From the moment the Ottoman Empire, the last Muslim Empire, adopted the Mecelle-i Ahkam-ý Adliye[ii] under the influence of the Code Napoleon of 1807 until now, Islamic Sharia has addressed principles, concepts and institutions of modern law, particularly human rights, without any open, inclusive or trustful reconciliation. A history of conflicting legal dualism among Muslim countries starts with the Majallah, which are on the one hand attached to traditional perceptions of Sharia and on the other forced to adopt modern model of codes of law. Despite a long period of encounter with the law of the modern world, considering the actual dilemmas of Sharia in most Muslim countries, one can still firmly claim that Sharia, particularly its criminal and family justice rulings, may be regarded as the harshest system of law facing modernity in comparison with other traditional legal systems throughout the world.
While the world community is deeply concerned about Islamic Sharia, especially after the events of 11 September disclosed its acute crisis, it seems that progressive Muslims within the Muslim world who witness the actual problems of established Sharia in their own communities are also losing their patience for Sharia to be transformed into a modern system of law based on human rights in the near future. What makes this transition more urgent is not the aftermath of New York events, but instead the last decade of the twentieth century and the aftermath of merging information in post-industrial societies with their postmodern philosophies and literature. The more the modern world enters the age of information and communication, the more Muslim societies find that the timely transition from the current Sharia is inevitable. Owing to rapid developments in information and communication technologies (ICT) and their prevalence across the world, many Muslim societies have access to these technologies, especially the World Wide Web. Along with this increase in the access of many Muslims to the Internet, calls have arisen for instant resolution of the dilemma of Sharia and modernity. Currently, many strong online voices from all over the world (including most of the western strategic studies centers) are calling for emergency, short-run transformation in Islamic Sharia.
As ICT technologies expand within the Muslim societies and the Internet in particular gains increasingly more validity among middle-class Muslims, we can see more reflection on the how the kernel of these societies (i.e., Islamic Sharia) is represented in Cyberspace, and about the impacts of the information society and its main component, the Internet, on the development of Sharia in the future. By considering the existing features of online Sharia with a Shia reading of it in the Iranian context, this article seeks to show that with the expansion of Cyberspace among the masses, people become conscious about the historicity of Sharia rulings, and that one can expect a revolution in Shia Islam through this public consciousness. Without depicting any utopian, emancipatory account of the information revolution, I want to argue that the “open” networks that are increasing rapidly among Iranians, when added to the historical discourses of rationalism and justice in Shia and the very young and well-educated majority of the Iranian population (40 millions under 30 years old), will create an historical openness in the closed space of existing understandings of Sharia.
Two main assumptions ground this argument. First, a peaceful transition of Iranian society to an open, democratic one is only possible through a paradigm shift in Sharia. In other words, a sustainable, authentic democracy is not foreseeable in Iran without the advent of a rights-based legal system evoked from Sharia traditions. In order to avoid being labeled as a foreign or alien plan, this goal must be pursued by means of a serious criticism from inside Muslim society. As Iran’s century-long experience shows, modernist or secular discourses that see no role for Sharia discourse in the public sphere of Muslim societies cannot further the institutionalization of democracy and tolerance in societies with such strong roots in tradition. Secondly, there is currently an understanding of Islamic Sharia developed by various social, non-violent members of Iranian society, in particular women and youth, which can pave the way for the peaceful advent of a right-based legal system which is compatible with the emerging postmodern information society.
When all Sharia judgments become available online, then the free flow of information and knowledge will electronically deconstruct existing Sharia-subjectivism whether the autocratic, hard-line clerics like it or not. The mechanism for this deconstructive process, for which Iranians made three revolutions during the last century, is the emergence of a cyber, democratic public sphere in which a paradigm shift in assumptions and preconceptions of classical power-based Sharia will take place. This time the Internet revolution will be matched by a revolution in Islamic Sharia because a soft, open and transparent Cyberspace will break the hegemony of Sharia institutions and their hard rules over individuals. The new Sharia that will show itself primarily in Cyberspace and which feeds from it will be a system of rights, including the rights of both human beings and nature; its discourse is not power, but freedom.
The Iranian Internet, through alliance building and community networking,[iii] not only develops ways to foster individual enlightenment, but only facilitates ways to develop a higher social awareness. In the young Iranian cyberspace we can easily hear the voices of future, the aspirations of a new generation born after the revolution to live in an open, free and happy society and to enjoy their God-given rights. Interestingly, these voices are largely stressing nonviolence. The more Iranian cyberspace grows, the more Sharia discourse becomes public and intersubjective and reaches out to the broader world. The emergent Iranian right-based readings of Sharia in cyberspace contain new promises and aspirations, not only for the Iranian people, but also for the entire Muslim world and even for the world community.
