The Government and the Enforcement of Sharia Law (Book)

Author: Ibrahim Salehi Hajiabadi

• abstract

The government and the enforcement of Sharia law (Book) (in persian: دولت و اجرای شریعت (کتاب)) is a book written in Persian that explores the responsibilities and powers of the state as well as the means of enforcing Sharia law in Islamic community, focusing on the discussion of coercion versus free will. This work, which consists of ten articles and an appendix, is authored by Mohammad Surush Mahallati, a mujtahid and researcher in Islamic jurisprudence. In each article, the author presents a topic, elucidates his foundational principles, and critiques alternative viewpoints. The author assumes that the religious and moral responsibilities of an Islamic government do not entail the imposition of Sharia law upon the populace. This approach not only exceeds the mission of the prophets but also leaves detrimental effects, fostering resentment and aversion towards religion, whereas the fundamental principle in promoting good and forbidding wrong is the absence of harm. Surush Mahallati believes that it is possible to differentiate between various rulings in the enforcement of Sharia law, applying those for which the necessary conditions are present. He establishes a connection between religious rulings and social realities, asserting that the purpose of religion is to establish a community of believers that willingly follows the directives of Sharia.

Report and Overview of the Book Structure

"The government and the Enforcement of Sharia Law" with the subtitle 'A Series of Articles on the State and Tools for Compelling Citizens to Follow Sharia' is a collection of ten articles and one interview by Mohammad Surush Mahallati. This work aims to address topics related to the issues of enjoining the good and forbidding the evil, the scope and authority of religious government intervention in citizens' lives, and the discussion of choice and compulsion in the enforcement of Sharia law, in order to prevent extremism and the infringement of citizens' rights in the name of religion. The author of the book, Mohammad Surush Mahallati (born in 1961), is an instructor of Islamic jurisprudence and principles at the seminary and a researcher in the field of Islamic jurisprudence, particularly political jurisprudence. The articles included in this book were previously published separately on the author's website before the book's release. The book was published by Ney Publishing in 2015.

The Rationale behind the Gradual Expression and Enforcement of Sharia Law

In the first article of the book titled 'The rationale behind the Gradual Expression and Enforcement of Sharia law', Surush Mahallati argues that the implementation of Sharia in society should involve the use of cultural tools and the establishment of a religious living environment by the government. To elucidate his theory, Surush points out that citizens of a country differ in their interests, religious inclinations, and adherence to Sharia laws. He states that Muslims who advocate for a comprehensive Sharia in worldly matters and believe that the government cannot remain indifferent to Sharia have two fundamental approaches:

• The first approach involves the government utilizing all available security, police, economic, and cultural tools to integrate religion into the lives of citizens. For instance, the police could enforce regulations to prevent individuals without proper hijab from entering universities and public spaces.
• The second approach is for the government to create an environment that allows citizens to live according to their religious beliefs by utilizing cultural tools and strengthening faith, while the use of other forms of power is contingent upon specific circumstances.

The author himself believes in the second approach and supports his hypothesis by discussing the philosophy of the gradual implementation of Sharia. He explains that the Prophet (PBUH) did not reveal all the laws of Sharia at once; rather, he did so gradually, taking into account the human welfare and nature, the evolving nature of culture, and the necessity for the success of his mission, while accommodating certain misconceptions until a new approach could gradually replace the beliefs of the Era of Ignorance. From the author's perspective, the principle of gradualism in rulings has been acknowledged in various Islamic sciences, including theology, exegesis, hadith as well as Islamic jurisprudence and principles, with notable scholars emphasizing this point (pp. 11-13). The author elucidates six rational principles in the discourse of Ayatollah Khui, which include: facilitation, consideration of public interest, avoidance of causing hardship to the people, equating strictness with disdain for religion, overlooking actual rulings for the sake of public interest, and prioritizing the appeal of religion over its actual laws. Surush Mahallati asserts that these six principles are not confined to the time of the Prophet and concludes that in the present era, efforts should be made to gradually implement religious laws based on these principles (pp. 14-15).

