Tuesday, April 17, 2012

On the origins of Shariah Law...

by Salman Hameed

In our interviews with Muslim physicians about biological evolution, we have found an enormous range of responses. For example, some use Islam to accept it and some reject evolution because they feel that it is against Islam. Since there is a no pope-like figure in Islam, there have always been a varieties of interpretations. But an issue like evolution is small potatoes when compared to matters of criminal and civil law. In Pakistan, recently there haven been calls for the implementation of Sharia law and there has been some selective use of it - courtesy of Zia ul Haq in the 1980s. On the flip side, a number of states in the US have been having referendums banning the - gulp - imposition of Shariah law in the US. The former is problematic due to its focus of harsh punishments and the latter is downright idiotic.

So here is fantastic Fresh Air interview with Sadakat Kadri, author of a new book, Heaven on Earth: A Journey through Shari'a Law from the deserts of ancient Arabia to the streets of the modern Muslim world (he surely does have a long sub-title). He comes from a Finnish-South Asian mix, born in London but with a degree from Harvard Law school. Fascinatingly, his prior book is on the origins of Western legal system. So - a complex multi-cultural perspective: Check.

You should definitely check out the interview - if for nothing else to actually know about the historical roots of Shariah law and its various interpretations over the course of history. But there were a couple of things that really struck out for me. First, around 9 minutes into the interview, he describes the current harsh interpretations onto the problems of modernity. In fact, it is fascinating to find out that, other than the Saudi "women-can't-drive" Arabia, Libya was the first country to introduce elements of the Islamic law:

In the early 1970s, Libya, led by Moammar Gadhafi, became the first country to introduce Islamic criminal penalties outside of Saudi Arabia; Pakistan and Iran followed suit in 1979. Throughout the past three decades, the number of countries applying harsh interpretations of Islamic law has expanded. 
"One thing I realized when traveling around the Muslim world is how closely these hard-line interpretations of Islamic law are associated with political consternation and turmoil," he says. "There isn't a country anywhere in the Muslim world which has been applying Muslim laws continuously for hundreds of years and which is drawing on genuine tradition. It's a revival of supposed traditions, which don't really pay much heed to history at all."
Second, he clarifies the point that in England, the Shariah councils are not parallel court systems and participation in them is voluntary. But he had to really search for polite words to describe the hysteria over this in the US:
"It's crazy, basically. It's this idea that Shariah is some kind of movement to take over the United States or a conspiracy to overturn American freedoms. That isn't what Shariah is. There are certainly hard-line interpretations of Islamic law. But these measures don't even claim to restrict themselves to that. They claim to prevent the courts from taking any account at all of the Shariah, which potentially means that a court can't, for example, take account of someone's will. If someone says they want to be buried according to Muslim rituals laid down in the Shariah, a court would theoretically not be able to take account of that. And, of course, it's possible to say, 'That's not what the law's aimed at. The law's aimed at something very different.' But as everyone should know by now, liberties begin to erode when you have laws that are too widely drawn. 
"And laws which say that under no circumstances can a court take any account of the Shariah are necessarily discriminatory. They're necessarily over-broad. And they necessarily create communal dissension for no good purpose. Because it's perceived by Muslims as an attack on Islam. ... I am absolutely sure that many of the people who support the laws and their sponsors are genuinely motivated by fear of Islamic extremism. Islamic extremism is something which I'm fearful of. I was around on Sept. 11 and July 7 here in London when Islamic extremists blew lots of people up. I'm no fan of violent extremism from Muslims, but these laws don't target that. They simply target the body of beliefs that Muslims call the Shariah."
Listen to the interview here. The New York Times also has a positive review of the book. Here is a snippet that focuses on the issue of interpretation:
 In the aftermaths [of 9/11 and 7/7 bombings in London] he longed for answers to simple questions: “Where was the Shariah written down? To what extent was it accepted that its rules had been crafted by human beings? And what gave the men who were so loudly invoking it the right to speak in God’s name?” 
He explores these complicated issues with probity but also good humor. He quotes the ninth-century writer al-Jahiz on the topic of sexual morality thus: “How near is what God permits to what he forbids!” 
He provides detours into topics like the hadiths that offer opinions on “the value of toothpicks, the importance of trimming mustaches and the geographical location of the Antichrist.” He interviews a women’s rights lawyer in Lahore, Pakistan, who cheekily refers to fundamentalists as “fundies.” 
Mr. Kadri is eloquent on the differences between Shariah and fiqh, or the study of Islamic law. “Attempts to critique the Shariah are liable to be perceived by devout Muslims as a denunciation of God rather than an argument,” he writes.
He continues: “The rules of fiqh, on the other hand, can never be more than a human approximation of the divine will.” Islam, he points out, has no figure like the pope to appeal to in order to resolve disputes. 
In “Heaven on Earth” Mr. Kadri constructs an urgent appeal for mutual understanding. His book fills in pieces of what he calls “a great moral jigsaw puzzle.” He offers a salient criticism of Islamic jurisprudence that pertains to legal systems everywhere. “Mortals can only fail,” he writes, “when they play God.”
Read the full review here. And here is an NPR review that found some good humor in the book as well: 
But what makes this book so good isn't just that it manages the odd feat of delivering a discriminating, magisterial history of Shariah that's also quite funny; it's that its humor isn't merely incidental. Kadri's tone — gently skeptical, wittily deflationary, and most of all darkly delighted by the absurdities of history — is perfectly consonant with the substance of his project, which is to make the case that the kind of dogmatically purist, soi-disant "traditionalist" Shariah we've come to associate with the Saudis or the Ayatollahs is actually a perversion of a long, flexible, multivocal tradition — one that has, since Quranic times, valued humility and forgiveness over punitive measures.
And ultimately successful religions are the ones that can adapt to different times: 
The brilliance of Kadri's comedy is that it's nearly always in the murmured service of highlighting the incongruities between revealed wisdom and garden-variety compromise. The ultimate point, I think, is that you can either find it amusing that a ninth century traditionalist "claimed that Muhammad had reviled chess players, cross-dressers, drummers, dice rollers, the janglers of tambourines, singing girls, pigeon fanciers, and the frequenters of seesaws" or you can just despair.
The talent for amusement is the same as the ability to recognize that no path — for "Shariah" simply means "path," as in "path to water" in the desert — set down in the seventh century can be a reliable guide to the perplexed today unless we allow our traditions to be responsive, malleable, soft-tissue things; if, that is, our traditions and our inheritances can serve us rather than the other way around. As Kadri puts it: "Any society that claims to be traditionalist while ignoring actual traditions is at risk of forgetting why continuity matters in the first place, and the notion that history and politics have no effect on legal development is particularly corrosive."
It is for this reason that I think an issue such as biological evolution will also come to be widely acceptable in the Muslim world as long as it doesn't get entangled into political fights. We have also seen this happen with the general acceptance of the narrative of Noah's flood as a localized event rather than a worldwide flood. In any case, Kadri's book looks fantastic.


