Call for Abstracts: Islamic family law in the courts: experiences from the Muslim World and the West
Subject: Call for AbstractsIslamic family law in the courts: experiences from the Muslim World and the WestWe are interested in looking at how Islamic family law is interpreted and applied in the contemporary Muslim world , in Europe and North America. We want to emphasize diversity (between countries as well as within them), contextuality (how court decisions respond to the political and social context) and contrasts between law in the books and law in action.We have already solicited proposals relating to Pakistan, Turkey,Canada, Italy, Britain, and Spain. Proposals regarding any other country are welcome.A multi-disciplinary approach is adopted: researchers in law, sociology, political science, anthropology and relate fields, are welcome to submit abstracts.We believe this book will be useful for legal practitioners and social workers dealing with immigrants, as well as for students and scholars.The deadline for abstracts , accompanied by a short personal bio-data, is 1 March 2011, while the manuscript submission deadline is May 2012. The publisher has not been contacted yet, but this will be done in thenext few months.Elisa GiunchiAssistant ProfessorFaculty of Political ScienceUniversità degli studi di MilanoPrakash ShahSenior LecturerSchool of Law, Queen MaryUniversity of London
“Islamic” Law… “Shari’a Law”… where does it come from? Not in a geographical sense… but in the simple sense of “where do the majority of Muslims turn to for clarification of the law”? Is it to the Qur’an? Is it to Allah himself? Is it to trained legal specialists? This question is unlikely to produce a definitive answer given that “Islamic law has been alternatively described as a divine law and as a jurists’ law” (Coulson, 1969:3). Its ambivalent nature is further demonstrated by Joseph Schacht who unflinchingly refers to Islamic law as both an “extreme case of a jurists’ law” (1964:209) and as “typical of a ‘sacred law’” (ibid:211). It is evident, whatever the answer, that this question depends upon the definition of some key terms… “Islamic”, “divine” and “jurists.’” If you want a quick 101 on “Shari’a”, please see the relevant section in my earlier post “A very, very short introduction to Islam“.
Before beginning discussion, it is necessary to understand what is meant by Islamic law. Does this law apply to Muslims living in non-Muslim countries, or to non-Muslims living in Muslim countries? Schacht attempts to answer these questions by indicating that “Islamic law does not claim universal validity.” Rather, “it is binding for the Muslim to its full extent in the territory of the Islamic state, to a slightly lesser extent in enemy territory, and for the non-Muslim only to a limited extent in Islamic territory” (ibid:199). However, one need only look at the media to see that non-Muslim citizens of some Islamic states live very much under “Islamic” law, and that many Muslims living in non-Muslim countries wish to have autonomy to implement their own law. This is largely to do with the recent politicisation of Islamic law “[in conjunction with] modernist legislation on the part of contemporary Islamic governments” (ibid:3). Thus, a compromise is necessary, and for my purposes, “Islamic law” shall refer to law directly related to Muslim religious beliefs and not to the laws implemented by political ‘Islamic’ states, regardless of the incorporation of ‘religious’ law into their codes.
There are two key points that should be made about “Islamic law”. Firstly, Islamic and “Western” law are two quite different things. In fact, “classical Arabic [has] no precise equivalent for the English word “law” in the ordinary, everyday sense” (Weiss, 1998:17). Whilst admitting that his “superficial” summary expresses the difference “in a wholly inadequate way”, Anderson plainly defines “Western law, as we know it, [as] essentially secular, whereas Islamic law is essentially religious” (1959:2). Western law is strongly influenced by Christianity, which “existed for three centuries within a polity that was very much not of its own making” meaning that “Roman law would become the foundational law of the Christian world” (Weiss, 1998:4). In contrast, “Muslims did not appropriate an empire but rather created one,” intending “to bring to the world a new polity and law, replacing all outmoded polities and laws” (ibid:5). However, the distinction is not simply one of sacred versus secular, as “the two other representatives of a ‘sacred law’ which are historically and geographically nearest to [Islamic Law], Jewish law and Canon law, are [also] sensibly different” (Schacht, 1964:1-2).
It is common nowadays to equate “Shari’a law” with “Islamic law,” however, “since the Shari’a includes norms beyond those which constitute law in the strict sense, it is incorrect to equate Shari’a and law simpliciter” (Weiss, 1998:5). Shari’a “is an all-embracing body of religious duties [which] comprises on an equal footing ordinances regarding cult and ritual, as well as political and (in the narrow sense) legal rules” (Schacht, 1950:v). Therefore, “Islamic law” may be characterised as “those rules of the Shari’a that the temporal authority and its judicial representatives are likely to apply and enforce” (Weiss, 1998:21). These important distinctions from the Western conception of law must be recognised in the context of this post.
A second point is, simply, that “there is no such thing as a, that is one, Islamic law” (Vikor, 2005:1). Not only are there geographical variations, accounting “for much of the divergences between the ancient schools of law” (Schacht, 1964:3), but there is another form of Islamic law, siyasa justice, which was/is administered by “the political authorities on the basis of custom, of equity and fairness” (ibid:55) in parallel with the religious courts. This post only focuses on the Shari’a inspired Islamic law which “both does and does not exist, through the many, different, and often conflicting views and individual rules that Muslim scholars have developed.” (Vikor, 2005:1).
Nazreen Kazi’s typical affirmation of Islamic law as a “preordained system of Allah’s commands” (1960:6) is unfortunately not as simple as it first appears. Weiss believes that “it is a presupposition of Muslim juristic thought that the law of God has not been given to human beings in the form of a ready-made code” (1998:22). God’s commands can only be accessed through His revelation which is commonly located in four sources – the Qur’an, the Sunna [traditions], “analogical extensions of rules already established” and the acceptance of an umma [community] wide consensus (Vikor, 2005:31). If the Qur’an is accepted as genuine revelation then a Qur’an based law is clearly a ‘divine law.’ However, “the Qur’an [only] contains some [350 to] 500 verses with legal content” (Hallaq, 1997:3 cf. Vikor, 2005:33) and thus does not provide Muslims “with an all-encompassing or developed system of law” (Hallaq, 1997:5), meaning that other sources are necessary to provide a legal framework. The Sunna of the Prophet are more problematic because of their human transmission. Hadith specialists were required to “evaluate the presumed hadith stories according to [external] criteria” (Vikor, 2005:39), and even among the “canonical” accounts there is the problem of context, which requires recorded laws/decisions to be analogised to fit with contemporary circumstances. This concept of analogical extension played a major part in the early development of Islamic law (Coulson, 1969:4) however, over time “the field of individual decision was continuously narrowed down” (Schacht, 1964:70), resulting in a “retrospective singling out of certain masters of the past as uniquely authoritative” (Weiss, 1998:10). This gradual compilation of legal opinion, resulted in the emergence of “an entire educational institution […] whose primary function was to train scholars in all the disciplines entailed in legal study” (ibid:15). And the concept of consensus is dependent upon the accepted definition of the umma meaning that “’society in some form – all Muslims, or the scholars, or most of them – through their agreement establish that specific legal rules are part of God’s law” (Vikor, 2005:76).
This all-to-brief summary of the four main sources of law raises some interesting points. It is important to realise that a fundamental of Muslim faith is that “law is the divinely ordained system of God’s commands” (Coulson, 1969:1), and that there is universal “refusal to accord to human reason any role in the creation of the law” (Weiss, 1998:38 cf. ibid:37; Schacht, 1964:70). However, there has been a recent resurgence of the belief that “the human reason provides a link between the divine mind and the human mind” meaning that jurists can evaluate, using reason, any legal judgements extrapolated from the texts and reject, on the basis of interpretive error, those judgements that cause conflict (Weiss, 1998:37). And, the concept of consensus means that all schools of law are “deemed to translate into individual legal rules the will of Allah […]; their alternative interpretations are all equally valid, their methods of reasoning equally legitimate; in short, they are equally orthodox” (Schacht, 1964:67). These observations clearly indicate that, at least in the eyes of Muslims, it is correct to consider Islamic law as a divine law. However, “divine authority [has] little value if it [is] not channelled through human instruments” (Weiss, 1998:10 cf. Coulson, 1969:1-2).
