Islamic Shariya Law and its interpretation towards corporal punishment.

[P.Warner]

This is my very first thread here although I have posted a few times in reply to other articles. I hope that this posting is within the acceptable bounds of the laws observed by this forum. Below is an article by a contemporary Muslim philosopher and alim (scholar) Tariq Ramadan that argues how misinterpretation of the Quran had led to certain muslim majority countries to unjustly implement corporal punishment.

Since I know the the majority of readers in this forum are muslims and for that matter and of a youthful age, I thought you might find the article interesting.
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An International call for Moratorium on corporal punishment, stoning and the death penalty in the Islamic World
Première publication : 30 March 2005, mise en ligne: Tuesday 5 April 2005, by Tariq Ramadan



Muslim majority societies and Muslims around the world are constantly confronted with the fundamental question of how to implement the penalties prescribed in the Islamic penal code.
Evoking the notion of sharî’a, or more precisely hudûd[1], the terms of the debate are defined by central questions emerging from thought provoking discussions taking place between ulamâ’ (scholars) and/or Muslim masses: How to be faithful to the message of Islam in the contemporary era? How can a society truly define itself as “Islamic” beyond what is required in the daily practices of individual private life? But a critical and fruitful debate has not yet materialized.
Several currents of thought exist in the Islamic world today and disagreements are numerous, deep and recurring. Among these, a small minority demands the immediate and strict application of hudûd, assessing this as an essential prerequisite to truly defining a “Muslim majority society” as “Islamic”. Others, while accepting the fact that the hudûd are indeed found in the textual references (the Qur’an and the Sunna[2]), consider the application of hudûd to be conditional upon the state of the society which must be just and, for some, has to be “ideal” before these injunctions could be applied. Thus, the priority is the promotion of social justice, fighting against poverty and illiteracy etc. Finally, there are others, also a minority, who consider the texts relating to hudûd as obsolete and argue that these references have no place in contemporary Muslim societies.
One can see the opinions on this subject are so divergent and entrenched that it becomes difficult to discern what the respective arguments are. At the very moment we are writing these lines- while serious debate is virtually non-existent, while positions remain vague and even nebulous, and consensus among Muslims is lacking- women and men are being subjected to the application of these penalties.
For Muslims, Islam is a message of equality and justice. It is our faithfulness to the message of Islam that leads us to recognize that it impossible to remain silent in the face of unjust applications of our religious references. The debate must liberate itself and refuse to be satisfied by general, timid and convoluted responses. These silences and intellectual contortions are unworthy of the clarity and just message of Islam.
In the name of the scriptural sources, the Islamic teachings, and the contemporary Muslim conscience, statements must be made and decisions need to be taken.

What does the majority of the ulamâ’ say?

All the ulamâ’ (scholars) of the Muslim world, of yesterday and of today and in all the currents of thought, recognize the existence of scriptural sources that refer to corporal punishment (Qur’an and Sunna), stoning of adulterous men and women (Sunna) and the penal code (Qur’an and Sunna). The divergences between the ulamâ’ and the various trends of thought (literalist, reformist, rationalist, etc.) are primarily rooted in the interpretation of a certain number of these texts, the conditions of application of the Islamic penal code, as well as its degree of relevance to the contemporary era (nature of the committed infractions, testimonials, social and political contexts, etc.).
The majority of the ulamâ’, historically and today, are of the opinion that these penalties are on the whole Islamic but that the conditions under which they should be implemented are nearly impossible to reestablish. These penalties, therefore, are “almost never applicable”. The hudûd would, therefore, serve as a “deterrent,” the objective of which would be to stir the conscience of the believer to the gravity of an action warranting such a punishment.
Anyone who reads the books of the ulamâ’, listens to their lectures and sermons, travels inside the Islamic world or interacts with the Muslim communities of the West will inevitably and invariably hear the following pronouncement from religious authorities: “almost never applicable”. Such pronouncements give the majority of ulamâ and Muslim masses a way out of dealing with the fundamental issues and questions without risking appearing to be have betrayed the Islamic scriptural sources. The alternative posture is to avoid the issue of hudûd altogether and/or to remain silent.

What is happening on the ground?


One would have hoped that this pronouncement, “almost never,” would be understood as a assurance that women and men would be protected from repressive and unjust treatment; one would have wished that the stipulated conditions would be seen, by legislators and government who claim Islam, as an imperative to promote equality before the law and justice among humans. Nothing could be further from the reality.
Behind an Islamic discourse that minimizes the reality and rounds off the angles, and within the shadows of this “almost never”, lurks a somber reality where women and men are punished, beaten, stoned and executed in the name of hudûd while Muslim conscience the world over remains untouched.
It is as if one does not know, as though a minor violation is being done to the Islamic teachings. A still more grave injustice is that these penalties are applied almost exclusively to women and the poor, the doubly victimized, never to the wealthy, the powerful, or the oppressors. Furthermore, hundreds of prisoners have no access to anything that could even remotely be called defense counsel. Death sentences are decided and carried out against women, men and even minors (political prisoners, traffickers, delinquents, etc.) without ever given a chance to obtain legal counsel. In resigning ourselves to having a superficial relationship to the scriptural sources, we betray the message of justice of Islam.
The international community has an equally major and obvious responsibility to be involved in addressing the question of hudûd in the Muslim world. Thus far, the denunciations have been selective and calculated for the protection of geostrategic and economic interests. A poor country, in Africa or Asia, trying to apply the hudûd or the sharî’a will face the mobilization of international campaigns as we have seen recently. This is not the case with rich countries, the petromonarchies and those considered “allies”. Towards the latter, denunciations are made reluctantly, or not at all, despite ongoing and acknowledged applications of these penalties typically carried out against the poorest or weakest segments of society. The intensity of the denouncements is inversely proportional to the interests at stake. A further injustice!