A Model of Religious Change and Transformation

The second article of the book is 'A Model of Religious Change and Transformation'. The author aims to demonstrate that the unique approach of the Prophet (PBUH) in guiding and managing the community played a crucial role in attracting polytheists to Islam, rather than merely establishing a government. The author emphasizes the topic of the prophetic tradition in transformation, stating that the Prophet Muhammad (PBUH) initiated his mission by altering the foundational thoughts of society. In the first phase, he transformed the people's belief system, inviting them from polytheism to monotheism, then reinforced ethical principles, and ultimately presented the laws of Sharia in a clear and principled manner. These were neither numerous nor tedious. Citing the views of Allamah Tabataba'i, the author believes that divine commandments are articulated in such a way that even the reasoning of ordinary and narrow-minded individuals cannot reject them. The gradual prohibition of wine serves as an exemplary illustration of the progressive issuance of laws (p. 19). Surush Mahallati has stated that revolutionary patriots are pursuing the immediate enforcement of Sharia laws and the elimination of corruption based solely on the notion of 'devotion' and the belief that 'God has not permitted otherwise.' They view the exercise of power as the only means to impose religious law upon citizens. In his opinion, this misguided perception stems from a lack of understanding of the essence of the Islamic jurisprudence and the requirements of human existence (pp. 21-22). On the other hand, individuals whose passion is combined with intellect perceive this type of inflexible conduct as harmful to faith and a cause for people's disdain towards religious law; thus, the core of religion must rest on reason and a gradual approach, as the infallible one indicated: 'One cannot expect people to embrace religion all at once.' (p. 22 and 23) In another instance, the infallible one noted: 'Perhaps those who passionately push for the enforcement of religious laws are actually striving to destroy the essence of religion.' (p. 24)

Principles Governing the Enforcement of Sharia Law

The third article of the book is titled 'Principles Governing the Enforcement of Sharia Law'. The purpose of the author in writing this article is to explain the Islamic state's obligations in the establishment of Sharia in society, with a focus on the principle of commanding good and forbidding evil, as well as compelling citizens to comply with religious norms. The execution of commanding good and forbidding evil is based on rationality, thus requiring the observance of principles like 'the potential for influence', 'the prevention of harm', and 'a gradual method in the process of enjoining the good and forbidding the evil'. From Surush Mahallati's perspective, Islamic jurisprudence does not consider the methods of implementing Sharia laws as part of religious devotion. He views these methods as fluid, adapting to circumstances, and thus refrains from defining them for specific cases, instead focusing on rational principles and welcoming the integration of other empirical sciences such as social and educational sciences into this field. Consequently, Islamic jurisprudence yields to the expert recommendations of these disciplines. The author argues that in eras when physical punishment was a common method to enhance societal religiosity, religious teachings did not endorse such practices. He asserts that this understanding can be reached without relying on narrative texts, especially since rational and empirical principles are approved in religious sources. Conversely, those whom the author labels as bigoted expect that corrective methods should be explicitly stated in religion, viewing what they discover in this area through the lens of 'objectivity' while neglecting the aspect of 'methodology' (p. 27). The author believes that numerous narratives, deemed 'valid' due to their alignment with rational judgment and reality, emphasize that faith cannot be imposed beyond the capacity of individuals. This topic has been addressed in ethical, interpretative, and hadith literature, yet remains absent in jurisprudential texts (pp. 28 and 29). According to Surush Mahallati, just as Islam considers the necessities of change and transformation in society during the 'legislative phase', it similarly does so in the 'implementation phase', articulating its rulings while taking into account the conditions and adverse consequences of religious deviation that may arise from coercion and violence (p. 30).

Islamic Community or Faithful Community

Surush Mahallati, in his article " Islamic Community or Faithful Community," seeks to address the question of whether the Islamic state's duty towards believers is to enhance faith or to regulate Islamic behavior. In the first scenario, the state is only permitted to assist in the enhancement of faith, whereas in the second scenario, the state may utilize its power to control citizens' behavior without regard for the consequences. According to the author, Islamic rulings are presented based on the 'faith-based nature of society' rather than the 'Islamic nature of governance'. Consequently, the author emphasizes that the Quran addresses the responsibilities of citizens regarding the prohibition of usury, and instead of urging the government to confront foreign enemies, it instructs citizens not to take disbelievers as their leaders (pp. 54-55). Referencing the verses of the Quran, the author considers faith to be a matter of the heart (al-Hujurat:14). Therefore, actions are a consequence of faith, and the development of a religious individual depends on strengthening their beliefs and ethics. Consequently, if an action appears commendable but is performed under coercion, it cannot be deemed righteous. This is because a righteous act is deeply connected to heartfelt belief, and Islamic laws are presented based on the faith of the community rather than the Islamic nature of the government. Thus, rulers can foster a faithful society by promoting ethics and faith, particularly in matters of command and prohibition (pp. 52-57).

