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It is impossible to consider Islam and not delve deeply into Islamic law, the sharia. Most of what constitutes the perceived unity of Islam and Muslims hinges on the shared acceptance of sharia—although one has to add immediately that the shared ingredient may be no more than a vague similarity of practice and customs and a whiff of scriptural doctrine. The sharia exists in so many different versions that some scholars refuse to acknowledge its communality in more than just the name. The communality lies more in a diffusely underlying episteme of justice and ethics, of evaluating in a particular way social conduct as to its appropriateness, in setting accents in what is considered correct behavior and how incorrect behavior is to be punished, rather than rendering concrete rules and fixed laws, which would exactly be the same everywhere in the Islamic world. For instance, rating apostasy as a heinous act and considering blasphemy a severe crime, in gravity equal or even surpassing murder, is such a communality, which distinguishes the sharia from other judicial systems. However, these “crimes” are not punished with exactly equal measure everywhere where Islamic justice is being practiced. The sharia simply, and more diffusely, delivers the distinct and particular aroma of human sociality and social order that pervades the so-called Islamic world.
In actual empirical reality, the exposition of sharia ranges from the strict, “medievalist” version the Taleban instituted to a very liberal, relaxed interpretation proposed by some leading reformers (especially the neo-modernist school in Indonesia[1] and some Muslim scholars living in the West), from the conservative sternness of the official Saudi law to the hybridity practiced by “acculturated,” diasporic Muslims in the West, and from the conservative tenacity of ancient village custom to modern state law barely infused with the flavor of Islamic ideas. In its purely doctrinal, abstracted form, sharia is one of the main defining aspects of this religion, in dogmatic importance second only to the concept of tawhid, the oneness and indivisibility of God. The significance of this concept gives Christianity in the eyes of Islam a suspect tinge of not really being monotheistic and surrenders to (some) Muslims the justification to look down on Christians as mushrikun, polytheists. For the concept of the holy trinity, which is considered shirk, unlawful association of the oneness of God with other entities, comes dangerously close to the worship of three divine entities.[2]
In its ideal form sharia, closely regulating the believers’ conduct, is the code to guide the faithful on the “straight path to the well”—a very apt metaphor for a desert culture to describe a resolutely “correct” approach to a God-pleasing existence. Sharia is the orthopractic face of the religion, of equal importance to orthodoxy. Close adherence to it is the guarantee of salvation for the believing Muslim, its existence the proof of God’s love of humanity, and its uncompromising sternness the appropriate penalty for straying from the way. The “straight path” paraphrases the social, juridical and ceremonial reglement believed to have been revealed by God and exemplified by the Prophet in his words and his life. It is the sum total of commandments, laws, ordinances, rules, and recommendations overtly or cryptically laid down originally in the Quran, exemplified and elaborated on by the Prophet in his personal hagiography, and laid down for all eternity in the Sunna (the traditions and the Prophet’s commentary, the ahadith). The Prophet’s whole life and conduct is an epiphany of law-giving importance, to be revered and emulated to the smallest detail—as especially the Salafis try to do. The Quran[3] contains several references specifically to this effect, commanding the believer to obey the Prophet and follow his example. This original body of revealed information has been further refined through the intellectual efforts and “deductive reasoning” of the madhahib (so-called law schools) in the subsequent centuries and preserved in the fiqh, the codified law system. Some extreme Salafists though dispute the validity of the latter source and endeavour to find back to the purity of the Prophet’s revelations and his exemplary life, and that of the al-salaf al-salih, the pious forefathers and compatriots of Muhammad, who serve as paradigmatic role models.
Islamic law as we know it today was profoundly shaped by the labors of the so-called law schools (madhahib), aggregates of eminent scholastic minds systematizing scriptural hints into comprehensive law codices (fiqh). In the centuries following the Prophet’s life, they were instrumental in codifying and, through exegesis, elaborating the revealed rules, often to the outsider’s eyes no more than vague hints, into systematic form thus transforming divine commandment into formal law.[4]
Apart from many cul-de-sacs, there are four major Sunni schools: Maliki, Shafi’i, Hanafi, and Hanbali; and three major Shi’a schools: Jafari, Zaidi, Ismaili,[5] which created the bodies of legal scholarship that are still recognized today. Although sharia in its classical shape is being emulated relatively faithfully only in Saudi-Arabia, to some extent in Sudan, and Yemen, and (with a large dose of Khomeinism) in Iran, it does inspire to varying degree the legal systems of most Muslim-majority countries. In less conspicuous ways, the sharia still determines life in large parts of West Africa, central Asia, and southern Russian areas.[6] It also underlies, of course, more or less faithfully, the customary life at every level of Muslim society except its most secularized or westernized sections.
As a body of knowledge, the sharia is indispensable to living a God-fearing existence. Through divine revelation and the Prophet’s divinely guided and inspirational life, more or less clear guidelines are supposed to have been given as to how to lead a God-pleasing life. Straddling and obscuring the dividing lines between orthopraxis and orthodoxy, between strict law and recommendation, between canonical legality and ethical ideal, sharia in its functionality spans the regulative ontological aspects of human existence in its entirety. Islamic doctrine goes vastly beyond mere ceremonial rules of worship and articles of faith. Like all religions, Islam delivers a sense of the meaning of human existence, but it goes further by giving a strict and very detailed blueprint for how to conduct oneself in order to fulfil this role. The requirement to closely espouse the rules of sharia applies to individual lives as much as in a structural sense to the society of believers (the umma) as a whole. For the collectivity, too, in its communal functions, should be guided and organized by doctrine and divine principles, thus molding theology, divine law, and politics into one. Moral theology virtually becomes the law as well as the foundation of political action. By and large, being human finds fulfilment in the duty to please God and achieving this by following closely the divinely devized rules of social conduct and being mindful of God’s designs for man. At the end of a life of obedience, at divine pleasure, lies the prospect of heavenly reward in a paradise, which for the benefit of the less sophisticated is conceived in fairly earthly-minded terms. Alternatively, ignoring and violating these rules beckons with assurance of eternal damnation—and, of course, also with prospects of harsh punishment in this world as prescribed by divine decree and administered by worldly authorities.
Few if any other religions pay such enormous attention to correct conduct to the smallest detail.[7] This gives a ceremonial, sanctifying gloss to actions of social intercourse, which in other religions would remain entirely mundane and untouched by the religious brush. Especially the five daily prayers (salat) structure that punctuates the everyday life of the devout and remind them in short intervals of their duty to God—or in an abstract sense, of the transcendent quality of their existence. The relevance of this interconnectedness is that in the modern world it gives society—as well as the culture that provides the motivations for social conduct—a greater degree of viscous inertia than society would have otherwise. In other words, it increases the resistance to social change when through its societal and cultural ramifications this change tends to touch on the very essence of religion.
The shariatic rules that ideally regulate a devotee’s life have an ontological span from the very private to the very public; they implicitly or overtly prescribe everything from conducting personal hygiene and sexual activity, to risking one’s life in God’s service. Laws of proper diet and inheritance, punishing a thief, conducting business and dealing with an enemy, giving witness in a court of law, divorce, political leadership, polygyny and gender relationships—every conceivable aspect of human life is at least potentially if not succinctly and clearly contained in the fiqh, the systematic collection of shariatic rules. Supported by exegetical interpretations of qiyas and ijtihad, or by wide consensus, ijma, rules can be extended to conditions and matters that clearly did not exist at the time of the Prophet nor in the centuries after him when the original revelations were codified by the law schools. Thus for the strict believer even the ringtone of one’s cellphone, the brand of toothpaste to be used, or whether it is permissible to breathe in vaginal fumes,[8] requires a legal-theological decision by experts. Many eminent scholars and theologians maintain websites or blogs to answer such enquiries by the devout. How a Muslim should respond to friendly wishes for a merry Christmas or what a Muslim astronaut orbiting earth should do with the required five prayers at specific times when every ninety minutes the sun comes up, become serious issues for experts to contemplate.