Quite apart from accusations that jurists have “invented” Islamic law, there are three main arguments to support referring to it as a jurists’ law. Firstly, the texts of revelation contain “few precisely worded rules of law,” and even if they did “it is the business of the jurists […,] not of prophets, to provide such statements” (ibid:22). Secondly, in opposition to the concept of a “politicians’ law,” Islamic law is very much a jurists’ law. Because the root of Islamic law is enshrined in texts enjoying “canonical status”, the jurists, “far from being beholden to [political regimes, are] in a position to make the regime answerable to them” (Schacht, 1964:16). Islamic Law “was expressed in textbooks as the doctrine of the jurists, not in law reports containing the decisions of the judiciary” (Coulson, 1969:9). And finally, Schacht importantly notes the incorporation of various pre-Islamic elements into Islamic law, such as “the ancient Arab concept of sunna”, the Roman “concept of the opinio prudentzum” and various Stoic influences (1964:17,20). This acknowledgement doesn’t directly support conceiving Islamic law as a jurists’ law, however it does pose a common objection to the ‘divine law’ appellation (which can admittedly be refuted by emphasising God’s omnipotence/omniscience).
This has been a brief discussion of a very complex subject, and unfortunately many aspects of the history of Islamic law, including a discussion of the main schools could not be included. However, it should be sufficient to demonstrate that it isn’t possible to provide a definitive answer to the question of Islamic law’s divine/juristic character. On the one hand, it is evident that its formation occurred “neither under the impetus of the needs of practice, nor under that of juridical technique, but under that of religious and ethical ideas” (ibid: 209). Yet the law is not implemented directly by Allah, but by jurists who have been left the task of interpreting and adapting His revelation to specific circumstances. Schacht importantly notes that “Islamic law is conscious of its character as a religious ideal” (ibid:199), and in this light, with jurists striving after this ideal, “Islamic law is both a divine law and a jurists’ law” (Coulson, 1969:19). Coulson provides a suitable conclusion to this discussion which, although brief and full of generalisations, “is perhaps sufficient to show that in the fully fashioned fabric of the law the threads of divine revelation and human reason are so closely interwoven as to be almost inseparable” (ibid).
- Anderson, J.N.D., 1959. Islamic Law in the Modern World, London: Stevens & Sons.
- Coulson, Noel J., 1969. Conflicts and Tensions in Islamic Jurisprudence, Chicago/London: The University of Chicago Press
- Hallaq, Wael B., 1997. A History of Islamic Legal Theories: An Introduction to Sunni Usul-al-Fiqh, Cambridge: Cambridge University Press.
- Kazi, Nazreen, 1960(?). “Sources of Islamic Law of ‘Fiqh’” in Some salient features of the Islamic law and constitution: this constitution safeguards the interest of Muslims and non-Muslims, Karachi: Pakistan Institute of Arts and Design.
- Schacht, Joseph, 1950. The Origins of Muhammadan Jurisprudence, Oxford: Oxford University Press.
- Schacht, Joseph, 1964. An Introduction to Islamic Law, Oxford: Oxford University Press.
- Vikor, Knut S., 2005. Between God and the Sultan: A History of Islamic Law, London: Hurst & Company.
- Weiss, Bernard G., 1998. The Spirit of Islamic Law, Athens/London: The University of Georgia Press.
The title of this post is a quotation from the prominent scholar of Islam, Bernard Lewis. When discussing Lewis’s position on “the myth of Islamic racial innocence” (1990:101) or the “myth of Muslim freedom from racial prejudice” (1971:102 cf. Lange, 2007:9), it is necessary to clarify that his purpose is not “to try and set up a moral competition […with the West, but] rather to refute the claims both of exclusive virtue and exclusive vice, and to point to certain common failings of our common humanity” (1971:102). Following in Lewis’s stead, this post is merely intended as an attempt to assess Lewis’s conclusion on the basis of available evidence. A brief exposition on the crucial terms “race”, “Islam”, and the related issue of slavery is followed by discussion on specific instances in the Qur’an, the Hadith and Islamic traditions, Islamic legal thought, and wider practice in the Islamic world. Although a major part of Lewis’s thesis is the Western construct and purpose notion, it would be impossible, in a simple blog post, to do justice to the umpteen issues involved in the history of race and the West. Therefore, this issue shall be considered only in passing, with the bulk of discussion focussing on the supposed construction of Islamic “racial innocence”. Whilst in many, if not all cases discussed, the issues involved grew out of multifarious circumstances (Prentiss, 2003b:2), I am concerned solely with the interaction of Islam with racial prejudice – positive or negative, intentional or unintentional – and it is not within my purview to assign ultimate responsibility or blame.
Due to various events throughout recent history, it is unsurprising that “race” should be a controversial topic within academia. In fact, the term has virtually been abandoned in academic discourse over the past forty years, in favour of the term “ethnicity” (Prentiss, 2003b:6; Jones, 1997:40). Prentiss traces the first usage of “ethnicity” to “a 1941 sociological study” where it served “as an alternative to “race” in [the] attempt to describe social groups that came from different national backgrounds but shared cultural similarities” (2003b:6). In principle, the usage of this term has since fulfilled a similar function, referring to various distinctive cultural identifiers – “lingual, ancestral, regional, religious, and so on” (Tamimi, 2003:168 cf. Malik, 1997:172; Jones, 1997:45). The main reason for the abandonment of “race” was the realisation that generalised characteristics of specific groups are not the result of genetic or physical transmission, but the influence of surrounding society and culture (Jones, 1997:45 cf. Prentiss, 2003b:7; Sundiata, 1978:2). However, physical characteristics, including skin colour (Tamimi, 2003:168), inevitably play a part in the emic and etic (insider and outsider) application of ethnic labels. Thus, the concept of ethnicity, whilst seeking to avoid reducing social groupings to physical (“racial”) differences, inevitably incorporates biology into its wider cultural typologies. Bernard Lewis acknowledges this difficulty and explains that his discussion will focus on “Muslim attitudes on ethnicity, race, and colour” (1990:20), clearly indicating that this wide ranging interpretation of “race” should be employed in this analysis.
The term “Islamic” is also more multi-faceted than would first appear, and raises two key issues. Firstly, and quite simply, a Muslim “race” does not exist. Whiethe Arab peoples are often associated with Islam, with “many non-Arab Muslims […assuming that] an Arab is […] a Muslim by definition” (Tamimi, 2003:169), the key point here is the very existence of non-Arab Muslims. Arabs predate Islam; and there is nothing contradictory in the designation of Arab Christians or Arab Jews (ibid:169, 171). Thus, a discussion on Islamic racial innocence is not the same as a discussion on Arab racial innocence, although the two often became practically synonymous (see below).
Secondly, a frequently encountered issue is that “Islamic” can be understood in many different senses (cf. Masood, 2009:ix-x). Even if a “monolithic Islam” existed (Sundiata, 1978:2), the term “Islamic” could relate to one of four distinct things: the religion taught by Muhammad and embodied in the Qur’an (Lewis, 1990:20); “the subsequent development of this religion through tradition” (ibid); the related area of the Shari’a; and the practice of “Islamic civilisation as known to us in history” (ibid). Therefore, discussion shall consider each of these four areas, reflecting on the racial and ethnic relationships portrayed within a multi-ethnic Islam.
A final slight digression on the issue of slavery is necessary before the main discussion can get underway. Even though Muslim societies utilised slaves from many different ethnic and geographical backgrounds (Lewis, 1990:11; Toledano, 2002:65; Hunwick, 1992:7), and engagement in the slave trade was not unusual for the time (Lewis, 1990:5), it is unfortunate that “in most Muslim societies […] slavery was closely associated with […] darkness of skin” (Toledano, 2002:64 cf. Hourani, 1991:117; Lewis, 1990:41). Thus, at each stage in this discussion, additional race-related issues surrounding slavery merit consideration.
Turning first to the Qur’an, Lewis believes it clear “that the Qur’an expresses no racial or colour prejudice” (1971:7) – a position which, on surveying the Qur’an and secondary literature, appears sound. “The Qur’an considers all peoples as “one nation”” (Rubin, 2004:337) – God created all humanity “from a single person” (Q4:1 cf. Tamimi, 2003:176), Muhammad’s mission was not confined to one ethnic group (Rubin, 2004:337 cf. Q34:28) and God’s glory is demonstrated by the diversity of languages and colours (Q30:22 cf. Lewis, 1971:7; Rubin, 2004:336). Although racial prejudice may lurk in eschatological images of the black faces of sinners in Hell (Lange, 2007:1,9 cf. Q3:106; 39:60), no explicit connection is made between blackness in this world and punishment in the next. In fact, Lewis suggests that these references simply reflect a common linguistic idiom, shared with many black African societies, “associating whiteness with joy and goodness, blackness with suffering and evil” (1971:101). However, Lewis additionally makes the sweeping statement that the “Qur’an does not even reveal any awareness of [racial or colour] prejudice” (1971:7), based upon only two cited verses (Q30:22, 49:13). Azzam Tamimi adopts a contrasting position, declaring that verses such as Q7:28-29 and 43:22-24 seek to discredit ancestral pride and that “until this [injunction…], the Arabs had been discriminating against non-Arabs […and] the coloured” (2003:174-176). Although Tamimi’s position is confessional (Prentiss, 2003a:238), and although Lewis would dismiss this argument as evidence of an awareness of social rather than racial discrimination (cf. 1971:7), his failure to engage more fully with this opposing position indicates that whist it is appropriate to conclude that the Qur’an expresses no racial prejudice, its dearth of opposing material is called into question by indications of an awareness of such prejudice.
