What makes someone qualified to rule? One way to answer this question might be to approach it from the Islamic perspective, that is, by considering the criteria required for someone to become a mujāthid, a person accepted as an authority in Islamic law. The criteria include knowledge of the Shārīe‘ā essential objectives – ‘religion, life, mind, posterity, and property,’ Sunnah – the reliability of its narrators, scholar’s consensus, and the methodology of analogical reasoning. Only by meeting these, and other requirements, is one qualified to issue a fātwā, or applying the (religious) ruling of major Islamic schools of jurisprudential thought.
Illegitimate fātwā(s): Undoubtedly, Western media is possibly more familiar with “illegitimate fātwās,” (e.g., Osama bin Laden’s public call for a global jīhād against the West). Bin Laden’s tendency towards violence does not align with Islamic teachings, and it is unlikely bin Laden’s knowledge of Islam was sufficient for him to issue fātwās. And yet, he succeeded to still gain a robust enough following for alQaeda members to heed his visions (for example in the September 11 attacks against the United States). This is perplexing: How can it be that there are strict standards to meet before one has the authority to grant a fātwā, and yet the fātwās of someone like bin Laden can still be recognized regardless of the fact he likely failed to meet almost any of its norms?
It should be noted that Shārīe‘ā law is devoid of a tool by which jurists can come to an ījm‘ā (consensus) on who in real-time is or is not competent to issue fātwās. That is, scholars should condemn ignorant and morally corrupt leaders when dictatorial regimes take control in Muslim countries or when terrorist organizations are on the rise. Without spreading this message to the masses, some may believe that whoever holds power or has the loudest voice has the authority to issue fātwā, empowering those like bin Laden to be respected by a small but sizable number of fanatics. This disconnect between who should be allowed to rule and who individuals perceive are competent extends even to the United States. Just as some in the Arab Muslim world might have disregarded bin Laden’s lack of Islamic knowledge and his misalignment with the Shārīe‘ā essentials, so too are momentous numbers of Americans ignorant of their leaders’ lack of respect for the American governmental system and basic human decency. Furthermore, although American presidents do not issue fātwās, they can issue executive orders. Most EO do not reach the scale of violence instigated by bin Laden’s fātwās, but there are examples in American history where EOs have caused significant damage. Consider, for example, President Trump’s “Muslim ban” on anyone born in seven Muslim-majority countries from entering the US because of unconfirmed Islamophobic fears that these persons posed a national security risk, or consider the mass incarceration of Japanese Americans by President Roosevelt. Without a mechanism by which to prevent the ignorant and morally deficient from seizing power in both the Islamic and American legal systems, it is likely that “illegitimate fātwās”—executive orders—will continue to be issued by those who should not have the power to do so.
On the intersection of Islam and the law, it should be noted that most legal systems in Middle Eastern countries refer to “Shārīe‘ā,” the path God provided Muslims on both spiritual and worldly matters. Across the region, however, broadly different interpretations of Shārīe‘ā exist. For instance, even though Islamic law does not explicitly require a punishment for those who violate blasphemy laws, Iran and Saudi Arabia inflict capital punishment on violators. However, most Muslim-majority nations, like Egypt, only imprison or fine violators, and others like Nigeria do not even have blasphemy laws.
Morality in Islam: Delegitimizing Morality Police
Several Muslims do not distinguish moral duty from religious duty. The blurred lines between moral and religious obligation are possibly rooted in the concepts of “hālāl” (permitted) and “hārām” (forbidden), that is, the guidance Muslims believe God provided to them on how to live their lives. Those who live their lives according only to what is considered halal are hence committed not only to a sacred way of life but also a moral life. Generally, in Islam, morality is not fixed and varies across cultures depending on local customs, traditions, religions, and history. Some Muslims’ incapability to distinguish ethical from religious duty is a dangerous weapon for morality police because it efficiently permits the state to punish persons who violate the state’s interpretations of religious obligations and, hence, moral commitments.