Some aspects of the sharia are spelled out in relative clarity, while others—despite the collective efforts of brilliant jurist-scholars in classical times—are obscure or vague and are open to a wide range of possible interpretations. (There are also significant differences in the legal interpretations of the various madhahib.) Hand amputation for theft, for instance, is unambiguously commanded in the Quran, which being God’s word “verbatim” all Muslims accept as the most authoritative source of legal wisdom. Yet, juridical and aesthetic globalization often intervenes and in less hard-line state law systems this draconian punishment is not applied. Other rules, if not formalized in current law, emerge only after lengthy and laborious interpretation, requiring consultation with the experts in individual cases to achieve clarity. Agreement among experts though is rarely achieved. In virtually any matter expert views on shariatic application diverge widely, often in personal affairs giving a choice which view or fatwa (ruling, opinion) to adopt. In the absence of a hierarchy of authority among those who by general consensus are regarded as legitimate sources of legal wisdom, a range of other criteria come into play as to which opinion should be followed. And adding to the complexity surrounding the issuing of legal opinion, expert assessments can be treated as recommendations or as strict commands or, if not backed up by temporal power, can be ignored entirely depending on the inclination and receptivity of those affected.
Another complicating yet defining feature of the sharia is the multitude of regional variations. Differently expressed, there is a considerable breadth of variation in scriptural normative Islam and customary sharia. Islam spreading over a vast geographic expanse in its history has incorporated regional customs and pre-Islamic belief elements as part of the sharia. This has engendered quite different notions of authenticity and the proper normative function of Islam. Such differences in perceptions of what constitutes authentic sharia, what is correct orthodoxy of scriptural Islam and what is the required orthopraxis can be area- or ethnicity-specific or relate to sectarian divisions. For example, it is fair to say that the vast majority of Muslims have little appetite for the Talebanic version of sharia and consider it an anachronistic misinterpretation, a regression into barbarity, or worse, a perversion. This extremely draconian version of sharia is apparently still practiced in isolated areas and in some village communities in defiance of state law, but is rejected even by the most conservative official law. This often brings the customary sharia practiced in the social intercourse of some local communities in direct conflict with the official jurisprudence, although both sides claim to be espousing shariatic principles. Such a clash was glaringly exemplified for the whole world to see in a case in Pakistan a few years ago, when a young woman, Mukhtar Mai, was gang raped by four men by order of the village council. This was done to punish some transgression by her brother—the young man apparently had an ill-conceived dalliance with a higher-class girl. (The news reports unfortunately were not specific enough.) In a Western sense of justice this would hardly be considered a punishable transgression at all, and even if it were the case, his sister would not be considered the appropriate recipient of the punishment. After the event, rather than submitting and living quietly the life of shame she had been sentenced to for no fault of her own, the woman bravely sought redress through Pakistan’s official law which, although also based on shariatic principles, condemns the act of “judicial” rape—and provides for capital punishment of any rape. Shortly afterwards, in July and August 2002, pictures of the perpetrators (those having committed the rape and those having ordered it) being shepherded into the courtroom in chains went around the world, publicized through the electronic and print media. In August of the same year, a court sentenced six men, responsible for ordering and carrying out the rape, to the death penalty. On appeal, in 2005, this verdict was overturned. Not long afterwards, through the intervention of yet another juridical angle, all the culprits, except one, were quietly released. (The fate of this man remains uncertain.) This event shows that the normative function of Islam and its judicial arm can vary to some considerable extent according to context, area, community, and country and not least which particular version of sharia is brought to bear.
However, the question arises, what then justifies considering the sharia as one of the most important unifying factors for Islam and Muslims? The reason is, that despite great variability in detail, in its fundamental epistemic form the concept of sharia does produce a degree of (for the most part subliminal) uniformity revealing itself, though reluctantly, in fundamental features of jurisprudence, ethics, and social conduct, and their patterning, be it at the village level or the official, state level.[9]
Rudolph Peters[10] distinguishes four types in the relationship between sharia and modern state law in the Islamic world. One in which the sharia has been totally eliminated from state law: as in Turkey (but in rural areas and in family law matters shariatic views still prevail). Second, as in Saudi Arabia and Yemen where the sharia is the law of the land and official jurisprudence is exercized on this basis. Third, countries in which Western law prevails with some exceptions (in family law, waqf) and the sharia supplies principles on which state law is based. And the fourth type exists in countries in which criminal law has been re-Islamized (such as Iran, Sudan, Libya, northern Nigeria, and Pakistan). If we leave aside the juristic detail, the fact remains that in one form or another the dominant ethical viewpoints and common social practice are still derived from or influenced by the sharia, though in varying degree of intensity. Although the sharia is re-codified by the state and the state determines what sharia norms are—and not the uluma (clerics)—the influence of the sharia as a body of ethics and normative regulator has been retained in jurisprudence and even more strongly in the daily social discourse. Thus there is a degree of secularization to be noticed, but it is by far not as intensive as in the West.
An important factor of globalization is the impact of Western juridical dominance and of Western aesthetic regimes on the practice of sharia. In some cases, this has pushed Islamic law into comprehensive modifications and adaptations. More than the rather diffuse Western aesthetic dominance in the world, it is the existence of human rights provisions supported by the United Nations that has had a major impact on the Islamic world. Even Saudi Arabia, despite espousing very conservative shariatic principles, does not stand totally aloof in its official legal practices. Often it is the intervention by the royal house that seeks mitigation in cases of capital crimes. Saudi interpretation of hakimiya, governance, by statute allows the king to vary the implementation of sharia in actual cases. Whether the reason, when he does so, is the concern for international opprobrium or a humanist streak of the royal house is debatable. Iran, on the other hand, which also bases its jurisprudence strongly on the sharia, delights in its independence and does not allow the West to take credit for exercising any influence. Capital punishments (for homosexuality, marital infidelity, blasphemy, or prostitution, for instance), retributive qisas forms of mutilation, and harsh imprisonment for what is regarded as female insubordination are carried out despite Western protests. In several Muslim countries significant disharmonies between Western-influenced and perhaps even partly secularized state law, and customary law as practiced by rural or remote communities or less Westernized social classes, have come into the spotlight (for instance, in so-called honour killings). In some cases this has opened up sizable rifts between official jurisprudence and communally applied rules of conduct and punishment, especially those practiced by Salafist sections of society who in various way are trying to recreate what they regard as the shariatic purity of early Islam. On the whole, however, and despite various differences, and despite many concessions the Islamic world has made to globalization, it can be said that the sharia—especially its penal aspects, responses to offenses against divinity and sacred personages, gender-related aspects, and grotesquely also its dietary rules—still expresses the major difference between the Islamic world and the non-Islamic world more than anything else. Every feature that seems to define Islam’s authenticity or to characterize Muslim society can be traced back to the sharia. This warrants a closer look at the nature of this legal body in relation to human universals and to enquire into the effects of juridical globalization. Although all of humanity seems to share innately a concept of justice, it differs strongly in content and meaning. As is abundantly clear, the shariatic sense of justice, adl (or adil), is noticeably different from the Western one.
At the time Islamic law (or less forcefully expressed, rules of social conduct) was initially formulated through revelation and exemplification, it had been surpassed in sophistication by far by Roman law which had been devized already centuries before and survived the demise of the Roman and Byzantine empires. Yet, historically, there is great value in the sharia. Islamic law in its original formulation in Quran and Sunna takes a decisive step away from relatively “informal,” customary or tribal law and moves towards a more formalized and systematized law.[11] Some scholars refuse to recognize sharia as codified law in reference to its flexibility and the role ijma (consensus), ray (personal opinion), ijtihad (interpretation), and qiyas (analogy) play in giving Islamic law much fluidity.[12] Ultimately, it is a matter of interpretation what may be considered as codified, in the sense of systematized. Certainly, Muslims believe sharia to be so. From an anthropological angle considering the vast variety of legal systems throughout human cultures—and especially by comparison with tribal or customary practice of law—sharia in the form of fiqh seems highly systematized. A certain whimsicality of definition in scholarly understandings of the sharia is also reflected in the fact that Snouk Hurgronje[13] considered it to be revelation and thus in his mind does not qualify terminologically for the same status as Western law. Max Weber[14] also had difficulties in according it equal status with Western law, because to him it was of lesser rationality. And Joseph Schacht[15] saw it more as ethics than law.
