Charter but would not prematurely integrate new states into an international legal order they had no part in creating. Moreover, such a cross- cultural interna-tional morality56 must be disassociated as much as possible from the premise of Eurocentric Westernization. Universal values— or the values we wish to make universal— cannot be imposed on non- Western cultures but instead need to be harmonized with them.
This is not always so easy. How can we establish the constitutional norm of freedom of faith in Islamic terms? Doing so will require a rethink-ing of Islam through legal reform, so that law forms the basis for a local cultural underpinning of universal legal values. The tradition that might enable such a rethinking exists within Islam, if it can be reawakened. Only a reformed shari’a, restricted to ethics and based on the tradition of Islamic medieval humanism, can be consonant with the idea of religious freedom that abandons the binary of believers versus unbelievers in the classic dicho-tomy of war and peace.57 A tradition of Islamic humanism exists in contrast to this binary.58
Islamism would take us in the other direction. Far from committing itself to plurality amid diversity combined with a consensus over core val-ues, Islamism contests cultural diversity even within Islam itself. The Islamist politics of shari’atization dismisses cultural and religious pluralism as divi-sive and also revives the dichotomy between the dar al- Islam, the house of
174 Islamism and Law
Islam (literally, of peace), and the dar al- harb, the house of war, a concept that contradicts all norms of religious and cultural pluralism. We need an Islamic reformation.