Commanding the Right and Forbidding the Wrong: For instance, the duty to command the right and prohibit the wrong as it first appears in the Qur’an (verses 3:104 & 9:71) “Let there be one community of you, calling to good, and commanding right and forbidding wrong; those are the prosperous.” For example, Article 8 of the Iranian Constitution, which grants power to Iran’s morality police, references this verse as a basis for the “universal and reciprocal duty that must be fulfilled by the people with respect to one another, by the government with respect to the people, and by the people with respect to the government.” Early Islamic scholars like Abu āl‘Alīyā & Muqātīl ībn Sulāymān interpreted “commanding right” as believing in God and Prophet Mohammad and “forbidding wrong” as banning polytheism. Indeed, an early political interpretation of “commanding the right and forbidding the wrong” held that it was not the state’s responsibility to regulate the public, but for the public to hold their leaders accountable by launching rebellion in the event of autocracy. In “Forbidding Wrong in Islam: An Introduction,” Michael Cook observes, “it was quite common in the early centuries of Islam for rebels to adopt forbidding wrong as their slogan.” In 19th century Oman, 40 men banded together by “selling” themselves to God, donning shrouds, and setting out on a mission to command right and forbid wrong on their own terms rather than on the terms of the Sultān. However, the group disbanded after the Sultān sent them presents, which they were quick to accept.
The notion that the state should enforce devotion (piety) amongst the masses was not common in early Islam. For instance, the Qur’an itself does not stipulate earthly punishments for those who violate its first commandment “Worship your Lord” [2:21] and other orders (e.g. dressing modestly). Rather, the Qur’an simply warns readers in verse [2:24] that unbelievers will face the “Fire fueled with people and stones,” that is, God’s wrath. The Qur’an’s silence on earthly penalties in these cases holds specific weight because the it does prescribe corporal punishment for specific fixed misdeeds known as “hudud” (God’s boundaries): “apostasy, revolt against ruler/banditry, theft, highway robbery, adultery, slander/false accusations, and drinking alcohol.”
In September 2022, Iran’s Gasht-e Ershad (morality police) arrested and murdered 22-year-old Mahsa Amīnī for inappropriately wearing her hījāb (headscarf). While in detention, the morality police inflicted blows to her head and left her lifeless corpse bruised. Across Iran, thousands of protestors vowed to “kill those who killed my sister.” Since the murder, Iran has detained several protesters, flogged, electrically shocked, and raped child detainees. How can it be that a nation like Iran, which claims to have a legal system rooted in Islamic principles, has resorted to murdering young women and raping children to maintain its religious theocracy? Also, does Iran’s morality police have any basis in Islamic law? And if not, how might Iran’s Middle Eastern neighbors, and the global community, keep corrupted interpretations of Shārīe‘ā at bay? Some countries in the region justify morality police with corrupted interpretations of the Qurā’nīc verse “commanding the right and forbidding the wrong,” the concept of “hīsbā,” and “community morals,” (e.g. Islamic women’s dress code). Most of these interpretations are corrupted because they depart from how early Islamic scholars interpreted these notions. Over the first few centuries following the Qur’ān, however, states began to use earthly punishments based on hādīths and religious commandments, which eventually turned into laws that required enforcement, and the task fell upon state-appointed (public) officials.
Women’s Dress Code as a Case Study: Even if religious policing were necessary in Islam, the extent to which it would be needed to regulate women’s dress, or even have any inherent authority to do so, is questionable. Consider these two Qurā’nīc verses traditionally cited to describe women’s dress code in the Muslim context: “And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what (must ordinarily) appear thereof; that they should draw their veils over their bosoms and not display their beauty … And that they should not strike their feet in order to draw attention to their hidden ornaments” [24:31] “O Prophet! Tell they wives and daughters, and the believing women, that they should cast their outer garments over their persons (when abroad): this is most convenient, that they should be known (as such) and not molested. And God is oft forgiving, most merciful” [33:59]. Some scholars conclude from these verses that the Qur’ān, requires Muslim women to wear specific sorts of clothing. However, neither verse is clear on the precise rules on how women should cover their body, and interpretations have evolved over time. Ibn Kāthīr – a 14th century Arab historian – argues that the verses signify that women should cover their whole bodies, except one eye. But, ālTābārī – a 19th century Muslim historian – argued that the first verse means women’s faces and hands should be exposed. Other jurists, such as 20th century scholar Mohammad Asād, argue that human conditions vary over time, and verses are moral rules that can and should change with time, place, and the surrounding social environment.
