Recently, I became aware of Kemal Gözler’s article titled “The Value of Islamic Law: Can Islamic Law Be an Alternative to Western Law?” through the notification of an old friend and elder brother. I began reading the article. It felt very familiar to me, both in terms of the sentences and the ideas expressed. As I continued reading and searched for an answer to the question in the back of my mind, “Where do I remember these lines from?” it all came back to me. The answer to my question was clear: I had read this article before and even used it as a reference in some of my discussions.
I stopped reading and returned to the message, asking my elder brother, who is also a graduate of the Faculty of Political Sciences, “What do you think?” His response was as follows:
Dear brother! In summary, the article argues that while Islamic justice is excellent, it fails to establish a balance against the excesses of power. In reality, who can limit power in Islamic governance? During the era of the Rashid Caliphs, the fear of God among leaders prevented them from injustice. When necessary, the public could voice objections to wrongdoing, and this was welcomed by the rulers. However, with the transition to the era of monarchies, criticizing the rulers became difficult and almost impossible.
Even the Chief Judge or the Grand Mufti at the head of the justice system could not establish this balance. In fact, they had no guarantee either. Islamic countries could not develop another system to maintain this balance. In the West, this balance system could only work in some countries, and the people in those countries paid a high price for their freedoms. In Islamic countries, there has been no struggle for freedom against the government. Therefore, the value of freedom was not understood. I believe that such institutions are needed, and this is not contrary to Islam.
I fully agree with the assessments presented in these lines. As everyone knows, theory and practice often diverge in different areas. There are laws, ideals, principles, doctrines, and systems that can be described as “excellent” in theory and on paper, but when they come to life, they reveal many flaws. These flaws can stem from either the disregard for certain things in theory or simply not knowing them.
The variability of socio-cultural and socio-economic environments can also be another reason for the gap or even the chasm between theory and practice. And most importantly, people. It is individuals who interpret and apply ideologies, doctrines, systems, laws, including religion, in their lives, and each individual is a unique entity with their emotions, thoughts, and behaviors. As my elder brother mentioned, while the fear of God can be a significant factor in preventing one person from committing all sorts of wrongs, it may have no significance for another. We must also not forget the concept of self-interest or the power/weakness of the system’s punitive capacity at the criminal level.
If you wish, based on what I’ve just said, take a look at the prison abuses currently happening in Turkey. Think about the officials who torture prisoners, even though they pray with ablution. Do those people not know that torture is prohibited in theory, despite knowing it? Of course, they know. Do they not fear God? I don’t know if they do, but given that they perform their prayers, it means they have beliefs and concerns about the afterlife. So why? The answer is complex…
Let’s return to our main topic: It is an undeniable fact that Islamic law, seen in the systemic context of the Western world exemplified by Kemal Gözler’s article, cannot establish a system that balances the power effectively, such as the separation of powers, constitutionalism, and a hierarchy of values. Our 14-century historical past and the numerous unfortunate events within this history provide the greatest proof of this.
However, this does not mean that it has never been done so far, and it will not be done in the future.
I believe there is no need to fall into such hopelessness. It can be done, especially considering the thousands of negative examples in our own world and the hundreds of positive examples outside of ours, which can stimulate our efforts.
As long as we want it.
As long as we understand the general principles and principles of the Islamic religion well and determine how they can be applied in today’s realities. Otherwise, the historical practices of Islamic law that have remained unopened for comprehensive renewal for centuries – or, correctly put, the historical practices of Muslims in terms of legal history – cannot be an alternative to Western law.
