Islam and Law
Both the Islamic world and the secular West live by the rule of law, but in the one case the law is evolved primarily from secular, rational traditions and in the other it is laid down by the hand of God and is one with the worship of God. [Samuel Huntington, surveying the world, finds that only the West and Hindu civilization separate religion and politics. "In Islam, God is Caesar; in China and Japan, Caesar is God; in Orthodoxy, God is Caesar's junior partner."]
Islam is a path through a defined space, with firm walls and open courses. In Islam, every act of life, from dressing to wife-beating, is an act of worship (or, if done wrongly, a fault in worship).
Some people instantly feel stifled there. Not all traditions fit all people. Huston Smith, the great religious scholar, writes a telling anecdote in an introduction to a book on Islam. Smith writes that he felt an instant affinity for the supple music of the Upanishads, but was repelled by the legalistic rigidity of Islam. Then he met another Western religious scholar who confessed he had no idea what the Hindu texts were talking about, "but when I read the Koran, I'm home."
" 'Umdat al-Salik wa 'Uddat al-Nasik" ("Reliance of the Traveller and Tools of the Worshipper"), is a classic manual of fiqh (Islamic jurisprudence) based on the Shafi'i school of thought. As the English translator of my edition of "Reliance of the Traveller" writes:
Muslim jurists count 500 Qu'ranic verses with legal content. Their proportion in the Qu'ran is even greater than that appears, because the rest of the Qu'ran often repeates itself, both thematically and verbatim, but the legal subject matter in it almost never does. And the average length of the legal verses is two or three times that of the average non-legal verses. Some have argued, and it would be difficult to refute them, that the Qu'ran contains "no less legal material than does the Torah."
Even in Mecca, Muhammad was organizing his followers into a community, a political and social unit. In Medina, he not only set up a "constitution" for governing the city, he served as an arbitration judge. "Law can never be deemed Islamic without being somehow anchored in these two sources (Qu'ran and Sunna)" [Wael B. Hallaq, A History of Islamic Legal Theories]. But taken altogether, the legalistic aspects of Islamic tradition fall short of a full code of laws. And they fail to take into account, obviously, anything that has gone on in the world since about 800 C.E.
That leaves Islam in the worst possible situation, commitment to religious law, but with an incomplete and badly dated system of law. A tendency toward legal structure without a finished form. That leaves it vulnerable, eternally, to determined minds that would install their own dark, bloody, reactionary, anti-humanist desires into the word of God.
Sometimes it takes an outsider to see things plain. Like Robert G. Ingersoll, the great 19th century agnostic. What he said of Protestant Christianity might as well apply to Islam:
There are other ways to interpret Islam. Brilliant minds and brave hearts in the Islamic world have advanced them from time to time. But they never seem to make much headway. Even in the modern-day "crisis" of Islamic thought, the bid to give reason a place alongside revelation must be rooted in God, not man. When humanistic and positivist tendencies collide with the imperatives of revelation, in the Muslim world, revelation wins. Even among those who reject the medievalism of the old ways as irrelevant to the modern age. "Except for a minority of secularists, the great majority of modern Muslim thinkers and intellectuals insist upon the need to maintain the connection between law and the divine command." [Hallaq]
This gives Islamic reformers a long, steep path to climb. For instance, Ali Abd al-Raziq (1925) argued that there was no Islamic authority for the caliphate and that Islam has no political component. It was a radical argument yet forcefully made and in the finest Islamic scholarly style. It had some influence among secularizing Muslims in the middle of the last century, before the Islamist Revival swept it off the board.
Yet even if al-Raziq is accepted, the societal rules of the Qu'ran and Sunna -- with regard to women, say, or to religious minorities -- remain binding on individual Muslims.
In Iran a generation later, Mohammed Mosaddeq seems to have held the view (per Roy Mottahedeh) that Shi'a jurisprudence allowed a central role for common sense and for parliaments to pick and choose from Islamic law such dogmas as were appropriate to the modern situation at hand. With that approach, if the CIA and the British oil interests and the shah had not got to him first, he undoubtedly would have faced a challenge sooner or later from the ayatollahs.
The daunting difficulty of breaking through that impasse, I think, is why many Muslims reject rationalism and modernity as Western corruptions, and seek a "puritan" Islam. And since Islam was born in a time of war to the death against unbelievers, only a few small steps stand between fundamentalist Islam to jetliners plowed into skyscrapers.
Thoughtful Muslim reformers in the past century have tried to navigate a path between secularism and Shari'a. If the choice offered to the Islamic people must be between Shari'a and Western secularism, however, Shari'a always will win, as it is the Islamic alternative, bound up in that people's sense of religious duty and resentment of the West. And the Islamists know this, and in their Anti-Western and anti-modern extremism, they prevent a third way. By keeping the Shari'a immutable, by making it heresy to attempt to alter a word of it, the fundamentalists keep control of the political flow.
