Back to the Elections: Sharia Law as less-than-perfect Administrator

I promised you this post about three days ago . . . but life (and other Indonesian tidbits) intervened. (that line is from a poem but I cannot for the life of me remember it.) Anyway, this may be a two-post day.

Partai Aceh is using the implementation of Sharia Law in Aceh to further solidify a break with Indonesia by attempting to separate the constitution of Aceh from the national constitution.  I want to talk a little about the practicality of using Sharia law as not just the guide for but the basis of rules, regulations and policies that govern all parts of civil society and public services. I’ve had to rely on a few texts and lectures for this post, because even though I agree with what scholars and analysts have said, my initial reaction to any tiny group of people who hijack a faith for personal gain just makes me sputter incoherently, and I want to be a bit more coherent here.  And brief!  We don’t need another sleep-inducing pedantic tome on the vices or virtues of political Islam.

So here goes.

A government that wants to promote itself as “Islamist” first and foremost (as opposed to Democratic or Socialist or Monarchic etc.)  is going to run into some difficulty because it must stretch itself across all areas of life, not just religious/spiritual practice.  It immediately inherits responsibilities that as a faith it has never been established to address.  And Islam has never been a homogenous entity (this is especially evident in Indonesia with all its different factions).

Sami Zubaida, in his book Beyond Islam, writes that both the West and Islam “comprise a great diversity of cultures, social formations and political organizations historically and now.

There is a great deal in common for example, between conservative Islamic advocacy in the Middle East and that of the US religious right. Both advocate the supremacy of revelation over science, the moralization of society, and the regulation and censorship of cultural products. [my emphasis.]

“To see Islamic law as one immutable set of norms, then, is difficult in light of the contemporary and concrete problems of governance, economic development, opportunity, social services, security, international relations, trade, etc.  In an earlier post I quoted Bertrand Russell, who said that his main gripe with Communism was its reliance on a tiny number of self-described “elites” who make decisions and force their vision of change onto a “recalcitrant majority.” 

Likewise, Sharia law i is guilty of this technical failure to address those specific areas of governance that deal with civil society, and this failure makes the idea of parliamentary or legislative power (or importance) pretty absurd.

In 1988 Ayatollah Khomeini issued his famous fatwa on maslahat (public interest), maintaining that "[The Islamic state] is the branch of the absolute trusteeship of the Prophet and constitutes one of the primary ordinances of Islam which has precedence over all derived ordinances, such as prayer, fasting, and pilgrimage." In other words, the existence of this Islamic government is more important than any thing else we have in our legal tradition. So Islamic law is what characterizes a community and is what legitimizes its claim to power.

But Khomeni also says that actually being in power is more important than Islamic law. Our being in power allows us, and actually necessitates us, to suspend or contradict any notion in Islamic law if we deem it necessary. So this concept of “maslaha” or “utility” or “public interest,” says Zubaida, “has been advocated at various times as a let-out clause for policy and legislation."

Efraim Afsah of the University of Copenhagen sums it up like this: "Those now actually in power have to figure out how to derive public law and policy from a body of work that has been developed by private individuals, (which is how Islamic law began), that is focused on private law and private transactions, is highly formalistic, very inflexible, with very strong emphasis on procedural matters, and that is now being used to run the public sphere. And they have to derive public law from this. [Sharia law] simply does not provide the answers in all the fields that a modern government is faced with. That is the practical challenge.”

The body of Islamic law is said by its proponents to be complete (or as Zubaida says, “a total 'civilization', not just a religion but a political and social system, and the divinely revealed law at its core"). But it has no conceptual answers to practical problems. It does not have rules for governance, or “secondary rules:” rules about how to assess when new rules need to be made, no instruments of governance or civil law in place and ready for new leaders.

Also, a massive degree of violence has been needed to push through Islamist reform efforts in a great many countries, not just Indonesia, and not just against a secular opposition but violence against otherwise sympathetic people who are often trained in religious law and who may disagree on minor points. And that again points to the absence of these “secondary rules,” for example, the rule of recognition:  How does a member of society recognize that a rule is valid? There are no clear means of doing this.

The rule of change: How do I change rules that are no longer practical? With Sharia this is a big problem because rules, once they exist, once they find themselves in one of the many fiqh manuals, are very hard to change.

And then there’s the rule of Adjudication: How do I deal with two competing rules? How do I decide which rule takes precedence? There are no methodological norms to solve this; if there were, there would be no need to use violence against people who have different opinions.

This method of using a state apparatus to bend reality to conform to ideological preferences is what is at the heart of the “enactment” of Sharia law.  But what’s so awful about its application in Aceh is that those who are promoting it have either not thought through its devastating consequences based on its own inability to respond to the practical realities of the majority of Acehnese citizens . . . or, since they are only interested in the political results Sharia will yield for them, they simply do not care.  And I fear it is the latter.