Islam, the Law, and the 21st Century
In the weeks and months following the attack on the World Trade Center buildings, Americans began to question why we, of all people, were so doggedly the targets of groups that seemed based in, or allied with, the practice of Islam. What had we done to deserve this? Actually, this was the second modern large-scale attack on America that evoked these attitudes, the first being the storming of the U.S. Embassy in Tehran, Iran, in the late-‘70s. I worked in Iran during the mid-‘70s, and was trying to study international affairs in graduate school during that period. Those of us who were interested in the event came to understand that there were both political and social causes for it, and the latter, it would seem, have been completely forgotten by our political establishment from the President on down.
We are not the country that divided the Middle East into unrecognizable bits and pieces in the last century – that was England. We didn’t have political outposts all over the world for four hundred years like England, France, Spain, the Netherlands, and Portugal did. Today, however, we are at the forefront of a cultural revolution that needs only television and a local marketplace, not troops and fortresses. It’s partly what’s under the burka that is causing the problem, and I don’t mean the women. I mean the labeled clothing, accessories, styles, and other outward symbols of what Muslims see as decadent intrusions into their homes from outside their community. So, Usama bin Laden attacked us for some of the same reasons that the Iranians had when they stormed the U.S. Embassy. He doesn’t like our politics, to be sure, but he didn’t target America for political reasons. He hates us for our ability to influence Muslims to desire things, think things, and behave toward things more like us and less like him. Then there are all the political reasons.The politics were always easier to understand than the social causes. It’s easy to understand that people despise you because your CIA helped oust their elected leader and install a replacement that was more to your liking. It’s a bit harder to understand that the symbols of your power – not your army, but your product marketing – were intruding on the one area that all people regard as sacrosanct: the home. Any of us might feel the same way if a cult ideology began creeping into the lives of our children. While it may be an imprecise analogy to American cultural power, it conjures up the idea of something that’s sinister, often beyond our control, and which might provoke anger, fear, and hostility in us. Seeing it that way may help us to answer the question, “Why us?” What the question it does not answer is, “Why Usama bin Laden?”
There is an enormous void in Islamic religious law that enables virtually anyone to gather an army and wage a religious war by binding the cause, no matter how tenuously, to Islam. A broader body of religious law, under regular exegesis, would otherwise inform potential followers of people like bin Laden of their deviant behavior, labeling them as flawed, or worse, heretics who think of themselves as superior to Islam. Usama bin Laden prospers not because Muslims think he’s either right or good, but because there’s nothing in Islamic law that defines him in any terms whatsoever. Exegesis began early in the formation of the three principle monotheisms, but continues into the present by scholars and intellectuals in both Christianity and Judaism, worldwide. Perhaps the Muslim idea that it is the unchanging “seal” of God’s revealed truth to man influenced the law makers to stop tampering with perfection. It did not seem to stop the others, however, who largely felt the same way in their own formative early centuries.
The evolution of Islamic law (shari’a), began with the Angel Gabriel, who recited the words (Al Quran) of God to the Prophet Muhammad. Muhammad, in turn, had the revelation written down, and began attracting followers to it. As Max Weber, the German sociologist, tells us, there’s little need for any codification of a new religion as long as the charismatic leader is still alive. Little beyond the Quran was formally committed to writing or codified during the Prophet’s lifetime, except perhaps for specific rituals like those of bathing before prayer, rules for praying, and other practices that would have been developed as a way to create a shared set of ritual duties and obligations among believers.
Upon Muhammad’s death, the Quran, already established as the permanent, central spiritual resource of the faithful, was joined by other “lesser”, but still very important, resources. Among these were the sunna, or traditions of the pre-Islamic bedouin Arabs of the Hijaz (the heart of what is now Saudi Arabia), and the remembered words and actions of the Prophet, as articulated by his “companions” and “followers”. It was all of these resources that Islam drew upon to create its shari’a, or body of religious law. The sunna of the bedouin largely accounts for subsequent law established under what is called the "sunna of the Prophet", which displaced, but did not totally replace, the former. Christian scholars will see obvious similarities in the development of the gospels, including the conscious decisions about what to keep and what to reject.