Customary, and newly invented, rules of behavior and forms of collective retribution for their violation were cast by sharia in more explicit form than is normally the case in “tribal” societies. Early Islamic law, by superseding Arab tribal law, placed social intercourse on a more predictable basis than earlier, more informal law systems might have provided. The subsequent step towards complete systematization was taken then by the madhahib, the various law schools, by amplifying and codifying the beginnings made by the Prophet and his successors, the Rashidun caliphs. This groundbreaking work retained its direct validity until the present day and in doing so overtakes Roman law in longevity. It also surpasses Christian (Catholic) canonical law in the sense that sharia has retained a greater degree of social relevance by withstanding the forces of secularization more successfully. At the same time it remained more static, unchanging. Essentially, conservative jurisprudence, notions of appropriate conduct, and ethics remained at the stage they were centuries ago, in their principles unchanged until the present time, through the doctrine of juridical immutability. As divinely revealed law it is only subject to exegesis, but not revision. It is certainly true to say that Islamic law (to the extent that it is till practiced today) has not undergone a rapid and profound evolution of juridical principles relating to justice and propriety to the same degree as Western justice systems.
Leaving this very modern difficulty aside, the Middle East in general and Islam in particular can be celebrated for having forged a tight union between religious belief, generalized moral principles, and codified law. This effort not only removed the definition of lawfulness from the vagaries of customary practice and from the tyrannical whimsicality of despots, but also achieved a fundamental measure of equality before the law regardless of social status or tribal affiliation. Another merit of the emerging Islamic law was that, although a profound distinction between believer and infidel was made, the latter were not people outside the law who could be treated at will. This is an important difference to tribal law, which normally does not extend to outsiders. Customary rules and tribal “civility” thus do not apply to them.
The first attempts at codification of law are ancient in the Middle East, reaching back to Hammurabi[16] and the Mesopotamian civilization. The Old Testament is part of, and heir to, that stern regional legislative tradition, but while urbanization facilitated a clearer codification, the nomadism, and in some periods downright peripatetic existence, of the original monotheistic Hebrews seems to have prevented that.[17]
Although still couched in terms of divinely received rules, thus giving it an axiomatic gloss, law being articulated in some detail made it accessible and subject to closer scrutiny. This opened the gates to informed legal argument and enhanced transparency as to the consequences of social, or asocial, conduct. Importantly, it also removed law to some extent from the grasp of capricious power and tyrannical rule. Insistence on the possession of precise rights and duties—as different from being dependent on the whim of despotic social agents or on diffuse tribal tradition, which is amenable to being interpreted and bent in accordance with sociopolitical interests—can rightly be considered a very progressive step for the time. It enhances predictability and thus security of existence; especially when the laws’ universal nature—which includes at least theoretically the rulers—is spelled out. (Practically, of course, the ruling elite were still often beyond the reach of the common law and its enforcement, and were practically subject only to “divine” intervention.) Not surprisingly, Britain still considers the Magna Carter as a milestone in the development of British law without which society’s enjoyment of impartial legalities would not exist in their present form. Codified regulative functions to which all members of society are subject are one of the building blocks of a “civilized” society. At least in principle this distinguishes such a law system from tribal or customary law, which is exercized from unformulated traditions whose definition, application and enforcement lay in the hands of elites who often had the kind of unquestioned authority that enabled them to use “customs” to their advantage.
Recognizing this should not mislead one into the assumption that there ever were “lawless” societies that is to say, groups of people of some coherence who were devoid of any rules of interaction. Even so-called outcasts of society, pirates, groups of escaped slaves, and the like, devized, usually unwritten, rules of conduct and interaction and punished transgressions within the group. Human sociability is not thinkable without laws, however formal or informal they may be. A condition of “lawlessness,” the total absence of rules of conduct, as it allegedly has been observed in some societies in historical times, more often than not is the result of displacement and social uprootedness; in other words the observed chaotic forms of social interaction are symptoms of acute anomie. (Quite possibly, the lack of finely honed analytical powers of the observer, failing to see some order behind the apparent chaos, may also be to blame.) This seeming condition of lawlessness in historical times, occasionally described in the ethnographic literature, was often the result of herding tribal populations into reservations with confined spaces and severe limitations on traditional activities.[18]
Often the exercise of violence makes it appear that no laws apply. However, the existence of cyclical vengeance and recurring blood feuds, for instance, does not indicate a state of lawlessness and may occur in accordance with relatively strict customary “laws.”[19] Pre-Islamic Arab society, like neighboring societies, seems to have had similar social mechanisms of regulated revenge-induced violence—which only from an outsider’s point of view would have appeared “lawless.” On this point there is a logical contradiction in sharia law. Revenge violence certainly seems to sit well in an “eye-for-an-eye” justice philosophy that underlies the sharia. The provision of the concept of “blood money” (diyah) to settle a homicidal culpability—and obviate the need for execution or a chain of vendetta-like killings—does not. It was probably already a pre-Islamic legal mechanism to stop chains of violence extending over generations. This provision has existed in other pre-modern societies also and probably for the same reason, namely, to put a stop to the socially very disruptive, internal bloodletting.
The lex talionis aspect of appropriate retribution to punish a crime, is an important element of sharia and warrants a closer look. Most conspicuous for Western sensibilities is the juridical principle of qisas based on the notion of measured equality between crime and punishment. As the Quran (16/126) phrases it, “If you punish . . . then punish with the like of that with which you were afflicted.” For the time, it probably seemed a sound juridical basis regulating punishment and removing the undesirable and socially disruptive consequences of violent crime by a simple and relatively uncomplicated mode of retribution. Qisas, the principle of “eye for an eye” is fairly concisely stipulated as well as more obliquely referred to in several Quranic verses[20] indicating the importance attributed to it. Verse 5/45 spells out the principle very precisely:
Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth and wounds equal for equal. But if anyone remits the retaliation by way of charity, it shall be for him an expiation. And whosoever does not judge by that which Allah has revealed, such are the zalimun (wrong-doers . . . ).
And in equal detail, Verse 2/178:
Al-Qisas . . . is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female. But if the killer is forgiven by the brother . . . of the killed against blood-money, then adhering to it with fairness and payment of the blood-money to the heir should be made in fairness.
Importantly, there is reference to the payment of blood money, diyah,[21] to discharge homicidal culpability. It seems almost a recommendation, if not an entreaty, to accept such a settlement. And not least there is also a suggestion of the possibility of penance and forgiveness.[22] It is clear, as Donner[23] suggests, that the vengeance system was too deeply entrenched in Arab society for the Prophet to suppress totally. But he placed restrictions on it: that only the killer be killed,[24] and thus ending the crime by appropriate punishment, instead of setting in motion a chain vendetta by killing arbitrarily a kinsman of the killer, which would then require an appropriate reprisal. Although the idea of collective guilt and shared identity among social units, which would favor this kind of unfocused retribution, is not alien to Islam; the sharia obviously seeks to dam in the eruption of further violence which could rupture the social fabric of the umma.
It is doubtful there ever was a human society that did not have conventions on correct modes of interaction. The narrative of a lawless original social existence belongs to the realm of scientific mythology. The brutish condition of “a war of all against all” (as proposed by Thomas Hobbes’ bellum omnium contra omnes), the proverbial “law of the jungle,”[25] and of the sex-driven “Primal Horde” (a la Sigmund Freud) in which patriarchy was libidinally defined, does not even apply totally to animal primates. But by taking “lawful” interaction out of the reach of brachial force and customary convention based on habituation, and placing it in the supervisory hands of supernatural forces guarding the sanctity of rules, an important step is taken. Attributing the origins of rules of proper behavior to supernatural forces, “legality” became tantamount to moral theology. Making human interaction and its patterns lawful or unlawful, as the case may be, under the rubric of proper morality and obedience to divine will is one of the greatest civilizing gifts a divinity could bestow on humanity. Thus forging law, belief, and morality tightly into one became a defining factor of human society until very recently when through the influence of secularization not only the supernatural ingredient of legislation is diminished, but the concept of legality or lawfulness, as defined and exercized by the modern state, is taking increasingly little recourse to religious viewpoints. Religion relying on traditional doctrinal interpretations has an increasingly tenuous hold on current ethical and moral standards applied by state law, as in fact the state is redefining the concept and content of morality. In this sense sharia’s original merit has become an encumbrance: its divine origin resisting its adaptation to globalizing aesthetic and legal sensitivities that have been subjected to intense secularization.