The Islamic Government and the Issue of Enjoining the Good and Forbidding the Evil

The question of whether Islamic jurisprudence is responsible for the consequences of implementing rulings is another topic addressed by the author in the article "The Mischief: A Red Line in Enjoining Good and Forbidding Evil." This inquiry can be raised in all social jurisprudential rulings. In matters of worship, Islamic jurisprudence does not assume responsibility; for instance, if a sick individual observes fasting, the resulting effects are their own responsibility. However, in social rulings such as the enforcement of criminal laws or cases of enjoining the good and forbidding the evil, it is not clearly established from a jurisprudential perspective whether there is any liability involved.

Enjoining the Good and Forbidding the Evil Must be Free from Any Potential Harm

The author believes that the principle of enjoining the good and forbidding the evil is contingent upon the absence of harm. Therefore, the purpose is to eliminate evil and promote goodness. If the outcome of such commands and prohibitions results in wrongdoing, their rationale is negated and condemned by both reason and religious law. Consequently, neglecting the emphasis in narratives regarding the avoidance of harsh and severe actions has been a contributing factor to ill-considered measures in the realm of enjoining the good and forbidding the evil, which has been overlooked in Islamic jurisprudence (p. 37). Surush Mahallati, in addressing Agha Zia Iraqi's view on 'practicing tolerance in the encouragement of performing recommended deeds', has raised several questions, asserting that this Jurist's understanding of the infallible Imam's statement is flawed (p. 39). Surush Mahallati, in the article "Prohibition of Vice or Committing Vice," asserts that the Islamic government has two responsibilities in enforcing Sharia laws: a direct role, such as implementing Islamic punishments, and an indirect role, which is the responsibility of citizens. The government can utilize its resources to encourage or compel individuals to refrain from wrongdoing.

The Flexibility of Religious Rulings in Response to Changing Circumstances

'Relativity and the Flexibility of Religious Rulings' is another topic discussed by the author. It is essential to recognize that religious law is adaptable not only in social matters but also in ethical issues (such as the prohibitions against gossip and lying). Consequently, rulings may change based on the circumstances of time and place; thus, when implementing religious laws, one must consider both the 'religious ruling' and the 'realities' (pp. 42-43). According to the author, the absence of harm is a fundamental condition for the enforcement of enjoining the good and forbidding the evil, which is based on four principles: rational conditions, common understanding, and the dissimilarity between the occurrence of harm and its consequences; ultimately, in the implementation of laws that involve harm and benefit, it is the individual who is responsible for making decisions (pp. 44-45).

Prohibition on the Use of Media Resources

According to Surush Mahallati, the Islamic government influences various aspects of citizens' lives. In his article "Sanctioning Permissible Media," he discusses the philosophical, theological, and jurisprudential foundations that obligate citizens to adhere to Sharia (p. 59). He believes that based on the following two principles, the government does not have the right to compel citizens.

• Principle One: "Determining Intentions" is not the role of the government; therefore, the government should not interfere in behaviors that are judged as good or bad based on the intentions of the citizens.
• Principle Two: Intrusion into individuals' personal domains is prohibited. Consequently, the government cannot interfere in behaviors that require investigation to determine their illegality, except in cases such as espionage (p. 60).

The author, drawing on these two principles, believes that the government should not confront individuals who own tools that are shared between permissible and impermissible uses, like audio systems or media; this is dependent on the individuals' intentions and their usage, and the differentiation between tools that are strictly forbidden and those that are shared is determined by common understanding. Furthermore, it is crucial to note that since shared tools between lawful and unlawful have financial worth, such property is deemed valuable in religious terms, and no one is entitled to seize or damage it (pp. 61-63). Therefore, "imposing restrictions on the supply and use of common tools", "addressing users based on intent interpretation", and "intruding into private spaces to understand the application of these tools" is prohibited from a jurisprudential perspective. Based on the argument that the government should ensure the 'public interest', Surush Mahallati considers it logical to forbid the use of certain common tools, provided it is based on the opinions of committed experts and conducted within a specific framework rather than being dictated by security forces (pp. 63 and 64).