Over the first three centuries of Islam, the main four schools of law were actually established and codified (winnowed down from seven or so), and all debate about the linkage of the law to the Quran or the sunna of the Prophet stopped. Thus, for a thousand years or more now, no broad intellectual discourse on the law has been seen as necessary. This is called "closing the gates of ijtihad” (independent reasoning). Muslim scholars and intellectuals were forever enjoined from meaningful exegesis in Islam (except for times where reform movements have sprung up). The definition of “reform” is also up for grabs. Some reformers may interpret this as a broadening of Islam, and others may see it as narrowing. The distinction between scholarship and intellectualism is germane, for contemporary Islam is full of Muslim scholars who can be said to be anti-intellectual partly due to the limitations of ijtihad, and full of intellectuals who can be said to be anti-Islamic because they are proponents of social change. This is also the case among fundamentalists of other faiths, which is not to say that a devout Muslim cannot also be an intellectual; all people adhere to some overarching core principle of life that cannot be established as “fact”.
In Islam, the practice of praying, alms giving, and other long-standing pillars of the faith are rooted in the consciousness of the community of Muslims as a whole, like similar practices of Christian and Jewish communities. Muslim practices were developed in the Hijaz, but traveled well because Islam recognized early on that the shari’a could be more readily accepted if applied in very narrow areas. It was Islam that was to be spread, not bedouin customs. This was imperative for successfully integrating conquered peoples into the fold. Islam did not want to control the mechanics of everyday life, but to control religious practice – to create a world of brother Muslims, not brother (e.g.) Arabs. That distinction is important when considering the current rise of totalitarian Islamist states like Iran, or groups, like the Taliban, or even Al-Qaeda and Hizbollah, who apparently all want to regulate every moment of a believer’s life.
The practice of Islam essentially dislikes treading on the customs of brother Muslims. Local customs, therefore, were not brought under the shari’a, unless they contradicted the Quran’s teachings or some other revered source. Pork, for example, was forbidden to all believers, but the Arabs of the Hijaz, who may also customarily disdain dog meat, would not expect Muslims in Nigeria or Indonesia to do the same. That the practice of Islam essentially dislikes treading on the customs of brother Muslims is, in itself, commendable. It is also problematic when seen from a modernist judicial point of view developed out of the creation of shared customs.
As illustrated, respect for customs plays an important role in the coverage, or saturation, of Islamic law in Muslim societies. In essence, it limits coverage. The Western experience is quite the opposite. Western traditions and customs tend to be incorporated into the religious canon (a word actually from the Arabic "kanun"). The civil code is largely derived from the religious canon and assists us to interpret religious law as a component of civil governance. In Islam, for example, a thief’s hand can be cut off (an example of “hadd”, or fixed punishment) under the shari’a. Islam did not insist that Indian Muslims cut the hands off thieves in India, but it also did not codify under the shari’a any other laws to stand as substitutes.
We, in the West, have employed such punishments over our histories, but the development of a civil law code often replaced the old punishments with new ones, like imprisonment, or probation, or fine; many countries also abolished capital punishment. We did not replace the original religious sanctions against theft, but we established new laws that better suited our more modern political and social environment. This feature of Western civilization has served to broaden the civil code over the centuries. Islamic law’s attention to customary differences has served the purpose of limiting the extent of the shari’a, thereby limiting the growth of a civil code in Muslim society. The result has left large areas of interactions between the People and the State outside the framework of a civil code derived from the shari’a. That leaves open the door for those like Usama bin Laden to walk through, creating their own law as they go. (I hasten to add that it was in the modern, Christian West that the Nuremberg laws of the Third Reich were enacted.)
