Why misunderstanding Shariah means losing to terror

It is always a delight to read yet another article on "Shariah Law" from the English press. As anybody even mildly familiar with Arabic, Urdu or Farsi would tell you, "Shariah" means "law", so it is a wild ride as you read how "Law law" is different from "rule of law" and must be opposed. As most people associate Shariah with the chopping off of limbs and the stoning of women by groups such as the Taliban and ISIS, it is understandable that such confusion exists. Shariah, or Islamic law, currently bears the stains of its most bloodthirsty proponents. But here is the question, if Shariah is Islamic Law, how does it differ from "normal" law? And frankly, does "normal" law have an identity?

The last question is possibly the most important one. There is limited examination of the civil law that we take for granted in our lives, but the Latin phrases that pepper legal judgements should give some clue to those looking for them. Basically, all law in Europe and the countries it colonised have their roots in Roman law. Even the English law, which relied more on "common law", received a large amount of Roman law in its system through the ecclesiastical courts. This is largely important because the law of the Roman Empire was intimately tied with Christianity. The Codex Theodosianus (438 AD), one of the earliest records of Roman law, was based on the codification of laws by emperor Constantine (272-337 AD) - the 57th Roman Emperor - and the first Christian Roman emperor. Later codes, particularly the Corpus Juris Civilis, which was one of the most important codification of civil laws - promulgated under emperor Justinian- were also adopted by emperors who were explicitly Christian.

This matters primarily because of how law, or rule of law, is viewed by citizens (a word derived from the Latin "civitas" meaning citizenship or community of citizens). In the Christian Roman Empire, the law giver was both civil and religious authority. Religion and the state had no real distinction until the wars of the Enlightenment and Counter-Reformation during which Christian states fought each other over the differences of law and religion embodied in kings and princes. The Peace of Westphalia, which was signed in 1648, and is seen as the point of birth of the modern state system, explicitly allowed the ruler of his or her province to determine, and have sovereignty over, the religion practised in his or her domain. Ideas such as "rule of law" and other aspects of what we perceive as modern statecraft rose explicitly out of a Christian history, and a Christian understanding of law.

Shariah and 'Just War' theory

Here is an example - the great scholar-saint St Augustine, more properly known as Aurelius Augustinus Hipponensis (354 -430 AD), Bishop of Hippo Regius, was one of the earliest Christian philosophers dealing with the difficulty of how a faith could reconcile itself with running a state. Of his many concerns was the problem of war. How could a Christian state go to war? To answer this question, he came up with the "Just War theory", or what constitutes a just war and what constitutes a war justly fought - in Latin, it is "jus ad bellum" or the right to go to war, and "jus in bello" or the right conduct during war. These included principles such as legitimate right to declare war, self-defence, proportionality, the safety of civilians which have been developed over the centuries, most famously by the 13th Century Catholic theologian St Thomas Aquinas. Today, much of the core ideas of what we call the Geneva Conventions, trace their origins to this Christian history.

This is not to say that other cultures did not have a "Just War" theory, or that the Romans did not have one before Christianity. They did. Islamic doctrine has such a theory, and the Bhagwad Gita can be read, in one light, as an extended deliberation on "Just War". However, the legal codification of what we call universal principles emerged out of a particular history. The world has largely accepted them because it has evolved beyond being concerned with Christianity and shared key points of overlap with most cultures. However, this should not be used to obscure their origins.

Similarly, what we call civil (from Latin civilis, from which we also get civilised, and civilisation) or "normal" law, is deeply marked by its Christian past, and if you look at the Rule of Law Index maintained by the World Justice Project, you will see an almost exact overlap with the European Christian countries and the highest scores. The few exceptions in the top 20 - Singapore, South Korea, Japan and Hong Kong - prove the rule. But just because it has Roman Christian routes, does not mean that it is wrong - the Geneva Conventions above being a case in point.

At the same time, when people familiar with this "normal" view of law try to understand Shariah, they are severely handicapped because, basically, they are trying to see how an Islamic understanding of law fits into the (largely) Christian understanding of law. Is it any surprise that the fit is less than exact?

Two primary differences between Islamic and Christian approaches to law make this stark. The first is that Christian authorities were appointed by the state, thus the highest religious and political authorities were in agreement or often merged. A bishop was both a temporal and religious authority. In Shariah, however, this was not the case. Although important jurists enjoyed the favour of rulers (and sometimes enjoyed their disfavour), the highest authorities on Islamic law were known for their piety and usually earned their living by other means. A judge, or qazi/qadi, might be appointed by the state, but the religious authority would be the alim, and he (almost always a man) was community based and supported. This has been a problem as many European countries try to set up loyalist imams like France's Conseilfrançais du cultemusulman (CFCM), or even the Egyptian or Turkish "official" Islamic authorities. These never have the same authenticity or legal authority that an independent scholar steeped in Islamic law will have. The one exception would be Iran's system, but arguably the vilayat-e-faqih (or rule of the Islamic jurists) - an innovation by Ayatollah Khomeini - has done more to undermine the authority of the Islamic jurists than give them any respect.

The second primary difference is that, while Christian Roman law, as evidenced by Augustine, separated the path of righteousness from civil law, the whole point of Shariah is for an individual to be a more moral person. The difference breaks down to this: Roman civil law prioritises the better management of civil relations, while Islamic law states that following Shariah will make you a better person. A casual glance at the richest, most powerful, most "successful" people in countries based on Roman law gives you an assortment of banal, evil, greedy, comical and criminal. This is because civil law is not concerned about your moral character, but only that you follow legal codes - being a better (or worse) person is entirely up to you. ("Then Jesus said to them, 'Give back to Caesar what is Caesar's and to God what is God's.'" Mark, 12:17).

The key component of European style secularism is also the same.

Islamic countries are no better when it comes to the mix of characters that rise to the top - on the whole, they are worse. But here is the difference, as Shariah is not the preserve of the "official" jurists - despite the innovations of Khomeini - the failures of the leaders are not seen as reflecting on Shariah. When people mock the failure of these leaders, it does not invalidate Shariah. In fact, it gives greater support to the independent religious jurists who resist state authority and patronage helping, at times, the most extreme movements. Both al Qaeda and ISIS have claimed to rise in resistance to "corrupt" state authorities.

In fact, as Shariah, at best, provides a guide to governance rather than a body of law or a whole code, the governance in many Muslim empires, such as the Mughal empire was not by Shariah. It was by the principles of Shahnama, and only influenced by Shariah to the extent that a ruler - such as Aurangzeb - wished to be guided by the ulema. This might also explain why the states that have tried hardest to legislate Shariah, such as the Kingdom of Saudi Arabia, the Islamic Republic of Iran, the Taliban Emirate of Afghanistan or the Islamic State, have all been such disasters.

It is easy to mock something you do not understand, and those mocking the appeal of Shariah do so quite often because they do not understand how the law that we live under came about. Recently, Angela Merkel spoke about how the problem in Europe was not too much Islam, but too little Christianity. In China, the Communist Party is encouraging the rise of indigenous Buddhist movements to deal with what they perceive as a moral vacuum. In India, we have the Naxal movement, the Hindutva movement, and numerous separatist movements - all arguing, to some extent, that we need a "better" society, and "better" human beings.

By sticking to sterile argumentation of the rule of law, we are not engaging with the question being raised, and maybe only in India, with its massive diversity, and its many approaches, can such a question be properly debated - only if we know what we are debating. Otherwise, we will keep mocking movements like ISIS, while they continue to recruit the gullible, the frustrated and the disgusted, who we don't even care to address.