In conclusion, the absence of power, in a Foucaultian sense, is necessary for a new paradigm of Sharia to be. In other words, the context of the Being of the new Sharia is an interactive, dialogic and intersubjective one which evolves constantly. It is freed from any discourse of power. Hence, it is inevitably through the discourse of freedom that Sharia justice will be legitimated, renewed, universalized and, of course, resonated to the only Self there is in the entire universe. It will do this by transcending the letter of the canonical scriptures and the ego of fundamentalists. This Sharia is secular (not secularist) because it is rooted in Being that does not suffer a dualism of matter and spirit.[iv] It is revealed. It is always present and open towards the future because it crosses in time and space. It is in our nearness and comprehensibility because it is in dialogue with us; here, hierarchy has no place. It discloses itself constantly. We do not need to make it. It is simply in-the-world-with-us. It is our Existential. It discloses itself in our Sites. We are all in the Site of its disclosedness.
To give a schema of this paradigm shift in Sharia discourse, in the following table I compare some significant preconceptions of the two paradigms as they relate to criminal justice.
|Concept||Power-based Sharia||Right-based Sharia|
|1) Exclusive, monologic, perceived as the consequence and effect of Fiqh Norms
2) Permitting a broad range of discriminations in law
|1) Inclusive, dialogic, perceived as the Cause and Scale of Legal Norms
2) Negating any from of discrimination in law
|Jihad||Using violence against Enemies (Others who are opposed to us)||Striving for peace and justice universally, Responding to injustice|
|1) To perpetrate a haram act
2) defined as violation of the authority of the Islamic Ruler and his Rulings which create guilt before both Allah and the Ruler, deserving pain in both this world & another world (Double jeopardy)
3) Offence understood in Arabian-shaped, religious morality terms
4) Stigma of crime unremovable, specially in corporal punishments
|1) Violation of codified rights with criminal sanctions
2) defined as violation of right-based relationships
3) Offence understood in its whole context – moral, social, cultural, economic, political and global (both social /individual harms and needs)
4) Stigma of crime removable through restorative practices
|Paradoxically focus on establishing blame, on guilt, on pain, on past wrongdoings (did he/she do it?) and taking punishment, on one hand, and stressing on minority of the most people except with authoritarian Fuqaha||Focus on problem solving, on future, on mutual liabilities and obligations of all members of community to repair relationships and making thinks as right as possible (who has been hurt, what are their needs & whose responsibilities are these?)|
|1) Dependent on the certainty/speculation of the Faqih
2) Prevalence of retaliation and execution
3) No consideration of moral damages
4) Sectarian and ideological definition of life
5) Priority of religious beliefs over life (e.g. execution of apostates), reason (e.g. execution on third repetition of drinking alcohol), offspring (stoning and execution of sexual offenders), and property (execution on third repetition of theft)
1) Abolishment or tight restriction of execution (only for serious murder such as genocide.)
2) Definition of life includes physical and moral aspects, humans and other beings.
3) Life as the ultimate goal of the legislator.
|Sexual Relations||Maximal involvement of the criminal law by stoning, whipping, and execution||Involvement of the criminal law as last resort to protect rights|
*Research Fellow of the Max- Planck Institute for Foreign and International Criminal Law, Freiburg-Germany
[i] Islamic Sharia herein means what Muslim societies, specifically Iran in our present discussion, made and make of Islamic texts in the Koran and Sound Sunna. Unlike abstract, subjective definitions of Sharia as Allah’s injunctions or intentions, this concept of Sharia is an objective matter which is not only related to the established texts, but which can also be easily traced throughout the history of Muslim societies in the form of authoritative Fatwas (scholarly judgments) and institutions established in accordance with them.
[ii] The Mecelle in Turkish or Al-Majallah in Arabic, compiled from 1868 to 1876, was the first codification of Islamic Sharia in modern history. Based on the Hanafi school of Sharia, it codified the Sharia decrees on property in addition to some general principles of Sharia, in particular a number of general rules related to ownership and transaction. It was published in 1868 under the name of “Compilation of Juridical Provisions”. The Ottoman Penal Code, also called the Mecelle, was adopted 11 years later. The Majallah, which was a product of the first systematic reform movement among Muslims, had been implemented in the large territory of the Ottoman Empire before its destruction, including present-day Turkey, Palestine, Egypt, Saudi, Iraq, Syria, Jordan, Lebanon, Cyprus, Albania, Bosnia and Herzegovina. Some provisions of Mecelle are still in effect in Arabic countries. See S. S. Osnar, The Majalla in M. Khadduri (ed.), Law in the Middle East, Vol. 1 (New York: AMS Press, 1984), pp. 292-308.
[iii] Particularly by considering the phenomenon of the Weblogs that are probably the most advanced examples of Social Software today.
[iv] Traditional and power-based Sharia readings suffer from an infinite dualism that is essential; between the Creature and the Created, between matter and spirit, between man and woman, between the world and the hereafter, between Self and Other , between Imam/ Vali (ruler) and people, between Muslim and Non-Muslim, between expert and layperson, etc. A short look at the post-revolutionary legislations which are basically discriminatory reveals the broad consequence of this worldview.