This makes the successful pursuit of democratic (or even some modern) institutions problematic because the final arbiter of the shari’a is the worldwide Muslim community, not the Saudis, Iraqis, Turks, Persians, or even the chief religious authority in Mecca, or his counterpart at the Al Aqsa Mosque, in Cairo. The community has practice norms that, in the final analysis, must be shared under the shari’a. The extent to which customs are shared between the Arabs, Persians, Turks, Indonesians, Pakistanis, and the Newly Independent States (Khazakistan, etc.) is very narrow, as regards anything we might call a civil code that can be developed from the shari’a. Try as they might, “Islamic States” -- entities with a civil code developed out of a narrow range of religious law -- are unlikely ever to democratize in a way that the West can recognize. Civil laws in Muslim countries can be promptly dismissed as non-binding by those who label them anti-Islamic. That is why tyrants and fanatics find it so easy to co-opt Islam and angle their ideologies to suit the situation they strive to create.The term niyya, or the intent of the act, is an important feature of Arab culture that must be discussed in any discourse on the power of Islam in the world. An observant Muslim must not only observe the ritual of prayer, but the intent. Only he or she knows whether it's simply a formal, repetitive social act, or whether it is truly an intentional act of submission to Allah’s will. This has repercussions in contract law under the shari’a, where certain contracts involve a statement of intent (niyya), while others are simply documented on paper in varying levels of detail. Those involving a statement of intent are almost impossible to undo, perhaps analogous to a Will. This is illustrative of the power of an oath in Islam. The oath (a statement of intent) matters more, and an action (the written contract) matters less. The Muslims of the Arab world recognize, in an oath, the magical effect of the right words. In fact, when Malcolm X went to Mecca on hajj, the Muslim authorities were ambivalent as to whether to let him participate. According to his own account, it was not until he recited the shahada, the profession of the faith, that the religious authorities decided – by this oath -- he was a Muslim, and allowed him to complete his pilgrimage.
Middle East analysts have often referred to “Arab hyperbole” as a feature of political life. For many years since the creation of Israel, we have heard many such oaths from Palestinians and other Arabs. Normally, these oaths involve “driving the Israelis into the sea”, or similar sentiments. Israelis know Arab customs better than most, and have always used these oaths as a basis upon which to garner support against “hostile” neighbors. They have also known, up to the immediate present, that these are mere exhortations that require no follow-up – no action.
Unfortunately, all that has changed in the past few years where acts have, indeed, followed words. Human beings are now strapping on bombs and pursuing paradise in an orgy of hatred, and the reactions to such acts are equally bloodthirsty and relentless. We are living in dangerous times. We are seeing the confluence of the American culture of rugged individualism and personal action, as sold by Hollywood and the advertising industry, with the passion of the Arab oath. The hybrid is an impassioned threat to action resulting in violent death. Since both “sides” created important limbs of this monster, perhaps it would be good to seek an alternate message that transcends Arab, Jew, Christian, Muslim, and American. We must all take responsibility, not revenge.
We are not the country that divided the Middle East into unrecognizable bits and pieces in the last century – that was England. We didn’t have political outposts all over the world for four hundred years like England, France, Spain, the Netherlands, and Portugal did. Today, however, we are at the forefront of a cultural revolution that needs only television and a local marketplace, not troops and fortresses. It’s partly what’s under the burka that is causing the problem, and I don’t mean the women. I mean the labeled clothing, accessories, styles, and other outward symbols of what Muslims see as decadent intrusions into their homes from outside their community. So, Usama bin Laden attacked us for some of the same reasons that the Iranians had when they stormed the U.S. Embassy. He doesn’t like our politics, to be sure, but he didn’t target America for political reasons. He hates us for our ability to influence Muslims to desire things, think things, and behave toward things more like us and less like him. Then there are all the political reasons.The politics were always easier to understand than the social causes. It’s easy to understand that people despise you because your CIA helped oust their elected leader and install a replacement that was more to your liking. It’s a bit harder to understand that the symbols of your power – not your army, but your product marketing – were intruding on the one area that all people regard as sacrosanct: the home. Any of us might feel the same way if a cult ideology began creeping into the lives of our children. While it may be an imprecise analogy to American cultural power, it conjures up the idea of something that’s sinister, often beyond our control, and which might provoke anger, fear, and hostility in us. Seeing it that way may help us to answer the question, “Why us?” What the question it does not answer is, “Why Usama bin Laden?”
