Editorial
Islamic Law: Questions no one will ask
by Paul Stenhouse, M.S.C., Ph.D
The sentence of death for 'blasphemy' passed on writer Salman Rushdie by
the late Ayatollah Khomeini, and after the latter's death ratified by various
Islamic spokesmen, was handed down in accordance with the Shari'a or
Islamic Law.
When, last November, in England, a 'devout' Muslim Abdul Malik sawed
through his daughter Pharbin's throat when she refused to stop attending
meetings of the Jehovah's Witnesses, or to say 'Allah' or recite a Muslim
prayer, he did so, according to his lawyer, 'because he is a Moslem and his
daughter was planning to become a Christian'. Abdul Malik has pleaded not
guilty to murder.
Both incidents touch on a number of legal and cultural matters of which
Australians interested in the implementation of present policies of
multi-culturalism in this country, should be aware.
Islamic Law
Among important issues raised by the Rushdie sentencing, and the growing
influence of Islamic law in democratic countries, one notes the 'right'
claimed by an Islamic official in Iran to judge 'in absentia', find guilty and
sentence to death the citizen of a non-Islamic sovereign country — Great
Britain.
Islamic Law, the Shari'a, the law according to which 'devout' Muslims in
Australia and elsewhere live, consists, on the one hand, of the Koran — the
'recitation' allegedly transmitted to Muhammad by God through an angel from
612 to 632 AD and written down in the form of 114 Suras or chapters
made up, in toto, of 6,200 verses (the most ancient text of the Koran
dates from 776 AD); and, on the other hand, of the Sunna or 'conduit'
containing what are variously estimated to be from 100,000 to 750,000
Hadith of 'sayings' of the prophet dating from around 855 AD.
There are four basic pillars of Islam. In addition to the Koran, and
the Sunna, there is the ljma (or consent of the Mujtahidun or
learned men), and the Kiyas (legal prescriptions deduced from the Koran
and the Sunna).
Had some jurists had their way, the Jihad or 'holy war' would have been the
fifth 'rukn' or pillar of Islam. As it is, it is a strict religious duty. Only
the descendants of the Kharidjis (one of the earliest sects of Islam)
regard it as a 'rukn' on the same level as the Koran itself.
Blasphemy in Islam
For Muslims 'blasphemy' is regarded as the embodiment and fruit of
unbelief. The very word for blasphemy 'zandaka' comes from a word that means
'to be a freethinker' and therefore an 'atheist'.
Rushdie joins three famous 'zanadika of Islam', in being condemned because
of the perceived danger that his words (and ideas) posed to the Muslim 'Umma'
or 'community'.
Over the years Islamic theorists have made 'zandaka' (a crime punished with
death by the prophet himself) an intellectual crime, insulting to the
prophet's honour and doubly meriting death.
Text of a talk given on September 12 to the Australian Academy of
Forensic
Sciences, Sydney. See p.29 of this issue for a discussion
of the background to the
war in Lebanon.
In practice, a 'zindik' or free-thinker among Muslims is defined by Islamic
theorists as any one whose external adherence to Islam 'seems to them not
sufficiently sincere'. 1
In 841, for example, in Cordova in Spain, Yahya bin Zakariya al-Khashshab,
the nephew of a favourite concubine of the Caliph Hakarn I was put to death
for an impulsive and injudicious comment passed about the prophet. His aunt's
pleas for mercy could not move the Caliph's resolve to punish the blasphemy
according to the Shari'a.
The author of 'The Satanic Verses', unlike his Cordovan predecessor, can't
plead that his words were impulsive, even if they be held injudicious.
Blasphemy (also called 'kufr' from 'kafara' to be irreligious) includes any
denial of what are regarded as essential principles of Islam — the 'arkan'
referred to above. Non-Muslims are called 'kafirun' or 'unbelievers' because
they do not accept the Shari'a.
Paramount among blasphemers is the one who 'turns back', the 'apostate' who
renounces Islam. Varying traditions in Islam call for the 'murtadd' or
apostate to be beheaded, crucified or burned to death.
According to the Shari'a the world is divided into dar al-harb (the
city of war) and dar al-islam (the city of Islam). The latter is that
area which is already actually governed according to the Shari'a. The city of
war (which includes Australia, along with most European and Asian countries)
is 'that which is not, but which, actually or potentially, is a seat of war
for Muslims until by conquest it is turned into 'Abode of Islam'. 2
The 'jihad' or holy war is the means to be used to turn the 'city of war'
into a 'city of Islam' and theoretically the Muslim 'Umma' is in a constant
state of warfare with the non-Muslim world.
