The Moral Potential of Sharia: How Are We Faring?

Let me start by saying what should be rather obvious: action follows intentionality. When an action has no intentionality, it is the type of action that we would describe as lacking any rational basis. It is not founded on anything rational, but is haphazard and whimsical. And when action is haphazard and whimsical, it often indicates a lack of intellectual determinism, meaning that this action, more often than not, is generated by an insane or otherwise mentally inept, handicapped, incapable party. It is precisely because action follows intentionality that we pay attention to people's thinking, to the way people reason through things, to how people evaluate values, to how people assess what is right and wrong, to how people assess priorities in life; what needs immediate action and what can be put off. All of that is in the realm of intentionality. It is all in the realm of thinking. If we look at the affairs of a people, if we examine their actions and are critical of these actions, then this often points to something that is wrong about their intentionality, i.e, the way they think. This is an obvious point, but it often eludes people precisely because it is so obvious.


I start with a rather mundane and what should be a rather obvious point. It is a point that I have made previously many times. But when we examine the collective affairs and activities of Muslims in the world today — what they do and what they do not do, what they engage themselves with and what they fail to engage themselves with — it repeatedly points to a flawed system of thought. There is something deeply off about the thinking premises and thinking dynamics that today's Muslims engage in. Understanding the “why'' is important. In fact, it is often essential. To understand the why, we will often need to delve into and analytically read history. But other than the why, what is also critically important is the substance of thought, as well as the very mechanics and dynamics of thought.


Today, I want to take one aspect of Muslim thinking and shine a light on this doctrinal thinking. I reserve the examples for later on, when we will actually talk about some examples.


It is rather elementary and basic. Everyone who studies Shari'a learns that the very purpose of Shari'a is to achieve people's welfare (tahqiq masalih al-‘ibad). In a nutshell, the very purpose of Shari'a is to do good. But these words are cues for attitudes, perceptions, and comprehensions. Unless the words are backed up by correct substantive thinking, the words themselves become meaningless. The purpose of Shari'a is to achieve people's welfare.


Centuries ago, Muslim scholars attempted to give this broad principle some concrete and specific meanings. When they talked about what is “good” for people, or what the concept of “achieving the welfare of the people” consisted of, Muslim scholars reasoned that it must be broken down into some substantive components that provide the Muslim practitioner with some guidance as to what the “welfare of a people” consists of. They set out some basic values that, so our medieval forefathers argued, are essential for achieving people's welfare. They said that the protection of life is one. Shari'a must protect life because life itself has value; life itself is from God and taken by God, and human beings are charged with the preservation of this life. They argued that the intellect is a second value; a goal of Shari'a is the preservation and protection of intellect (al-‘aql). They said that the protection of lineage is a third value; we should ensure that people are born knowing who their parents are and into a family that takes care of them. The protection of reputation was identified as another value; you have a right to your good name and that you are not slandered. A good name is a vested interest that a human being possesses. They also argued that the protection of property is another such basic value.


The protection of life, intellect, lineage, reputation, and property. Many jurists, especially in later periods of Islamic history, added the protection of religion, meaning that you have a vested interest in believing, possessing, and acting upon whatever your religious beliefs are. In fact, they argued that this right extended not just to Muslims to believe what they wish to believe, but also to non-Muslims. They argued that the very institution of the jizya, or the poll tax, is to preserve the right of non-Muslims to believe in what they wish to believe. However, as is quite typical of medieval thinking, it is hardly surprising that they did not think that the value of the right to religion included the right to disbelief. While they argued that people have a right to be Muslim, Christian, Jewish, Zoroastrian, Hindu, they did not believe that this right included a right to not believe in God or not believe in anything at all.


These ideas held a great deal of potential. If you start out by saying that the legal system is carefully honed toward basic values and basic rights, and that these basic values and rights are the rights to life, intellect, lineage or family, property, reputation, or, arguably, privacy, and that now that the legal system knows its compass and has its marching orders, it can go forth and make sure that these rights are protected and fulfilled, then that is a very powerful and animating idea. These ideas can produce a revolutionary impact upon the world. 