There is an enormous void in Islamic religious law that enables virtually anyone to gather an army and wage a religious war by binding the cause, no matter how tenuously, to Islam. A broader body of religious law, under regular exegesis, would otherwise inform potential followers of people like bin Laden of their deviant behavior, labeling them as flawed, or worse, heretics who think of themselves as superior to Islam. Usama bin Laden prospers not because Muslims think he’s either right or good, but because there’s nothing in Islamic law that defines him in any terms whatsoever. Exegesis began early in the formation of the three principle monotheisms, but continues into the present by scholars and intellectuals in both Christianity and Judaism, worldwide. Perhaps the Muslim idea that it is the unchanging “seal” of God’s revealed truth to man influenced the law makers to stop tampering with perfection. It did not seem to stop the others, however, who largely felt the same way in their own formative early centuries.
The evolution of Islamic law (shari’a), began with the Angel Gabriel, who recited the words (Al Quran) of God to the Prophet Muhammad. Muhammad, in turn, had the revelation written down, and began attracting followers to it. As Max Weber, the German sociologist, tells us, there’s little need for any codification of a new religion as long as the charismatic leader is still alive. Little beyond the Quran was formally committed to writing or codified during the Prophet’s lifetime, except perhaps for specific rituals like those of bathing before prayer, rules for praying, and other practices that would have been developed as a way to create a shared set of ritual duties and obligations among believers.
Upon Muhammad’s death, the Quran, already established as the permanent, central spiritual resource of the faithful, was joined by other “lesser”, but still very important, resources. Among these were the sunna, or traditions of the pre-Islamic bedouin Arabs of the Hijaz (the heart of what is now Saudi Arabia), and the remembered words and actions of the Prophet, as articulated by his “companions” and “followers”. It was all of these resources that Islam drew upon to create its shari’a, or body of religious law. The sunna of the bedouin largely accounts for subsequent law established under what is called the "sunna of the Prophet", which displaced, but did not totally replace, the former. Christian scholars will see obvious similarities in the development of the gospels, including the conscious decisions about what to keep and what to reject.
Over the first three centuries of Islam, the main four schools of law were actually established and codified (winnowed down from seven or so), and all debate about the linkage of the law to the Quran or the sunna of the Prophet stopped. Thus, for a thousand years or more now, no broad intellectual discourse on the law has been seen as necessary. This is called "closing the gates of ijtihad” (independent reasoning). Muslim scholars and intellectuals were forever enjoined from meaningful exegesis in Islam (except for times where reform movements have sprung up). The definition of “reform” is also up for grabs. Some reformers may interpret this as a broadening of Islam, and others may see it as narrowing. The distinction between scholarship and intellectualism is germane, for contemporary Islam is full of Muslim scholars who can be said to be anti-intellectual partly due to the limitations of ijtihad, and full of intellectuals who can be said to be anti-Islamic because they are proponents of social change. This is also the case among fundamentalists of other faiths, which is not to say that a devout Muslim cannot also be an intellectual; all people adhere to some overarching core principle of life that cannot be established as “fact”.
In Islam, the practice of praying, alms giving, and other long-standing pillars of the faith are rooted in the consciousness of the community of Muslims as a whole, like similar practices of Christian and Jewish communities. Muslim practices were developed in the Hijaz, but traveled well because Islam recognized early on that the shari’a could be more readily accepted if applied in very narrow areas. It was Islam that was to be spread, not bedouin customs. This was imperative for successfully integrating conquered peoples into the fold. Islam did not want to control the mechanics of everyday life, but to control religious practice – to create a world of brother Muslims, not brother (e.g.) Arabs. That distinction is important when considering the current rise of totalitarian Islamist states like Iran, or groups, like the Taliban, or even Al-Qaeda and Hizbollah, who apparently all want to regulate every moment of a believer’s life.
The practice of Islam essentially dislikes treading on the customs of brother Muslims. Local customs, therefore, were not brought under the shari’a, unless they contradicted the Quran’s teachings or some other revered source. Pork, for example, was forbidden to all believers, but the Arabs of the Hijaz, who may also customarily disdain dog meat, would not expect Muslims in Nigeria or Indonesia to do the same. That the practice of Islam essentially dislikes treading on the customs of brother Muslims is, in itself, commendable. It is also problematic when seen from a modernist judicial point of view developed out of the creation of shared customs.