Gary said...

Salaams Salman

Haven't had a chance to see the interview or read the reviews properly. What struck me is the absolute hypocrisy of these American states that want to ban shariah law. They reduce shariah to a series of harsh punishments which are not the sum total of shariah. This is all about politics and playing on the fear of extremist Islam.

The observation that these states where the extreme shariah punishments are applied are associated with political turmoil has its echoes in the US. Most if not all of the states imposing these shariah bans execute people for murder. Every one of these states has executed innocent people. There are countless examples of wrong convictions and denied appeals where politically motivated governors have authorised the judical murder of an innocent human being solely because it promotes their image of being tough on crime. http://www.deathpenaltyinfo.org/innocence-and-death-penalty in fact there are several US presidents who have sent men to execution to bolster their tough on crime credentials during their run up campaign for the presidency.

Top this off with a two speed justice system where the number of African Americans in prison including on death row significantly exceeds the white prison population and you have exactly the situation that prevails in countries with these harsh forms of shariah law. http://www.capitalpunishmentincontext.org/issues/race http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts

Anonymous said...

On a different note, if there is anything good in shariah law, Pakistan will be the last country to practically implement it. After all, would these corrupt Pakistani politicians ever want to get their hands chopped for looting, or will the mullahs ever wish to get their heads chopped for the bloodshed they do?. Never :-)

Salman Hameed said...

I can't argue with that. This is of course politically expedient right now in the US. The author had to think for a minute to find polite words to talk about the efforts to band Shariah in some of the states here in the US.

It is a shame that Pakistan's name came up on this matter. Most of the legal system in Pakistan, as far as I understand it, is British based. However, some of the "Shariah" elements have been brought in - and unfortunately - they are some of the most controversial and problematic. Why fixate on punishments? What about and emphasis on social justice and equality issues?

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