Having said this and elevated the codification of law to special importance, it seems necessary to put the Middle Eastern specificity into a pan-human perspective that avoids premature valuation. Drawing an even deeper division between societies with law that is codified and those without, some scholars refuse to call tribal law “law” in the contemporary legal sense and prefer to refer to it as “custom.” In their view, law proper is social control exercized through the systematic application of the force of politically organized society and through law-enforcing institutions. So-called “custom” or customary law, in this view, is in principle different from real law, not because of its lack of codification, but because of a deficiency in social institution.[26] Put differently, a social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by application of physical force by an individual or group possessing the socially recognized right (duty and privilege) of so acting.[27] In the absence of such an instituted role (of judge and police), behavior is subject only to custom or convention and not to law. (It avoids the question how to classify the belief that breaches of customs may be punished by supernatural intervention.) This leads to the conundrum that customs clearly have different degrees of gravity. Violating the homicidal taboo on a clan member is different from not washing one’s hands after going to the toilet. Both may be covered by the sharia, but in the first case there is a reaction by the judicial system and in the latter the reaction is disgust and contempt. It is interesting that Islamic doctrine in itself does not recognize a law-enforcing profession—although traditionally there is a judiciary (kadis) and modern fundamentalist states even have a religious police—yet it has a tendency to regard even seemingly minor customs as subject to enforceable laws. The agencies of justice, however, may be quite different ones.
In this definition some societies—and classical Muslim society among them—then do not have law as they lack judiciary and police, which enforce the rules, although they may have definitive rules of interaction. This introduces an unjustifiably deep delineation separating societies with law from “lawless” ones. Against this view Leopold Pospisil[28] argued that all societies have “law” by dint of four major attributes: social rules have authority and gravity, they have generalized applicability, there is an understanding of right and obligation between members of a society, and breaches of rules entail sanctions.
Leaving aside the law’s regulative functions relating to proper, lawful, and acceptable behavior, defining it and identifying breaches, there is also the punitive aspect. Failing to meet the obligation of acting in accordance with the customary regulative laws attracts punishment: quantifying it, controlling its execution, and making its extent predictable is another important function of a proper law code. A characteristic that distinguishes tribal or customary law from codified law is that tribal law usually is not precise about punishment. Even if there is a fairly clear sense of what constitutes crime, the precise quantification of punishment may be absent. Much depends on circumstances, the persistence and effort necessary in pursuing a miscreant, the intensity of sentiments of revenge, the social position of the offender, and the like. A refugee from justice may also enlist the help of kinsmen (for protection or advocacy) and thus escape from justice—and that in itself may be considered lawful. The old adage “blood is thicker than water” extends to the obligation of affording physical protection and support to kin in a time of need. This “law” may cut across other conventions about lawful conduct. Which is given priority in a given situation remains in the discretion of the affected parties. Alfred R. Radcliffe-Brown,[29] an early anthropologist, reported from the Andaman Islands that local conventional law had no agreed mechanisms of punishment. Retribution for malfeasance and crime depended entirely on the injured party taking action or on an aggrieved person seeking retribution. In pursuing a case a person could enlist support from third parties as much as the miscreant may have protection and support from others. There was no socially unanimous, coordinated, orchestrated, and generally agreed on reaction to a misdeed, although it seems that there was at least a vague conventional sense of right and wrong and of what constitutes justice. Although all else being equal there may have been consensus in condemnation of a deed, other mechanisms (of loyalty, kinship, etc.) seem to have outweighed impartial legal action and pursuance of abstract “justice.”
When considered in this light, the advance sharia introduced can be appreciated. However, it is not necessarily justified, though tempting, to attach an evolutionary scheme to such conditions and thus distinguish more ancient, primitive forms (of spontaneous and arbitrary retributive, vengeful reaction to perceived injustice, which some scholars may not even consider to be “law” in the proper sense of the word) and more progressive forms of an orderly judicial process. For instance, Australian Aborigines, though possessing no codified jurisprudential system had clear notions of what constitutes crime and conventional responsive mechanisms prevailed. Although their society is often—and wrongly—taken as a paragon of primitiveness, it had relatively concise concepts of “crime” and appropriate punishment. But legal viewpoints as to the severity and appropriateness of punishment could be individually bent (for sentimental or nepotistic purposes or for convenience’s sake), although only to a limited extent. Verdicts were communally sought and pronounced, authority and responsibility to execute punishment could be delegated (almost like appointing deputy sheriffs to hunt down a criminal). Execution then could be carried out in a kurdaitja raid, by a posse of deputies waylaying the culprit in a surprise attack, or could be done through a stealth magical act. In rudimentary form particular kin groups of the accused could represent the defense, both physically and verbally. Of course, individuals may also have, in a manner of speaking, “taken the law into their own hands,” but pursuing “justice” without approval of the council of elders lay a person open to collective retribution. (There were exceptions where a person might have to take immediate action to punish a wrongdoer or spontaneously come to the defense of a wronged person, compelled to do so by kinship rules.) However, by and large, the judicial system allowed for considerable flexibility, which did not make it entirely predictable.
There is another strong point in favor of the sharia as initially formulated. Historical features indicate the absence of commonly binding laws across Arab society in pre-Islamic times. This society seems to have been rent by many and deep divisions. Tribalism was an important dividing factor, further splitting society into clans, lineages, families, and “houses.” The chronic tensions between urban or village dwellers and Bedouins makes it doubtful that there was an agreed-upon code of laws shared between the two sides, even though the sedentary and the nomadic groups in a conveniently vague sense were part of one society—and sometimes even may have shared a tribal identity—and were culturally akin. (In fact the two sides were not as diametrically opposed as is often suggested. They represent only the opposite ends of a wider spectrum where the majority were engaged in both settled farming and pastoralism with features of semi-nomadic herding. Goat and sheep herding was somewhat less extensive than camel herding, but both could be combined with varying degrees of settled agriculture. A tribe could contain both agriculturalists and nomads.)[30] Even during the widely respected time of the pre-Islamic pilgrimage to Macca, when hostilities should have ceased, Bedouin raids on pilgrim caravans seem to have been the order of the day. Religious diversity, through the differences in legal customs, was probably also a major factor of interaction, as Jews, Christians, other monotheists and polytheists were living side by side. Adding to the complexity, regional and local polities presumably observed their own legal conventions. Kinship rules also seem to have shared co-importance with communally observed laws. Islam changed all that and boldly cut across this bewildering and often conflicting maze of “legal pluralism.” Sharia abolished this multitude and clearly intended from the beginning to universalize its juridical code. This has encouraged some modern scholars to see in Islam, at least by its potential, a globalizing force.[31] This is true, but with the huge proviso that globalization on Islamic terms also draws a definite and unbridgeable line between believers and infidels across the world. An embracement as equals of non-Muslims, the kafirun, being unthinkable, Islamic globalization would also universalize a fundamental division of humanity with potentially important legal ramifications. Globalization would occur at the cost of barring non-Muslims from full legal enfranchisement. Not surprisingly, the Islam-inspired human rights agenda (e.g., the Cairo Declaration)[32] contains some fundamental differences to that sponsored by the United Nations. One difference, which makes it unsuitable as a globalized code, is that the Cairo Declaration addresses only Muslims.
Another factor that limits the appeal of Islamic law as a globalizing force is the historical precedent of the legal status granted to non-Muslims under Muslim rule and governance. Where Islam permitted the continuation of other laws and legal conventions (of the dhimmi, recognized religious minorities), it severely reduced their status against Islamic law. (There is a faint similarity with tribal law in the sense that people outside in the in-group remain peripheral to the aegis of the law and only are legally enfranchized, or not, at the discretion of the dominant group.) Legal pluralism came at a severe cost to permitted minorities (the ahl al kitab, people of the book),[33] whose judicial autonomy in any case of conflict with matters Islamic was rendered inert and, in fact, relegated to irrelevance.[34] However, this issue is capable of revealing the ambiguous nature of a paradox par excellence. Viewed differently, the concept of dhimmitude can also be regarded as a major achievement of tolerance, a concession unparalleled at the time in Christian Europe. By a stretch of the imagination, it can be seen as an early version of multiculturalism. Even in modern times supposedly tolerant Western society has not embraced the idea of legal pluralism for the sake of culturally enfranchising minorities.[35] The use of sharia aspects in law and under the umbrella of Western jurisprudence does exist in a few countries of the West. However, it is very limited in application: usually only in matters of Private Law or within family affairs and as long as it does not contradict dominant law and constitution.[36] Some Western countries have totally and emphatically rejected the idea of even the slightest concession to sharia law.