But we soon hit a snag with these ideas, and the snag that we hit is rather immediate. It requires a great deal of intellectual bravery to resolve and overcome.


What is the snag that we hit? Many jurists of literalist orientation and conservative inclinations in law did not see these values as goals to be pursued by the legal system, but as values already served by the legal system. So, for these jurists, the protection of life is fully served by a law that says, "If you intentionally kill someone, you should be put to death.” We are done, nothing further to do. For these jurists, the protection of intellect is completely, fully, and perfectly served by the prohibition against alcohol and other intoxicants. As long as you prohibit intoxicants, that value is perfectly fulfilled and served. We are done, nothing further to do. For these jurists, the protection of lineage or family is perfectly and completely served by the prohibition against fornication and adultery, and the punishment for fornication and adultery. The protection against slander or your right to your reputation and privacy is perfectly and completely fulfilled by the law and penalty against slander. Finally, the protection of property is perfectly fulfilled, with nothing further to do, by the law that punishes theft (sariqa).


These jurists took open ended values that have infinite potentialities and put a cap on each of these values by engaging in a complete legal fiction. The legal fiction is that the positive law on the books fully and perfectly serves and fulfills the value. The legal fiction is that Muslims need not think beyond the positive laws and the punishments for theft, adultery, slander, or consuming intoxicants. That is it, we are done.


Remember these words well: the more gifted, competent, and brilliant a jurist, the more that jurist is comfortable with open-ended potentialities. The more gifted and competent a jurist is, the more a jurist is comfortable with open meanings and potentialities yet to be fulfilled. The more insecure, incompetent, and limited the intellectual range and the imagination of a jurist, then the more that jurist feels the need to cap open-ended values, because that jurist finds great comfort in stability, statism, and things being static, rather than open-ended.


If you say that you have a right to the protection of the intellect, for example, then a conservative jurist will say, "What that means is that we punish whoever drinks alcohol, and that is it. We are done, there is nothing else to be said." But does that really fully protect the intellect? What does the intellect need to really be protected, to thrive, and to grow? The intellect will not thrive simply by not consuming intoxicants. The intellect needs education. The intellect needs imagination. The intellect needs creativity. The intellect needs safety. So, if the value of protecting the intellect is open-ended, then you might reach the conclusion that in order to properly serve the intellect, we need to protect educational institutions. And in order to protect educational institutions, we need to fight corruption that diverts money from educational institutions to the pockets of tyrants and despots.


If this is an open-ended concept, then you might reach the conclusion that you need freedom of thought and freedom of speech. In order for the intellect to grow, people have to feel free to pursue knowledge and think freely. If freedom of intellect is open-ended, then you might even say that the intellect cannot thrive in despotic environments. The intellect cannot thrive if one’s thinking might end up landing them in prison.


Imagine something like the right to reputation or the right to privacy. If you say that that right is fully addressed by the punishment for slander, then that is it. That is the end of the discussion. But if it is open-ended, then we may end up with laws that protect the sanctity of the home. We might end up with laws that provide protection against interference by the state in people's private affairs. We might end up with strong constitutional principles that say we cannot spy on people or interfere with people's privies at will or without due process. We might end up with endless potentialities.


In the medieval period, these values did considerable work. Within the medieval paradigms, the epistemological frameworks of that period, Muslim jurists explored and developed the potentialities of these values in ways that were fitting for their time and place. But when the modern age set in, Islamic jurisprudence no longer attracted the most brilliant, creative, and imaginative minds. Islamic jurisprudence became the province of the dull minded and the unimaginative, those who could not go to medical school or engineering school and so, by fate, ended up stuck with Islamic jurisprudence. Because of tyranny and despotism, the entire field of law became a marginality. When we live in societies in which the law is whatever the ruler says it is, where a despotic ruler can violate the law at will, then law shrivels and crumbles to become practically a non-field, and the best minds and the greatest talents avoid it, because there is no point.


