At a time when Islam’s place in the modern world is a matter of global contention, Brunei, a small monarchy in Southeast Asia, has offered its two cents. By April 3, the nation, which is predominantly Muslim, had begun adhering to a new penal code with harsh corporal punishments. Accordingly, gay men or adulterers may be stoned to death, and lesbians may be flogged. Thieves will lose first their right hand, and then their left foot.
Understandably, these bits of news brought outcries from the United Nations, human rights organizations and celebrities like George Clooney. In return, the Brunei government dismissed all criticisms, reminding the world that the country is “sovereign” and “like all other independent countries, enforces its own rule of laws.”
As a Muslim, I should first tell my coreligionists in Brunei that their argument is not very good. Of course every country can enforce its own laws, but the content of those laws isn’t immune from criticism when it violates human rights. Otherwise, we would have no basis to criticize China’s totalitarian persecution of Uighur Muslims or the illiberal bans on “religious symbols,” including the Islamic head scarf, in France and, more recently, Quebec.
However, the real issue isn’t Brunei. It is Islamic law, or Shariah, the penal code from which law is applied not just in Brunei but in about a dozen other nations as well, such as Saudi Arabia, Iran and Sudan. It includes brutal corporal punishments that shock the rest of the world. It also criminalizes acts that shouldn’t be crimes at all — such as consensual sex, loss of faith in Islam (“apostasy”) and the right to criticize it (“blasphemy”).
Muslims who insist on keeping or reviving these measures have a simple logic: Shariah is God’s law, and enforcing it is a religious duty. But their blind literalism is wrong for three reasons.
First, the corporal punishments in the Quran — amputation of limbs and flogging — may simply be related to the context of the Quran. In seventh-century Arabia, where the Prophet Muhammad lived, there were no prisons in which to incarcerate and feed people for a long time. For the same reason, corporal punishments — much cheaper and easier than imprisonment — were the universal norm until a few centuries ago. The Hebrew Bible commanded many of them, as did pre-modern European laws.
Second, much of the Shariah is actually man-made. Islamic scholars expanded jurisprudence based on debatable reports about the words and deeds of the Prophet, as well as the norms of their time. That is how blasphemy, apostasy and drunkenness, none of which is penalized in the Quran, became crimes.
Third, Islamic jurisprudence was developed for Muslims only, whereas Christians and Jews had their own laws. But all modern nation-states, including Brunei, are both centralized and diverse. So imposing Shariah as the law of the land will go against the rights of minorities, in addition to unorthodox Muslims.
All of those arguments are persuasively made by reformist thinkers in Islam. But I doubt that conservative authorities in Brunei will have much heart for them. So let me call on them to check an authority they can’t dismiss that easily: the Ottoman Empire, the last Islamic superpower of the world and the last seat of the Sunni Caliphate.
The Ottomans, who followed the flexible Hanafi school of jurisprudence, were pragmatic about law from the beginning. Decrees issued by sultans introduced fines or prison sentences instead of corporal punishments, rendering the latter often practically obsolete.
Moreover, in the mid-19th century the Ottomans initiated a major Reform (Tanzimat) era, which included the Imperial Ottoman Penal Code of 1858. The French-inspired law was designed to be valid for all Ottoman citizens, regardless of their religion, and remained in practice until the end of the empire with some modifications. It replaced all remaining corporal punishments in Ottoman law with prison sentences or forced labor. It also decriminalized apostasy and penalized blasphemy, or “interference with religious privileges,” with only “imprisonment of from one week to three months” (Article 132).
The penal code’s section on sexual crimes is worth a look, for it is much more liberal than the laws Brunei just began implementing 161 years later.
According to Article 200, for example, “an abominable act” with “a girl who has not yet been married to a man” was an offense — but only when done “by force.” In other words, consensual premarital sex was not a crime.
Extramarital sex, or adultery, was an offense under Article 201 — but to be punished with a prison sentence of “three months to two years,” not stoning to death.
What about homosexuality? The Ottoman penal code didn’t say anything about it. John Bucknill and Haig Utidjian, who translated the law into English in 1913, noted, “It will be observed that unless committed with force” or upon a minor, “sodomy is not a criminal offense under the Ottoman Penal Code.”
While the Ottomans reigned, they were able to make these reforms because although they remained true to Islam, they also understood that running an empire requires flexibility, pragmatism and toleration. Unfortunately, after their catastrophic fall in World War I, the Muslim Middle East was dominated by European colonizers and authoritarian secularists, which, in turn was met with a backlash of authoritarian Islamists whose vengeance included a revival of the most rigid form of religion.
The passion to re-establish Shariah, in its most literal and archaic form, is at the core of that Islamist resurgence, which now seems to be making an advance in Brunei. Against them, we, the more liberal Muslims, often refer to universal values and more rational theologies in Islam. We can also refer to the last real caliphate on earth, which was much more refined than the zealots who emerged in its absence.