Iran fails to use any of these interpretations. Today, the Iranian Islamic Penal Code does not even define what an “Islamic hījāb” is, even though women may be punished for not wearing one. Even if one could concede that morality police did have the authority to command the right and forbid the wrong, given the ambiguity on women’s dress code, the idea that a single interpretation of the dress code may enable the Iranian morality police to punish individuals like Amīnī holds no weight. In assessing what measures Iran should take regarding its morality police, it is vital to recount how Saudi Arabia addressed its own morality police. Founded in the 1920s, the Saudi morality police were notorious for their cruelty – not unlike the modern Iranian morality police. Until the 1970s, the Saudi government attempted to reform that police by replacing violent zealots with kinder (gentler) officers. However, over the next four decades, the power of the morality police grew unchecked to the point where they would beat people in the street for failing to pray. Given the reform efforts clearly failed, Crown Prince Mohammed Bin Salman efficiently ended – with minimal powers – the group in 2017. Today, Saudi Arabia’s limited morality police merely reports infractions to the general police and issues fines. If Saudi Arabia, a country notorious for enforcing gender segregation, dress codes, etc., can nearly abolish its morality police, Iran should be capable of the same irrespective of its interpretations of Qurā’nīc texts.
International Islamic Alliance
Undoubtedly, interpretations of “commanding the right and forbidding the wrong,” along with other concepts, have drastically changed in countries like Iran. As Islam continued to spread in the last 1,400 years, so too has it branched into varying schools with wildly different legal systems, or “Shārīe‘ā.” For instance, even though classical interpretations of Shārīe‘ā do not punish those who violate improper hījāb laws, countries like Iran resort to murdering violators in some instances. Although hījābs are common in the Middle East, almost the entire rest of it does not require women to wear a headscarf by law. The puzzle is that even though the majority of the region does not have such laws, it appears to not be respected by countries like Iran regarding the touted value of “consensus” as a secondary source under Islamic law. However, what if there was a way to force the hand of nations to respect a more standardized and moderate interpretation of Shārīe‘ā (a room for a democratic Shārīe‘ā)?
The Middle East, and perhaps the entire Muslim world, might consider signing on to a democratic Shārīe‘ā by creating their own alliance, backed by an international governmental authority like the United Nations. Although opponents to the idea might scoff at the notion of Middle Eastern countries cooperating, Middle Eastern alliances are not new. For example, two multilateral Middle Eastern alliances exist today (e.g. the Gulf Cooperation Council (GCC)) and the Arab League). If the Arab nations are prepared to defend each other from both internal and external threats, they should consider the threat of a Shārīe‘ā different from their own. Rising extremist leaders in positions to secure power by endorsing corrupted interpretations of Islamic law might be considered an internal threat, and the possibility of a bad Shārīe‘ā encroaching into neighboring Middle Eastern countries might be an external threat. Arab Muslim countries should join forces in an “International Islamic Alliance” to find common ground by establishing a “correct,” democratic Shārīe‘ā. The alliance would give each country the right to draft and vote on legislation to create a standardized and moderate Shārīe‘ā. Countries like Iran have a particular incentive to join the alliance, lest they waive their right to voice its opinion globally.
The obvious question is what happens if a country chooses not to join? After all, international institutions are limited in their ability to punish countries which violate international norms. Even if the primary goal of the International Islamic Alliance is to delegitimize corrupted interpretations of Shārīe‘ā, a secondary goal is also just to begin the dialogue between countries and its citizens as to what “Shārīe‘ā” actually means. As of now, no arena exists in which nation-states debate their interpretations of Islamic law. But with an International Islamic Alliance, Muslim governments will be forced to reckon with their Shārīe‘ā interpretations and justify laws which are anomalous in the region, like Iran’s improper hījāb law. If some Arab Muslim leaders truly believes some of their improper laws are rooted in Qurā’nīc duty, they should have no issue in defending how the law accounts for Islamic principles in front of Muslim peers.