On the related issue of slaves, the Qur’an appears silent regarding their ethnicity or the reasons for their enslavement, “but assumes the existence of the institution of slavery and enunciates precepts aimed at mitigating the condition and encourages manumission” (Hunwick, 1992:6 cf. Lewis, 1990:6; Brockopp). As the Arabs of Qur’anic times would have utilised non-Arab slaves, the positive references to their humanity and feelings (Q2:221; 4:25; 39:29; 92 cf. Brockopp) at least indicate an improvement in the treatment of people of different ethnicities (cf. Lewis, 1990:6).
It is upon examination of issues concerning race in the traditions attributed to the Prophet, his Companions, and important religious figures that evidence of racial prejudice begins to come to the fore. “When [the Ethiopian] is hungry he steals, when he is sated he fornicates” (ibid:34); “God has decreed that the most devout is the noblest, even if he be a Negress’s bastard” (ibid:35); or “[the Zanj] are ugly and misshapen, because they live in a hot country” (1971:33) are but a few examples.. Whilst Lewis labels some of these as undoubtedly spurious (1990:34), the same could equally be said about the unreferenced “Prophetic Tradition”, “an Arab is no better than a non-Arab, a white is no better than a black and a red is no better than a yellow” (Tamimi, 2003:176). Lewis acknowledges that the “general purport” of accepted traditions on race “deplore[s] racial prejudice and […insists] on the primacy of piety” (1990:34), however the very existence of traditions which contradict this overriding thrust “leaves them as important evidence on the development of [contemporaneous…] attitudes”, widespread or not (ibid:34).
Whilst these traditions present varying degrees of racial prejudice, and received varying acceptance, a pervasive traditional classification of ethnicities derives from the biblical account of Noah and his three sons in Genesis 9:18-27 (Lewis, 1990:44-45, 55; Schroeter, 1992:202; Sundiata, 1978:4; Lange, 2007:9). Following an incident where Ham dishonoured his father, he and his descendents were cursed with blackness: “May God change your complexion and may your face turn black!” (Lange, 2007:9 cf. Brinner). In an alternative version, Ham is cursed for disobeying “the prohibition of intercourse while on the ark” (ibid). Regardless of which version of the tradition is correct, and the fact that it was “transmitted to the Muslims by Jews and Christians” (Lewis, 1990:44) and by no means universally accepted (Lewis, 1971:67), Lewis asserts that much early Arabic historical literature agrees on the Hamitic origins of black Africans (1990:44-45). The true import of this tradition shall be seen below, though it is obvious that a prophetic curse of blackness of skin has the potential to foster racial prejudice. That such prejudice should be justified in the “Christian” West until comparatively recently (cf. Ter Haar, 1998:155; Prentiss, 2003b:9) gives credence to the suggestion that Islamic tradition may not always have kept to the spirit of the Qur’an.
A similar spread of attitudes can be seen in traditions relating to slavery and race. Ibn Khaldun (twelfth century) states “The only people who accept slavery are the Negroes, owing to their low degree of humanity” (Lewis, 1971:38). This correlates with the common expansion upon the ethnology of Ham – that blacks were also condemned to slavery (Schroeter, 1992:202; Lange, 2007:9; Lewis, 1971:66-67; 1990:45). However, as mentioned above, these arguments were not exclusively applied to black Africans – Avicenna (980-1037) was of the opinion that God had provided many peoples who “were by their very nature slaves” (Lewis, 1971:29); and Lewis reports that whilst slaves were undoubtedly “inferior”, “the black slave was no worse than the white” (1990:25). Therefore, it can be concluded that Islamic traditions do display an attitude equating race (whether general or particular) with slave status, although this may simply be a combination of the “need” for a supply of slaves and the human tendency to classify the “other”.
It is a commonly held view that Islam is a religion of dichotomies – Male/Female, Heaven/Hell, Muslim/non-Muslim – but on the question of race such a dichotomy does not exist, and legal discussion on matters of race generally occurs merely as a side-issue to discussion on marriage and slavery. Concerning marriage – “the only issue on which questions of race and colour became the concern of the law” (Lewis, 1971:90) – the key issue is miscegenation. “The voice of Islamic piety on miscegenation is clear and unequivocal – there are no superior and inferior races and therefore no bar to racial intermarriage” (Lewis, 1990:85). Although this utopian image finds backing at certain points in history (Sundiata, 1978:8), and although “the condemnation of racial discrimination in marriage predominates in religious and legal discussions (Lewis, 1990:88), Lewis contends that the pre-Islamic notion of Kafa’a – “roughly translated as equality of birth and social status in marriage” (ibid:85) – “survived into Islamic times and became part of the holy law of Islam” (ibid). Although Lewis is able to provide some examples of sayings attributed to the Prophet appearingto oppose miscegenation (cf. ibid:88), his acknowledgement of the “unequivocal” voice of piety indicates that this accommodation of un-Qur’anic notions was not universal and cannot be generalised to the position of “Islamic law”.
The Islamic legal position on slavery is much clearer in that “the law made distinctions only between slave and free and between Muslim and non-Muslim” (Hunwick, 1992:7 cf. Schroeter, 1992:202; Hourani, 1991:116; Lewis, 1971:67). The enslavement of Muslims was categorically forbidden, although the adoption of Islam after enslavement does not offer similar exemption (ibid). Paul Lovejoy acknowledges that “at times there was disagreement over whether [black] status in itself constituted unbelief” (2004b:6), however discussions on practice summarised below indicate that the law remained firm on this point – thus loyalty to a fellow believer transcended kinship and ethnicity (Moosa, 2004:242) and offered some protection from slavery.
Historical data on prevalent practices in Islamic civilisations is clearly where Lewis believes most of the material to support his thesis lies. However, this brief summary should indicate that there is plenty of material to support both sides of the argument. Lewis cites poetry written by black Muslims indicating their “suffering from insult and discrimination” and inferior status (1971:11 cf. 11-13), as well as books defending black peoples from insults and charges levelled against them (1990:32-33). He acknowledges, most tellingly, that even though non-Arab Muslims were considered legally and ‘religiously’ equal to their Arab counterparts, as the Islamic Empire expanded “non-Arab Muslims were regarded as inferior and subjected to a whole series of […] disabilities” (1971:23). This is evinced through insults (1971:25-26), texts such as The Thousand and One Nights (1990:19-20) and other literature (ibid:95), and generally “in the literature, the arts, and the folklore of the Muslim peoples” (ibid:20). But on the other hand, there are accounts “depicting a radically egalitarian society free from prejudice or discrimination” (1971:5), telling of the good reputation of the Ethiopians during the time of the Prophet (ibid:27), a Nubian eunuch who became regent of Egypt (ibid:78), and of the black eunuch custodians of the Prophet’s tomb at Mecca (1990:75). Geographical and chronological variations make generalisation impossible, but Lewis accurately summaries the situation when he states that “there is a sharp contrast between what Islam says and what Muslims – or at least some Muslims – do” (1990:20).
As was acknowledged above, Islamic law prohibited the enslavement of Muslims by Muslims. However, there is evidence that this prohibition was frequently ignored: the black king of Bornu complained to the sultan of Egypt (794AH) that although his people were free Muslims, they were being subjected to raiding and enslavement (Lewis, 1990:53); similar complaints from black jurists have been recorded (ibid:57), and there is evidence that such practise was prevalent during the jihads of the nineteenth century (Schroeter, 1992:202). There is also evidence of legal casuistry to avoid this prohibition, with Islamic rulers in Sudan deciding it was not in their interest to disrupt the flow of slaves by converting everyone to Islam (Mahadi, 1992:115), and of newly captured slaves being converted in order to increase the chances of sale (Hunwick, 2004:149). Regardless of the legality of their capture, there is evidence that white slaves were more expensive than black slaves (Lewis, 1990:56), and that black slaves were less likely to be used in the military (ibid:65) where they could not advance as far as their white counterparts (Lewis, 1971:78). The very existence of these (potentially isolated) incidents suggests that Islam either encourages racial prejudice, can be interpreted to suit opposing positions, or simply did not exert a strong enough influence on the ‘common man’.