The passion of the people, the fear of the ulamâ’



For those who travel within the Islamic world and interact with Muslims, an analysis imposes itself: everywhere, populations are demonstrating an increasing devotion to Islam and its teachings. This reality, although interesting in itself, could be troubling, and even dangerous when the nature of this devotion is so fervent, where there is no real knowledge or comprehension of the texts, where there is so little if any critical distance vis-à-vis the different scholarly interpretations, the necessary contextualization, the nature of the required conditions or, indeed the protection of the rights of the individual and the promotion of justice.

On the question of hudûd, one sometimes sees popular support hoping or exacting a literal and immediate application because the latter would guarantee henceforth the “Islamic” character of a society. In fact, it is not rare to hear Muslim women and men (educated or not, and more often of modest means) calling for a formal and strict application of the penal code (in their mind, the sharî’a) of which they themselves will often be the first victims. When one studies this phenomenon, two types of reasoning generally motivate these claims:
The literal and immediate application of the hudûd legally and socially provides a visible reference to Islam. The legislation, by its harshness, gives the feeling of fidelity to the Qur’anic injunctions that demands rigorous respect of the text. At the popular level, one can infer in the African, Arabic, Asian as well as Western countries, that the very nature of this harshness and intransigence of the application, gives an Islamic dimension to the popular psyche.
The opposition and condemnations by the West supplies, paradoxically, the popular feeling of fidelity to the Islamic teachings; a reasoning that is antithetical, simple and simplistic. The intense opposition of the West is sufficient proof of the authentic Islamic character of the literal application of hudûd. Some will persuade themselves by asserting that the West has long since lost its moral references and became so permissive that the harshness of the Islamic penal code which punishes behaviors judged immoral, is by antithesis, the true and only alternative “to Western decadence”.
These formalistic and binary reasoning are fundamentally dangerous for they claim and grant an Islamic quality to a legislation, not in what it promotes, protects and applies justice to, but more so because it sanctions harsh and visible punishment to certain behaviors and in stark contrast and opposition to the Western laws, which are perceived as morally permissive and without a reference to religion[3]. One sees today that communities or Muslim people satisfy themselves with this type of legitimacy to back a government or a party that calls for an application of the sharî’a narrowly understood as a literal and immediate application of corporal punishment, stoning and the death penalty.
When this type of popular passion takes hold, it is the first sign of a will to respond to various forms of frustration and humiliation by asserting an identity that perceives itself as Islamic (and anti-Western). Such an identity is not based on the comprehension of the objectives of the Islamic teachings (al maqâsid) or the different interpretations and conditions relating to the application of the hudûd.
Faced with this passion, many ulamâ’ remain prudent for the fear of losing their credibility with the masses. One can observe a psychological pressure exercised by this popular sentiment towards the judicial process of the ulamâ’, which normally should be independent so as to educate the population and propose alternatives. Today, an inverse phenomenon is revealing itself. The majority of the ulamâ’ are afraid to confront these popular and simplistic claims which lack knowledge, are passionate and binary, for fear of losing their status and being defined as having compromised too much, not been strict enough, too westernized or not Islamic enough.
The ulamâ’, who should be the guarantors of a deep reading of the texts, the guardians of fidelity to the objectives of justice and equality and of the critical analysis of conditions and social contexts, find themselves having to accept either a formalistic application (an immediate non-contextualized application), or a binary reasoning (less West is more Islam), or hide behind “almost never applicable” pronouncements which protects them but which does not provide real solutions to the daily injustices experienced by women and the poor.

An impossible status quo: our responsibility


The Islamic world is experiencing a very deep crisis the causes of which are multiple and sometimes contradictory. The political system of the Arab world is becoming more and more entrenched, references to Islam frequently instrumentalized, and public opinion is often muzzled or blindly passionate (to such a point as to accept, indeed even to call for, the most repressive interpretations and least just application of the “Islamic sharî’a” and hudûd).
In terms of the more circumscribed religious question, we can observe a crisis of authority accompanied by an absence of internal debate among the ulamâ’ in the diverse schools of thought and within Muslim societies. It becomes apparent that a variety of opinions, accepted in Islam, are whirling today within a chaotic framework leading to the coexistence of disparate and contradictory Islamic legal opinions each claiming to have more “Islamic character” than the other.
Faced with this legal chaos, the ordinary Muslim public is more appeased by “an appearance of fidelity”, then it is persuaded by opinions based on real knowledge and understanding of the governing Islamic principles and rules (ahkâm).
Let us look at the reality, as it exists. There is a today a quadruple crisis of closed and repressive political systems, religious authorities upholding contradictory juristic positions and unknowledgeable populations swept up in remaining faithful to the teachings of Islam through religious fervor than through true reflection. The crisis cannot legitimize our silence. We are accomplices and guilty when women and men are punished, stoned or executed in the name of a formal application of the scriptural sources.
It leaves the responsibility to the Muslims of the entire world. It is for them to rise to the challenge of remaining faithful to the message of Islam in the contemporary era; it is for them to denounce the failures and the betrayals being carried out by whatever authorities or any Muslim individual. A prophetic tradition reports: “Support your brother, whether he be unjust or victim of an injustice.” One of the Companions asked: “Messenger of God, I understand how to support someone that is a victim of injustice, but how can I support him who is unjust?” The Prophet (peace be upon him) responded: “Prevent him from being unjust, that is you support to him.”[4]
It thus becomes the responsibility of each ‘âlim (scholar), of each conscience, every woman and man, wherever they may be to speak up. Western Muslims either hide behind the argument that they are exempt from the application of the sharî’a or hudûd since they are “in a minority position”[5]. Their avoidance of the questions leaves a heavy and troubling silence. Or they express condemnation from afar without attempting to change the situation and influence the mentalities. These Muslim women and men who live in spaces of political freedom, who have access to education and knowledge, shoulder - in the very name of the Islamic teachings - have a major responsibility to attempt to reform the situation, open a relevant debate, condemn and put a end to injustices perpetrated in their name.