As illustrated, respect for customs plays an important role in the coverage, or saturation, of Islamic law in Muslim societies. In essence, it limits coverage. The Western experience is quite the opposite. Western traditions and customs tend to be incorporated into the religious canon (a word actually from the Arabic "kanun"). The civil code is largely derived from the religious canon and assists us to interpret religious law as a component of civil governance. In Islam, for example, a thief’s hand can be cut off (an example of “hadd”, or fixed punishment) under the shari’a. Islam did not insist that Indian Muslims cut the hands off thieves in India, but it also did not codify under the shari’a any other laws to stand as substitutes.
We, in the West, have employed such punishments over our histories, but the development of a civil law code often replaced the old punishments with new ones, like imprisonment, or probation, or fine; many countries also abolished capital punishment. We did not replace the original religious sanctions against theft, but we established new laws that better suited our more modern political and social environment. This feature of Western civilization has served to broaden the civil code over the centuries. Islamic law’s attention to customary differences has served the purpose of limiting the extent of the shari’a, thereby limiting the growth of a civil code in Muslim society. The result has left large areas of interactions between the People and the State outside the framework of a civil code derived from the shari’a. That leaves open the door for those like Usama bin Laden to walk through, creating their own law as they go. (I hasten to add that it was in the modern, Christian West that the Nuremberg laws of the Third Reich were enacted.)
This makes the successful pursuit of democratic (or even some modern) institutions problematic because the final arbiter of the shari’a is the worldwide Muslim community, not the Saudis, Iraqis, Turks, Persians, or even the chief religious authority in Mecca, or his counterpart at the Al Aqsa Mosque, in Cairo. The community has practice norms that, in the final analysis, must be shared under the shari’a. The extent to which customs are shared between the Arabs, Persians, Turks, Indonesians, Pakistanis, and the Newly Independent States (Khazakistan, etc.) is very narrow, as regards anything we might call a civil code that can be developed from the shari’a. Try as they might, “Islamic States” -- entities with a civil code developed out of a narrow range of religious law -- are unlikely ever to democratize in a way that the West can recognize. Civil laws in Muslim countries can be promptly dismissed as non-binding by those who label them anti-Islamic. That is why tyrants and fanatics find it so easy to co-opt Islam and angle their ideologies to suit the situation they strive to create.The term niyya, or the intent of the act, is an important feature of Arab culture that must be discussed in any discourse on the power of Islam in the world. An observant Muslim must not only observe the ritual of prayer, but the intent. Only he or she knows whether it's simply a formal, repetitive social act, or whether it is truly an intentional act of submission to Allah’s will. This has repercussions in contract law under the shari’a, where certain contracts involve a statement of intent (niyya), while others are simply documented on paper in varying levels of detail. Those involving a statement of intent are almost impossible to undo, perhaps analogous to a Will. This is illustrative of the power of an oath in Islam. The oath (a statement of intent) matters more, and an action (the written contract) matters less. The Muslims of the Arab world recognize, in an oath, the magical effect of the right words. In fact, when Malcolm X went to Mecca on hajj, the Muslim authorities were ambivalent as to whether to let him participate. According to his own account, it was not until he recited the shahada, the profession of the faith, that the religious authorities decided – by this oath -- he was a Muslim, and allowed him to complete his pilgrimage.
Middle East analysts have often referred to “Arab hyperbole” as a feature of political life. For many years since the creation of Israel, we have heard many such oaths from Palestinians and other Arabs. Normally, these oaths involve “driving the Israelis into the sea”, or similar sentiments. Israelis know Arab customs better than most, and have always used these oaths as a basis upon which to garner support against “hostile” neighbors. They have also known, up to the immediate present, that these are mere exhortations that require no follow-up – no action.
Unfortunately, all that has changed in the past few years where acts have, indeed, followed words. Human beings are now strapping on bombs and pursuing paradise in an orgy of hatred, and the reactions to such acts are equally bloodthirsty and relentless. We are living in dangerous times. We are seeing the confluence of the American culture of rugged individualism and personal action, as sold by Hollywood and the advertising industry, with the passion of the Arab oath. The hybrid is an impassioned threat to action resulting in violent death. Since both “sides” created important limbs of this monster, perhaps it would be good to seek an alternate message that transcends Arab, Jew, Christian, Muslim, and American. We must all take responsibility, not revenge.
posted by Tyrone @ 2:11 PM
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