Professor Hans Jansen on Shariah's Inhumanity to 'Man,' its Unkindness to 'Mankind'

Hans Jansen
Arabic Expert
Wikipedia

In Brussels on July 9, 2012, at an International Civil Liberties Alliance (ICLA) conference, Professor Hans Jansen spoke on "What is Sharia, where does it come from, and why does it matter so much?" I quote generously if selectively from his talk:

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.

Non-Muslims thus suffer under Shariah since it is not meant to govern solely the actions of Muslims. Even more troubling, there is no democratic supervision of Shariah:

Unlike the legal systems of most modern nation states, Sharia law is not subject to democratic supervision . . . . 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 . . . . 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 . . . 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.

Non-shariah laws in Muslim countries also generate controversy:

Islamic theology identifies Sharia law with the will of God; and Sharia specialists are the religious leaders of the Islamic community . . . . Each and every Islamic country nurtures its own equilibrium between its government and its religious specialists . . . . Nevertheless, most Islamic countries possess legal systems that are influenced by, but not identical with, traditional Sharia law. To the leaders of the radical Islamic movements this non-identity of national law and Sharia law is a permanent source of anger. The smallest discrepancy between Sharia law and the law of the land is permanent fuel to the fire of their propaganda machines since such a difference supplies proof that a human lawgiver wanted to take God's place, and attempted to improve on God's work, which is blasphemy.

Shariah is not a practical legal system:

Sharia law is not a practical system of law developed in courts. It is the product of the deliberations of scholars, and it does not spring from the practical concerns of judges, barristers, prosecutors or defenders. Consequently, Sharia law is poor on procedure. It is a theoretical, abstract system of law thought out in academies. This explains most of its weaknesses . . . . If unfamiliar new questions arise for which the Sharia has to provide an answer, Sharia specialists, at least in theory, put forward a solution that is based upon the four principles or 'roots', of the Sharia. These four principles will reemerge again and again in all discussions concerning the Sharia. They are Koran, Hadith, Analogy and Agreement . . . . Agreement or Consensus, is for all practical purposes the most important criterion. Once a consensus has emerged it becomes unnecessary to consult the other sources.

Further problems arise, namely, decisions about what is abrogated:

Theory and theology . . . attach the greatest value to the authority of the first of these four roots, to the Koran, but in practice the wording of the Koran may have to be supplemented or interpreted by the other sources, or by another passage from the Koran itself, . . . . [which leads us to] an important principle from both Sharia law and Koran interpretation. This principle, 'abrogation', naskh in Arabic, is often misunderstood. 'Abrogation' means that a verse from the Koran that was revealed early might be repealed, or 'abrogated', by a verse that came down at a later point in time. Sometimes even an element from one of the other three sources can abrogate the contents of a verse from the Koran. Muslim scholars analyze all possible cases in depth, . . . . [but the] most famous example of abrogation is of concern to anyone who is not a Muslim: the abrogation of Sura 109, a Sura from the Mecca period that preaches religious tolerance. This Sura is abrogated by later verses from Medina that command the Muslims to fight and kill the unbelievers wherever they find them . . . . This important directive plays a central role in the Sharia system. Its application has a number of unforeseen consequences. Abolishing a Sharia regulation on which agreement had been reached . . . implies that Muhammad's umma did go wrong. But according to Islam's Prophet, it did not. Hence, it is out of the question to go back on regulations once they are agreed upon. Examples of cases where this creates difficulties and embarrassment are numerous: just think of the Sharia punishments for apostasy, adultery or theft . . . . [or a] famous example of abrogation, . . . the prohibition of wine. In early verses, the Koran speaks well of wine; later verses forbid wine. But how do we know which verse comes first? This we can only know from the Muslim Sharia experts. How do they know? Well, since wine is forbidden, the verse that forbids wine must be later than the verse that praises wine.

Sounds like circular reasoning, but defenders of Islam like to talk about the flexibility of shariah:

Outsiders will suspect circularity, but to traditional Muslims this all enjoys the support of the Most High, and reconfirms that they would be at loss without the scholarship and learning of the experts who embody religious authority in Islam, . . . . [and the] friends of Islam see the alleged flexibility of Islamic law as an indication of its humane and liberal character. This, however, is a mistake. Flexible laws are not humane but dangerous, since citizens do not know for what they can be arrested and executed.