In terms of a rough taxonomy (with or without evolutionary undertones), one can distinguish canonical law and secular law in reference to the extent the legal system is believed to be of divine instigation or is under divine oversight. Canonical law, by referring to its divine origin, draws on transcendent ethical principles inaccessible to empirical reasoning. The Quran often includes the phrase “for this is better for humanity,” but fails to explain why. There is no need: it is decreed by God and therefore beyond human understanding and volition. Moral philosophy and ethical principles are axiomatic and beyond human reason to comprehend, amend, or change them. (My imputing society-building motivations and socialization functions to Islamic doctrine and sharia rules, as I have set out earlier, is based on analogical, anthropological reasoning and is not explicitly suggested by Islam itself.) The more prominent the religious rationale and the stronger the religious ingredient in law is, the less amenable to fundamental, non-exegetical change it will be. As the religious aspect of law retreats the more fluid it becomes in line with social, cognitive, and ideological changes. This may open up a gap between canonical regulations and the moral principles they are intended to uphold, and changing sensitivities and preoccupations in the wider, progressively secularizing society. Social conventions tend to be more open to changes over time than doctrinal principles, which may erupt in bitter disputes about ethical principles. Recalcitrant fissures in the notion of religiously dictated ethical propriety, appropriate justice in social life, and actual practice are the consequence. The scientific advance of capabilities also tends to increase the gap. Especially in the medical field this becomes glaringly obvious nowadays. Sexuality, family planning, and surgical and genetic interventions are areas where this has become particularly apparent in recent years. Cutting-edge family planning strategies are subject to much acrimonious debate. Crude state-run eugenics have been resoundingly rejected, but individual freedom of choice together with scientific advances has opened up a new front. Techniques of gene manipulation, in utero sex determination, pregnancy termination because of impending birth and genetic defects or simply for reasons of limiting family sizes, “designer babies,” cloning, sex change, and so on, create an ever widening gap between scientific capability, legal acceptability, and religious conservatism.
The notion of crime is no longer chiefly linked with violation of divine ethics, but has become a problem of asociality, or antisociality, a violation of social order and convention, a breach of social contract and anathema to social cohesion. Crime bears less of a stigma of immorality in the transcendent sense, but is simply a breach of socially agreed-on norms. Concomitantly, ethics, so far as they are expressed in law, have become more closely aligned with social pragmatics and changing aesthetic regimes.
In the West, conventional ethics as espoused by state law, more implicitly than explicitly encoded there, have separated from religion and undergone their own separate development. Guardianship of social ethics consequently has passed into the hands of secular agencies and institutions, which sometimes now feel called upon to exert strongly supervisory functions over religious institutions. The formulation of ethics binding for society as a whole has been transferred from divine revelation to social discourse. The highest church authorities, previously considered the guardians of public morality, have hesitatingly adjusted to that and reluctantly submitted to secular agencies of justice. In very recent years, the numerous cases of child abuse committed by ecclesiastical functionaries and brought before secular courts have made that glaringly obvious. A novel conflict situation has emerged in which the Catholic church, traditionally the most powerful ethical influence in the Western legal and political processes, has to defend itself vis-à-vis the moral authority of secular law and popular opinion. As Catholic priesthood and celibacy come under close scrutiny, the church is feebly attempting to retain moral control within its own ranks and avoid submitting to secular authority. However, secular law now clearly manages to overrule canonical rule. This clearly is a social novelty. Similar charges for immorality have been made against Christian churches in previous years, accusing them of inertia in preventing or speaking out forcefully against the Holocaust. Some detractors even went as far as accusing churches of complicity, in which political and racist-based prejudices met with the age-old religious bias against Jews as the Jesus-killers. Yet, the institutional framework remained relatively unaffected and strong and human rights legislation could not successfully be employed to challenge the moral authority of church authorities.
These most recent events clearly demonstrate that in the Western world secularization has wrested moral authority—and the explication of ethics—from the Christian churches and handed it to secular jurisprudential institutions. It is now a combination of the various democratic parliamentarian functions, responding usually to a majority among the plethora of ethical viewpoints in society, as well as professional judicial and expert forums, which are charged with the responsibility of collective ethical oversight. Scientific advances also tend to create their own ethical systems, which, albeit with some lag, move along with innovations. In very recent years, especially the revision of medical ethics has been lodged in academic university circles as a separate discipline or as adjuncts to (secularist) philosophy and medicine, with advisory functions and appendices to lawmaking political processes. The hierocratic aspects of legal mechanisms and the ethical principles they defended, employed in the oversight of intellectual activity in Western society, have all but disappeared. Without having to reach back to the beginnings of the sciences and the fates of Galileo Galilei and Giordano Bruno, in past decades the careers of academics could suffer if their intellectual products met with church disapproval. (Sigmund Freud, and in anthropology, William Robertson Smith, are probably among the best known, but by far not the only examples.) Dangers to academic careers and to the promulgation of new knowledge, posed through control mechanisms, are completely differently situated now.
This is, of course, not to deny the Christian origins of modern Western ethics and the laws they have spawned—or to deny that through that descent Christian ethics are now of globalized importance and infused in the wider human rights discourse. But the once clear derivation becomes more and more obscured. Church doctrine and traditional religious viewpoints may still be infused in the secular ethical discourse, but rarely openly so on an institutional level. In previous centuries churches had set standards in ethics, not only by defining them, but partly even by supplying the functions and rationale of enforcing them in society. Until more recent times, conventions still allowed for a greater role of religion in the juristic discourse by consulting with church authorities who were in a position to influence the law more openly and decisively. This is no longer the case in secularized Western democracies, as theocratic features have declined drastically, the prerogatives of state churches have dwindled, and compacts between churches and states have been dissolved. (The obvious exception is the Vatican state.)
This problem is relevant to Islam because transcendental ethics and (secular) laws based on changing social conventions have not separated to the same extent as they did in Western society. Islam has not undergone similar developments in which religious ethics are becoming emasculated. As a sweeping generalization it can be said that ethical influence has been retained to a much greater extent than in the West by Islamic spiritual authority and the shariatic sense of justice. This is clearly expressed in the fact that scientific advances and their acceptability come under the legitimate scrutiny of theological authorities who may try to reconcile them with scriptures[37] or, as in most cases, reject them as un-Islamic. Although state law in Muslim majority countries, being influenced by Western juridical notions, not unusually deviates strongly from the classical shape of sharia, traditional religious jurist-scholars have managed to retain some influence on the collective Muslim consciousness to a much greater and socially more decisive degree than is the case with churches in the West. Leaving aside the formalities of the legal systems in Muslim majority countries, which may be heavily influenced by Western secular law, the social discourse—at grass-root level—is still strongly infused with ethical viewpoints derived from the sharia. Where the division most clearly shows nowadays is in the treatment of Islamic extremism. In some traditional and popular Islamic conceptions of justice it appears to be at least faintly justified by taking recourse to religious doctrine, while in state law—as much as in Western law—such action and the ideology inspiring it are simply and unceremoniously placed in the rubric of crime.
The concept of sharia, defined more narrowly as formal Islamic canonical law, has retained several characteristics shed in Western culture. Above all, law being a divine creation is sacrosanct; it eludes human tampering through the lawmaking capacity of experts and elected representatives. Law-giving sovereignty rests in God and not with human agencies whether elected or unelected. The perception that divine law by definition is fundamentally eternal and unchanging poses another considerable difficulty when it goes beyond some vague moral principles and enters into legal detail. To the extent that sharia is at all capable of adaptability, the traditional concepts of darura (necessity) and maslaha (common good) will be strained to the limit so as to generate the needed flexibility, sanctioned by Islamic authorities, to allow some rapprochement between conservative Islamic justice and globalized, West-dominated juridical provisions.