From this discussion it is clear that Islam is not a heterogeneous entity that can be easily summarised regarding issues of race. Although a gross simplification, Islam in its more ‘official’ forms – the Qur’an and the Shari’a – exemplifies a generally positive or indifferent attitude to racial diversity and harmony, whilst the traditions and the popular practice of ‘Islamic’ cultures exemplify a much broader spectrum of attitudes and actions. The key point here is that Lewis is attacking the myth of total racial harmony in the Islamic world (1990:101), a myth which is demonstrably spurious. Whilst his aim not to engage in a moral competition between Islam and the West is commendable, he seemingly downplays racial harmony inherent in the fundamentals of Islam in order to push his Western purpose idea. No doubt missionary failure, chastisement of apartheid regimes, and feelings of imperial guilt and responsibility (ibid:101-102) have played a part in the Orientalist overemphasis of Islamic racial tolerance, however this acknowledgement should not prevent Islam’s merits being extolled. The fact that the Qur’an contains a bare minimum of material that could be construed in a racist manner, that Islamic law unequivocally forbade the enslavement of Muslims regardless of race, and that the Islamic Empire incorporated ethnicities from Europe, Africa and Asia within just a few centuries, imbues Islam, as a religion, with an inherent pluralist emphasis, notably underrepresented throughout Western history. Although Lewis is right in rubbishing the fallacy of complete racial innocence, and in acknowledging the discontinuity between Islam as a religion and how it is practiced in the world, by emphasising these points he risks misunderstanding and misrepresentation – exactly the failings he sought to avoid.
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20. Schroeter, Daniel J., 1992. “Slave Markets and Slavery in Moroccan Urban Society” in Elizabeth Savage (ed.), The Human Commodity: Perspectives on the Trans-Saharan Slave Trade. London: Frank Cass, pp. 185-213.
21. Sundiata, I. K., 1978. “Beyond Race and Color in Islam” in Journal of Ethnic Studies 6:1 (1978: Spring), pp. 1-23.
22. Tamimi, Azzam, 2003. “Islam, Arabs and Ethnicity” in Craig R. Prentiss (ed.), Religion and the Creation of Race and Ethnicity: An Introduction. New York/London: New York University Press, pp. 167-180.
23. Ter Haar, Gerrie, 1998. “African Christians in the Netherlands”, in Gerrie Ter Haar (ed.) Strangers and Sojourners: Religious Communities in the Diaspora. Leuven: Peeters, 1998, pp. 153-171.
24. Toledano, Ehud R., 2002. “Representing the Slave’s Body in Ottoman Society” in Thomas Wiedemann & Jane Gardner (eds.), Representing the Body of the Slave. London: F. Cass, pp. 57-74.
25. Wiedemann, Thomas & Gardner, Jane (eds.), 2002. Representing the Body of the Slave. London: F. Cass.
 Where there is a clear reformulation of position, his later work is cited.
 Although in the context of his texts this is barely more than a footnote.
 “Tradition” in this context refers to non-Qur’anic written sayings and traditions, with the arbitrary chronological cut-off point of Napoleon’s entry to Egypt in 1798.
 Lewis includes Shari’a within “tradition” however, as shall be demonstrated, the Shari’a presents a distinct position meriting separate attention.
 See (Lange, 2007:2) for suggestions as to who these black-faced sinners were.
 Attributed to the Prophet.
 Ibn Hazm (994-1064), emphasis added.
 Ibn Qutayba (d. 889).
 Muhammad b. Abd Allah al-Kisa’i (11th century).
A massive, thought-provoking quotation from Timothy Fitzgerald, with which I couldn’t agree more:
“From our own postcolonial standpoint, it should be easier for us to question the idea that, whereas other, less-advanced peoples are permeated with ritualism and therefore with a ‘religious’ worldview, we in Anglophone cultures do not ‘do’ ritual, except minimally in church. I ask, rhetorically, but with serious theoretical intent, why should the legal procedures and taboos surrounding our courts and ideals of justice, our separation of the branches of government, our concept of private property, the practices of the stock exchange and the capital markets, the traditions of the civil services, be considered ‘nonreligious’, but the practices of divination, or the Islamic Shari’a, or the generic potlatch of various indigenous American peoples, or Buddhist meditation be assigned to the ‘religion’ basket? Why are transcendental values such as the belief in progress, or individualism, or nationalism, or the democratic virtues of ‘freedom’ and ‘equality’, the practice of secret ballots and elections of governments, which many millions of people died to establish and institutionalise, not included in books on ‘religion’? Why should state institutions that defend the freedom of Americans such as the Pentagon, the White House, and the Congress be treated as nonreligious rather than ‘religious’ or ritual institutions? Is the queen of England, who is supposedly head of a secular state, but who is also the head of a national religion, to be treated as a religious or a secular functionary? Is the raising and lowering of a national flag of religious or secular significance? It seems we are trapped by language when we consider these issues. For, arguably, they are all both religious and secular, and in that sense neither, for they undercut this grand dichotomy. We need to dissolve these reified binaries if a new paradigm is to have a chance to get articulated in public discourse.”
Fitzgerald, Timothy, 2007. Discourse on Civility and Barbarity: A Critical History of Religion and Related Categories. Oxford: Oxford University Press, p. 38.
In a post of this nature it is only natural that I am going to have to be very general… to those of you who may know very little about Islam, I hope this will be very informative… to those of you who have read some books, or maybe studied various aspects in more depth, I hope that my deeper penetration of more contemporary issues might shed some light on areas you are unfamiliar with, or provoke some discussion. I’d also heartily recommend checking out the links at the bottom of the page, which I have been updating as and when I remember.
This is neither going to be an attack or defence of Islam. There are plenty of these around, all of which have their merits and setbacks. Whilst it is of course impossible for me to present all sides of every argument, and whilst I have no doubt I will end up being ludicrously biased in numerous respects, I aim to present as balanced a picture as possible. The overriding thrust of this presentation shall be that there is no such thing as a monolithic Islam – just as there will be countless “Christian” stances on abortion/homosexuality/terrorism etc., or various “Christian” interpretations of the nature of God’s revelation, or on the specifics of the Communion/Eucharist/Lord’s Supper… so to with almost every point we consider in relation to Islam.
There are many contemporary and historical issues which I could have written about, and shall potentially write about in future, including Apostasy, Democracy, Homosexuality, Finance, Sufism and Women’s Rights, but time and space mean that things inevitably have to be left out. If there is anything that particularly raises any questions, please do post a comment and I shall try and answer as rigorously as I can.
First of all, a few basic facts to start us off:
23.1% of the world’s population are Muslim
Of these, 10-13% are Shia, 87-90% are Sunni
20% of the world’s Muslims live in countries where they are the minority…
Two thirds live in the following 10 countries (in order) :
Indonesia c. 203 million 88.2%
Pakistan c. 174 million 96.3%
India c. 161 million 13.4%
Bangladesh 145 million 89.6%
Egypt 78 million 94.6%
Nigeria 78 million 50.4%
Iran 74 million 99.4%
Turkey 74 million 98%
Algeria 34 million 98%
Morocco 32 million 99%
In the UK there are c. 1.6 million (2.7%) and the USA c. 2.5 million (0.8%). See this informative article in the Guardian for my sources, and more statistics.
What is Islam?
““Islam” in Arabic is a verbal noun, meaning self-surrender to God as revealed through the message and life of his Prophet, Muhammad. In its primary meaning […] the word Muslim refers to one who so surrenders him- or herself.” (Malise Ruthven)
“Islam is a comprehensive system which deals with all spheres of live. It is a state and a homeland (or a government and a nation). It is morality and power (or mercy and justice). It is culture and a law (or knowledge and jurisprudence). It is material and wealth (or gain and prosperity). It is an endeavour and a call (or an army and a cause). And finally, it is true belief and worship.” (al-Banna, 1978 cited in Abdulkader Ismail Tayob, 2007)
Just as Christians and Jews can identify with their parents’ faith without practicing the faith themselves, so too it is entirely possible to have non-practicing Muslims.