Democratic Shārīe‘ā Index: Implications for Dictatorship
Of course, countries like Iran may still not abide by the newly formed democratic Shārīe‘ā, or even join the International Islamic Alliance in the first place. However, Iran, along with nearly every other country in the Middle East is a member state of the UN, which means it is subject to investigation if in violation of international law. Given that the UN Charter calls for the “equal rights of men and women” (UN Charter, preamble.) and freedom of religion, (UN Charter, art.18), an improper hījāb law seems ripe for scrutiny by UN officials. The UN should thus endorse the legitimacy of Shārīe‘ā debates by the International Islamic Alliance as a method by which the Middle East can “reaffirm [its] faith in fundamental human rights.” (UN Charter, preamble.). When the International Islamic Alliance begins to create its democratic Shārīe‘ā (e.g. forbidding an improper hījāb law), UN officials should require member states of both the UN and the Islamic Alliance to agree to international investigations to confirm these countries are observing the agreed-upon Islamic norms. The consequence(s) for nations which either do not agree to these investigations or continue to ignore democratic Shārīe‘ā may be a UN-backed Democratic Shārīe‘ā Index, aggregating the extent to which each country in the Middle East respects and ties its laws to the democratic Islamic law. Rulers and lawmakers of countries which do not abide by that mode will likely see a rise in public demands calling for answers as to why its Muslim leaders are not respecting the consensus of Islamic principles in the Muslim World. Even though rulers in these countries are notorious for being corrupt (CPI 2022 For Middle East & North Africa: Corruption Fuels Ongoing Conflict), the public will clearly see how its leadership ignores the precedent established by the International Islamic Alliance, the international pressure of the UN, and the clear data of the Democratic Shārīe‘ā Index. Put simply, rulers in Muslim countries must answer the following question: Why they are not behaving as Muslims?
Countries which refuse to abide by democratic Shārīe‘ā should make us skeptical, not only of the legitimacy of the Qurā’nīc roots such laws probably do not have, but also of the intentions of the leaders who implement them. For instance, even though Iran’s Ayātollāh Khāmeneī claims to be a religious leader who has the required credentials – knowledge of the Sunnāh, and devotion to the Shārīe‘ā objectives to issue a fātwā, or religious prohibition – it is evident that the practices of the state, such as the murder of Amīnī and the raping of child detainees, does not align with fundamental Islamic norms. For someone like Khāmeneī – and others – to not immediately rebuke such actions indicates his true intention: to oppress the masses and maintain his own power with an iron fist. However, authoritarian rulers are not new to the Middle East. This is precisely why it is imperative for there to be international cooperation in the region to temper the tendencies of power-hungry rulers like Khāmeneī from committing further atrocities under the guise of Shārīe‘ā law. And who better to delegitimize the false Islamic underpinnings of the Iranian religious theocracy than its neighbors, most of which, like Iran, also purport to follow the Shārīe‘ā but with far less violent and catastrophic results. Perhaps therein lies the beauty of a proposal like the International Islamic Alliance: the irony of a region filled with autocratic regimes coming together to democratically destroy the most radical interpretations of Shārīe‘ā law. It is a small feat for a country in the Middle East (Muslim World) to dismiss criticisms of the West as ignorance towards Islamic law. But it is a far greater challenge to convince the same of one’s fellow Muslims.
Mohamed Arafa is an Assistant Professor of Law at the Prince Sultan University College of Law (Saudi Arabia) and an Adjunct Professor of Law & the Clarke Initiative Visiting Scholar at Cornell Law School. Mohamed also holds a tenure-track professorship appointment at Alexandria University Faculty of Law in Egypt (on leave).
