Conclusion
It is only fitting to end this book with the only documented case of stoning in the history of Syria—the stoning of Mar Elias in the city of Homs in the third century. This case of stoning was not for zina but for the crime of spreading the revolutionary doctrine of Christianity. The stoning was performed not by Muslims but by Romans who were attempting to halt the spread of an ideology viewed as subversive to the empire. The persecution, and even stoning, of Christians is found in several instances in the history of early Christianity. However, Mar Elias, considered a martyr, was unique in that he suffered the excruciating punishment of stoning until dead by the hands of his own father, the Roman governor of Homs.1
The case of Mar Elias only emphasizes that stoning itself is not a punishment unique to Islam. However, it is a punishment documented in the hadith, a source that guides Muslim religious and legal practice. There it is documented that the early Islamic community endorsed stoning, and there is evidence, as best we have through oral transmissions of the hadiths, that the Prophet Muhammad practiced stoning in his lifetime, as did his immediate successors. Later, the Ottomans took pains to write kanunnames that continued to criminalize sex outside of circumscribed boundaries, yet they did not include stoning as a punishment for zina in those imperial codes. Despite the laborious construction of these criminal codes throughout the empire, there are no references to them in the various kinds of sexual indiscretion cases presented in Aleppo’s shari‘a courts. Furthermore, the practice of banishment in cases of zina versus the Ottoman mandated fine system is evidence that judges may have been using another legal basis for their legal rulings. Prostitutes and pimps were not documented as paying sums of cash to the Ottomans in court cases. The Ottoman officials were also remarkably absent from the process of apprehending and bringing offenders to court. Instead, the power of the local community is apparent in the records, as they policed their own communities and brought offenders to justice. The shari‘a court was an important institution that offered official endorsement of the policing being performed by the quarters of the city. The court records do not indicate that the Ottomans coerced residents into “policing” their neighborhoods by punishing them outright when they did not apprehend offenders in their neighborhoods. Nonetheless, there is some evidence that the phenomenon of neighborhood policing may have existed long before the presence of the Ottoman state as a grassroots legal tradition that dated back to the Mamluk period. People were familiar with the law and trusted the courts to ensure justice in their communities. Quarters were also organized through local leadership via the ‘arif al-hara. Even today in Syria, these local forms of government persist in which abaday tend to be a crucial link between the community and government, using their contacts in high places to provide critical services to their communities. However, what is also apparent from quarter solidarity in court is that mass testimony could work to ensure the removal of an undesired neighbor. This fact, combined with vague definitions of moral wrongdoing, left plenty of room for abuse toward those Aleppines who did not walk “the straight path” and chose to deviate from accepted norms of their community.
Overall, this book documented the flexibility within Islamic law that is often portrayed as stagnant and draconian. Zina, as it was managed in Aleppo, offers an extreme example of the mutability of the law. It challenges our perceptions of gender in Islamic law, showing that prostitutes were given a proverbial slap on the wrist when brought to court. These women were removed from city quarters rather than subjected to death by stoning, as found in the historic juridical writings on Islamic law. The case of zina law and its application in Ottoman Aleppo demonstrates the way that Islamic law accommodated the needs of its community. It also calls into question our notions of honor in the Islamic world. As previously noted, the court records reveal families and couples engaged in prostitution together in 42 percent of the cases located in the Aleppo court records. Economic necessity sometimes overrode abstract notions of family honor, which complicates the dominant portrayal of family honor as immutable in the Islamic world.
How were the courts able to circumvent the edicts for zina punishment found in Islamic law? There was a tradition of jurists looking to ‘urf traditions of law that were deemed acceptable and given weight in local matters, so long as they did not contradict injunctions found in the Qur’an and Sunna. For Aleppo, it also may have been the process of istihsan, or realizing the public good, and the traditions of the local community. It may be that stoning was a foreign custom to the cosmopolitan community of Aleppo. Therefore, judges may have preferred to use the punishment familiar to the community rather than one that was alien. In either case, it appears that the term Islamic law inaccurately describes the system in the singular, when in actuality it appears to be a series of legal codes that differ according to time, place, and context. This message is an important lesson, as today multiple extremist ideologies claim to have a corner on Islamic law yet have diverging visions as to how to apply it.