However, this does not mean that Islam is in some way “racially” inherited. It is true that the Arab peoples are often associated with Islam and that in reality, “many non-Arab Muslims […assume that] an Arab is […] a Muslim by definition” (Azam Tamimi), however the key point here is the very existence of non-Arab Muslims. “The Arabs as a people, both in terms of race and ethnic category, predate Islam” (ibid), and there is nothing contradictory in the designation of Arab Christians or Arab Jews.
Where did Islam originate?
- Comprises modern day Kuwait, Oman, Qatar, Saudi Arabia, United Arab Emirates, and Yemen. Saudi Arabia is about 4/5ths of the peninsula and it is approximately 2.2million square kilometres. UK is just over 200,000 square kilometres…
- Its predominant feature is its aridity.
- The bulk of Arabia is desert relieved only by scattered oases.
- Much of Arabia was fit only for pastoralism, and a nomadic pastoralism at that
According to Michael Cook, at the time of Muhammad (c.6th/7th):
- The Arabs had never posed a serious military threat, and were unlikely to do so
- Escalating conflict between Rome and Persia was likely to lead to a tightening of their grip on anything of worth in Arabia
- It was only a matter of time before Arabia became Christian…
Born c. 570CE at Mecca/Makka… site of the Ka’ba
- Some suggest this was the site of fertility cults or something similar
- Muslims hold that the Ka’ba was built by Abraham at the place of sacrifice
His tribe, the Quraysh, were very influential…
- They were the guardians of the sanctuary (The Ka’ba)
- Mecca was on a major trade route and this meant that there was a steady flow of pilgrims.
He was orphaned at 6
- … brought up by his grandfather, and then his uncle Abu Talib.
- Went to work for a wealthy merchant woman named Khadija when he was a young man, and they eventually married.
- Tradition holds that Muhammad married at least nine other women, but remained faithful to Khadija who bore him seven children (including three sons who died in infancy).
At about age 40 (in 610CE) Muhammad started regular retreats in a cave near Mt Hira, near Mecca, where after a period of meditation, he received his first revelation from the Angel Gabriel.
“Recite, in the name of your Lord, who created.
He created man from an embryo.
Recite, and your Lord, Most Exalted.
Teaches by means of the pen.
He teaches man what he never knew.” [Q96:1-5]
Khadija accepted his message immediately, as did his uncle’s son Ali,
- eventually it spread beyond the confines of his family and Mecca and was proclaimed openly.
- the new religion professed by Muhammad happily coexisted with the current pagan religions, until Muhammad denounced the pagan deities to the outrage of the Meccan authorities
Growing hostilities meant that Muhammad had to send some of his new followers to neighbouring Ethiopia, where they were protected by the Christian ruler
- those remaining in Mecca were subjected to a boycott aimed at excluding them from commercial life…
- then Abu Talib (uncle) and Khadija died in the same year.
- Deprived of his protection and confidant, Muhammad and his followers made the Hijra, or emigration (275 miles north ), to Yathrib, following an invitation from a delegation seeking Muhammad’s assistance as mediator between three feuding Jewish tribes.
- Yathrib was eventually renamed Medina (the City of the Prophet), and the Islamic calendar (which is lunar) officially begins here, at 622CE, making this year 1432AH.
I won’t go into any of the events that happened in Medina, as that would take all day… but suffice to say there were raids on caravans, battles with armies from Mecca, disagreements with the current inhabitants, mutual influence between the Jews and Muslims, amongst other things…
Eventually, after a few more or less successful attempts at negotiation, Muhammad led a band of followers back to Mecca in 630 (the Umra, or lesser pilgrimage),
- takes the city against little show of resistance,
- circumambulating (ritually walking around) the Ka’ba
- destroying the 360 idols therein sparing only the two icons of Jesus and Mary.
- Within the following two years, before his death, the Muslim Umma (community) became the dominant force in the Arabian peninsula.
- Muhammad performed the “Pilgrimage of Farewell” (which became the Hajj we know today) then he dies unexpectedly in the arms of his “favourite” wife, Aisha, then aged 18.
Of course, early expansion must not be equated with mass conversion, which only happened much later…
Just before his death, Muhammad had planned to send an expedition into Roman territory in Palestine… this set in motion the events that led to rapid expansion of the Islamic empire…
“Within a century of the Prophet Muhammad’s death, Muslims governed throughout the Middle East and North Africa as far west as the Iberian peninsula (present day Spain and Portugal). In the east there were Muslim outposts in the Indus valley (northwest India) and expeditions reached as far as the great wall of China.” (David Waines)
What was quite a shock to me, was that Spain was ruled by an Islamic power from 711-1492.
The Split into Sunni and Shi’i
The 4 rightly guided caliphs:
- Abu Bakr (r. 632-634)
- Umar (634-644)
- Uthman (644-656)
- Ali (656-661)
Following Muhammad’s death, his close companion (and father of Aisha), Abu Bakr, is elected as his successor and designated “Caliph”. The claims of Ali – Muhammad’s cousin and son-in-law – are ignored on this, and two subsequent occasions. Supporters of Ali were called his Partisans (Shi’a)… when he succeeded to the Caliphate he was not successful in maintaining control and he was eventually assassinated. The Shi’is then dispute the Sunni Caliphate as it continued, following Ali’s line and designating them Imams.
“In the sacred history of Shi’ism, each Imam in turn is secretly murdered – usually by poisoning. Eventually the Twelfth Imam, Muhammad al Muntazar – the Awaited One – disappears altogether. He will return at the end of time as the Messiah (al-Mahdi) to bring peace, justice and unity to a world torn by corruption, division and strife.” (Malise Ruthven)
On a side-note, there is quite an amusingly bad film entitled “Khartoum” set in Sudan, late c.19th starring Charlton Heston, as General Gordon, and a boot polished up Lawrence Olivier as the Sudanese Mahdi.
The Shi’ism discussed thus far is the majority Twelver or Imami Shi’ism
There also others known as Isma’ilis, or Seveners, who claim allegiance to Isma’il, the eldest son of Imam Jaf’ar, who Twelvers believe to have predeceased his father.
And there are also many other smaller groups
Key Beliefs and Practices
Generally accepted that Muhammad began to collect the Qur’an together before his death but it was not completed until 20 or so years later under Uthman.
114 independent units of varying lengths called suras
Each sura begins with the formula “In the name of God, the Merciful, the Compassionate”
After the first sura they are arranged in roughly descending order of length
Generally taken that everything which refers to the communities and generations of the past, or establishing the credentials of the Prophet, was revealed at Mecca. Duties and norms of behaviour from Medina…
Qur’an as inimitable:
“If men and genies banded together to produce the likes of this Qur’an, they would not produce its like, not though they backed one another.” (Q17:88)
That it is in Arabic is seen of great importance:
“Some religions, like Buddhism, take to scriptural translation like ducks to water. The Buddha, we are told, ‘can express everything he wishes in any language whatever’, and not only that, he ‘speaks them all at once’. But such linguistic indifference was not a feature of Islam. The Qur’an was destined to remain as it had been revealed.” (Michael Cook)
“We have sent it down in an Arabic Qur’an; haply you will understand” (Q12:2)
“Non-Arabic isn’t Arabic, so it’s not Qur’an.” (Ibn Hazm, d. 1064)
At the time written Arabic was largely used as an aid to memory, with no system of vowel signs or diacritical marks…. In the 10th century a system of 7 canonical readings was established with one of these becoming prevalent throughout the whole Islamic world, the Egyptian Standard Edition, issued under the authority of the King of Egypt in 1923/4.
And now for some highly generalised practical implications of the sanctity of the Qur’anic codex:
- See how the Qur’an is usually sat on a chair when being read in the mosque.
- in a state of ritual impurity a Muslim should not touch the Qur’an.
- Unbelievers, accordingly, should never touch the Qur’an according to the majority view.
- Thus Muslim warriors were prohibited from taking copies of the book on raids into non-Muslim territory; these copies might fall into the hands of the unbelievers, and thus be defiled.
- However, one eighth-century scholar is said to have allowed the ritually impure to touch the margins of a copy of the Qur’an,
- Another early Muslim had no qualms about sending his non-Muslim slave to fetch a Qur’an which was enclosed in its protective wrapping
- Coins also provided a worry… as did the scribbling of children learning to write with passages of the Qur’an
Generally taken that the Fatiha (“The Opening”) contains, in a condensed form, all the fundamental principles laid down in the Qur’an:
In the name of God, the infinitely Compassionate and Merciful.
