Only the rights of god have the character of a penal law proper, of a law which imposes penal sanctions on the guilty. Even here, in the center of penal law, the idea of a claim on the part of God predominates, just as if it were a claim on the part of a human plaintiff. This real penal law is derived exclusively from the Koran and the traditions [hadith], the alleged reports of the acts and sayings of the Prophet and of his Companions. The second great division of what we should call penal law belongs to the category of “redress of torts,” a category straddling civil and penal law which Islamic law has retained from the law of pre-Islamic Arabia where it was an archaic but by no means unique phenomenon. Whatever liability is incurred here, be it retaliation or blood-money or damages, is subject of a private claim, pertaining to the rights of humans. In this Held, the idea of criminal guilt is practically nonexistent, and where it exists it has been introduced by considerations of religious responsibility. So there is no fixed penalty for any infringement of the rights of a human to the inviolability of his person and property, only exact reparation of the damage caused. This leads to retaliation for homicide and wounds on one hand, and to the absence of fines on the other.
In sum, sharia is the total collection of theoretical laws that apply in an ideal Muslim community that has surrendered to the will of God. It is based on divine authority that must be accepted without criticism. Islamic law is thus not a product of human intelligence, and in no way reflects a constantly changing or evolving social reality (as does European law). It is immutable, and the fiqh or the science of the sharia constitutes the infallible and definitive interpretation of the Sacred Texts. It is infallible because the group of Doctors of law have been granted the power to deduce authoritative solutions from the Koran and the traditions; and definitive because after three centuries, all the solutions have been given. While European, law is human and changing, the sharia is divine and immutable. It depends on the inscrutable will of Allah, which cannot be grasped by human intelligence—it must be accepted without doubts and questions. The work of the learned doctors of the sharia is but a simple application of the words of Allah or His Prophet: it is only in certain narrowly defined limits, fixed by God Himself, that one can use a kind of reasoning known as qiyas, reasoning by analogy. The decisions of the learned, having the force of law, rest on the infallibility of the community, an infallibility that God Himself conferred through Muhammed on his community [Bousquet, Hurgronje, Schacht].
1. Two of the roots of Islam are the Koran and the sunna as recorded in the hadith. First, we have already given reasons why the Koran cannot be considered of divine origin—it was composed sometime between the seventh and the ninth centuries, full of borrowings from talmudic Judaism, apocryphal Christianity, the Samaritans, Zoroastrianism, and pre-Islamic Arabia. It contains historical anachronisms and errors, scientific mistakes, contradictions, grammatical errors, etc. Second, the doctrines contained therein are incoherent and contradictory and not worthy of a compassionate deity. Nowhere is there any proof for the existence of any deity. On the other hand, the Koran also contains praiseworthy, even if not particularly original moral principles—the need for generosity, respect for parents, and so on. But these are outweighed by unworthy principles: intolerance of pagans, the call to violence and murder, the lack of equality for women and non-Muslims, the acceptance of slavery, barbaric punishments, and the contempt for human reason.
2. Goldziher, Schacht, and others have convincingly shown that most—and perhaps all—of the traditions (hadith) were forgeries put into circulation in the first few Muslim centuries. If this fact is allowed, then the entire foundation of Islamic law is seen to be very shaky indeed. The whole of Islamic law is but a fantastic creation founded on forgeries and pious fictions. And since Islamic law is seen by many as “the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself,” the consequences of Goldziher’s and Schacht’s conclusions are, to say the least, shattering.
3. Priestly Power:
That there is a will of God, once and for all, as to what man is to do and what he is not to do; that the value of a people, of an individual, is to be measured according to how much or how little the will of God is obeyed; that the will of God manifests itself in the destinies of a people, of an individual, as the ruling factor, that is to say, as punishing and rewarding according to the degree of obedience…. One step further: the “will of God” (that is, the conditions for the preservation of priestly power) must be known: to this end a “revelation” is required. In plain language: a great literary forgery becomes necessary, a “holy scripture” is discovered; it is made public with full hieratic pomp…. With severity and pedantry, the priest formulates once and for all, …what he wants to have, “what the will of God is.” From now on all things in life are so ordered that the priest is indispensable.
Muslim apologists and Muslims themselves have always claimed that there were no clergy in Islam; but in reality, there was something like a clerical class, which eventually acquired precisely the same kind of social and religious authority as the Christian clergy. This is the class I have been referring to throughout this chapter as “the learned doctors” or the “doctors of law,” otherwise known as the “ulama.” Given the importance attached to the Koran and the sunna (and hadith), there grew a need to have a professional class of people competent enough to interpret the Sacred texts. As their authority grew among the community, they grew more confident and claimed absolute authority in all matters relating to faith and law. The doctrine of “ijma” merely consolidated their absolute power. As Gibb says, “It was…only after the general recognition of ijma as a source of law and doctrine that a definite legal test of heresy was possible and applied. Any attempt to raise the question of the import of a text in such a way as to deny the validity of the solution already given and accepted by consensus became a ‘bid’a,’ an act of ‘innovation,’ that is to say, heresy.”
The continuing influence of the ulama is the major factor why there has been so little intellectual progress in Muslim societies, why critical thought has not developed. Throughout Islamic history, but especially in recent times, the ulama have actively hindered attempts to introduce the idea of human rights, freedom, individualism, and liberal democracy. For example, the ulama reacted violently to Iran’s 1906–1907 constitution, regarding it as “un-Islamic”; they were totally opposed to the idea of freedom contained within it. The ulama have been involved in the process of Islamization in modern times in three countries in particular, Iran, the Sudan, and Pakistan. In each of these countries, “Islamization has effectively meant the elimination of human rights or their restrictions by reference to Islamic criteria.”
5. Is the sharia still valid?
We may well ask how a law whose elements were first laid down over a thousands years ago, and whose substance has not evolved with the times can possibly be relevant in the twentieth century. The sharia only reflects the social and economic conditions of the time of the early Abbasids and has simply grown out of touch with all the later developments—social, economic, and moral. It seems improbable but we have progressed morally: we no longer regard women as chattel that we can dispose of as we wilclass="underline" we no longer believe that those who do not share our religious beliefs are not worthy of equal respect; we even accord children and animals rights. But as long as we continue to regard the Koran as eternally true, with an answer for all the problems of the modern world we will have no progress. The principles enshrined in the Koran are inimical to moral progress.