By Salah Al-Nasrawi
Feb 26, 2012
Islamic law, or Sharia, is a matter of reading - as even the experience of Iran's Islamic republic shows. In this is a lesson worth considering by Egypt's Islamists
A new law by the Islamic Republic of Iran to abolish stoning to death for adulterers passed last month has been received with a lot of skepticism in the West and little attention in the Arab and Islamic world.
But the ruling could have a significant bearing on the debate about the role of Islamic Sharia as Islamic groups gain power throughout the Middle East with many of them aspire to see Islamic jurisdiction as the law of the land.
Iran's Guardian Council and Iranian parliament have approved an amendment to the country's penal code by removing all executions by stoning which will come into effect once signed by the country's President Mahmoud Ahmadinejad.
Under Iran's old penal code, stoning to death was one of the sentences applied for adultery. Iranian activists who campaigned against the practice said at least 99 men and women have been executed by stoning over the last 30 years.
The stoning sentence against Sakineh Mohammadi Ashtiani, a 45-year-old Iranian woman, on charges of adultery and murder in 2006 has turned the spotlight on Iran as one of very few countries which adopts Sharia, or Islamic law.
The concept was equated in the West and among Muslim secularists with a variety of retributions including stoning of adulterers, chopping of limbs of thieves, death in blasphemy cases and restrictions on rights of women and minorities.
Ashtiani's was convicted of having an "illicit relationship" with two men after the murder of her husband and was sentenced to 99 lashes. The verdict led to an international condemnation which has made Tehran delay carrying out the sentence.
While Ashtiani's case points to a larger divide between the West and Iran, the punishment of the mother of two has highlighted how the contentious issue is a practice that has largely survived through centuries' long cultural heritage.
The sentence, and now its abolishment, renewed a theological controversy in Islam on whether the harsh punishment is God's commands, or a man-made effort to interpret Islamic Sharia, or Islamic law.
The case has spilled over into larger and even more complex issues within Islamic discourse, such as what consist Sharia, and if it is compatible with modern day human rights standards.
Most of Iran's legal code was based on the constitution enacted under guidance of Ayatollah Ruhollah Khomeini, after the 1979 Islamic revolution that toppled secular regime of Shah Mohammad Reza Pahlavi.
The document declared Iran as a Muslim nation whose laws are derived from Islamic Sharia, which it defines as God's "exclusive sovereignty and the right to legislate", based on God's commands in Quran and Sunnah, which is Prophet's Mohammad's teachings.
Sharia is still wide open for judgment under Islamic principle of Ijtihad. The term means an endeavor of a Muslim scholar to derive a rule of divine law from the Quran and Prophet Mohammad's heritage.
Since the Islamic revolution some Iranian clerics have said stoning should be stopped because it may harm the reputation of Islam or the Islamic nation.
Others believed stoning is a divine punishment.
Some Muslim scholars believe stoning to death was never contemplated by Islam as a punishment for the act of adultery since the Quran does not even mention the word "stoning" or 'death by stoning in any of its verses.
According to the Holy book of Islam all sexual intercourse outside the marital bond is considered sinful. Some scholars say Quran makes no distinction between adultery and fornication; in both cases the punishment is flogging to those found guilty.
In Quran verse "The Light (24:2) says: "The adulteress and the adulterer shall each be given a hundred lashes. Let no pity for them to cause you to disobey Allah."
On the other hand, many Islamic legal scholars and judges agree that the Quranic text does not refer to executions by stoning but state they are part of the Sunnah. They say there is no necessity that all orders of Sharia to be mentioned in Quran, one by one.
Other clerics say that even if stoning was practiced by Prophet Mohammad and his immediate followers it cannot be enforced nowadays. They believe stoning is a part of Islamic law but only the Prophet and his immediate successors are authorized or qualified to order and implement it.
In theory, stoning to death is still enacted in laws of countries which apply Islamic Sharia, such as Saudi Arabia, and Sudan. It has been also carried out in the previous Taliban-ruled Afghanistan and some parts of Nigeria.
Iran's amendment of the penal code is believed to have been adopted in response to international criticism of its violations of human rights. It also coincides with mounting tension with the West over its nuclear program and increasing fear of a military conflict.
Critics, however, say the new code still considers adultery for married persons as a crime, although it doesn't designate any specific punishment for it, leaving that for the judge to rely on a fatwa by a reliable cleric. Human rights organizations argued that such measures were inadequate and insisted that real change in the law is necessary.
Whether Iran wants to improve its human rights record or it is trying to ward off increasing Western pressure, the revision of its Islamic law now remains highly significant from both political and theological standpoints.
As Islamic groups gain power throughout the Middle East, the role of Sharia is coming under increased focus. Modernist forces in Egypt, Morocco and Tunisia were shocked by the remarkable collective rise to power of these parties and the sudden transformation of their civil states into states with budding theocratic inclinations.
While fundamentalist movements, such Egypt's Muslim Brotherhood, Tunisia's Enhhada Party and the Justice and Development Party in Morocco speak about a broadly defined application of Sharia as "a main source" for legislation, other ultra-orthodox groups want a full-fledged Islamic legal code.
Yet there are increasing signs that show Islamic groups in these countries want more religion than previously admitted. Multiple reports and research works are suggesting that these countries are evolving towards more conservative rules and an Islamization of social life.
There have already been calls from some Islamists to close down the tourist sites and to impose Islamic dress codes on the costal resorts. Women are also worried that political Islam might impose new restrictions on them such as forcing them to wear the Hijab (veil) and restrict their personal freedom.
Christians, a religious minority in the countries recently taken over by Islamists, complain of more intolerance and say they fear for their safety after increased cases of sectarian violence and discrimination.
Many secularists and liberals in Egypt, Tunisia, Morocco, and other countries now want to see their next constitutions to have solid guarantees of democratic and civic commitments.
Here comes the Iranian experiment of abolishing a deep rooted Islamic concept of retribution and the lesson to be drawn from that by newly empowered Islamic groups in these three Arab countries and perhaps in others that will soon follow.
In Egypt, where the debate will open soon on drafting a new constitution, focus will increase on the role of Sharia in the country's political and social life, especially in balancing Islam with democracy, personal freedom and modernity.
Although it is generally agreed among mainstream political groups that Sharia is the point of reference in legislation, the challenge will remain about how to distinguish what directly comes from the Quran and Sunnah from man-made interpretation of God's revelations and the Prophet's teachings.
Article 2 of Iran's constitution provides such a room for maneuverability by combining both Ijtihad by qualified Faqih, or scholar(s) and the resort to "sciences, arts and the most advanced results of human experience" with Quran and Sunnah in legislation.
Under such overwhelming circumstances, the most liberal, secularists and reform minded Egyptian Muslims can argue for is that any stipulation of Islamic Sharia in the new constitution should provide flexibility, so that Islamic laws should be viewed and amended in light of time and changing circumstances.