After all, in despotic societies, it is not the most creative and philosophically-sound thinking that is propped forward. In fact, it is quite the opposite. The more talented you are in the field of law, then the more likely you are to be oppressed and suppressed. As a result, in the modern age, these values have lost all meaning. They are cited to make Muslims feel good about their tradition, but that is it.


Try, in any Islamic educational institution today, even in the United States, Britain, or Canada, to think outside the box. Try to suggest that the right to intellect, the right to reputation, or the right to lineage is something other than the humdrum positive rules of the hudud laws. Watch the ostracism that will befall you. Try to think beyond the limits of the most apathetic minds of the most intellectually inept people who are the guardians of Shari'a today. Watch what will happen to you.


Let us not kid ourselves. The guardians of Shari'a today are the most unintelligent, uncreative people. People who lack talent, knowledge, daring, imagination, and integrity. Shari'a studies today have become the province for the cowardly, those who want to keep repeating what they already know; the intellectually dull, apathetic, and cowardly.


To modify Muslim actions and behavior, we need to tackle Muslim intentionality. We need to restructure Muslim intentionality. Not reform, but restructure Muslim intentionality. To restructure Muslim intentionality, we have to reclaim those ideas and concepts with the greatest intellectual potential, and rethink and reassert these concepts and, hopefully, once again, bring life. Bring life, energy, and light to Islamic normativities and Islamic meaning. Time and again, we could look around at the Muslim world and, if we have any level of honesty, we must wonder about Muslim intentionality. We must ask ourselves: how did we end up in such a nightmarish, bizarre, and skewed value system? 


We all know about the ongoing protests in Iran. I recently read an article stating that there were around 15,000 people arrested in these protests and that, supposedly, the Iranian parliament voted 227 out of 290 to put these 15,000 arrested protestors to death. That does not mean they will be put to death. It is a statement that these members of parliament wanted to make: that these protestors deserve to be put to death. 


Pause and think. Whether Sunni or Shi'a, it is agreed that the very first value is the protection of life. The only way you can talk about executing 15,000 people and think that that is consistent with protecting life is if your definition of the Shari'a value of protecting life is simply, "We have law on the books that says, if you commit murder, we will put you to death." Beyond that, you do not see this value as making any demands of you, so you can comfortably reach the bizarre conclusion that those who marched against you in demonstrations deserve to die.


It is insane to think that this does not affect the reputation of Islam, especially when you leave Iran and look to its neighbors, Saudi Arabia and Egypt. Here, you find that these Muslim countries are no less disrespectful towards the value of life. We find a consistent pattern from Iran to Saudi Arabia, to the Emirates, to Egypt, to Yemen, to Bahrain. There is no value placed on life. "Execute protestors," can be said without a second thought.


Some people who do not like the Iranian government will be shocked by that. But I ask you honestly: how many of you are shocked by that on Islamic grounds, on Shari'a grounds? Does it matter that in both Shi'a or Sunni law, Muslim jurists have for centuries said that these protestors would count as bugha’ (rebels), and the bugha’ cannot be executed once you arrest them? Nor can you confiscate their property. You cannot even continue to imprison them if they promise to cease their activity. And that is medieval thinking. Why has the value of life and the protection of intellect — which could be interpreted to include freedoms of speech, thought, expression, and protest — lost all its meaning?


I am sure some of you have heard that there have been calls for demonstrations and protests against the corrupt, tyrannical, and unconditionally fascist government of ‘Abdel Fattah el-Sisi of Egypt. Although Egypt is hosting a climate event, Egypt is also making sure that there are no protests during this event, so the Egyptian secret police have been busy arresting, imprisoning, and torturing people. Some Egyptians in the opposition have called for demonstrations to send a message to the world that the government that is hosting this environmental event is a tyrannical and thoroughly corrupt government. One such person is a man named Sherif Osman, who is a U.S. citizen. Osman was active on his social media in the United States, advocating opposition to this tyrannical and fascist government. Osman went to visit his sister who lives in the Emirates. His mother, knowing that her son cannot visit her in Egypt, because he would be promptly arrested if he were to step foot into Egypt, flew from Egypt to the Emirates to meet her children. While in the Emirates to see his sister and mother, the Emirati government arrested this U.S. citizen, Sherif Osman, and it looks like the Emirati government will hand him over to the Egyptian government, where it is very likely that they will carry out a sentence against him for simply speaking against the Egyptian government.


