(This is an archived page, from the Patterns of Power Edition 3 book. Current versions are at book contents).
In effect, a judge in a country which only uses religious law is adjudicating by interpretation of what he believes to be God’s will (judges tend to be male in such countries). In this scenario there is no separate legislature. If, as in Iran, the executive is also under religious control, there is no separation of powers (5.2.8) and a corresponding lack of checks and balances.
The statement ‘there can be no other law but God's’ has been used to justify the implementation of Shariah law in Iran and elsewhere, but this does not address the question of the administrative rules required to keep a modern society functioning. Shahrough Akhavi, in Religion and Politics in Contemporary Iran, showed that this distinction was recognised but not always implemented:
"In the ideal the Shi’i community had already provided for a distinction between customary (urf) and canon (shar) law. Urf jurisdictions consisted of matters affecting the state and its administration, while civil and personal status law constituted the domain of canon law. 'In practice, however, the unstable governments of Iran had defaulted nearly all judicial authority to the Shariah courts.'" [pp. 38-9]
Shariah law was formulated in the ninth century, to interpret the values of the Quran to define a practical set of rules for the society of that time. Some of the rules and punishments which were accepted in the Middle East at that time are in conflict with modern concepts of human rights. Islamic communities vary in the extent to which they have allowed interpretations to evolve as the society and circumstances have changed.
Tariq Ramadan has argued that evolution can be compatible with adhering to Islamic principles, as distinct from adherence to a particular historic regional practice. He has defended local variation, which he called “contextualisation”, arguing that Muslims can accept change and fit into the countries they live in without sacrificing their faith – but he has been sharply criticised for saying different things to different audiences, as in Max Dunbar’s article, Brother Tariq: The Doublespeak of Tariq Ramadan.
People who adhere to other religions ought to be granted freedom of worship and other internationally-recognised human rights, even in theocracies which only recognise religious law. It is perhaps easier, though, to accommodate minorities in a country which allows religious law to evolve.