A call, some questions:

Taking into account all these considerations, we launch today a call for an immediate international moratorium on corporal punishment, stoning and the death penalty in all Muslim majority countries. Considering that the opinions of most scholars, regarding the comprehension of the texts and the application of hudûd, are neither explicit nor unanimous (indeed there is not even a clear majority), and bearing in mind that political systems and the state of the majority Muslim societies do not guarantee a just and equal treatment of individuals before the law, it is our moral obligation and religious responsibility to demand for the immediate suspension of the application of the hudûd which is inaccurately accepted as an application of “Islamic sharî’a”.
This call doubles itself with a series of basic questions addressed to the body of Islamic religious authorities of the world, whatever their tradition (sunnî or shî’î), their school of thought (hanâfî, mâlikî, ja’farî, etc.) or their tendencies (literalist, salafî, reformist, etc.) :
What are the texts (and what is their respective degrees of recognized authenticity), that make reference to corporal punishment, stoning and to the death penalty in the corpus of the Islamic scriptural sources circumscribed to what the specialists call the hudûd? Where are the margins of possible interpretations and on which points are there clear divergences (al ikhtilâf) in the history of the Islamic law and in the contemporary era?
What are the conditions (shurût) stipulated for each of the penalties by the sources themselves, the consensus of the scholars (al ijmâ’) or by individual scholars through Islamic law history and jurisprudence (fiqh)? Where are the divergences on the stipulations and what “extenuating circumstances” were sometimes elaborated by religious authorities throughout history or within the different schools of thought?
The socio-political context (al wâqi’) was always considered by the ulamâ’ as one of the conditions needed for the application of hudûd. The importance of this question is such that it demands special treatment (and participation within the debate from intellectuals, notably those who are specialized in the social sciences). In which context today is it possible to apply hudûd? What would be the required conditions in terms of political systems and the application of the general legislation: freedom of expression, equality before the law, public education, eradication of poverty and social exclusion? Which are, in this domain, the areas of divergence between the legal schools and the ulamâ’ and on what are these disagreements based?
Studying these questions are meant to clarify the terms of the debate with regards to the interpretative latitudes offered by the texts, while simultaneously taking into account the determining state of contemporary societies and their evolution. This intra-community reflection requires from the start a double understanding of the texts and contexts, in keeping solemnly with the objectives of the Islamic message. On the whole, this must allow us to respond to the questions of what is applicable (and according to which methods) and what is no longer applicable (considering the required conditions are impossible to reestablish as well as the fact that societal evolution is clearly moving away from the required ideal).
This undertaking requires, from within, rigour, time and establishing spaces of dialogue and debate, nationally and internationally, between the ulamâ’, Muslim intellectuals and inside the Muslim communities since this matter is not only about a relationship to the texts, but equally, to the context. In the interval, there can be no justification for applying penalties that sanction legal approximations and injustices such as is the case today[6]. A moratorium would impose and allow a basic debate to unfold in serenity, without using it as an excuse to manipulate Islam. All injustices made legal in the name of Islam must stop immediately.

Between the letter and objectives: fidelity

Some will understand this call as an instigation to disrespect the scriptural sources of Islam, thinking that to ask for a moratorium goes against the explicit texts of the Qu`ran and Sunna. Precisely the opposite is true: all the legal texts demand to be read in light of the objective intended to justify them (Al-maqâsid). Foremost among these objectives, we find stipulated that the protection of the integrity of the person (an- nafs) and the promotion of justice (al-’adl) are primordial. Therefore, a literal and non-contextualized application of hudûd, with no regard for strict and numerous stipulated conditions, and one which would present itself as being faithful to the teachings of Islam, is in fact a betrayal if according to the context, for it produces an injustice.
The caliph ‘Umar ibn al-Khattab established a moratorium towards thieves when he suspended the application of the punishment during a famine. Despite the Qur’anic text beingvery explicit on this, the state of the society meant it would have been an unjust literal application: they would have castigated poor people whose potential theft would have been for the sole purpose of surviving in a state of absolute poverty. Therefore, in the name of absolute justice demanded by the global message of Islam, ‘Umar ibn al-Khattab decided to suspend the application of a text: keeping with the literalist interpretation would have meant disloyalty and betrayal of the superior value of Islam that is justice. It is in the name of Islam and in the understanding of texts that he suspended the application of one of these injunctions. The moratorium finds here a precedent of the utmost importance.
Reflection and necessary reform within Muslim majority societies will not occur but from within. It is for Muslims to take up their responsibilities and set in motion a debate that opensan intra-community dialogue, while refusing the continued legalizedinjusticesin the name of Islam, i.e. in their name. An endogenous dynamic is imperative

This does not mean that the questions put forward by non-Muslim intellectuals or citizens should be dismissed. On the contrary, all parties must learn to decentre themselves and move towards listening to the other, to the other’s points of reference, logic and their aspiration. For Muslims, all queries, from their co-religionists or women and men who do share their religious conviction, are welcome. It is for us to make use of these questions as a spark of dynamism to our thoughts. This is how we can remain faithful to the justice demanded by Islam while taking into account also the demands of the contemporary era.