So what can this study tell us about the path that lies ahead as debates over gender and morality in Islamic law become amplified and laden with increasing stakes in the Islamic world? This exercise has illuminated some of the forgotten discourse in Islamic law on sexual morality. However, it has not been a comprehensive study, and I hope it will be followed by others that will investigate the way that Muslim empires and their laws dealt with morality and practiced the law on a daily basis. Such studies will serve to alleviate the historical amnesia that pervades the Islamic world today as well as correct the assumptions of non-Muslims about the rigid nature of Islamic law that have long dominated discussions.
Part of this reassessment of Islamic law is already under way. Contemporary Muslim scholars have called for reinterpretation of Islamic law and its discourse on gender and morality. One scholar I would like to highlight is Tariq Ramadan, a moderate Muslim intellectual who has produced a number of writings in recent years, but is mostly known for the controversy surrounding his hiring at the University of Notre Dame in 2004. Ramadan was never able to take up his position at Notre Dame because he was denied a visa to the United States. However, the media coverage that followed his rejection included a public accusation in Vanity Fair that he endorsed stoning in Islamic law, and, even more, that he had publicly sanctioned the practice in his writing.2 The following year, Ramadan publicly posted his article titled “An International Call for Moratorium on Corporal Punishment, Stoning, and the Death Penalty in the Islamic World” on an Internet site he created. It is in this article that Ramadan generally calls for ending corporal punishment altogether in the Islamic world and more specifically takes on the issue of stoning. He argues that most ‘ulama concede that the conditions under which stoning was prescribed are impossible to reestablish today. However, spiritual leaders today are under pressure by the masses who call for the implementation of corporal punishment (hudud), yet, Ramadan argues, “they themselves will often be the first victims” of such punishments. An application of the hudud is desired by the masses because it provides evidence of the application of the shari‘a, and “the harshness and intransigence of the application, gives an Islamic dimension to the popular psyche.” The fact that the application of Islamic justice is greeted with condemnation by the West plays into a mutually reinforcing binary reasoning, according to Ramadan. Such condemnation provides “sufficient proof of the authentic Islamic character of the literal application of hudud.”3 Western repulsion, which in many ways is fueled by the draconian measures employed by Islamists, only reassures the authenticity of the practice to the Islamists who apply it. By implementing the punishments, the ‘ulama have caved into popular demands for the hudud because they fear losing their power.
Ramadan justifies, in the end, his call for a moratorium on stoning based on a lack of consensus (ijma‘) among scholars, or even a clear majority. He finishes with a provocative argument based on Islamic justice as it forms a superior aspiration within the shari‘a, arguing that stoning has been a tool of abuse and has targeted the weak throughout the Islamic world. In this way, Tariq Ramadan is one of many who are calling for a reevaluation of the shari‘a’s perspective on stoning as well as other matters such as reform, women’s rights, and human rights.
Tariq Ramadan is one example of Muslim scholars who are continuing the long tradition of ijtihad and deliberation on the law that has been discussed in this book, despite attempts to silence the debate. For Muslim intellectuals today, the stakes are even higher, as they have authoritarian states and more deeply entrenched Orientalist notions of an essential Islamic tradition to challenge. There are also challenges being made within the Islamic tradition, as scholarly authority and authoritarianism are often interrelated. As the license to issue rulings on legal matters is no longer for the learned, and as shari‘a is understood more as a normative applicable law rather than a loose discourse of guidelines meant to be used in conjunction with social practice, the understanding of the shari‘a in both the East and the West has become rigid, the very opposite of the legal culture presented in this book. This struggle over shari‘a today has made investigating the historical space between the theory and practice of shari‘a vitally important. It is time to eliminate the historical amnesia that is so pervasive and begin to fill in the memory gap that has created so much political struggle over the true nature of the shari‘a.