Praise be to God, Lord of all the worlds.
The Compassionate, the Merciful. Ruler on the Day of Reckoning.
You alone do we worship, and You alone do we ask for help.
Guide us on the straight path,
the path of those who have received your grace;
not the path of those who have brought down wrath, nor of those who wander astray.
Identifying what the Qur’an is talking about is difficult without information on context. According to Michael Cook, without tradition we would probably be able to infer that the protagonist was Muhammad, in western Arabia, and that there was a problem with this revelation being accepted by his contemporaries. No indication that the sanctuary is in Mecca, that Muhammad came from there, or that he established himself in Yathrib… These indications come from traditions… the “Hadith”.
Hadith are much more important than the tiny mention they shall get here…
- Isnads are the name given to the chain of transmission assigned to a Hadith. Essentially they run something like Person D heard from Person C who heard from Person B who heard from Person A who was a companion of the Prophet. The more trustworthy these individuals are deemed to be, amongst other considerations, determines how “sound” the Hadith is deemed to be.
- Hadith can be on any number of things…
- You’ll see plenty of examples in the following sections
“Six collections came to acquire canonical status with two of these – the sahihain or “two sound ones” of al-Bukhari (d. 870) and Muslim [ibn al-hajjaj] (d. 875) – considered as second in importance only to the Qur’an” (Malise Ruthven)
The Five Pillars
Shahada (Declaration of Faith)
- The minimum requirement for being designated a Muslim: “There is no God but God; Muhammad is the Messenger of God.”
- To this Shi’is add: “Ali is the friend of God”
- Involves ritual prostration… actions as important as mental activity
- 5x a day: dawn, noon, mid-afternoon, sunset, evening
- However this does not meant that they happen at these times, but at intervening periods between each… i.e. the noon salat happens from when the sun has reached its zenith until it is halfway down
- Ritual Purity important… minor and major ablutions. Some legal authorities say one ablution at the start of the day works for all 5…
- Facing the direction of Mecca (for the first year it was Jerusalem)
- Men in front of women
- Public prayer on a Friday at the Mosque usually with a sermon from the Imam. However Friday is not considered a “holy” day… it seems it was just the market day in Medina at the time of the Prophet…
Zakat (Compulsory Charity)
- In Q2:219 , in response to the question “How much do we pay?” the Qur’an simply states “The surplus!” i.e. what you do not need…
- Intended for the poor and needy
- Used to be collected and distributed by the government but now it is generally left up to individual discretion
Sawm (Fasting during Ramadan)
- Ramadan is the 9th Month of the Islamic Lunar Calendar
- Only during daylight hours
- Includes eating, drinking, smoking and sexual activity
- Begins at dawn and ends at sunset
- The breaking of the fast meal encouraged as a great source of joy and celebration and there are frequent family and community get togethers
- It became customary for Muslims to try and read the Qur’an during Ramadan, with many editions being printed divided into 30 equal sections…
Hajj (Pilgrimage to Mecca)
- It would be very possible to have an entire book just on the Hajj
- Required on every adult Muslim at least once in his or her life
- Malise Ruthven “In the past Muslims from far-flung regions would spend the best part of a lifetime on the journey, working their way across Africa or Asia to reach the Holy City. In their return they enjoyed the honoured status of Hajji – one who had made the pilgrimage.”
- Nowadays transport has made the whole thing much easier, and the Saudi authorities have to put limits on the numbers who can attend…
- Involves :
- The Tawaf – circumambulation of the Ka’ba
- The Sa’I – Sevenfold running between the hillocks of Safa and Marwa (incidentally this is now down through an airconditioned gallery)
- The Standing the in the plain of Arafat
- The ‘Onrush’ through the narrow defile of Muzdalifa
- The ‘Stoning’ of the three pillars representing the devil
- The sacrifice of an animal at Mina (which is now done in hygienic abattoirs with pilgrims obtaining sheep certificates, and the meat being frozen for feeding the poor).
Key Doctrinal Differences between Islam and Christianity
- Adam remains the common ancestor of humanity and is expelled from Paradise for eating the forbidden fruit
- Noah is the builder of the ark whose occupants survive when God destroys the human race
- Abraham still nearly sacrifices his son to God
- Moses confronts Pharaoh, leads the exodus from Egypt, encounters God on Sinai and receives scripture…
- Authoritative Text
- Centrality of Community
Unity of God
“Tawhid” – making one, unicity…
Islamic perception of Christian tritheism…
“Say not “Three”, refrain; better is it for you. God is only One God” (Q4:171)
“They are unbelievers who say “God is the Third of Three.” No God is there but One God.” (Q5:76)
However, by this time the doctrine of the Trinity hadn’t been fully established, and there are well known difficulties to formulating certain Greek concepts in Arabic.
Jesus’ Crucifixion and Divinity
Jesus seen as Messiah, born of a virgin, carried out a ministry throughout Israel, performed miracles, was rejected by the Jews and raised up to heaven by God.
“And when the son of Mary is cited as an example, behold, thy people turn away from it and say, ‘What, are our gods better, or he?’ They cite not him to thee save to dispute; nay but they are a people contentious. He is only a servant we blessed, and We made him to be an example to the Children of Israel.” (Q43:57-59)
Here the Qur’an is explaining Jesus to the polytheists of Mecca… firstly he is a human servant, not divine… and secondly he is more important than they can imagine.
A Prophet of such high standing suffering such a humiliating death is incomprehensible…
- Q4:156-8: “yet they did not slay him, neither crucified him, only a likeness of that was shown to them […] and they slew him not of a certainty – no indeed; God raised him up to him.”
- The traditional interpretation is that someone else died on the Cross (perhaps Judas)…
- A more modern interpretation is that the Qur’anic account denies the Jews responsibility for Jesus’ death.
No original sin/atonement
“The most significant theological difference in terms of the historical development of Islam is the treatment of the Fall. Satan is punished for his refusal to bow down before Adam; and though Adam sins, as in the biblical story, by eating of the forbidden fruit, he repents and is soon restored to favour as God’s deputy or vice-regent, the first prophet in the line of prophets that culminates in Muhammad. There is no doctrine of original sin here, no idea of vicarious atonement. Where there is no original sin, there is no redeemer…” (Malise Ruthven)
Those whose good deeds outweigh bad will go to Paradise and vice versa…
- possibly down to different emphases: belief versus practice? orthodoxy versus orthopraxy?
- But this strikes me as much too simplistic
Some verses seem to suggest that once God has sent his guidance it is up to humans to decide how to respond:
“Say: The truth is from your Lord; so let whosoever will believe, and whosoever will disbelieve.” (Q18:29)
But others indicate that the choice is God’s:
“As for the unbelievers, alike it is to them whether thou hast warned them or hast not warned them, they do not believe. God has set a seal on their hearts and on their hearing, and on their eyes a covering, and there awaits them a mighty chastisement.” (Q2:6-7)
Of course this is all very general, and there will be many more differences that I could have noted… but I hope this has given you a flavour of the nuances of the relationships between these two great religions…
Shari’a Law and Fatwas
This is going to seem very much like I am supporting Shari’a Law… that is not my intention. However, there are a lot of unfortunate stereotypes, mostly because of the Wahabbis in Saudi Arabia… and I would like to dispel some of these.
“The term Shari’a applies to much more than law in the strictly legal sense. It includes details of ritual, as well as a whole range of customs and manners, although local customary laws are also recognised. Shari’a means literally ‘the way to a watering place’: the Qur’anic use of the term suggestively combines the notions of a vital means of sustenance in this world and access to the divine realm of the world to come. The law is there both for the purpose of upholding the good of society and for helping human beings attain salvation. Interpretations of the law may vary in accordance with time and place, but the Shari’a itself is considered to be a timeless manifestation of the will of God, subject neither to history nor circumstance.” (Malise Ruthven)
Thus, Knut Vikor can write:
- “There is no such thing as a, that is one Islamic law”
- Younger modern Muslim scholars: Shari’a “is a name for the divine will as only God knows it, an abstract divine law only perceived by Him.”
In theory Shari’a comes from the Qur’an, but there are 6200 verses in the Qur’an – only 350-500 legally relevant, and only approx. 30 specify crime/punishment.
