The Historicity of Normative Islamic Law, and its Contingencies
By Farish A. Noor
By now Malaysia has made international headlines thanks to the plight of Kartika Sari Dewi, a Malay-Muslim woman who was found guilty of drinking alcohol and who was subsequently fined and then sentenced to six strokes of the cane. Kartika herself has baffled the religious authorities of the country when she and her family stated that she was willing to be caned for her ‘offence’; and this has put the government of Malaysia in a state of confusion: Former Prime Minister Mahathir Mohamad has asked whether the country is prepared to celebrate its coming independence day with a Malaysian citizen being caned; while Prime Minister Najib Razak has asked Kartika to appeal her sentence and not accept the caning.
All of this has placed undue pressure on the Malaysian government to address the issue of its international image and standing, and Malaysia does not want to be put in the same category as countries such as Afghanistan, Iran or Pakistan. Above all, the long-cultivated image of Malaysia as a ‘moderate’ Muslim state is now being put into question.
But also put to question is the basis of the law and the punishment meted out to Kartika herself. It has been noted by some scholars that the Quran is silent on the question of the punishment for alcohol consumption. But then again the Quran is likewise silent on many other social phenomena that have developed over the past one and a half millenia.
It is this legal vacuum that has opened the way for hardline conservatives to offer their own tentative speculations and theses, and which has created the vast discursive space where discussion on Islamic law has developed over the past 1,400 years. Yet if we were to look back at the history of Muslim societies, we can see many cases where things that were once deemed morally correct were subsequently declared prohibited, or vice-versa.
Take the consumption of coffee, for instance. For centuries the debate over coffee was rife in countries of the Middle-East, notably Egypt. For hundreds of years, scores of scholars and legal theoreticians debated whether coffee (and cigarettes) were haram or halal. The Arab culture of coffee-drinking, which was so much part of traditional Arab life and which reflected Arab norms of hospitality and sociability was deemed immoral, decadent, corrupting and even Western at different stages in Arab history; until it was reclaimed by Arab nationalists who saw it as part of Arab identity and culture. Likewise the smoking of tobacco - be it in the form of cigarettes, cigars, shishas/hookas/water-pipes was likewise deemed moral and immoral at different stages of Arab-Muslim history.
Then we get to more prosaic instances of historical disputation such as the use of firearms. Traditionalist Muslims regarded firearms as barbaric instruments of war that did not meet with the established standards of Muslim chivalry. The use of muskets, guns and cannons were seen as cowardly; and that as firearms they caused permanent mutilation. Scores of scholars regarded them as un-Islamic weapons, at least until the Mamelukes of Egypt encountered the might of the Ottaman Turks at the battle of Raidaniyyah in 1517 and realised that guns were more effective than swords, and that if you enemy had a gun then you better have one too! In the end, it was not theology, law or philosophy that decided the outcome of the debate, but rather common sense.
Another instance of conservative reactionary thinking came when the Ulama of Egypt and Ottoman Turkey debated whether the Quran should be written or printed. Many of the traditionalist Ulama thought that to print the Quran with a printing stamp was tantamount to ‘insulting’ the Quran by stamping on its pages. It was, in their opinion, more polite to write the Quran by hand- Until some smart chap pointed out that it might take a month to write an entire Quran, while printing allows you to produce hundreds of Qurans per day! Once again, it was logic and common sense that prevailed, and not theology or tradition…
Today the Muslim world is caught in a historical impasse of its own making. Many Muslims are still unable or unwilling to accept the simple fact that we live in a global world which is wired-up and connected, and that the world out there is watching how Muslims behave towards one another. The good old days where right-wing fundamentalists can simply stone people to death are over, for these days the cameras of CNN and BBC are there to record these exploits for posterity. Furthermore, Muslims are also better educated and more conversant of their rights and responsibilities than ever before. Yet the corpus of Muslim legal thought remains stuck in the quagmire of a redundant mode of thinking that clings to the past and deals with esoteric questions instead.
If Muslims accept that law is historically developed and therefore exposed to contingency, then they need to accept that laws need to evolve and reflect the realities of the age they exist in. Failure to do so would lead us down the path of essentialism and primordialism, bringing us to the state of the Taliban - the Muslim world’s version of the Khmer Rouge - with its ‘Year Zero’ logic of going back to the primordial essentials.
The question that stands before the political elite of Malaysia today therefore, is this: In the year 2009, Is a woman going to be caned for drinking alcohol, or is she going to see the true meaning of mercy and compassion in Islam? If the answer is the latter, then some serious theological and legal reconstruction is needed, urgently.