It follows that from an Islamic viewpoint if state law deviates from the letter of sharia, it should at least be grounded in sharia and reflect its spirit; which is to say, it should implicitly contain the ethical principles that are enunciated in the sharia. (For instance, if homosexuality and apostasy are not punished by death, they should at least be punished severely.) The interpretation of law properly belongs in the hands of religious experts, rather than secular legal agents; jurists should possess and carry out a religious mandate rather than just possessing a diploma from a secular law school. Social ethics applicable in daily life should be grounded in divine imperatives rather than human-made social conventions that are subject to the changing vicissitudes of ephemeral social aesthetics and fickle politically driven notions of right and wrong. On this basis it seems a fallacy to argue, as some scholars have done, that an Islamic democracy in the true sense of the concept is possible.[38] If a polity is meant to be Islamic—regardless of this being so with or without the wishes of voters—the ultimate supervisory function in state business, jurisdiction, and social interaction has to remain in the hands of the clerics and theology experts. Thus such a political system would at least have the flavor of theocracy.[39] It could be truly democratic only if by general consensus the clerical elite is democratically recognized and specifically authorized to perform a political and juridical supervisory function. This would have to be freely acknowledged by subjecting religious authority also to electoral processes. Needless to say that this seems hardly possible, as the separation of church and state, dividing spiritual and political functions, is one of the preconditions of a functioning modern democracy. Existing examples of Islamic republics do not provide convincing evidence that this is possible. Even if one discards formal electoral processes as a precondition for a functioning democratic system, the Islamic concepts of ijma (consensus) and shura (consultative council) are too nebulous, lacking in precise democratic mechanisms, and are still too dependent on elite leadership to satisfy the aspirations of a polity as diverse, disharmonious, and not infrequently contrary as modern day populations are. General homogeneity of aspirations and ungrudging malleability of the masses through persuasion of an elite are things of the past. Islamic criticism of democratic principles as “the terror of 50 plus one percent” refers to the principle that a majority overrules the minority simply through its numbers, and the dominant viewpoint does not emerge and prevail through reasoned argument. At least superficially this point resembles the political concept of the “terror of the majority,” that is the dubious yet legitimate domination of majority society over minority aspirations even in the best democratic system. (The topic of governance, leadership, and democratic system will again be briefly discussed later.)
Globalization in juridical matters facing Islam in today’s world is based more on Western patterns in which the original religious (Christian) viewpoints and principles have been sidelined in favor of secularized legal viewpoints and their implied ethics, and pragmatic, world-immanent functions. In international juridical discourses the internationalizaton of (non-religious) ethics becomes apparent. The human rights charter, having been inspired by the horrors and genocide of the era of World War II, makes no reference to divine law or ethical commands apart from a nebulous backdrop of the right to life and justice, which may vaguely have Christian roots. In contrast, the Islamic human rights have the stamp of Islamic theology all over it.[40] Many Western state constitutions do still make reference to God, but more as a formula-like bow to tradition, and less emphatic than those of Muslim-majority countries.
In the relentless globalization process, since it is mostly Western controlled and, therefore, acts as vehicle of secularising initiatives, juridical and religious viewpoints tend to become separated. Harsh views on blasphemy, apostasy, homosexuality, and adultery, which in an Islamic gradation of severity sit right at the top as capital injuries to ethical standards, fit uneasily in a world of increasing personal liberties of choice and expression, flexibility in ideological allegiance, equality, and growing, legally enforceable tolerance. Prevailing aesthetic regimes of globalization also shudder at some methods of meting out justice in accordance with conservative Islamic jurisprudence. The moral sense of outrage at certain types of behavior enshrined in the concepts of abomination, blasphemy, and offenses against divinity can have only an increasingly precarious hold on today’s secularising world. Notions of criminality in these regards are losing validity as religious rationales for social behavior decline in significance. The same goes for notions of what constitutes appropriate forms of punishment. Many forms of penalty under the aegis of an “eye for an eye,” prescribed by the principle of qisas—a concept that suffers profound universal rejection because it lacks the moral distinction between crime and punishment—fall now under the rubric of torture.
From July to August 2011 a case of qisas was widely reported in the world media. A young Iranian woman had been completely blinded and severely disfigured through an acid attack by a jilted admirer. A court sentenced the attacker to have the sight of one eye destroyed through a medical intervention in which a surgeon would administer some corrosive acid to the eye. In terms of strict equality of repayment for the injury the culprit had inflicted, the verdict seems even relatively mild. Literally, then, in the last minute, the woman in whose hands it lay to forgive and spare the man the ordeal, pardoned the offender, settling instead for a fine. Compared with the loss she had suffered, the sum (roughly USD 200,000) seemed paltry. Pre-attack pictures of her shown on television portrayed a young woman who by most accounts and across cultures would be considered good-looking. Newspaper reports described her as a university student with a bright future prospect. Through the attack she was condemned to a loss on both counts and quite possibly to an existence of emotional loneliness and physical dependency. As this case demonstrates, a perfect balance of crime and punishment through qisas is difficult, if not impossible, to achieve. It is not even likely to satisfy a sense of natural justice, even though it may purport to do so.
This provides an impressive example of the particular sense of justice of “Biblical” proportions couched in the legal principle of qisas. It is closely related to the Old Testament notion of adequate retribution, but time has eroded the attendant notion of penal justice and inherent ethics. The “an eye for an eye” slogan has totally disappeared from Western law, where restorative principles and resocializing functions are considered preferable to simple retributive punishment and its function of deterrence. (It is debatable whether this has a Christian root in compassion and forgiveness or hinges on rational sociological insights into cost-effect relations of conventional forms of punishment such as imprisonment.) Such considerations are absent from conservative interpretations of sharia.[41]
The sharia’s ethical principles, expressive laws, and forms of implementation all contribute to bringing it in conflict with Western, globalized and hegemonic views of ethical priorities, proper justice, and its enforcement. The definition of significant crime demanding of the severest punishment, has also changed so that conservative sharia deviates much from the humane trajectory legal globalization appears to be taking.
For one, the conservative Islamic sense of justice (adalah, adil) disagrees in important aspects with the globally dominant juridical discourse. Legal and philosophical sensitivities have changed, so that in human rights, great value is placed on the preservation of individual life and the integrity of personhood. (The Quran 5/32 superficially agrees by declaring “if anyone killed a person not in retaliation of murder or to spread mischief in the land—it would be as if he killed all mankind.”) In the West, as a consequence juridically sanctioned punishment by death has become rare and has a connotation of being rather exceptional. Execution by public spectacle—a form of gruesome entertainment in European medieval society—has been abolished in the West centuries ago; execution, when and where it is still practiced by the state today, has become a semi-secretive affair, uneasily combining officialness and privacy. Only conservative Islam resorts to the ancient recipe of using public execution as a deterrent, didactic experience, and entertainment in tri-symbiotic conjunction. Other countries, which practice executions for capital crimes do so in seclusion. If the sanctity of human life is breached by official law and the state, it is to be done hidden away from the public discourse as if to uphold the myth about the sanctity of human life.
The forms in which Islamic punishment is carried out (beheading, stoning, hanging, execution by shooting, amputation) involves aspects of public spectacle for its exemplary value. This aspect, and with it its presumed didactic value, have also disappeared from Western justice. Aesthetics and the sense of justice, appropriate punishment, and standards of legality have vitally shifted over a period of centuries. This is particularly noticeable in regard of the Old Testament, which is of much greater antiquity than the revelation of the Quran but bears resemblance in many judicial respects to sharia. The insistence on “Biblical” forms of punishment has virtually disappeared from Christianity. Not so in Islam. Instruments of justice called for in conservative perspectives of sharia, such as stoning, hand amputation, harsh treatment of marriage infidelity and homosexuality, toleration of female circumcision, owning slaves (despite the scriptural demand of humane treatment), and the like, do not sit well in today’s world and in globally dominant, elite driven discourses on justice and propriety. This suggests that the reintroduction (or retention, as the case may be) of such instruments of justice and moral aesthetics are bound to come up against strong global opposition and do certainly run counter to human rights provisions. The Quran admonishes against female infanticide,[42] but does not specifically forbid it. It is quiet on female circumcision. Objecting to it is left to a hadith, which only cautions “do not cut severely.” Shariatic law does not condemn these customs in such strong terms as are used in relation to, for instance, alcohol and pork consumption,[43] adultery, prostitution, or theft.[44] This certainly is a strong indicator of the difference in a sense of justice, propriety, and proportional punishment opening up a gap between conservative Islamic views and globally dominant juridical regimes.
