Brunei’s Horrific New Penal Code — And Why It Matters

Hollywood protests over Brunei’s new “sharia” penal code have caught the public imagination. It’s a depressingly familiar story: a repressive government aims to squash dissent while bolstering its Islamic credentials. Last week brought the first wave of Brunei’s new criminal rules, which target offenses like failing to attend Friday prayers and bearing a child out of wedlock. The next phase brings corporal punishments including whippings for alcohol consumption and amputations for certain types of theft. Next year will see stoning for adultery and homosexual sex. Oh, and the death penalty for insulting the Prophet.

As in Pakistan and Nigeria, Brunei’s ordinances focus on a handful of high-profile “morality” offenses. The unfathomably wealthy Sultan of Brunei, from a family up till now mostly known for lavish parties and sexual escapades, is not alone in his selective use of religious law (Brunei mostly relies on a judicial system left over from its days as a British protectorate) in ways that target women, gays and religious minorities.

How did harsh sharia punishments ... come to symbolize both a bulwark against decadent Western modernity and the establishment of an Islamic society?

As with any depressingly familiar story, we have to ask what part of the story we are not getting.

One thing we are not getting is a fuller understanding of what sharia is.

Sharia is the term Muslims use for God’s revealed law for humanity. It is comprehensive and immutable. It is also largely theoretical. Muslims believe that God has communicated to humanity through prophets and scriptures, but knowing exactly which rules to apply, to whom, in what circumstances requires interpretation. Interpretation requires interpreters who, as people, are fallible and disagree with one another. There is a sophisticated Muslim legal tradition, which encompasses some points of consensus but also many disagreements and debates; it produced no legal code but a vast and amorphous body of opinions. There is not now and has never been a straightforward relationship between the work of these jurists, who are not entirely dissimilar to rabbis, and the legal system of any given country. Some things that fall under the jurists’ purview are not “legal” — no government is going to dictate how to wash up before prayer. And some things that are legal — taxation, for instance — are the province of the ruler and not the jurists. Since the colonial era, many countries with Muslim majority populations owe more of their law — both form and content — to European civil codes than to Islamic jurisprudence.

All of this is to say that there is no uniform set of identifiable laws called “sharia” that governments in Muslim majority societies have implemented over the centuries. What is called sharia in Brunei differs from what is called sharia in Saudi Arabia, which differs from what is called sharia in Iran, Nigeria or Morocco. These so-called sharia laws, far from being directly revealed by God, are variously imposed by decree, voted on by legislatures, signed by monarchs and subject to popular referenda. In other words, they are human products, with human histories.

The Sultan, who insists that the new rules are required by God, and American activists — whether lefty Hollywood stars who are boycotting the Sultan’s Beverly Hills Hotel or evangelical Islamophobes who seek to ban sharia in Oklahoma -- all have a stake in presenting sharia as monolithic. Americans on the whole are quite willing to hear sensationalized stories of Muslims who seek to impose sharia law everywhere. Brunei’s new criminal penalties feed that fever.

And vice-versa. To the extent that the Sultan is aiming to establish his domestic credibility by establishing a “‘firewall’ against globalization,” the protests by Hollywood A-listers and the outraged response by Amnesty International and Human Rights Watch may aid rather than hinder his cause.  The furor over “sharia” and the insistence that implementing “sharia” is the solution to immorality are two sides of the same coin.

Americans on the whole are quite willing to hear sensationalized stories of Muslims who seek to impose sharia law everywhere. Brunei’s new criminal penalties feed that fever.

To get unstuck, we have to ask deeper questions. How did harsh sharia punishments — historically upheld in theory and assiduously avoided in practice — come to symbolize both a bulwark against decadent Western modernity and the establishment of an Islamic society? Even more puzzling, how did sexual puritanism come to be the defining characteristic of Muslim morality? For centuries, Europeans viewed Muslims as sexually decadent, given to sodomy as well as more general lustful indulgences. It was only in the 19th century that the oppression of females came into its own as the major criticism levied against Muslims. And in the West, as well as in many Muslim-majority societies, preoccupation with sexual offenses and sexual oppression overshadow other vital concerns: global poverty and inequality, systemic violence and political repression.

Brunei’s new penal code is horrific. Repealing it would be a start. But there is a lot more to do, and contesting endless appeals to the idea of “sharia” is one important step.

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