Conclusion



This call for an immediate moratorium on corporal punishment, stoning and the death penalty is demanding on many fronts. We are defining it as a call to consciousness of each individual so that she/he realizes that Islam is being used to degrade and subjugate women and men in certain Muslim majority societies in the midst of collusive silence and chaotic judicial opinions on the ground. This realization implies:

- A mobilization of ordinary Muslims throughout the world to call on their governments to place an immediate moratorium on the application of hudûd and for the opening of a vast intra-community debate (critical, reasonable and reasoned) between the ulamâ, the intellectuals, the leaders and the general population.

- Taking the ulamâ to account so that they at last dare to report the injustices and instrumentalization of Islam in the field of hudûd and, in the name of fidelity to the Islamic texts, to put out a call for an immediate moratorium emulating the example of ‘Umar ibn al-Khattab.

- Promoting education of Muslim populations so that they go beyond the mirage of the formalism and appearances. The application of the repressive interpretations, measures and punishment does not make a society more faithful to the Islamic teachings. It is more the capacity to promote social justice and the protection the integrity of every individual, woman or man, rich or poor, that determines a truly authentic fidelity. The priority, according to the norms of Islam, is given to the protection of rights not to administering punishments which are meant to be implemented under strict and conditioned exceptions.

- This movement for reform from within, by the Muslims and in the name of the message and reference texts of Islam, should never neglect listening to the surrounding world as well as to the inquiries that Islam raises in non-Muslim minds. Not to concede to responses from “the other”, from “the West”, but, in order to remain, in its mirror, more constructively faithful to oneself.

We urge all of those that take heed to this call to join us and make their voices heard for the immediate suspension of the application of hudûd in the Muslim world so that a real debate establishes itself on the question. We say that in the name of Islam, of its texts and of the message of justice, we can no longer accept that women and men undergo punishment and death while we remain utterly silent, as accomplices, through a process which is ultimately cowardly.

It is urgent that Muslim throughout the world refuse the formalist legitimization of the teachings of their religion and reconcile themselves with the deep message that invites towards spirituality, demands education, justice and the respect of pluralism. Societies will never reform themselves by repressive measures and punishment but more so by the engagement of each to establish civil society and the respect of popular will as well as a just legislation guaranteeing the equality of women and men, poor and rich before the law. It is urgent to set in motion a democratization movement that moves populations from the obsession of what the law is sanctioning to the claim of what it should protect: their conscience, their integrity, their liberty and their rights.


[1] A concept which literally means “limits”. In the specialized language of Muslim jurists, (fuqahâ’), this term is inclusive of the punishment which is revealed in the application of the Islamic Penal code. Sharî’a, literally ‘the way to the source” and a path to faithfulness, is a corpus of Islamic jurisprudence the in-depth definition of which is beyond the scope of this paper. Sharî’a has sadly been reduced to legalistic formulae of a penal code in the minds of many, Muslims and non-Muslim alike
[2] Prophetic tradition: texts which report what the Prophet of Islam (peace be upon him) did, said or approved of during his lifetime.
[3] In Muslim countries, laws that we see as being “ borrowed from the west “ are often interpreted as tools by dictatorial governments to mislead and legitimize their autocratic character, and more importantly, to promote a westernized culture and morals.
[4] Hadîth reported by al-Bukhârî and Muslim.
[5] The argument is weak and dangerous as it tacitly accepts the application of hudûd within today’s societal context as “ Islamic “
[6] If ever in doubt, all circumstances require the benefit of the doubt towards the accused according to a legal universal principle (acknowledged from the start by the tradition of Islamic jurisprudence)

[shaad]

Pelham, I appreciate your posting of Tariq Ramadan's essay (and I think it's a shame that the US refused to give him a visa for taking up a faculty position at Notre Dame); however, I was not certain whether you were aware that our legal code in Bangladesh, similar to that in most Commonwealth nations, is based on English common law, and not on Shari'a. This is not to say that Shari'a has not had some influence on our legal code (e.g. in issues of inheritance, where sons can inherit more than daughters, or in the case of multiple wives), but to point out that sentences like stoning for adultery, lashing for fornication, the lopping off of a forearm for theft, are not allowed or legal in Bangladesh. Capital punishment is indeed present, but that too came over with English common law, and is not derived from Shari'a in Bangladesh.

Now, there are occasionally instances where some village mullah might take it upon himself to dictate a "fatwa" as sentence. However, these are not part of our legal code, and mullahs who declare such fatwas are generally prosecuted, particularly if their prescribed "sentence" is carried out.

Let me reiterate that I do not mean to suggest that you should not have posted this article -- I think it is a discussion well worth having in any Muslim society. I merely wanted to point out though, that of the three major legal codes prevalent in the world, viz. civil law, common law, and religious law, it is the largely secular common law that is practised in Bangladesh.

[P.Warner]

My Dear Shaad,

Thank you for your comment. I was indeed made aware by my Bangladesi friend Rob of the legal system. I thought the article might be of some interest as it raises some liberal aspects of islam, especially, with regards to the interpretation that might be useful for a discussion here. I was interested in the views of Bangladeshi muslims and non-muslims with regards to the legal system and shariya law.

Interestingly, being a great admirer of the subcontinental cuisine, I eat in a lot of Indian restaurants which are by and large owned, and operated by Bangladeshi families. So often I have had discussions with the young waiting staff on various matters, a lot of whom happen to be very intelligent university or A-Level students, to do with their home country, religion, cricket, politics, albeit, not in that order that I find it fascinating to come back to this forum and see what the young people here think of these various issues.

