The Protection Project - Islamic Law: Traditional Sources and Contemporary Problems

Islamic Law:

Traditional Sources and Contemporary Problems

Mohammed Y. Mattar is an adjunct professor of Law and Executive Director of The Protection Project at the Johns Hopkins School of Advanced International Studies.

International Reporting Project [SAIS], September 27, 2005

I am pleased to have been invited by the “International Reporting Project” to report to you on some of the important “contemporary problems” that face the Moslem world today.

I understand that you will be traveling to different countries and that Islam is relevant in one way or another to each of them.

Indonesia is the largest Moslem nation in the world with over 200 million Moslems.
Islam is India’s largest religious minority with Moslems comprising 12.1 percent of the countries population, or over 100 million people.
Roughly half of West Africa’s population is Moslem.
There are at least 20 million Moslems in China, or 2 percent of the country’s 1.2 billion citizens.
In Romania there are more than 200,000 Moslems.
And, in Libya nearly everyone is a Moslem. 97 percent of the 5 and ¾ million Libyans are Sunni Moslems.

But, I would like to start with the creation of an Islamic State in Iraq, the most recent development in the Moslem world. Iraq is ethnically: Arab 75%-80%, Kurdish 15%-20%, Turkoman, Assyrian or other 5%, and religiously: Muslim 97% (Shi'a 60%-65%, Sunni 32%-37%], Christian or other 3%.

On October 15 of this year, the Moslem country of Iraq will vote to ratify a new constitution.

This constitution, like 21 other constitutions, declares Islam as the official religion of the state, and like 11 other constitutions, recognizes Islamic law as a source of its legislation.

The new Iraqi constitution establishes a Federal Supreme Court that will include not only legal scholars, but also jurists of Islamic Law to make sure that no law shall be adopted by the constitution in contradiction of the “established rulings” of Islam.

However, the constitution also does not allow a law to pass in violation of the “principles of democracy.”

Are the “established rulings of Islam” compatible with the “principles of democracy?”

The question is extremely significant, especially as it is the policy of the current administration to promote democracy throughout the Middle East.

Some suggest that the multi-party elections that took place in Egypt on September 7 was a result of this policy. Although you can hardly argue that a 30-year rule is a sign of democracy.

However, the question here is the extent to which Moslem countries will allow parties that advocate the creation of an Islamic State to fully participate in the political process.

Jackson Diehl argued in the Washington Post on May 23, 2005 that this should be the case. In exchange “Islamists could be required to formally pledge allegiance to a constitutional system in which any elected government would be bound to observe a charter of civil and human rights and yield power when defeated at the polls.”

I do not know whether you agree or disagree with Natan Sharansky in his book, A Case for Democracy, where he rejects the argument that allowing democracy in the Middle Eastern Arab countries would necessarily result in the dominance of Muslim extremists.

Regardless, does Islam allow democracy and representation of the people by the people, as article 5 of the new Iraqi Constitution states?

Or, is sovereignty reserved for God, as Abul A’la Maududi argues in Islamic Law and Constitution and as the constitution of Iran provides in article 2?

So, I do not agree with those who have argued that the Iraqi Constitution follows the Iranian model.

But the question of sovereignty is a question that we are still struggling with.

The answer depends on the Ijtihad, or “interpretation” of the various Islamic texts of the Quran (which was revealed gradually over a period of 22 years, 2 months and 22 days) and the traditions of the Prophet, or the Sunna (which interpreted the Koranic text).

Unfortunately, in many cases Islamic jurists follow a strict interpretation of the Islamic rulings and principles at the expense of the “public interest,” even though the “public good,” or Maslaha, is an established basis for interpretation in the Islamic legal theory.

I am sure that you are all familiar with what happened in March of 2002, when newspapers in Saudi Arabia reported on the 14 girls who were burned to death when an all-girls school in Mecca caught fire and these girls were not allowed to leave because they were not wearing their veils and consequently, the firemen on hand were not allowed to save them from the burning building.

The proper interpretation of an Islamic law was also at issue in the famous Egyptian case that was decided by the Egyptian Supreme Constitution Court on May 18, 1996:

An Egyptian father, on behalf of his two daughters, filed a law suit against the Secretary of Education asking for a repeal of a decision of the ministry which stated that a school uniform may include a veil but a female student may not wear a veil which covers her face. The school dismissed the two daughters who insisted on wearing a veil with nothing showing but their eye. The father argued the unconstitutionality of the decision on the ground that it contradicts Article 2 of the Egyptian Constitution, which provides that Islam is the religion of the state and Islamic Sharia is the main source of legislation. The Supreme Constitutional Court of Egypt did not agree, holding that a ruler may enact rules which achieve public interest, and in the absence of a Quranic verse indicating a complete veil from head to toes, a ruler may require that the veil should not cover a woman’s face.