Flexibility of law is not so humane after all. But even when Islamic law is straightforward and clear on some points, Islam can be inhumane:

Islamic law, flexible as it is reported to be, is unanimous on a large number of points. Agreement, consensus, that is what the system is built upon. No important disagreements exist on the points of law that are important to whoever is not a Muslim, whatever the friends of Islam may say. Not respecting the majesty of Muhammad, the Prophet of Islam, is generally seen as a capital crime. If the courts or the governments do not execute the offender, spontaneous informal volunteers may feel justified to take this task upon their shoulders, whatever the cost to them personally.

But we non-Muslims can ask one hard question, namely, if the Qur'an is written in clear Arabic, as it claims to be, then why are so many commentaries necessary?

There is . . . one point of entry into the Islamic armor that sounds as pious and as Islamic as these things go. It may even be effective. The Koran unequivocally states that it is written in clear Arabic language . . . 'Well', one is bound to ask, 'Why, if this is true, do we need Koran commentaries that run into thousands of pages?' . . . . The elevated position of the Sharia in the world of Islam, we might argue, can only be understood as a belittlement of the Koran and Muhammad. Once we can make our Muslim and our dhimmi opponents see this, we may have influenced them. The question we should ask as soon as an appeal to a Sharia law book is being made is: 'What do the Muslim scribes and scholars, all of them human, none of them a prophet, know more than Muhammad and His companions knew?' . . . . The Koran brings bad news to someone who does not want to submit to Islam, but as explicit as the Sharia it is not. We may, moreover, freely criticize recently annotated and revised Sharia handbooks, nothing in our laws and customs forbids us to do so. However, criticizing an ancient holy text can easily be portrayed as uncivilized. The many contemporary Sharia handbooks are, . . .  [in contrast], fair game. Their authors are only human, men like you and me. But the writers of these Sharia books certainly claim to know more than all the prophets and archangels combined.

Another problem us non-Muslims is that our Western freedom of religion was not conceived with Islam or other non-Western religions in mind:

One of our problems with Islam is the Western understanding of freedom of religion. Most Westerners do not realize this, but religions are dissimilar. Every act that can be imagined is either prohibited or made obligatory by at least one of the hundreds of religions our planet is graced with. Hence, freedom of religion, if it means that every religion can have its way, is not possible. When my professor in my first year at the University explained this, I did not believe him, and asked whether something as innocent as drinking tap water could be the subject of a religious prohibition. He answered that he did not know of an example but at the same time he assured me that if I started looking I would find one. And right he was: Hinduism has a caste that may only drink water pulled up from a well by a clay jug.

We therefore need to change the rules concerning freedom of religion:

In Europe and America, however, the extant religions are comparatively similar, and usually somehow connected to the Bible. Hence Europeans and Americans tend to believe that there is no harm in letting a religion have its way since 'deep down all religions are the same'. This is a misunderstanding. There is nothing that is common to all religions . . . . Freedom of religion, if it means that any form of religion can have its way, is a recipe for civil war. What our wise forefathers meant when they advocated freedom of religion should be reformulated. What they meant can only have been freedom of opinion and freedom of worship. Since they were unfamiliar with religions that were essentially different, and since they tired from going to war about beliefs and forms of worship, and since they were unfamiliar with the full . . . [spectrum] of global religious variety, they formulated their convictions, however right they were, in a way that today is confusing and creates serious problems for freedom, science, justice, health and politics . . . . [Many] if not most Muslims are too humane to be willing to execute all commands the Sharia imposes. Let us help them by pointing out that that the Koran may well be the word of God – this, after all, is untestable, but that the Sharia is the work of men, even according to the teachings of Islam. To remain free from Sharia law, we may eventually have to fight, but then, freedom is not for free.

Every little bit of resistance to theocracy helps, and since Professor Hans Jansen has recently passed away, on May 5 this year, we need more people with understanding and wisdom to focus upon the challenges that Islam poses to open societies.