The sad thing is that we are so accustomed to despotism that I must ask how many Muslims will look at something like this, and their sense of the values of life, intellect, and the rights to freedom of thought or speech is offended? We are so accustomed to despotism that it hardly raises an eyebrow. In fact, some of us will blame the victim and say, "Well, he is stupid. Why would he go to the Emirates to see his sister and his mother?"


My issue goes even deeper. The Emirates can arrest this U.S. citizen for the freedom of speech that he engaged in in America. They can turn him over to the Egyptians, where he will be tortured and very likely never again see the light of day. And still, American Muslims are not offended by the Emirates. Still, American Muslims refuse to ostracize so-called Muslim scholars who have sold their souls to the Emirates. The Emirates can do this and people who call themselves American Muslim scholars will still accept an invitation from the Emirates and still accept Emirati money. And they will still enjoy approval and popularity among the American Muslim masses.


What does this say about our value system? I have heard those same people, like Hamza Yusuf, talk about how Shari'a protects the five values — life, intellect, and so and so forth — with Robert George. He is never sufficiently offended enough to say a single critical word of the Emirates, but with a straight face, he can talk about the values of Shari'a. What has gone so wrong with us? This is hypocrisy that has reached the point of truly psychotic, pathological intentionality. Why are our actions so messed up? It is because our intentionality is pathological and incoherent.


A recent article talks about how Hindutva ideology has caused Hindus to attack Muslims in the cities of Leicester, England, Anaheim, California, and Ottawa, Canada. The Canadian Hindu nationalist leader, Ron Banerjee, told a reporter in Toronto, "I support the killing of Muslims and Sikhs in the Republic of India because they deserve to die." A Hindu in Sydney, Australia, who assaulted Muslims was deported back to India. His name is Vishal Jood. He received a hero's welcome upon arriving in India, mirroring the warm and enthusiastic reception the 11 men convicted of raping a pregnant Muslim woman in 2002 received from mainstream Hindus.


The government of India, which profits from our hajj, has made it clear that if you assault Muslims in England, California, or Canada, and, as a result, are deported, then not only are you welcome to return to India, but you will be given a hero's welcome. And this same government is received very warmly by the Emirates. Where is the Muslim voice? How do we understand Muslim intentionality when we do not even bother making a statement?


Indian Hindu nationalists can do what they will with Muslims. They can profit from assaulting, humiliating, and degrading Muslims. They can make millions of dollars from hajj with Saudi Arabia. They can make billions of dollars from trade with their close partner and friend, the Emirates. Yet Muslims in the United States do not see the Emirates in any problematic picture. Muslims in the United States are not offended by those scholars who sleep in the embrace of the Emirates, night and day. What has happened to Muslim intentionality? What do you think are the types of actions that this intentionality is going to produce? Do you think that the actions that come from such a demented intentionality will be healthy in any way?





One final example of how off and messed up our Muslim intentionality is. I see this picture of UK Chief Zionist Rabbi, Ephraim Mirvis, arriving in Abu Dhabi in the United Arab Emirates for the “Forum for Peace.” It is the first visit by a senior British rabbi to the Emirates. The caption reads: "Rabbi Mirvis is seen warmly welcomed by prominent Mauritanian scholar Shaykh Abdallah bin Bayyah."


Let me be honest. Nothing bin Bayyah does surprises me. Bin Bayyah has sold his soul and body to the Emirates. He sleeps in their embrace, night and day. He has fully sold himself to the Emirates. When looking at the comments on this picture, however, I noticed that some people have left comments. One such comment reads: "‘And if they are inclined to peace, then you should incline to it and put your trust in God’ (Q 8:61). Is it wrong to want peace? However, please remember our brothers and sisters in Palestine." Another comment says: "I think we must be very careful that we do not fall into slander. If diplomacy and peace treaties were sought with Quraysh and even Pharoah, then we need to consider all options, particularly when this involves the living conditions of Palestinians that have been oppressed for decades."