Since:

1.) Where there is no Quarnic verse prohibiting a matter, permissibility or “Ibaha” is the norm.

2.) “Ijtihad” or interpretation is permitted within the limits of the general objectives of the Shariah.

A similar issue was raised in Freeman vs. Florida. Sultana Freeman converted to Islam in 1997 and in 2001 she obtained a drivers license with a veiled photo. But, after September 11, the state asked her to return to the DMV and have her photo retaken with her face uncovered. She refused. The state subsequently revoked her license. The court said that the state has a compelling interest to protect the public and this was a case about security, not religious freedom.

The “proper interpretation” is often not applied in the area of women’s rights, including whether women must wear the veil.

I have prepared for you a list of traditional Islamic rules regarding women’s rights that are subject to debate. The question being whether they are part of Islamic legislation and thus immutable, or, part of Islamic jurisprudence and thus presumptive in nature.

The list includes:

The double inheritance rule.
The double witness rule.
The double compensation rule in murder cases.
The right of a husband to discipline his wife.
The prohibition against women who are Moslem to marry a Christian or Jewish man.
The right of Islamic women to divorce their husbands.
The prohibition against women serving as judges.

In my view, a distinction should be drawn between the “divine,” which is immutable, and “doctrine” which is developed by Moslem jurists and which may change with the change in time or place.”

Unfortunately, not all share my opinion on this matter and reform in the area of personal status has been slow and in most cases very limited.

For this reason, the New Moroccan Family Code; The Moudawana of February 5, 2004, presents a very significant deviation from traditional Islamic jurisprudence.

The Moudawana makes polygamy the exception, not the rule.

The Moudawana expands the right of women to file for divorce.

And the Moudawana abolishes the disobedience rule.

These are all significant changes that are justified based on textual interpretation and they should be considered by other Moslem countries.

I am encouraged to learn that the Saudi government is engaged in the process of establishing family courts and that they are thinking about allowing women to serve as judges in these courts.

In fact, in Egypt Tahani Al-Gabali was appointed on Sunday, January 26, 2003, as the first female judge to serve on the Egyptian Supreme Constitutional Court.

I am sure that you read Salman Rushidi’s August 7, 2005, article in the Washington Post arguing that:

“The insistence that the Koranic text is the infallible, uncreated word of God renders analytical, scholarly discourse all but impossible. Why would God be influenced by the socioeconomics of seventh-century Arabia, after all? Why would the Messenger's personal circumstances have anything to do with the Message? The traditionalists' refusal of history plays right into the hands of the literalist Islamofascists, allowing them to imprison Islam in their iron certainties and unchanging absolutes. If, however, the Koran were seen as a historical document, then it would be legitimate to reinterpret it to suit the new conditions of successive new ages. Laws made in the seventh century could finally give way to the needs of the 21st. The Islamic Reformation has to begin here, with an acceptance of the concept that all ideas, even sacred ones, must adapt to altered realities.”

Another difficult issue besides the “status of women in Islam,” is the status of “the other.”

Traditional Islamic criminal law considers a criminal act: theft, highway robbery, corruption in the land, rebellion, adultery, fornication, defamation, alcohol drinking and apostasy.

Apostasy can mean conversion from Islam to another religion as well as any rejection of fundamental tenets of Islam.

According to the Wahabi school of Islamic law that is dominant in Saudi Arabia, if a Moslem deviates from the established practices of the religion he may be declared an infidel, or a “Kafer.”

Similarly, a non-Moslem is also considered a Kafer.

So, the question becomes: what do we do about the “infidels.”

In 1993, Nasr Abu Zaid, a professor of Arabic Literature in Cairo Egypt , was declared an apostate and an Islamic court ordered that he be separated from his Moslem wife. I believe that Abu Zaid is now in Holland.

The Fatwa issued by Osama Bin Laden and Ayman al-Zawahiri on February 23, 1998, stated: “to kill the Americans and their allies -civilians and military- is an individual duty for every Moslem.”

And that is why the conference that was held in Jordan on July 5, 2005 and that included 180 experts from 40 nations was significant.