Islamic law, true to its charismatic inspirational source, places its emphasis on fardh, duty, the obligation to fulfil obligations posited by the divine source of laws. Obeying these laws “to the letter,” as it were, is tantamount to meeting one’s duty. Modern Western law places the accent on rights of enjoyment (the “pursuit of happiness” and individual fulfilment) and balances that with obligations vis-à-vis the collectivity. The essence of this constellation is summed up in Immanuel Kant’s concept of “asocial sociability.” It means, phrased very simply, man seeks society but does so for selfish reasons; society then is entitled to curtail some personal liberties for the common good, which in turn is ultimately in the interest of the individual. This view also harks back to notions of a “social contract.” The contractarian philosophies of Thomas Hobbes, John Locke, and Jean-Jacques Rousseau differed as to the extent individuals have to surrender sovereignty so as to have ordered society through proper governance, but their principle idea is the same. Sociability has to be observed, not because it has been commanded by a divine agent, but for the sake of a cohesive social entity, which in turn is to the benefit of everybody. The resulting contract is between “men” (I am purposely replicating here the seemingly sexist language used in the philosophical language of the day), and not between God and men. Individualistic and opportunistic impulses innate in human beings have to be overcome—on rational grounds—to create a functioning social aggregate that allows humans to exist, to survive, and to “enjoy.” Human rights reflect this on an international level: guaranteeing individual rights and thus enabling a global community to exist. Islamic human rights are different in placing emphasis on collective identity (of the umma) arising out of the individual’s observation of duties towards God. Only obedience to divine law, its god-fearing nature, ensures a functioning, cohesive sociability. Thus Islam also emphasises the need for a cohesive community of humans, but the reason for this demand—implicitly given—is because of a transcendentally orientated obligation and not because this serves the practical interests of men. Divine rules create a regulated hence cohesive society, not primarily because this is good for humans, but because it pleases God. (It is my sociological interpretation, which causes me to presume an underlying, cryptic practical purpose of theology.) The outcome is superficially similar to the Western contractarianism in that it recognizes the need for ordered society. The difference lies in that in one case the contract has to be unquestioningly obeyed, in the other it has to be reasoned; the former demands obedience, the latter intelligence.
This underlying philosophical difference reflects the basic world view of the secularized West, the pragmatic anthropocentrism that inspires it, and Islam’s theocentrism. In the Western anthropocentric perspective observation of ethics is meant to serve the interests of the individual through constraining society to adhere to some rules some of which are supported by shared ethics and some are not. The common good’s raison d’etre is to maximizes the chances of happiness and freedom for the individual. Although sacrifices have to be made, ultimately it is done for selfish reasons. What serves society is good only insofar as it enables the individual to pursue its interest. This reflects the idea that the measure of all things is the singular human being: it has an interest in maintaining control over life and limb, in possessing reasonable personal security, it is entitled to the legitimate pursuit of happiness and well-being, and to possessing a guaranteed supply of food so as to satisfy all creature comforts without duty of gratitude to a greater power being required. Islamic theocentrism does not recognize human entitlement nor does it ask whether the individual’s interests are served by the adherence to legality. God, for whatever reasons, wants a functioning, cohesive society in which everybody obeys the rules regardless of whether their sense and meaning is understood. It is also beside the point whether individual expectations of personal well-being are met; a good life is a grace granted out of God’s beneficence and can be withdrawn or withheld for reasons unknown to man. Human existence as a whole is by the grace of God for which man has a duty, a fardh, of gratitude, which is to be shown by adhering to the divine reglement.
By placing the emphasis on duty—duty to God being tantamount to a duty to adhere to divine rule, duty to obedience, recognizing an obligation to meet God’s standards—the dimension of rights and entitlements is severely diminished. Under the aegis of human rights, what may be considered enjoyment as of a right, in the Islamic perspective at best is considered a privilege, a rare blessing, an added bonus, a special gesture of divine favor never to be taken for granted. It is no coincidence that universal human rights, inspired by Western views and decisively shaped by secularization, attribute to humans inalienable rights, anchored in the human condition, and autonomous of divine dispensation. In line with the overwhelming hedonism of modernity, even the enhanced spirituality of postmodernity does not demand sacrifice, nor duty, in acknowledging superior powers; nor does it demand the denial of individual rights to happiness for the sake of the obedience to a divinity or the self-denying uncomfortableness for attaining eventual bliss. A characteristic ascetic strain is still present in Islam while it has been wiped from the remains of practiced Christianity and even more from the secularized Weltanschauung that has conquered, or at least is about to conquer, the world. Having said this, one has to admit that on the level of actual reality, millions of Muslims live successful and fulfilled lives, well-adjusted to modernity and obviously able to build a syncretistic form of existence based on a hybrid form of Islam. Even fundamentalization, in many cases, generates a personal kind of piety and morality—not militancy—that in actual practice works well in a globalized world. It can even be at the beginning of a process of privatization of Islam, indicating its retreat from the public into the private sphere as a person’s personal choice.[45]
It would be unrealistic if all of Muslimhood would be assessed through the prism of the abstract reflections on sharia. It is a general feature of humankind—perhaps a species-typical feature—to show a resilience in the face of cognitive and social disharmony, to live with the ideational hurdles it creates and to meld it with the demands of real life in a real world. For some Muslims the hadith that religion is not meant to impose hardship on believers is an important, ubiquitous guiding thought in working out personal compromises without having to make the painful decision of deliberately setting their religious convictions aside in the interest of pragmatics. There are other parts of the ahadith, which in a roundabout manner hint at this strand of pragmatism. For instance it says if one sees injustice one should take action; but also that if doing so would put one’s life in peril one should keep one’s own counsel. Real life does demand at times a deviation from “the straight path.” From a realist’s point of view, it speaks for Islam that it has even developed doctrinal points that express this very dogma of pragmatism that springs from a realistic appraisal of human existential vicissitudes. Islamic jurisprudence has developed several mechanisms and concepts that facilitate compromise, such as duress (ikrah), necessity (darura), and public welfare (maslaha). For diasporic Muslims, for instance, the political concepts of Dar-al-ahd (country of treaty or covenant), Dar-al-amn (country of security), Dar-al-sulh (country of truce), and Dar-al-darura (country of necessity) have been advocated to recognize situations of practical necessity and adaptation—areas in which Muslims are doctrinally allowed to set aside the requirement of living only under Muslim governance.[46]
It is above all the concepts of darura (existential necessity) and maslaha (common good or best interest) which give Muslims, if they so wish, the free space of individual discretion to make decisions that are not strictly in accord with the sharia or the religiously prescribed ethics. Even though it is debatable what degree of priority or significance in the hierarchy of Islamic ideas necessary adjustments and concessions enjoy, or to what extent they can ease a painful conscience, they are part of the doctrinal repertory and can be elevated to importance in people’s individual lives. They are being used in an opportunistic sense to sanction compromises and give religious meaning to individualistic, existentially prudent decisions. While ideally, in individual cases, the opinion of experts should be sought to reconcile deviation from doctrinal norms and grant dispensations, if necessary; this is not always the case. Especially if a quick decision is required, the devout will see a salat-al-haja (a prayer out of need) as sufficient to give moral strength to the perceived deviation from the “straight path.”
1. Nurcholish Madjid, Harun Nasution, Abdurrahman Wahid, Djohan Effendi, Taufik Abdullah, Ahmad Wahib, and others.
2. The Catholic veneration of Mary, the “Mother of God,” the Madonna cult as some call it, adds to the gravity of shirk. Especially Wahhabism is relentless in its condemnation of it as idolatry. To avoid shirk and bida (incorrect belief), Wahhabism also rejects the veneration of Islamic saints, even the celebration of the Prophet’s birthday, eid-al-nabi, which to Wahhabis (and others) means elevating a person to a status rivaling God’s. The division between those who celebrate the birthday (the Miladis) and those who do not, creates another, informal split in Muslimhood.