- = science of formulating the law (Vikor)
- = thinking about the law
- Faqiha (to understand)
- Faqih (jurist/theologian) Fuqaha (plural)
- “What we find in the fiqh texts is the jurists’ approximation to the divine law” (Rudolph Peters)
- Its four roots, in order of precedence, are:
- the Qur’an,
- the traditions of the prophet
- and analogical reasoning
As if matters weren’t complicated enough, there are numerous Legal Schools (Madhabs) such as the Hanbali, Hanafi, Shafi’I and Maliki schools amongst the Sunnis, named after eponymous founders.
- Shafi’I’s domininant in lower Egypt, Syria, southern India, Indonesia and Malaysia
- Hanafis in Turkey, northern India, Pakistan, central Asia and China
- Malikis in Saharan Africa, upper Egypt and North Africa
- Hanbalis in Saudi Arabia
Malikis rely more on the Sunna… Hanafis on analogy resulting in a generally more lenient stance
What is a Fatwa?
- “Legal Decision”/”Verdict”
- Al-Shatibi: “A reply to a legal question given by a legal expert in the form of words, action or approval.”
- Only statements of principle and in theory a fatwa has no validity beyond the moment it was expressed (Vikor)
An example: wine or whisky? from Burhan al Din al-Marghinani (d. 1197), Al-Hidaya, trans. Charles Hamiltion. A Hanafi faqih… Hanafi position generally that beer, whisky and vodka are permitted although all forms of grape alcohol are forbidden…
“The first of these [forbidden beverages] is khamr [wine] meaning, according to Abu Hanifa, the juice of the grape fermented… Others maintain that khamr is applicable to whatever is of an inebriating quality, because it is mentioned in the traditions that “Whatever inebriates is khamr” and in another tradition “Khamr is produced from two plants, namely the vine and the date palm…” Khamr is in itself unlawful whether it be used… even in so small a quantity as not to be sufficient to intoxicate; yet the same law does not apply to things of an inebriating quality, for a little of them, if not sufficient to intoxicate, is not forbidden… Whoever maintains khamr to be lawful is an infidel (and exposed to the penalty for apostasy) for he rejects incontestable proof.
“… Whoever drinks khamr incurs punishment even if he is not intoxicated, for it is said in the Traditions “Let him who drinks khamr be whipped, and if he drinks it again, let him be punished again in the same manner.”
“Liquor produced by means of honey, wheat, barley or millet is lawful, according to Abu Hanifa and Abu Yusuf (his most distinguished disciple) although it be not boiled, provided it be not drunk in a wanton manner. The argument they adduce is the Hadith “Khamr is the product of these two trees” (meaning the vine and the date palm)… It has likewise been disputed whether a person who gets drunk with any of these liquors is to be punished.”
Shari’a Law in the UK?
Rowan Williams, “Civil and Religious Law in England: A Religious Perspective”, Public Lecture, 6 February 2008. You’ll have heard the BBC on this…
Cites Tariq Ramadan: “It has reached the extent that many Muslim intellectuals do not dare even to refer to [Shari’a] for fear of frightening people or arousing suspicion of all their work by the mere mention of the word.”
For Williams, “Law of the land takes no account of what might be for certain agents a proper rationale for behaviour.”
However, secular lawyers must be aware of what to treat as real and serious and what is grounded in nuisance and ignorance
And he is quite clear that “No supplementary jurisdiction could have the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights.”
He attacks our Western notion of Legal Universalism as a bad thing:
- Secular law should not seek to dissolve religion, custom and habit
- But should “monitor such affiliations to prevent the creation of mutually isolated communities in which human liberties are seen in incompatible ways and individual persons are subjected to restraints or injustices for which there is no public redress.”
“Clearly the refusal of a religious believer to act upon the legal recognition of a right is not, given the plural character of society, a denial to anyone inside or outside the community of access to that right.”
How this would be implemented or enforced is another issue… however, Williams illustrates the complexities of the issues involved in implementing an “Islamic” Law in a non-Islamic context… it is not a simple of matter of letting people get on with it… and neither is it acceptable for “us” to demand that human beings conform to “our” understanding of what is immutable law…
(Tariq Ramadan) Shari’a teaches that Islam rests on the Qur’an, the Sunna, and the state of the world/society.
“To apply Shari’a for Muslim citizens or residents in the West means explicitly to respect the legal and constitutional framework of the country of which they are citizens.”
Of course there are extremists… and in many ways these are the people who make a fuss about implementing Shari’a… but these voices should not drown out more moderate voices.
If you are interested in further discussion on the nature of Shari’a, please see my other post “Shari’a Law: Where does it come from?“.
Violence and Jihad
What is Jihad?
- Rudolph Peters: Jihad = to strive, to exert oneself, to struggle
- Bukhari: Greater Jihad is “for the servant of God to fight his passions.”
- Jihad is a collective obligation. Indeed if there is an army, others are not permitted to participate! Q9:122 – “It is not for the believers to go forth totally”
- Notions of Jihad were developed within the context of the expansion of a single Islamic state…
- There is no valid Jihad in Twelver Shi’ism since the occultation of 873…
- Peters: Jihad functions to motivate to war, to enhance a ruler’s legitimacy and to define the rules for the relationship with unbelieving enemies during war…
- Therefore it is clearly difficult to apply the notions of Jihad to the modern day…
Elements in support of aggression:
Q4:95 – “[Those of the believers who stay at home while suffering from no injury are not equal to] those who fight in the cause of God with their possessions and nafs (soul/person).”
Q8:39 – “Fight them until there is no [discord] and the religion is God’s entirely.”
Q9:5 [Sword Verse] – “Then when the sacred months are drawn away, slay the idolaters wherever you find them, and take them, and confine them, and lie in wait for them at every place of ambush.”
Q9:29 – “Fight those who believe not in God and the Last Day and do not forbid what God and his Messenger has forbidden… until they pay the tribute out of hand and have been humbled.”
Malik (founder of Maliki school):
- According to the Prophet, the best person is “a man who takes the reign of his horse to do jihad in the way of Allah.”
- Malik: “Being killed in the way of Allah has no like”
However, it is just as easy to find anti-aggressive elements:
Q2:190 – “And fight in the way of God with those who fight you, but transgress/aggress not.”
- What is fighting in the way of God?
Q9:12 – “But if they break their oaths after their covenant/treaty and thrust at your religion, then fight the leaders of unbelief.”
- treaties being mentioned is significant
- only fighting the leaders…
- Peters: “It is not clear whether the Qur’an allows Muslims to fight the unbelievers only as a defence against aggression or under all circumstances.”
Q8:61 [Peace Verse] – “And if they incline to peace, do thou incline to it”
The Hadith, although not as important as the Qur’an, has plenty of material.
- Invite your enemies to embrace Islam, pay the jizya or fight…
- “Do not desire an encounter with the enemy, but when you do encounter them be firm.”
- Prophet “forbade the killing of women and children”
How does this all relate to contemporary terrorism?
Context: Of course there are many motivations, but the biggest thing I think to remember is that:
“Throughout [the nineteenth, and well into the twentieth century] European colonialists managed to occupy or directly influence almost the entire Islamic world. Of the three great medieval Muslim empires, the Ottoman and Moghul were totally dismembered; only Iran emerged relatively intact but subject nevertheless to pressure from both Britain and Russia. Muslim inhabited territories in sub-Saharan Africa and in modern day Malaysia and Indonesia also fell under European control.” (David Waines)
Sayyid Ahmad Khan (d.1898) was able to declare that since the British did not interfere with the practising of Islam, jihad against them was not allowed. However, Muhammed Abduh and Rashid Rida, though sincerely believing that Jihad is only allowed in response to aggression, defined the colonial activities as acts of aggression…
Osama Bin Laden’s “Declaration of War Against the Americans” (1998):
- Makes extreme use of the “Sword Verse”
- And the Hadith: “I have been sent with the sword between my hands to ensure that no one but God is worshipped.”
- He believes that killing Americans is an individual duty in accordance with “and fight the pagans all together as they fight you all together” and “fight them until there is no more tumult and oppression”
Darul Uloom Deoband’s Fatwa Against Terrorism (2008) [Very influential India-based group of scholars]:
- Focuses on Q5:56 – “Do not spread discord on earth.”
- The believe that the Qur’an clearly states that the killing of one innocent is equivalent to the massacre of all human kind (plus the reverse situation…)
- And that a basic principle of Islam not to cooperate with those spreading sin and oppression.
