Few days ago, I read a news story in The Telegraph about the question of women driving cars in Saudi Arabia. A professor at King Fahd University along with some other academics has come up with a report to persuade the country’s legislative assembly not to allow women to drive. Prof. Subhi argued that allowing women to drive would lead to “a surge in prostitution, pornography, homosexuality and divorce”. The report said if women were allowed to drive, there would be no virgins in Saudi Arabia after 10 years. For these reasons among others, the report pleads that women should not be allowed to drive.

I further learned that the Saudi government is considering another legislative proposal that would require women to cover even their eyes, if they are too “tempting”.

The same day, I read another report about the results of elections in Egypt. I learned that the Nour Party of Salafi orientation is expected to have significant representation in the next Egyptian parliament. Yousseri Hamad, a spokesman of the party, says, in the land of Islam, people cannot decide what is permissible and what is prohibited – it is God who gives the answers as to what is right and what is wrong.

If what Hamad says is true, one might ask: Did God tell the Saudi 'ulamā' to not allow women to drive? Also, did God tell Saudi 'ulamā' to legislate that women should cover their eyes?

Ok, let’s not make such a big deal out of what Hamad said! Let’s pose simpler questions: Did the Messenger of God – may blessings of God and peace be upon him – advise in advance not to allow women to drive automobiles when such vehicles became available? Or did he tell the women of his time not to ride camels by themselves? To prevent fitnah in the society, did he go so far as asking women to cover their eyes?

The answer to these questions is “No”.

I have asked these questions to point out a dilemma in the Islamic legislative practice: whereas authority for “Sharia” is claimed by asserting that God is the lawgiver, much of the body of Islamic laws is the product of human reasoning. Notwithstanding human contributions to Islamic law, people conveniently say “Sharia” is “divine” without further qualifications. The distinction between divine and human elements of Islamic law is never emphasized. To the contrary, much effort has been devoted to lend divine authority to human legislation. Thus, a student of Islamic disciplines witnesses much discussion aimed at showing how rulings arrived at by means of various juristic tools (e.g. qiyās, istihsān, istislāh, sadd al-dharī'ah etc.) are “binding” on ordinary Muslims.

I would not go so far as saying that the 'ulamā' have deliberately blurred the distinction between human and divine aspects of Islamic law. But it would not be wrong to say that they have chosen not to emphasize this distinction, effectively allowing it to blur.

With this confusion of human legislation with divine commandments, “certified” 'ulamā' of our time and their diehard followers insist on every suggestion found in the body of fiqh as though the whole body of fiqh is as much certain as the oneness of God and as much binding as the five daily prayers. Moreover, any call to revisit human aspects of Islamic law is perceived as a threat to the very core of Islamic law. It would not be an exaggeration to say that the failure to draw a line between divine and human aspects of the received tradition is impeding the advancement of Islamic thought in our own time, with the result that our youths are beginning to question the relevance of a legacy that fails to address the issues of their concern.

Muslims must learn to draw a line between strictly divine and rather human elements in the Islamic heritage. We should draw upon human contributions to Islamic legacy so that we don’t reinvent the wheel. Yet the core of Islamic law can only be constituted by strictly divine guidance, and it is this core, and not the human elements of Islamic law, that we must remain true to while we attempt to find solutions to problems of our own time. Without such distinction, we would be crippled by the burden of tradition, and advancement in Islamic thought would not be possible. And it is not only in retrospect that we should distinguish between human and divine aspects of Islamic thought, but also prospectively: while we make fresh contributions to Islamic thought, we should not start speaking for God ourselves. Since the volume of “revealed” guidance is not going to increase, fresh contributions to Islamic thought should be considered provisional and subject to revision.

Realizing the distinction between divine and human aspects of the received tradition is also important because it would enable us to prioritize the core concerns of Islamic law in our legislative activity, and protect us against poorly prioritized or excessive legislation that threatens to impinge on individual freedoms and opens the doors for coercion in matters of religion and persecution in the name of God. We should learn from the history of Christianity what happens when people go too far in speaking for God; Muslim ʿulamāʾ and lawmakers should not repeat the same mistakes as the Christian Church. Legislation of Islamic values and “enforcement” by the state must be kept at a minimum in order to uphold the cardinal Qur’anic principle of “no coercion in matters of religion”.

Excessive legislation of any sort is bound to encroach on individual freedoms, and legislation of religious ethics is no exception. Legislation and enforcement, in general, should be resorted to only when absolutely necessary. Thus, Muslim voters should demand of legislators that they exercise caution in their approach to Islamization. They should not allow lawmakers to go too far in speaking for God. The need for legislation should always be weighed against an individual's religious freedom.

I hope and wish that the newly found representation of Islamic parties in Arab parliaments does not result in rash legislation of man-made laws in the name of God.