Muddled intentionality and muddled thinking. First, what does receiving the Chief Rabbi from the UK have to do with improving Palestinian conditions? Two, should the question not be: what is the track record of this particular rabbi that bin Bayyah is warmly embracing? We cannot lump all Jewish people together. That is antisemitic. Nor can we lump all Israelis together. Should a thinking human being not ask, “What are the contributions of this particular rabbi? Is this rabbi committed in any way to improving the condition of Palestinians? Or does he believe that Palestinian territory must be annexed, and that Palestinians must be limited to the ghetto and the apartheid regime that they live under?”


Is it not truly ironic and offensive that at the same time that Human Rights Watch and Amnesty International are telling the world that Israel has an apartheid regime that treats Palestinians as subhuman, this is how we respond? “If they are inclined toward peace…” Is it not ironic that at the same time that a non-Muslim professor, the UN special rapporteur on racism, writes a report saying there is a serious problem with racism in Israel and the way that Israel treats Palestinians, we just sit there, intellectually, morally, and blissfully blank? What do we do with the fact that God very explicitly says in Surah al-Mumtahanah:


As for such [of the unbelievers] as do not fight against you on account of [your] faith, and neither drive you forth from your homelands, God does not forbid you to show them kindness and to behave towards them with full equity: for, verily, God loves those who act equitably. God only forbids you to turn in friendship towards such as fight against you because of [your] faith, and drive you forth from your homelands, or aid [others] in driving you forth: and as for those [from among you] who turn towards them in friendship; it is they, they who are truly wrongdoers! (Q 60:8-9)


God is saying, "God does not prohibit you from dealing with and being just toward those who do not fight you, those who do not oppress you, and those who do not annex your homes and confiscate your land." Explicitly, God says in Surah al-Mumtahanah — and also in Surah al-Baqarah (Q 2:191-3) — that God does prohibit you from having warm relations with those who do fight you, who do no oppress you, and who do not annex your lands. At the same time that we have a sellout like bin Bayyah, Israeli has just elected the most right-wing government ever. Is it not ironic that there are those who say “well, if they are inclined towards peace.” What is wrong with Muslim intentionality? There is a huge difference between those who incline toward peace and those who do what colonialism has been doing for hundreds of years, that is, accept your surrender, your submission, and your subservience when it is handed over to them. This is what colonialism has been doing for centuries: concede nothing, take your lands, take your language, and deny your religion.


In this case, the colonizers are confiscating and annexing Jerusalem. They are making no concessions. They may claim to extend a hand to you, but it is not the hand of peace. It is the hand of surrender and submission. The warm embrace that bin Bayyah and the Emiratis give is notably not a Palestinian embrace, nor do they have the right to even imply that this embrace is on behalf of Palestinians. It is the embrace of total surrender and submission. It is the embrace of saying, "You have the right to pursue lofty values. You, Israelis, have the right to build a country in which an extremist Jew has the right to be elected to parliament, and in which Israelis are not persecuted by their government. You have the right to live under a legal system in which your right to life, intellect, family, privacy, and property is respected. You have all these rights, and we have the right to live under a tyrannical government that tells us what to do and when to do it, who to embrace and when, and under what conditions. We, Muslims, have the right to live under governments that silence us and deny us the right to develop any true normative commitments to any true normative values. We have a right to governments that make Shari'a vacuous and meaningless, governments that turn Islam into the religion of oppression and ugliness.”


For whatever reason, we are happy with this equation. We sold out, and in return for the comforts that we receive, this is the state of affairs that our children will inherit. Do you see the disaster in disastrous intentionality? Do you see how disastrous muddled thinking is? Do you see how much work we need to do? Do you see why God does not come through the clouds, hand us victory, and say, "I will lift you from your miserable condition”? I hope you see. I really do.

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