Lastly, while I do not seek plaudits or praise, the number of second and third generation Bangladeshi's I have mentioned this forum to should get you a few new members! I know that the young gentleman from Cardiff whom I recently met at a conference on comparative religion was most interested in finding out more about this forum and might even join.

[billah]

Vlad mamu, you ain't foolin' anyone.

Wait 'til Vlad-bou finds out about this....

[P.Warner]

Dear Billah,

Who is this Vlad character? Seems very much like a Russian name to me. Is this perhaps a Bangladeshi expat living in Russia or maybe an indigenous Russian posting in this forum? The latter would truly make this an international forum.

[BanCricFan]

P.Warner and Shaad,

Sharia in its entirity and not just one aspect of it, i.e, Hudud or corporal punishment -what do you make out of it?

I'm of the opinion that Sharia -par excellence- is what we need so dearly in this world of ours to change our obvious spiritual and social plight! I'm not inferring to the "pop" Sharia of amputation, stoning and death penalty here but rather the one of "the way to the source".

I'm interested to know your views and understanding on this matter. thanks.

[BanCricFan]

I do concur with Tariq Ramadan's conclusion. I think, Sheikh Hamza Yusuf Hanson also share the same opinion.

[shaad]

Originally Posted by P.Warner
Who is this Vlad character? Seems very much like a Russian name to me. Is this perhaps a Bangladeshi expat living in Russia or maybe an indigenous Russian posting in this forum? The latter would truly make this an international forum.

Sometime ago we had a Czech- or Polish-American (I think) chap, married to a Bangladeshi woman, who would post here frequently as a means of becoming familiar with Bangladeshi culture. He was a rather voluble fellow, and we enjoyed his digressions, but as he was going through college at the same time, and posting here took up considerable time that could be better spent, his wife was finally forced to forbid him from coming to this forum.

I don't think most members seriously confuse you with Vlad; it's largely a nostalgic in-joke.

[Hatebreed]

Actually I think Vlad is Czech-Canadian.

[shaad]

Originally Posted by BanCricFan
P.Warner and Shaad,

Sharia in its entirity and not just one aspect of it, i.e, Hudud or corporal punishment -what do you make out of it?

I'm of the opinion that Sharia -par excellence- is what we need so dearly in this world of ours to change our obvious spiritual and social plight! I'm not inferring to the "pop" Sharia of amputation, stoning and death penalty here but rather the one of "the way to the source".

I'm interested to know your views and understanding on this matter. thanks.

BanCricFan, my view is that most "revealed" religions and the proscription/legal codes derived from them were, at the time of the revelations and shortly afterwards, generally superior to what was prevalent then in society. That generally explains why these religions gained many converts in the initial phase. For instance, Islam forbade infanticide, and in a culture where women had hardly any rights, allowed them to offer testimony and inherit wealth.

The problem lies in the fact that most religion-derived legal codes tend to become fossilized, i.e. society continues to evolve, but the legal code itself doesn't. Why? Well, in the case of Islam, there are several historical reasons (e.g. supplanting of the Mu'tazilah school of Islamic philosophy by the Ash'ari school), but one aspect of it is the notion by many believers, that the revealed religion and thus the legal code derived from it is perfect by definition, and needs no further improvement (the aforementiond example I used, the lot of women, is illustrative: while at the time of its establishment, Islamic jurisprudence improved the situation of women; I think very few of us, in this day and age, would consider women's testimony being worth less than that of a man, or a daughter inheriting less than a son, to be truly fair). Now I am not saying that there is no room in Shari'a/Hudud for dissension/critique/"improvements" (the mechanisms for these are built-in); however, as Tariq Ramadan points out, there are cultural forces that prevent them from coming to pass.

As such, I have no issues with an idealized form of Shari'a/Hudud. Personally, I don't believe it would be qualitatively different from an idealized form of either civil law or common law. Realistically though, given the vested interests and cultural forces, I don't believe it is possible to implement Shari'a/Hudud in a manner that is fair, just and equitable for everyone. I believe that either civil law or common law, with all the flaws in their current manifestations, being largely divorced from religion and religious expectations, is generally more fair and impartial than any present implementation of Sharia/Hudud or other religious codes (e.g. Rabbinical law).

[BanCricFan]

Shaad,

Thanks for sharing your views. Since you have put inverted commas on "revealed religion" I'll take the liberty to assume that you dont subscribe to any of the "Abrahamic faihs" or any religion for that matter. Therefore, your views regarding Sharia comes from an academic or a secular perspective. Please correct me if I'm wrong.

"The problem lies in the fact that most religion-derived legal codes tend to become fossilized, i.e. society continues to evolve, but the legal code itself doesn't." -I would disagree with you here. Certainly, Sharia derived legal codes are not in danger of being fossilized/obselete or not evolving. Although, you might get this impression by observing the poor state of affairs in the current "Islamic" worlds.

On the other hand, if you study "usul al-fiqh" or Principles of Islamic jurisprudence you will find that not only it allows but insists that most secondery "legal codes/Qanoon/canon" must evolve according to the needs of time and circumstances. In short, the Sharia laws are based on the idea of continuation (refinement) and not stagnation. Philosophers like August Comte, Goethe were well aware of this. One of the new additions to "usul al-fiqh" is "usul al-aqalliat" or Jurisprudence of the minority. This is very relevant and much needed for those millions of muslim living as minority in various countries.

By the way, did you know that, in essence, ninty percent of French "code civil" or "code Napoleon" is based/modelled on Islamic Maliki School of Law or that most part of the English "civil law" are still based on Christian law?

