It is no exaggeration to say that sharia discussions generate two diametrically opposed approaches that battle each other without any possibility of mediation or reconciliation. One side presents sharia as the epitome of cruelty, violence and irrationality. The other side presents it as the pinnacle of perfection, harmony and beauty. One is concerned with finding its flaws in order to discredit it. The other is concerned with pointing out the good in order to promote it, particularly in those areas where sharia has worked exceptionally well, even if that is only confined to an all but forgotten historical past. These two approaches are two sides of the same coin: their content-differences are as big as their formal-differences are small. In Hegelian terms we would say the opposites coincide. Both view sharia as static and inherently incongruous with the modern world. The first group perceives this incongruity as its fundamental flaw; the second group perceives it as what distinguishes sharia, as God’s law, from the secular law that is subject to change and corruption.
Both of these views are extreme in their consequences and idealistic in their understanding of what constitutes sharia. For that very reason they are marginal. This does not mean that what they say is nonsense. Sometimes there is more truth in formal approaches than context-sensitive approaches that tend to blur the problematic nature of many sharia rulings. It only means that the conclusions they draw do not necessarily or always follow from the actual historical practice of sharia. Sharia is far more flexible and changeable than what these two views would allow. The historical truth lies somewhere in the mediation of these two extremely polarizing views. Although they tend to attract most public attention they do not constitute the truth of the matter. So how then do we understand sharia?
We have to change the terms of this debate. So long as sharia remains wedded to these two oppositional points of view no further progress is possible. Due to the relevance that sharia holds for Muslim believers and what is ideologically at stake for the future of our societies the debate has to be contextualized in such a way as to avoid the socio-political pitfalls of the two extremes. To friend and foe alike, sharia is something to be ideologically reckoned with. It has become an ideological factor in the religious and political controversies of today where in many instances it sets the agenda for vital issues such as the integration of Muslims in Western societies.
In an article published in Nytt Norsk Tidskrift 2-2011 I have sought to provide a more complex picture of sharia arguing that the problematic nature of many sharia rulings is to be explained as a result of a methodological ossification. That is to say, in searching for an explanation of why is sharia proving resistant to certain ideas and practices, which have found a strong foothold in western societies, it is pointless to point the finger of accusation at sharia as the alleged culprit. One has to take issue with a certain methodology or politics of reading which gives us the body of doctrines, norms, laws and fatwas that are commonly associated with sharia. Or less contentiously, one addresses a variant of sharia which is hegemonic today. Our understanding is not improved a bit by stating a rather obvious fact that the unequal position of women in sharia is because of sharia. Sharia is not self-explanatory.
Faced with the problem of the failed encounter between sharia and modernity, the apologists of sharia have eagerly sought to debunk critiques of many problematic sharia norms as either misunderstanding of sharia or explained the norms historically pointing to the context of their emergence. This is all very well when the norm ceases to exist in another context. But when the norm is upheld as if the original context is still present then we have to seek a different principle of explanation. It is my contention that sharia as it functions today is bound to reproduce the norms and rules which are its distinctive marks, regardless of the context or historical situation. And because the methodology is inflexible sharia is bound to remain, in crucial aspects, incongruous with the modern understanding of equality. In order to see what is at stake here I compare Islamsk Råd Norge’s attitude toward the death penalty for homosexuals and Tariq Ramadan’s call for a moratorium. In both cases we have the usual trope: the actors themselves are against these practices but cannot take the decisive step to condemn the norms. Islamsk Råd Norge is publicly against the punishment of homosexuals. So is Tariq Ramadan against the stoning of adulterous women. If we are to avoid condemning the actors to hypocrisy or “double talk” we must seek the principle of their refusal to outright condemn the norm in the methodology of their reading of sharia. They simply cannot assert without certain conditions being fulfilled or without self-contradiction the contrary of the established norm.
With these preliminary remarks we can go straight to the question which really matters: is sharia compatible with the secular law? The answer must be that it depends which law we want to compare it with. There are sharia laws which are not in any substantial form different from the secular law. But these are not the ones we are interested in when we raise the question of congruity. What we want to know is what we already suspect we know, namely the areas where the differences are most obvious such as the treatment of women, homosexuals and the religious minorities. It is obvious that Islamic law has not yet head on confronted the problem of gender and religious discrimination; in fact it has not as yet fully problematized such discriminations. It has so far explained it away, refusing to see the unequal treatment of women and homosexuals as a serious problem which demands an urgent rectification. This does not mean that Muslims have not thought and raised many questions about such issues! They have and they still do. But there is no solution in sight which satisfies both the demands of sharia and modernity. If this is due to a methodology which considerably restricts the freedom of the interpreter then we have the case that sharia presently is incompatible with modern notions of equality.