3. Quran 3/32, 4/80, 33/21, and 36, 48/10.
4. In actual fact, the “formal” nature can range from the recommendation of convention to strictly formulated law (as in penal law, family law, civil law, etc.).
5. Only the most important ones are mentioned. There are so many subdivisions based on small doctrinal differences as to make it impossible here to enumerate them all.
6. I am ignoring here regionally applicable and acknowledged sharia laws, for instance, in the northern parts of Nigeria, the province of Aceh in Indonesia, the Taleban-controlled areas of Afghanistan and Pakistan, in parts of Somalia, and so on.
7. From my personal experience, traditional Australian Aboriginal religion shows similarities insofar as many traditional activities have a narrative precedent in the sacred mythology and contain an aspect of divine creation. But this belief system lacks the strict juridical dimension that makes following precedent the law, as is the case in Islam.
8. In case the reader should wonder, I have found this question posed on the blog site of a famous jurist-scholar giving advice and fatawa (rulings) on all kinds of existential problems.
9. For the variability of sharia see, for instance, Erich Kolig, “To Shariaticize or Not to Shariaticize.” In Shari’a in the West, R. Ahdar and N. Aroney (eds.). Oxford: Oxford University Press, 2010. Abbas Amanat and Frank Giffel (eds.), Islamic Law in Contemporary Context: Shari’a. Stanford: Stanford University Press, 2007. Shari’a as Discourse, J. Nielsen and L. Christoffersen (eds.). Farnham: Ashgate, 2010.
10. Rudolph Peters, “From Jurists’ Law to Statute Law or What Happens When the Shari’a is Codified.” In Shaping the Current Islamic Reformation, B. A. Roberson (ed.). London, Portland OR.: Frank Cass, 2003; p.91.
11. Ann Elizabeth Mayer “Islamic Law as a Cure for Political Law.” In Shaping the Current Islamic Reformation, B. A. Roberson (ed.). London, Portland, OR: Frank Cass, 2003), following the Italian law scholar Ugo Mattei, distinguishes traditional law systems, political law, and professional law. In this taxonomy the sharia has not reached stage three on its evolutionary course. In another taxonomy sharia is “common law,” not “codified law.”
12. See, e.g., Jørgen Nielsen, “Shari’a between Renewal and Tradition.” In Shari’a as Discourse, J. Nielsen and L. Christofferson (eds.). Farnham: Ashgate, 2010; p. 3, where he calls it “common law” in reference to Lawrence Rosen. Also, Dorthe Bramsen, “Divine Law and Human Understanding—the Idea of Shari’a in Saudi Arabia,” in the same volume; p. 157. Only siyasa shariya, the authority of the governing body to supplement the sharia, she argues, is at least partly codified. This reflects a special definition of what codification means.
13. Snouk Hurgronje, Mohammedanism. New York, London: Putnam & Sons, 1916.
14. Max Weber, Wirtschaft and Gesellschaft. Tübingen: Mohr, 1972.
15. Joseph Schacht, Introduction to Islamic Law. Oxford: Clarendon, 1964.
16. Babylon’s king Hammurabi (1792 BC – 1750) “published” a code of law by inscribing 282 laws on a publicly displayed stone stele. Most were of the lex talionis (law of retaliation) kind and based on the philosophy of “an eye for an eye.” Other city states (Ur, Eshnunna, Lipit-Ishtar, and Hittite cities) too had apparently law codices of a similar kind.
17. Another complex codified law system in written form was, however, devized and implemented by nomads, namely the Mongols under Gengis Khan and his successors. This was the Yassa (or Yasya) law underpinning the Pax Mongolica of the thirteenth and fourteenth century. Significantly, and characteristically for nomadic herders, it treated livestock rustling as a capital crime.
18. See e.g., Colin Turnbull, The Mountain People. New York: Simon & Schuster, 1972. Jules Henry, Jungle People. New York: Vintage Books, 1964.
19. Vendettas and similar “chain crimes” do not occur randomly but follow conventional patterns.
20. Al-qisas, the law of equality in punishment; Quran 2/178,179, 194, 5/45, 16/126, 17/33, 22/60, 42/40.
21. Quran 17/33.
22. Quran 42/40.
23. Fred McGraw Donner, The Early Islamic Conquests. Princeton: Princeton University Press, 1981; p. 58–59.
24. Quran 17/33.
25. Not in Rudyard Kiplings’ sense of anthropomorphizing animals by ascribing a law code to jungle dwelling creatures in his The Jungle Book.
26. It needs to be said that in practice settler states, like Australia (in its Native Title legislation), do in certain issues (like property law) recognize customary or tribal law of the indigenous people. This, however, does not amount to full legal pluralism. Tribal penal law is usually not recognized.
27. See E. Adamson Hoebel, The Law of Primitive Man. Harvard MA: Atheneum, 1954.
28. Leopold Pospisil, The Kapauku Papuans and Their Law. New Haven: Yale University Press, 1958.
29. The Andaman Islanders. Cambridge: Cambridge University Press, 1922.
30. Fred Donner, The Early Islamic Conquests; p. 16.
31. For instance, Jocelyne Cesari, “Islam in the West: Modernity and Globalization Revisited.” In Globalization and the Muslim World, B. Schaebler and L. Stenberg (eds.). New York: Syracuse University Press, 2004.
32. The Cairo Declaration on Human Rights in Islam. Adopted at nineteenth Islamic Conference of Foreign Ministers in Cairo August 5, 1990.
33. Initially, it seems only Jews, Christians and Sabians qualified as “people of the book.” Later, however, Zoroastrians and others were included, even Buddhists and Hindus at least nominally fell under “tolerated religions.”
34. See Donna Arzt, “The Treatment of Religious Dissidents under Classical and Contemporary Islamic Law.” In Religious Human Rights in Global Perspective, J. Witte and J. van der Wijver (eds.). The Hague: Nijhoff, 1996. And several books by Bat Ye’or, esp. The Dhimmi. Rutherford NJ: Farleigh Dickinson, 1985. The dhimma system in the Ottoman Empire was somewhat modified to the millet system.
35. Some tentative steps have been taken by some settler states (like Canada, Australia and New Zealand) towards giving a very limited juridical autonomy to their indigenous minorities. The UK has tentatively allowed Islamic tribunals to operate in a narrow range of jurisdiction. In matters of Private Law several Western judicial systems also make concessions and defer to Islamic viewpoints.
36. See Erich Kolig, “To Shariatizise” p. 271. A request for recognition of limited sharia jurisdiction in early 2011 by the Australian Islamic umbrella organization to the Australian government was curtly dismissed by the Federal Attorney General.
37. For examples relating to Indonesian Neo-Modernist interpretations see Taufik Abdullah and Sharon Siddique (eds.), Islam and Society in Southeast Asia. Singapore: Institute of Southeast Asian Studies, 1986. Family planning and restricting family sizes through birth control, for instance, is justified with the hadith: a strong Muslim is better and more loved by God than a weak Muslim (p. 150).
38. See Mostapha Benhenda, “Liberal democracy and political Islam: The Search for Common Ground.” Politics Philosophy & Economics 10/1 (2011): 88–115. Vali Nasr, “The Rise of Muslim Democracy.” Journal of Democracy 16/2 (2005): 13–27.
39. Whether the moderate Islamist parties emerging from the Arab Spring will be able to plot a course that aligns them more with democracy rather than theocracy, remains to be seen at the time of writing. Some have already declared that their function will be based on the sharia.
40. An interesting example is Riffat Hassan’s “Rights of Women Within Islamic Communities.” In Religious Human Rights in Global Perspectives, J. Witte and J. van der Vywer (eds.). The Hague: Nijhoff, 1996).
41. A few Quranic verses do relate to forgiveness and repentance followed by waiving punishment. Verse 42/40, e.g., relates to forgiveness instead of qisas retribution.
42. Quran 16/58-59, 81/8–9.
43. Quran 5/3.
44. Quran 5/38.
45. As mentioned before, Olivier Roy (Secularism Confronts Islam. New York: Columbia University, 2007, 1st French ed. 2005) sees this already happening in France.
46. See Bernard Lewis, “Legal and Historical Reflections on the Position of Muslim Populations under non-Muslim Rule.” In Muslims in Europe, B. Lewis and D. Schnapper (eds.). London, New York: Pinter, 1994.