The conference concluded that:

Believers cannot label other Moslems as “apostates”
The issuance of religious Fatwa’s is limited to qualified Moslem clerics in the 8 schools of Islamic jurisprudence: the 4 Sunni schools, the Ibadi school, The Jafari Shi school, the Zaydi school and Thahini school.

Also significant is the statement made by the International Association of Moslem Scholars condemning bombing of innocent civilians. Based upon the following Koranic verses:

Whosoever killeth a human being for other than manslaughter or corruption in the earth, it shall be as if be had killed all mankind, and whoso saveth the life of one, it shall be as if he had saved the life of all mankind (Al-Ma'idah 5:32).
Whoso slayeth a believer of set purpose, his reward is Hell for ever. Allah is wroth against him and He hath cursed him and prepared for him an awful doom (An-Nisaa' 4:93).
"Anyone who kills a Dhimmi will not smell the fragrance of Paradise" (Al-Bukhari).

Today, the concept of “jihad” is used without distinction between the “innocent civilians” and the “aggressors, trespassers and the occupiers.”

We have to teach Moslems the true meaning of Jihad:

That Jihad does not necessarily mean “Holy War” as the tradition of the Prophet goes upon returning from a campaign in Medina, “we have just fulfilled the lesser Jihad, it is now our duty to embark on the greater Jihad. What is the greater Jihad? asked one of the Prophet’s companions. It is the struggle to save ones own soul, replied the prophet.”
That war against the innocents is prohibited.
That war is defensive in nature and not preemptive. “Fight in the way of God against those who fight against you, but do not begin hostilities for God does not love aggression” (2:91-92) and “ if they incline to peace, incline then also to it” (8:61).
That the sword is the last resort as the Prophet instructed, you start with your heart, then with your tongue, then with your mind and finally with your sword.
That when you invite other into Islam “invite all to the way of the lord with wisdom and beautiful preaching and argue with them in ways that are best and most gracious” (16:125). “ There is not compulsion in religion.” (11:256). “ And if the Lord had willed, he verily would have made mankind one nation…” (11:118).

As you all know, Karen Hughes is in Egypt today on a public diplomacy mission, something which I very much support. However, one must admit that changing the image of the United Stated abroad in Moslem countries will take some time.

The Egyptian Higher Council of University Education recently made the decision that every college and every university must teach a course on human rights. I obtained a copy of the book that one of the universities would be teaching and found nothing in the text regarding human rights in the United States except for a one-line reference to the Bill of Rights.

Whether the new threat of terrorism perpetrated by some Moslems against the west constitutes a clash of civilizations is a question that some answer in the affirmative.

A recently published book by Tony Blankley of the Washington Times argues along precisely these lines, suggesting that the west will declare war against the new wave of Islamic terrorists. Blankley’s book The West’s Last Chance: Will We Win the Clash of Civilizations? made the national bestseller list alongside Thomas Freidman’s The World is Flat.

“What we need is a clear congressional declaration of war, as prescribed by the Constitution. Congress should declare war on the Islamist jihadists.

Naming the formal enemy limits the focus of our war effort to the militant Islamists who have declared jihad against the West. There are many terrorist groups in the world. Many are no threat to the United States. The current danger is the Islamist one.

Naming the threat also expands the scope of our war effort to all the networks of radical Islam, including mosques, schools and radical sites on the Internet. It is not only terrorist acts that we are confronting, but the propaganda and organizations that make them-possible.

Some people would argue that we would be declaring a religious war against more than a billion Muslims. But this is not true. We would be declaring war on a particular, violent, political ideology within Islam that threatens the West and the health of Muslim societies themselves.

By declaring war on the Islamist jihadists, we can underline why we stand side by side with peaceful and democratic Muslims and are opposed in Afghanistan and Iraq only by those Muslims who believe in car bombs, terrorism and murder.”

I prefer Tariq Ramadan’s Western Moslems and the Future of Islam (published in August, 2005) where Ramadan argues that the principles of Islam are universal, that these principles allow Moslems to integrate themselves into western society and that Moslems may still remain faithful to these principles, even while participating in secular western society.

I find it interesting that when Ramadan was denied a visa to come to the United States as a professor of Islamic Studies at Notre Dame, the Washington Post saw this denial as arbitrary while the Washington Times supported the decision.

You explain to me this difference in view.

That issue aside, these are some of these main tensions that exist today in the Moslem world.

I open the floor to discussion and thank you for listening.