Seizure of Corrupting Instruments

The author of the article "The Logic of Detention or Detention of Logic" states that the government engages in preventive measures such as detention to prevent crime, based on two underlying principles. The first principle emphasizes the necessity of destroying instruments of corruption. According to Islamic jurisprudence, there are three scenarios in which corrupting tools can be eliminated: (1) items that are inherently unlawful, such as idols, (2) items that have no beneficial use, like gambling and entertainment devices, and (3) items whose existence leads to corruption, such as counterfeit money. Therefore, tools and instruments that do not fall into these categories, due to their monetary value, cannot be destroyed or confiscated by the state; doing so would make the state liable (pp. 77-79). The second principle emphasizes the necessity of preventing crime and corruption. Forbidding the evil applies to individuals who have committed an offense and intend to continue; therefore, those who have not yet engaged in wrongdoing are not subject to this rule. In some contemporary jurisprudential sources, the principle of 'repelling the evil is cited for crime prevention. However, some Islamic jurist, such as Ayatollah Khui, do not accept this principle (pp. 80 and 81). The author believes that if we accept the obligation of 'repelling the evil', this principle has certain limitations; firstly, the lives of all citizens should not be under constant surveillance. Secondly, this principle is specifically applicable to those on the verge of committing corruption and does not extend to individuals who may potentially commit a crime in the future. There are many ambiguities regarding this principle that must be addressed in Islamic jurisprudence (pp. 83-86).

Freedom of Choice or Coercion in Sharia Law

The author discusses the topic by citing an article titled ' Freedom of Choice or Coercion' along with an interview that reflects Allamah Tabataba'i's perspective, asserting that the primary principle in Islamic law is freedom of choice instead of coercion. Surush Mahallati has critiqued the notion that an Islamic government should eliminate all avenues for sin, such as by blocking certain software and websites. He argues that controlling the lives of all citizens, even with the assistance of law enforcement, is not feasible (pp. 67-68). Furthermore, in response to questions regarding whether an Islamic government has the right and authority to undertake such actions, the author believes that a sociological and jurisprudential analysis should be conducted in this regard. Philosophically, it cannot be accepted that on one hand, individuals are free and autonomous in their choices, while on the other hand, the government seeks to restrict the will and autonomy of citizens, which ultimately undermines the concepts of reward and punishment. Surush Mahallati presents the viewpoint of Ayatollah Khui regarding the destruction of misleading books and all instruments of evil, arguing that this necessitates the removal of human free will, which contradicts the philosophy of creation and testing (p. 70). He emphasizes the importance of free will by referencing Quranic verses such as «لست علیهم بمسیطر» and «لا اکراه فی الدین», asserting that the Prophet's role is solely to "convey the message". The author believes that the neglect of the Quran by Islamic jurists and its marginalization has led to some jurisprudential interpretations that contradict the Quran (p. 73). Under the title 'The Prohibition of Coercion in Sharia According to Allamah Tabataba'i,' he discusses topics such as 'The Mission of Invitation,' 'The Exclusivity of the Mission to Preach,' 'The Prohibition of Coercion,' 'The Connection Between Faith and Free Will,' 'The Denial of the Prophet's Authority,' 'The Rejection of Coercion Based on Guardianship,' and 'Participatory Leadership,' concluding that the duty of all prophets is merely to "deliver the clear message" without coercion. Just as the Prophet's mission is limited to wisdom and good counsel, free from the use of coercion, it follows that if the Prophet does not have the duty to compel, then others do not possess such a right either (p. 97-114).

The Government and Differentiation of Sharia Laws

In the article titled " The Government and Differentiation of Sharia Laws", Surush Mahallati seeks to answer whether it is possible to distinguish between the rulings of Sharia, allowing for the implementation of some while neglecting others. Regarding the 'social rulings of Islam', there are two perspectives: 'minimum and maximum relational obligations' and 'minimum and maximum independent obligations'. From a certain perspective, Islamic rulings are viewed as an integrated whole without distinctions among them, where there exists a relationship of 'lesser and greater connection.' If the connection of one component is severed from the others, it loses its effectiveness. This viewpoint suggests that differentiation disrupts the overall function of the rulings. Martyr Motahhari identifies the fragmentation and separation of rulings as one of the factors contributing to historical decline (p. 88 and 89). The author, by posing questions on this matter (p. 90), aims to convey that if the conditions for the implementation of punishments are not met, a distinction among the rulings can be made. Citing the practices of Imam Ali (AS) and the opinions of various Islamic jurists, the author contends that in challenging circumstances, it is sometimes unavoidable to disregard certain conditions (pp. 91-92). Surush Mahallati presents four arguments in support of this view. He emphasizes that some Islamic jurists do not permit even the temporary suspension of limits set by God, (pp. 92-94).