Shari'a and Secular Democracy

Issue 58 July 2009

Lecture

Shari’a and Secular Democracy: Is Islam compatible with the European Convention on Human Rights?

By Mahmud Al-Rashid

The latest instalment in Temple Church’s fascinating series of Discussions on Islam in English Law was chaired by the Britain’s top European judge Sir Nicolas Bratza. In the audience were illustrious figures like Lord Justice Sedley, one of Britain’s more enlightened and progressive judges, with a true empathy for freedoms and liberty.

Unfortunately, one of the speakers on the night did not quite live up to the occasion. The first speaker, Professor Mashood Baderin from SOAS answered the question about compatibility Yes and No. “If secular democracy is simply a rationalised process, then it is acceptable in shari’a. If it is an ideology, then it cannot be reconciled with the shari’a.”

He made the bold and contentious, though arguably true, assertion that the “Islamic system is a secular system underpinned by a God-consciousness – it is a theo-centric system, not a theocratic one.” Prof Baderin started his presentation by making clear that ‘shari’a’ and ‘Islamic law’ are not synonymous. One provides fundamental guidance in religion, politics, law, morals, ethics – essentially a whole bundle of values that need to be actualised in human life: that’s shari’a. Whereas Islamic law, translated as ahkam al-shari’a, are the actual laws for a society derived from the shari’a. And the process of deriving such laws is known as fiqh.

“Shari’a is immutable, whereas fiqh is changing,” explained Baderin. This fundamental misunderstanding, ie. that shari’a is the same as Islamic law, is what led the European Court of Human Rights (ECtHR) to make the alarming and mis-informed comments that it did in the case of the Refah Party vs. Turkey in 2001. (A powerful critique by Prof Kevin Boyle of the ECtHR decision can be found at here). In my opinion, the decision of the ECtHR in the Refah Party case marks perhaps its lowest point in the way it expressed – unnecessarily – wholly uninformed and regressive views on the shari’a. Prof Baderin’s final message was a plea to Muslims: what sort of Islamic law do we want? One that is traditional or one that is evolutionary? One that is hard-line or moderate?

In contrast, the presentation by Prof Dominic McGoldrick of Liverpool University was very thin on substance when it came to the shari’a. As one of the audience members remarked afterwards, it appears as though McGoldrick had acquired his knowledge of shari’a from reading the Daily Mail. Clearly, the professor was out of his depth but he made it worse by being glib and condescending. Some of his language was truly alarming: Muslims should ask what’s in the European Convention for them? We are walking into segregation with our eyes wide open. Do we want a Muslim Europe or a European Muslim? He even used the phrase “them and us”! “Are you seeking votes for the BNP?” one angry audience member asked afterwards. In defending the ECtHR’s decision McGoldrick said the court was justified in acting pre-emptively. So, the Refah Party was disbanded not because of what it had done, but what it may politically do in the future, and that’s all right! It is worrying that the jurisprudence of the Court could blithely extend that far into the workings of democracy, but perhaps it reflects the fear of ardent secularists that religious values are entering the public sphere. Indeed, McGoldrick’s own concern, “How do you protect democracy against those who wish to destroy it?” seems to echo the concerns of violent extremists, Muslim or otherwise, around the world: you can ban something you dislike using legal procedures or you can destroy it using guns and bombs. It all depends on which of the reins of power you hold. Now, that is definitely incompatible with the shari’a. ¢

Temple Church, Middle Temple, London 4th June 2009