What is Sharia, where does it come from, and why does it matter so much?

By Professor Dr. Johannes Jansen

Brussels, ICLA, July 9, 2012

The Islamic Sharia is a system of law. It is a collection of prohibitions, admonitions and commands about human behavior. The Sharia is not an internal matter that only concerns Islam and Muslims. The Sharia includes a large number of provisions about people who are not Muslims. These rules are usually prohibitions that carry severe penalties if violated. These provisions of the Sharia make life unsafe and uncertain for someone who lives under Sharia law and who is not a Muslim.

Under Sharia law, someone who is not a Muslim possesses no inalienable rights. If I am wrong here, I will be relieved, and happy to stand corrected and receive your e-mails pointing out why I am wrong. But if I am right, a prisoner in Guantanamo Bay possesses more rights than a Jew or a Christian who lives under Sharia law.

Unlike the legal systems of most modern nation states, Sharia law is not subject to democratic supervision. Like international law and rabbinic law, Sharia law is an academic affair: experts discuss and debate the rules until they reach an agreement. Sharia law does not know a parliament or a government that acts as legislator, but the rules of the Sharia come into being by being agreed upon by the experts, that is, the Islamic religious leaders, the professional Muslims, the Ulama, Ayatollahs, or whatever these dignitaries are called.

Like me, most of you will be only superficially familiar with international law. The pretensions of international law have never been put to the test of a free and democratic vote. It was, to say the least, interesting to note how often the accusers of Geert Wilders in 2010 and 2011 appealed to what they regarded as generally accepted international law in order to silence Geert Wilders. As international law demonstrates, communities of academic specialists, in their isolation, have a tendency to develop a degree of pedantry that an elected lawgiver could never afford. Up to a point, this is exactly what has happened to the Sharia.

Religions are not democratic even if they sometimes may preach or tolerate democracy. Hence, the way in which the rules of Islamic law come into being is undemocratic. This implies that allowing the Sharia, or a part of it, to be the law of the land in a Western nation will diminish the democratic character of that nation. It means giving away legislative power to unelected self-appointed men, who are unknown and anonymous, who operate from far-away mosques in Pakistan or Afghanistan. In a democracy, this is not the ideal arrangement. One may have legitimate religious reasons to nevertheless prefer such an arrangement, but it entails something worse than taxation without representation; it entails legislation without representation.

Western policymakers do not take Sharia law too seriously because it is an academic and religious affair, a system of law that springs not from the power of a state but from the minds of religious scholars. In the Muslim world, to the contrary, the authority of the Sharia is overwhelming. The colossal prestige of the Sharia in the world of Islam is easy to explain: Islamic theology identifies Sharia law with the will of God; and Sharia specialists are the religious leaders of the Islamic community. No government in the Muslim world can afford to alienate these specialists of religious law if it wants to remain in power.

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