Their goal is not merely to hold political power. That is their means to the end they seek. It is not to make laws. It is to enforce laws laid down in the mid-Seventh Century C.E., by the word of God.
This, too, is why I think it matters less to the Shi'ites than the Sunnis whether Iraq is officially denominated an "Islamic republic." The Sunnis may have their eyes on the caliphate. But whatever the laws of the nation, the Shi'ites will be bound to the set of rules and behaviors laid down by the various ayatollahs. Every one who is a shi'ite must look to one or the other of these sources of inspiration as his religious guide. And each of the ayatollahs spends a great deal of time and effort teaching his followers how to live, what to do, what to avoid.
Al Sistani, for instance, even has an English language Web site listing his prescriptions.
Islam divides things into pak (pure) and najis (unclean). Al Sistani lists "ten things are essentially najis." They include blood, shit, piss, dead bodies, pigs, dogs -- and infidels (kafir). Even the tears of an infidel, if he eats pork, are unclean.
Islamic theologians debate who exactly is a kafir, and especially whether the term applies to Christians and Jews. Sistani has a fairly humane interpretation of Islam. He believes Christians and Jews may be pak, not najis. Then again, they may not be. Because of the uncertainty, he advises, "it is better to avoid them." According to Sistani.org:
As a polytheist, I'm clearly najis. Could I be treated in a hospital if I fell sick in a land where this division of pure and impure was believed? Could I be permitted to use a public toilet? As I read Sistani's interpretation, if I shake hands with a Muslim, who is sweating, he becomes najis by his contact with me. And if he dries his hand on a towel, that towel, too, becomes najis. But if another Muslim with wet hands uses the towel, the najis is not communicated to him.
Islam is a path through a defined space, with firm walls and open courses. In Islam, every act of life, from dressing to wife-beating, is an act of worship (or, if done wrongly, a fault in worship).
Some people instantly feel stifled there. Not all traditions fit all people. Huston Smith, the great religious scholar, writes a telling anecdote in an introduction to a book on Islam. Smith writes that he felt an instant affinity for the supple music of the Upanishads, but was repelled by the legalistic rigidity of Islam. Then he met another Western religious scholar who confessed he had no idea what the Hindu texts were talking about, "but when I read the Koran, I'm home."
" 'Umdat al-Salik wa 'Uddat al-Nasik" ("Reliance of the Traveller and Tools of the Worshipper"), is a classic manual of fiqh (Islamic jurisprudence) based on the Shafi'i school of thought. As the English translator of my edition of "Reliance of the Traveller" writes:
"I had been a commercial fisherman in the North Pacific for seven seasons, and I remembered a book the captain used to keep in the wheelhouse near the charts, a book of bearings, with the precise compass directions between one point of land and another in Alaskan waters. This was the sort of work I hoped to produce in shari'a, a book that I could open up and find accurate, substantive ethical knowledge to apply in my life."
Muslim jurists count 500 Qu'ranic verses with legal content. Their proportion in the Qu'ran is even greater than that appears, because the rest of the Qu'ran often repeates itself, both thematically and verbatim, but the legal subject matter in it almost never does. And the average length of the legal verses is two or three times that of the average non-legal verses. Some have argued, and it would be difficult to refute them, that the Qu'ran contains "no less legal material than does the Torah."
Even in Mecca, Muhammad was organizing his followers into a community, a political and social unit. In Medina, he not only set up a "constitution" for governing the city, he served as an arbitration judge. "Law can never be deemed Islamic without being somehow anchored in these two sources (Qu'ran and Sunna)" [Wael B. Hallaq, A History of Islamic Legal Theories]. But taken altogether, the legalistic aspects of Islamic tradition fall short of a full code of laws. And they fail to take into account, obviously, anything that has gone on in the world since about 800 C.E.
In propounding his message, the Prophet plainly wished to break away from pre-Islamic values and institutions, but only insofar as he needed to establish once and for all the fundaments of the new religion. Having been pragmatic, he could not have done away with all the social practices and institutions that prevailed in his time. [Hallaq]
That leaves Islam in the worst possible situation, commitment to religious law, but with an incomplete and badly dated system of law. A tendency toward legal structure without a finished form. That leaves it vulnerable, eternally, to determined minds that would install their own dark, bloody, reactionary, anti-humanist desires into the word of God.
Sometimes it takes an outsider to see things plain. Like Robert G. Ingersoll, the great 19th century agnostic. What he said of Protestant Christianity might as well apply to Islam:
The Catholics have a Pope. Protestants laugh at them, and yet the Pope is capable of intellectual advancement. In addition to this, the Pope is mortal, and the church cannot be afflicted with the same idiot forever. The Protestants have a book for their Pope. The book cannot advance. Year after year, and century after century, the book remains as ignorant as ever.