"... (the aforementiond example I used, the lot of women, is illustrative: while at the time of its establishment, Islamic jurisprudence improved the situation of women; I think very few of us, in this day and age, would consider women's testimony being worth less than that of a man, or a daughter inheriting less than a son, to be truly fair).

Unfortunately, your understanding on this matter is very much flawed. First of all, the requirement of two female witnesses are not because they worth less than man. Same again with daughter inheriting less than a son. There are sociological reasons behind this from an Islamic perspective. I cannot afford to go on a lengthy discourse on this matter here. I suggest you do a research or read extensively on these matters before drawing any premature or hasty conclusions. Suffice is to quote a verse from the Quran here,"women are like garment unto men and men are like garment unto women". I will add a few prophetic traditions also, " It is incumbent upon every believing man and woman to seek knowledge", "Paradise lies at the feet of your mother", "Your mother is most worthy of your companionship".

[shaad]

BanCricFan,

You are quite welcome.

The quotes on revealed religion are there to distinguish it from religions developed by well, accretion (say voudou, for example). However, I won't deny that I look at Shari'a from an academic perspective. I am a practising scientist and an academic; not examining issues from that perspective would be hypocritical of me.

Given that, I have to proceed based on what I see, not some idealized hopes or expectations. You say:

Certainly, Sharia derived legal codes are not in danger of being fossilized/obselete or not evolving. Although, you might get this impression by observing the poor state of affairs in the current "Islamic" worlds.

My response is that unless I see the status quo changing (and it does not appear to be), my impression seems to be the realist position.

And with all due respect, I have actually studied several aspects of Muslim jursiprudence and Muslim philosophy, albeit from an "academic" perspective. You fail to note that in my previous posting on this thread I said:

Now I am not saying that there is no room in Shari'a/Hudud for dissension/critique/"improvements" (the mechanisms for these are built-in); however, as Tariq Ramadan points out, there are cultural forces that prevent them from coming to pass.

In other words, I already said that there was a mechanism for "improving" (quotes here because people can disagree about what constitutes improvement) Shari'a/Hudud; I merely point out that it simply isn't being used in any significant manner, thus leaving the legal code, in my opinion, fossilized.

I am quite aware of the pernicious influence of religious codes on the origins of both civil law and common law (e.g. divorce statutes in Ireland, bigamy/polygamy statutes in the US, the brouhaha about gay marriage in the US, etc.). However, the common perception of both common law and civil law is that they are secular/divorced from religion, thus making them more amenable to changes that evolve with culture, without the fear of coming up against some (pardon the cliche) sacred cows.

BanCricFan, I have read many of the arguments presented as rationales for why women's testimony or share of the inheritance is less than that of a man, and yes, many of these arguments were based on what you describe as sociological reasoning from an Islamic perspective. I am afraid I did not find them at all convincing.

Now, you are welcome to continue asserting that my "understanding on this matter is very much flawed." But that carries a faint whiff of an argument from authority, wouldn't you agree? If you have the time, why don't you explain to us why a woman's testimony should be worth less than that of a man, or her inheritance portion smaller?

Please realize that I am not attacking your faith or beliefs. I believe we disagree on whether Shari'a/Hudud can be implemented today in a realistic manner to combat the world's ills. I believe further that this is an issue that we can discuss rationally on this thread without it degenerating into what some members would call Islam-bashing.

[ammark]

Originally Posted by BanCricFan
"The problem lies in the fact that most religion-derived legal codes tend to become fossilized, i.e. society continues to evolve, but the legal code itself doesn't." -I would disagree with you here. Certainly, Sharia derived legal codes are not in danger of being fossilized/obselete or not evolving. Although, you might get this impression by observing the poor state of affairs in the current "Islamic" worlds.

On the other hand, if you study "usul al-fiqh" or Principles of Islamic jurisprudence you will find that not only it allows but insists that most secondery "legal codes/Qanoon/canon" must evolve according to the needs of time and circumstances. In short, the Sharia laws are based on the idea of continuation (refinement) and not stagnation. Philosophers like August Comte, Goethe were well aware of this. One of the new additions to "usul al-fiqh" is "usul al-aqalliat" or Jurisprudence of the minority. This is very relevant and much needed for those millions of muslim living as minority in various countries.

BanCricFan, maybe my quoting of your words may seem out of context, but I find a general contradiction when you say the above - which I understand as: definitely Islamic Shariah can evolve and adapt...

and:

First of all, the requirement of two female witnesses are not because they worth less than man. Same again with daughter inheriting less than a son. There are sociological reasons behind this from an Islamic perspective.

Would you please care to elaborate and clarify on the stream of thought? I have a confused picture in my mind - ie. where societies and norms in the Islamic world are evolving and changing, but the laws, or their strict appliance is proving anathemic to this evolution.

If at all you say there's room for evolution of Islamic Shariah, then why cant there be a "equally distributive" stand to (as in our example) women's inheritance in some Muslim majority societies and countries - where such standards of near-perfect equality have transplanted, or changed from previous sociological circumstances? as in Mr. Warner's topic... the same sort of evolution to "secular ideas of leniency" for Corporal Punishment?

[P.Warner]

Sir,
The main thrust of Ramadin's argument was based on 'creating the necessary conditions' to impose shariya law. He argued that since the countires practising shariya law were not based on a true islamic model, the likes of Saudi Arabia, the ex taliban regime et all would have been unjustified in implementing these brutal punishments. The second important part of his argument is based on a humanistic level of unjustly punishing the poor and those who have less in life.