And in 2001, Yusuf al-Qaradawi, a very influential Qatar based legal scholar, along with some others issued a fatwa against terrorism, and on the right of Muslims to fight in US Army, in response to a question from a Muslim Captain in the US Army in the aftermath of 9/11.
- Re. terrorism: Q5:33-4 – “The recompense of those who wage war against God and his Messenger or do mischief on earth is only that they shall be killed…” (This can clearly be used to support the opposing side).
- And, regarding fighting in the US Army… Q64:!6 – “And keep your duty to God as much as you can”
- Muslim soldiers should only request to serve on the back lines if this does not call loyalty into question.
- The assumption that neither the lives nor faith of Muslims in the USA is threatened.
- “Aman [safe conduct] requires that Muslims residing in a non-Muslim land not knowingly commit acts detrimental to the host country…; and that Muslims should always fulfil the terms of their contracts with non-Muslims.”
- Choosing the lesser of two harms “regarded by Muslim jurisprudents as one of the secondary rules of Islamic legal theory.”
- Interpretive authority of fatwa lies in their use of Bukhari: “Acts are judged according to the intentions behind them.”
And of course there is the opposing position:
- Al-Shu’aybi: “Any Muslim who takes the side of the unbelievers in their war against Muslims is himself an apostate and unbeliever.”
- But despite criticism of the fatwa, no criticism has been levelled at al-Qaradawi et al.
Also, the BBC recently (2 March, 2010) reported on a 600 page fatwa by the influential Pakistani Jurist Tahir ul-Qadri against terrorism and suicide bombing.
“They [terrorists] can’t claim that their suicide bombings are martyrdom operations and that they become the heroes of the Muslim Umma. No, they become heroes of hellfire, and they are leading towards hellfire,” he said.
“There is no place for any martyrdom and their act is never, ever to be considered jihad.”
As I alluded to before, there is no obligation on any Muslim to accept any fatwa… they are just legal opinions. Fatwas can be issued in favour of terrorism, of war, or demanding the death of Salman Rushdie… just as they can be issued opposing terrorism, extolling the virtues of the West, and advising on mundane personal issues…
A VERY illuminating article was published on January 28 2010 entitled Europol Report: All Terrorists are Muslims…Except the 99.6% that Aren’t is something I would recommend that everyone take the time to read. It demonstrates that the right-wing propaganda regarding “All terrorists being Muslims” is vastly different from the evidence that we have to date, both in the European Union, and the USA.
I hope that in this issue, as in all others, I have demonstrated that the true picture is much more nuanced and multifaceted than the media would have you believe. As in all religions, and indeed all worldviews, there will always be extremes… I think it is the duty of people like you and I to ensure that these extremes are not the only voices that are heard. I hope this whirlwind post will have helped in some way with this goal, and has given you some food for thought…
I know there will have been many generalisations here, and that I have maybe said some things that some people may find offensive or inaccurate. Please do let me know and we can get some discussion on the go!
Other worthwhile articles (last updated 12/05/2011 – I should do this more often):
Explaining Islam to the Public by Edward E. Curtis IV
Burkas, Bin Bags and Bans by “fandabidozi”
Understanding the Muslim world by Mark LeVine
And a surprisingly informative article from Cracked.com:5 Ridiculous Things You Probably Believe About Islam by Jacopo della Querci.
I was reading the wonderful and intentionally provocatively titled article “Fuck” by Christopher M. Fairman (published in March 2006 in the Public Law and Legal Theory Working Paper Series No. 59/Centre for Interdisciplinary Law and Policy Studies Working Paper Series No. 39 and available for free online here) and thought I should share some of my favourite parts of it with you.
Some of this will be direct quotations, some will be my own paraphrases, some will be my own additions… and there is not going to be any coherent narrative, but I thought a lot of people out there might share my affection for the word “fuck” and its variants, and appreciate learning something new about it and hearing some amusing legal stories from this serious scholarly article. Many thanks to Edwina Smith for passing it in my direction.
Here we go…. 15 things you wanted to know about fuck:
1. Previous studies on the word “fuck” have included Leo Stone’s On the Principal Obscene Word of the English Language (1954) and Allen Walker Read’s An Obscenity Symbol (1934), “fifteen pages and eighty-two footnotes penned without once printing the word fuck anywhere in the article”.
2. In 2002, a man called Timothy Boomer was canoeing on the Rifle River in Michigan. He fell overboard and let out a few fucks. A nearby Sheriff gave him a ticket citing an 1897 statute – “Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor”. Boomer was then convicted and sentenced to a $75 fine and 4 days community service.
3. “Fuck is a taboo word. According to psycholinguists, its taboo status is likely due to our deep, subconscious feelings about sex. The taboo is so strong that it compels many to engage in self-censorship. However, refraining from the use of fuck only reinforces the taboo. In the process, silence empowers small segments of the population to manipulate our rights under the guise of reflecting the greater community. Taboo is then institutionalised through law, yet at the same time is in tension with other identifiable legal rights. Understanding this relationship between law and taboo ultimately yields fuck jurisprudence. However, all the attempts to curtail the use of fuck through law are doomed to fail. Fundamentally, fuck persists because it is taboo, not in spite of it.”
4. One potential first occurrence of fuck is in a Scottish poem by William Dunbar:
“Yit be his feiris he wald haif fukkit / Ye brek my hairt, my bony ane”
William Dunbar, Ane Brash of Wowing (1503)
5. “During the last Egyptian dynasties, legal documents were sealed with the phrase, “As for him who shall disregard it, may he be fucked by a donkey.” The hieroglyphic for the phrase – two large erect penises – makes the message clear.”
6. Fuck did not appear in any widely-read English dictionary from 1795 to 1965.
7. Jesse Sheidlower’s dictionary “The F-Word” is now in its second edition and spans 272 pages, devoted entirely to the word fuck and its variants. These range from absofuckinglutely – “an adverb meaning absolutely” – to zipless fuck – “a noun meaning an act of intercourse without an emotional connection”. My personal favourite uses of fuck would have to be clusterfuck and skullfuck… although I shan’t attempt definitions.
8. An interesting article entitled “Bush’s Obscene Tirades Rattle White House Aides” (August 25, 2005)
9. Someone was thrown off a flight for wearing this t-shirt:
Check out the full story in the NY times here.
10. “Thais speakers in an English environment do not use certain Thai words because they sound like taboo English words, such as the Thai words fâg (sheath), fág (to hatch) and phrig (chili pepper). Similarly , Thai speakers avoid using English words, such as yet, that sound similar to taboo Thai words, such as jéd, a taboo Thai word for sexual intercourse.”
11. “Word taboo is irrational. it is one thing to ban certain acts; as a society we are probably better off. But to proscribe naming those same acts makes no sense. Yet that is precisely what we do. In the case of fuck, the taboo is also unhealthy. Emerging from an unhealthy attitude about sex, fuck is an example of what Read calls a “word fetish”. The extreme emotional response to the word only serves to perpetuate negative attitudes toward sex.”
12. Dooling: a person “with four lifetimes and a burning desire to find out whether he may scream ‘Fuck!’ in a crowded theatre will come away in confusion if he looks for his answer in the opinions of the Supreme Court.”
13. “By far the most important victory for breaking the word taboo comes in Cohen v. California – the “Fuck the Draft” case – where the Court comes to terms with this four-letter word. In protest of the Vietnam War and the draft, Paul Cohen wore a jacket bearing the phrase “Fuck the Draft” while in the Los Angeles County Courthouse. Cohen didn’t threaten to or engage in violence or make any loud or unusual noises. All he did was walk through the corridor of a public building wearing a jacket. He was arrested, convicted, and sentenced to thirty days in jail for violating a California statute prohibiting malicious and willful disruption of the peace by offensive conduct.”
14. Statistically, men swear more than women… according to some research amongst Midwest college students men are 40% more likely to use fuck, and 60% more likely to use motherfucker.
15. “Even when fuck-based, gender specific insults are found, such as “fucking fat bitch,” if the alleged harasser also refers to men with fuck-based, gender-specific insults, such as the “fucking new guy”, the complained-of language does not establish a sex harassment claim. The use of foul language in front of both men and women is not discrimination based on sex. However, comments such as “fucking bitch”, “dumb fucking broads” and “fucking cunts” were-gender specific. Judge Fletcher of the Ninth Circuit wrote in Steiner v. Showboat Operating Company, “[i]t is one thing to call a woman ‘worthless’, and another to call her a ‘worthless broad’.””
And there you have it… who knew fuck could be such a fascinating word?