There are other ways to interpret Islam. Brilliant minds and brave hearts in the Islamic world have advanced them from time to time. But they never seem to make much headway. Even in the modern-day "crisis" of Islamic thought, the bid to give reason a place alongside revelation must be rooted in God, not man. When humanistic and positivist tendencies collide with the imperatives of revelation, in the Muslim world, revelation wins. Even among those who reject the medievalism of the old ways as irrelevant to the modern age. "Except for a minority of secularists, the great majority of modern Muslim thinkers and intellectuals insist upon the need to maintain the connection between law and the divine command." [Hallaq]
This gives Islamic reformers a long, steep path to climb. For instance, Ali Abd al-Raziq (1925) argued that there was no Islamic authority for the caliphate and that Islam has no political component. It was a radical argument yet forcefully made and in the finest Islamic scholarly style. It had some influence among secularizing Muslims in the middle of the last century, before the Islamist Revival swept it off the board.
Yet even if al-Raziq is accepted, the societal rules of the Qu'ran and Sunna -- with regard to women, say, or to religious minorities -- remain binding on individual Muslims.
In Iran a generation later, Mohammed Mosaddeq seems to have held the view (per Roy Mottahedeh) that Shi'a jurisprudence allowed a central role for common sense and for parliaments to pick and choose from Islamic law such dogmas as were appropriate to the modern situation at hand. With that approach, if the CIA and the British oil interests and the shah had not got to him first, he undoubtedly would have faced a challenge sooner or later from the ayatollahs.
The daunting difficulty of breaking through that impasse, I think, is why many Muslims reject rationalism and modernity as Western corruptions, and seek a "puritan" Islam. And since Islam was born in a time of war to the death against unbelievers, only a few small steps stand between fundamentalist Islam to jetliners plowed into skyscrapers.
Thoughtful Muslim reformers in the past century have tried to navigate a path between secularism and Shari'a. If the choice offered to the Islamic people must be between Shari'a and Western secularism, however, Shari'a always will win, as it is the Islamic alternative, bound up in that people's sense of religious duty and resentment of the West. And the Islamists know this, and in their Anti-Western and anti-modern extremism, they prevent a third way. By keeping the Shari'a immutable, by making it heresy to attempt to alter a word of it, the fundamentalists keep control of the political flow.
Their goal is not merely to hold political power. That is their means to the end they seek. It is not to make laws. It is to enforce laws laid down in the mid-Seventh Century C.E., by the word of God.
This, too, is why I think it matters less to the Shi'ites than the Sunnis whether Iraq is officially denominated an "Islamic republic." The Sunnis may have their eyes on the caliphate. But whatever the laws of the nation, the Shi'ites will be bound to the set of rules and behaviors laid down by the various ayatollahs. Every one who is a shi'ite must look to one or the other of these sources of inspiration as his religious guide. And each of the ayatollahs spends a great deal of time and effort teaching his followers how to live, what to do, what to avoid.
Al Sistani, for instance, even has an English language Web site listing his prescriptions.
Islam divides things into pak (pure) and najis (unclean). Al Sistani lists "ten things are essentially najis." They include blood, shit, piss, dead bodies, pigs, dogs -- and infidels (kafir). Even the tears of an infidel, if he eats pork, are unclean.
Islamic theologians debate who exactly is a kafir, and especially whether the term applies to Christians and Jews. Sistani has a fairly humane interpretation of Islam. He believes Christians and Jews may be pak, not najis. Then again, they may not be. Because of the uncertainty, he advises, "it is better to avoid them." According to Sistani.org:
An infidel i.e. a person who does not believe in Allah and His Oneness, is najis. ... As regards the people of the Book (i.e. the Jews and the Christians) who do not accept the Prophethood of Prophet Muhammad bin Abdullah (Peace be upon him and his progeny), they are commonly considered najis, but it is not improbable that they are Pak. However, it is better to avoid them.
The entire body of a Kafir, including his hair and nails, and all liquid substances of his body, are najis.
If the parents, paternal grandmother and paternal grandfather of a minor child are all kafir, that child is najis, except when he is intelligent enough, and professes Islam. When, even one person from his parents or grandparents is a Muslim, the child is Pak.
If a Pak thing touches a najis thing and if either or both of them are so wet that the wetness of one reaches the other, the Pak thing will become najis.
As a polytheist, I'm clearly najis. Could I be treated in a hospital if I fell sick in a land where this division of pure and impure was believed? Could I be permitted to use a public toilet? As I read Sistani's interpretation, if I shake hands with a Muslim, who is sweating, he becomes najis by his contact with me. And if he dries his hand on a towel, that towel, too, becomes najis. But if another Muslim with wet hands uses the towel, the najis is not communicated to him.