While he does not state this in this particular article but on the opening chapter of his book 'European Muslim' Ramadin offers a detailed study of Islamic scholarship and its history and suggests that based on geo-political needs the ulema and sometimes their political masters had interpreted the quran and hadith to transmute a version of the shariya that might have fitted the conditions of 7th or 8th century greater Arabia but those conditions have changed so there must be a more thoughtful and scholastic interpretation of scriptures to implement Islam. The tenet is that Islam is timeless but the geo-political interpretations of it based on 13 hundred year old circumstances tarnish the image of this peaceful system of thought.

[BanCricFan]

Shaad,

My argument here is not an argument from authority. At least, its not meant to be. The playing field is level, indeed! Just like you find muslim rationales dealing with "percieved disparity" pertaining to inheritance and female witnesses unconvincing; I find your simple assumption that "women worth less than men" in Islamic jurisprudence erroneous. I think, we both are entitled to speak our minds.

If it suits you, first, I would like to hear from you about the unconvincing rationales put forward to you regarding this "gender bias". This way, I won't bore you or waste your time if I happened to share the same rationales.

I hope this proves to be a fruitfull discussion and don't worry, I'm not easily offended and don't take sincere constructive criticisms as attacks on me or on my faith.

[Sohel]

great thread. thanks p. warner, i hope your erudition opens a door or two here. sadly, islam as culture often mitigates islam as the intellectual deen it's ought to be. it terrifies me to see fellow muslims separating rituals from intent, being unkind to themselves and others, either transgressing themselves or tolerating transgressions, and are being led to silencing other voices in islam... there is no priesthood in islam as there can be no intermediary between Allah and the individual's salvation. the quadiyaat seeks to deter activities that can destroy social equilibrium through examplary punishment. one is always free to do what he wishes in private, and inevitably pay for it later.

[Sohel]

Originally Posted by Hatebreed
Actually I think Vlad is Czech-Canadian.

how many did he impale here in this forum?

[jabbar]

Originally Posted by shaad
Sometime ago we had a Czech- or Polish-American (I think) chap, married to a Bangladeshi woman, who would post here frequently as a means of becoming familiar with Bangladeshi culture. He was a rather voluble fellow, and we enjoyed his digressions, but as he was going through college at the same time, and posting here took up considerable time that could be better spent, his wife was finally forced to forbid him from coming to this forum.

I don't think most members seriously confuse you with Vlad; it's largely a nostalgic in-joke.

We miss Vlad aka white guy aka socrates....

Vlad, if you'r listening, please come back! We miss your ramblings!

[P.Warner]

Originally Posted by Sohel NR
great thread. thanks p. warner, i hope your erudition opens a door or two here. sadly, islam as culture often mitigates islam as the intellectual deen it's ought to be. it terrifies me to see fellow muslims separating rituals from intent, being unkind to themselves and others, either transgressing themselves or tolerating transgressions, and are being led to silencing other voices in islam... there is no priesthood in islam as there can be no intermediary between Allah and the individual's salvation. the quadiyaat seeks to deter activities that can destroy social equilibrium through examplary punishment. one is always free to do what he wishes in private, and inevitably pay for it later.

Dear Sohel,

Thank you very much for your kind words.

I think it would be fair to tell you the background to my readings on Islam. My knowledge of Islam is not based on rituals and daily practise that most folks here would come to know it from. I do believe that the rituals give one an added advantage towards achieving faith which a rationaliser like myself does not have the advantage of. In my earlier years I spent two years in the academic study of Classical Arabic. Please note that this was not a Madasa based tuition. We followed a 1963 'Teach yourself Islamic Grammar' text by R.S. Tritton. Since the Quran is by far the easiest to follow text (no disrespect intended) when learning classical Arabic, we basically used many of the shorter suras in our translations. I also remember using Ibn Issaq's biography of Muhammad (the first biography of the prophet) as an aid because there was a very good translation of it by Guillaume. Like latin, classical arabic is a dead language that can only be accessed through texts now. Modern arabic is quite different from classical Arabic although if you have a knowledge of classical arabic you might find it an easier route to modern arabic.

Classical Arabic aside, my early study of the Quran and what I know of Islam is through a study of comparative religion. I took some interest in studying Tabari as his completed hadith collection was in the library I had access too. This was of course an English translation but anyone interested in genealogy and the process of transmission (known in Islam as Isnad), Tabari is a minefield of information that is very well presented. I also spent some years concentrating on pre-Islamic Arabia and presented a few academic papers on this subject some years ago. This is the period known as Jahilliya in Quran. The sources I used for this were the Greek and latin sources as well as a study of the graffitti left all over Arabia. The scripts used were anything from Thamudic, Safayitic, Lihayanite and at first might appear daunting, but much of this has been translated and gives a very distinct impression of what life would have been like in Arabia. If I remember correctly, one of the papers I presented at a BASR conference (British association of the study of religion) was entitled, 'Muruwwa & Din, a study of religiosity in the pre-Islamic Arab'.

I would like to pick up on a comment you made about religion being seen as part of a culture. Ramadin, from my understanding of his books finds this the chief source of all problems. He sees the rituals and practises of Islam in the Magrib (North Africa), Middle East and South Asia as having taken on specific geographical traits. He even thinks of these as bad habbits! The solution for him is to globalise Islam, particularly in the West, to create a European Islam that is different from Bangladeshi, Pakistani, Somali or Iraqi Islam, and that this new form should reinterpret only the Quran and the well documented sunna based on a modern day context. He basically feels that this new interpretation would be different from what the ullema living in South Asian countries had interpreted it as and would also go a long way towards fighting the fanatical Islamic terrorism.