The spread of Islam by force of arms, or failing that, by financial or
propaganda means, is a duty upon all Muslims. The Koran implies continual and
unprovoked war 'against the unbelieving world' until it be subdued to Islam.
It is a 'Fard ala al-Kifaya' or 'collective duty' incumbent on adult, male
Muslims, and must continue to be waged until the whole world is under the rule
of Islam. It must be controlled or headed by a Muslim Sovereign or Imam.
3
Civil Law and Islamic Law
In the light of the above, one may well ask whether there is any point at
which Islamic law and democratic ideals meet.
There are some modern writers who would have us believe that Islam is
essentially democratic 4 but such a judgement passes muster only if
traditional Islamic concepts are totally re-defined in secular Western terms.
Throughout the Islamic world, from the time of Muhammad to the present day,
the most brutal despotism and the most absolute arbitrariness have reigned in
the name of Allah and his Shari'a.
Exceptions have undoubtedly occurred from time to time, and constitutional
and democratic sentiments have been expressed notably when capable and wise
regimes have been able to contain the opposite currents.
However, in principle it must be said that the lack of legal and
social infrastructures (for want of a better word) interposed between Allah
and his Shari'a on the one hand, and human beings on the other, make democracy
as it is generally understood, impossible in practice; and when it appears to
exist, illusory.
Islam makes no provision for autonomous powers. The mighty Power of God,
passed down (delegated) to his spokesman, the successor of the prophet, cannot
support the existence or exercise of any other power, derived from any other
source than from God. To recognize any other such autonomous power
(constitutional, legal, presidential, parliamentary, etc) on earth is
polytheism and unbelief (shirk), and punishable with death.
Since for Islam terrestrial and heavenly spheres are not well
differentiated one from the other, it follows that the government of both
follows similar lines. The Caliph exercises 'delegated' power from God
(tafwid, taklid) and those to whom he delegates power are merely
executors of the absolute theocratic power.
Neither caliph nor king nor president nor parliament has legislative power.
Allah grants to no human being the right to modify or amend his Law — the
Shari'a. Naturally, understanding the Shari'a takes some effort and this
results in prescriptions being promulgated by various authorities, but within
Islam, legislation properly so-called does not exist and never did.
In Islamic Law there is no such thing as a 'juridical person'. What
westerners may call 'corporations' Islamic law views as a number of
individuals who call themselves, for the sake of convenience, a 'society'
(Shirka) but who are linked by mere commitments entered into among
themselves and towards third parties.
The only jurisdiction recognized in Islam belongs to Allah. Tribunals,
courts etc. set up in Muslim countries are tribunals in name only: being set
up after the western model, and possibly to satisfy western demands.
In Islamic law there cannot be councils, commissions, tribunals,
municipalities, or any kind of corporations that claim the right to exercise
legal or administrative power other than in a delegated fashion from the
Shari'a. A fortiori there can be no opposition parties.
The same principle explains why there is no organised, corporate Islamic
'Church'. Such institutions would be intolerable and offensive in the
theocratic legal system that is Islam.
The only human community that Islam recognises is that of the community of
believers — the 'Umma'.
"Precisely in those countries where Christians and Muslims
live
side by side, it is most difficult to induce the Muslim
masses
to accept any measures of real democratization."
- Pierre
Rondot "Islam Christianity and the Modern State"
in Middle Eastern
Affairs, Vol V, No. 11, November 1954, p.342.
This is not to say that the history of Islam is not full of groups of a
social, religious or political nature — but orthodox Islam has always reacted
more or less violently against such attempts to set up such autonomous or
semi-autonomous bodies.
The great Muslim historian lbn Khaldun shows 5 that he was aware
that there were other systems (Christianity and Judaism) where religion and
politics were not inextricably linked as in Islam. He explains this aberration
in terms of the fact that Christianity and Judaism had no divine obligation to
make all peoples submit by force to their authority — as is the case with
Islam.
Human Rights in Islam
In the light of the above, it will be seen that 'freedom of speech',
'freedom of conscience', 'freedom of association', and all the other freedoms
to which we have grown accustomed in democratic countries are theoretically
meaningless in the context of Islam.
Within the limits of the four pillars of Islam, one may express opinions:
to move outside those parameters is to 'blaspheme' and become an 'unbeliever',
or 'apostate' ('murtadd').
Muhammad, in three places in the Koran (Suras 4,45; 5,51; 5,57) warns
'believers' not to make friends with 'infidels' and defines infidels (5,72) as
including those who say that 'the Christ' the Son of Mary, is God'.