On the surface I see this as a wonderful solution. However, my main problem is that ramadin denigrates the part played by the ethnic cultures that has shaped the lives of second and third generation muslims. So to embrace this unified and re-interpreted Islam one would have to forget specific Bangladeshi ways that got into the practise of Islam. I see these ethnic ways as being very important to our being. Multiculturalism might have its problems but I don't think that trying to clean the Indian, pakistani or Bangladeshi identity from a second generation muslim in the west and for that matter the youngsters like yourself from these countries to contain enough substance to maintain the social bonds. So I am personally of the view that new interpretations of Islam is needed where a through study of the Quran and sunna is essential for the young muslim, however, this should be done without forgetting the cultural roots of the muslim. With this in mind I think Yusuf Islam should not deny his white identity and try to be an Arabic Muslim. He should try to be a British muslim and contribute to Islam (since that is his wish) in a very British way.

[Sohel]

P. Warner - extremely well put as always. elements within my family, both politically and in terms of our way of being, have been at loggerheads with the wahabi movement in all of its forms for as long as their vocal presence in south asia... i see exactly where you're coming from brother.

you must be familiar with muhammad asad's translation of the Qur-aan (The Message of THE QUR-AAN, dar al-andalus, gibralter), any comments on his approach to Qur-aanic arabic, especially with regards to the inherent ellipticisms of the language? ... i have the forward in mind.

here's a little something from my blog: -

http://snr1967.blogspot.com/2007/04/...ms-on-net.html

[P.Warner]

Dear Sohel,

This is a very sort reply. I wasn't familiar with Mr Asad's translations. However, I notice that it is freely available online at http://www.geocities.com/masad02/

Please allow me some time to study this and come back to you with my thoughts. I moved house last year which necessitated a smaller study. I had given away most of my older Arabic texts, including the Quran and a few commentaries to a Pakistani friend of mine who wanted them for his young children.

I must also say that your classical arabic skills are likely to be much better than mine since it appears that you consult arabic texts much. These days, I only speak from memory when it comes to direct references to the Quran or the Hadith. Any formal reference would require these old legs to cycle up a hill to the local University Library!

Just a short comment on Wahabism since you have raised it. I find Wahabism and the Salafi movement very interesting as a outsider. I would certainly be interested to know your personal reasonings behind disliking Wahabism.

As something of a religious anthropologist I can see why a return to the basics can appear to be so attractive in today's society. For the first time in 300 years there are more Roman Catholics in Britain. Of course, some of it is due to the recent migrations by Eastern Europeans, however, a lot of secular christians have felt attracted to Roman Catholicism in the recent decades as it seem to have much simpler answers to complex questions like female priesthood, homesexuality and postmodernism in general. I wonder if the same logic is true for young muslims attacted to the Salafi movement as well.

[Hatebreed]

Originally Posted by Sohel NR
how many did he impale here in this forum?

How many what?

[P.Warner]

Another short reply to Sohel; I had a very quick look at your blogs. It is most interesting and shall definitely read it later this evening. You might like to look at a book called 'Hagarism' by Patricia Crone. Crone was a new breed of scholar before Islamophobia swept the west. Her book on Caliphal authority in the first centuries of Islam as well as the old spice trade route was groundbreaking scholarship on Arabia when it first came out.

[Sohel]

Originally Posted by Hatebreed
How many what?

of US, posters.

[Sohel]

Originally Posted by P.Warner
Another short reply to Sohel; I had a very quick look at your blogs. It is most interesting and shall definitely read it later this evening. You might like to look at a book called 'Hagarism' by Patricia Crone. Crone was a new breed of scholar before Islamophobia swept the west. Her book on Caliphal authority in the first centuries of Islam as well as the old spice trade route was groundbreaking scholarship on Arabia when it first came out.

i'll look into ms. crone's work. thanks, P. Warner.

the relatively short blurb on wahabism as practiced in talebani afghanistan, south and southeast asia: i don't have that much of a problem with the saudi ruling class money that funds the various movements, despite the fact that the saudis are one of the most oppressive, reactionary regimes in the islamic world. i don't have a problem with the voodoo either. they can foster a fundamentally anti-islamic cult of personality, and create cults that recruit members to program them into believing that everything will be just fine if we manage to decontextualize and recreate a subjectively percieved way of life from fourteen centuries ago. i do have a major problem with the intellectual and physical violence with which they tend to anoint themselves the only purveyors of God's truth, and impose themselves upon man's personal relationship with God. they don't want to see the inherent indignity in speaking for others, especially as fellow muslims, and feel free to exercise unilateral power over others without the possibility of a role reversal - all in the name of "your own good". then there's also the infallibility of their particular view of things, silencing other voices in islam while propagating their own dogma often through coercion and violence. islam prohibits priesthood and impositions, the wahabis don't seem to get that. according to some of the less esoteric works of wilhelm reich - the wahabis are bound get stuck with the jewish element here, sniffing in bogus conspiracies and laughable conjectures to try and win an argument - fascism is an emotional/biochemical/neurological disorder that no matter how well the fascist manages to theorize about, or how interesting the mask that conceals his true face maybe, and whatever he chooses to call himself, is nothing but the tragic will to lash out at the abstracted, demonized world he blames for his personal shortcomings. it is always easier to blame the world. it is harder to take that hard look in the mirror, shed that mask, forgive oneself, and expiate by being kind and just to one's fellow man and the world he lives in. hence we have laden, the tamil tiger suicide bombers in sri lanka, and the loner from virginia tech on one hand, and ayatollah rafshanjani, HE the dalai lama, and my cousin tanzeen serving the community in oakland in between classes...