Christians or Jews (people of the Book) who live in an Islamic society
without converting to Islam are called 'Dhimmi' or 'tolerated persons'. They
are only allowed to practice their religion within clearly defined limits
(churches or synagogues may be repaired, new ones may not be built; they may
not proselytise or have processions, or ring bells, etc). For this 'right'
they must pay a special tax called a 'jizya' which varies according to
their means. If they own land or plant crops they have to pay a special land
and crop tax — 'kharadj'.
Dhimmi cannot give evidence against Muslims; they must pay a special tax
for the maintenance of Muslims armies, must not be indistinguishable from
believers by their dress. They suffer certain disabilities under criminal law
and in marriage. Their life must always be quiet, inoffensive and they can
never become citizens of a Muslim 'Umma'. Each non-Muslim community is
self-governing under a bishop or rabbi who is its link to the Islamic
authority.
Unbelievers have no rights 'per se'. They have rights only insofar as the
appropriate Islamic authority grants them; they may be taken away at the will
of the ruler.
Some practical consequences
In a community where religion and politics are so closely related,
relationships with non-Islamic democracies bristle with complex problems.
If Muslims demand that they be allowed time off on Fridays to worship,
citing the Shari'a as their authority, what should be the attitude of the host
country which observes Saturday and Sunday as days of rest?
What should be the response of democratic societies when Muslims, again
quoting the Shari'a, refuse to allow their daughters to study music or to play
sport in school, or any of their children to go to school on Fridays, or
insist that they be allowed time off work to turn to Mecca and pray each day,
or refuse to allow their daughters to sit in classrooms with boys, or insist
that their wives and daughters be veiled?
Social workers in Australia know of instances of Muslim men who practice
polygamy as allowed by Islamic law: the so-called 'Koranic marriage'. Details
of these marriages are never sent in to the office of the Registrar General
either by the couple concerned, or the Sheikh who performs them. As this
violates Australian law, what response does society make both to these men and
to the Islamic officials who 'marry' them?
When Muslim Sheikhs or Imams are invited to official state functions, and
they refuse to attend if alcohol is served, on the grounds that alcohol is
forbidden by the Shari'a, should all those attending be denied alcohol to
satisfy the demands of the Muslims, or should the Muslims simply be offered an
alternative, non-alcoholic drink? How would the authorities react if their
'guests' demanded that all the non-Muslim women present be veiled, or be
excluded altogether from the function, again on the grounds that this is
required by the Shari'a?
The Shari'a or Islamic Law is a parallel system of 'law' to that currently
prevailing in Australia. It is not like some Catholic 'Canon law' or the
decisions of the Lambeth Conference of the Church of England, or the Jewish
Beth Din which while they touch on matters that have social, political and
cultural consequences, are formulated with a clear notion of the distinction
between the civil and religious realms.
A Palestinian Muslim patriot now long dead, Musa al-Alami, once expressed
his fear to Israeli Prime Minister Ben Gurion that there might be a danger
that the Bible, the source of inspiration for Zionism, could turn into a sort
of constitution for the State of Israel converting it into a theocracy and a
priestly regime similar to that in the days of the kingdoms of Judaea and
Israel — particularly since there was no written secular constitution and
there was, at the same time, an understandable desire to bridge the gap
between present reality and the glorious past.
There is as little likelihood that Jewish fundamentalists will be able to
turn modern secular Israel into a theocracy, as there is that Christian
fundamentalists would be able to revive Cromwellian or Calvinistic theocracies
in an age of increased literacy, and a heightened awareness of the importance
of the separation of Church and State.
The same cannot be said, unfortunately, of Islam which is, by its very
nature, theocratic. When it offers a constitutional or democratic face this is
'per accidens' not 'per se'.
Democracies need to be aware that Islam is an alternative political system,
not simply 'another religion', along the lines of Judaism and Christianity
from which it originally sprang.
They also need to familiarise themselves with the principles of Islamic law
and their consequences for all freedoms, not just freedom of speech, if
Muslims and non-Muslims are to live together in harmony in non-Islamic
societies.
Notes
- 'Zindik', in H.A.R. Gibbs and J.H. Kramer, Shorter Encyclopaedia of
Islam (=SEI) E.J. Brill, Leiden, 1974, p.659.
- 'Dah al-Harb', in SEI, ed. cit., p.69.
- 'Dijihad', in SEI, ed. cit., p.89.
- 'L'Islam et la Democratie', in Analecta Orientalia, ed. J.H.
Kramer, Leiden, 1956, p.168ff.
- Mukaddima, III, 34.
From "Annals Australia" October 1989
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