Islamic legal system

      

                                                                       By Israel Drazin

 

 

Heaven on Earth

By Sadakat Kadri

Sadakat Kadri gives readers a good history of Islam from the life of Muhammad to the present. He focuses mostly on the development and changes in the Islamic legal system. Although Kadri doesn’t discuss it, it is interesting to compare the Islamic legal system with those of other religions.

 

The basic document of Islam is the Qur’an; however much of its original meaning is unclear or no longer relevant: “most of the Qur’an’s 114 chapters had been overruled – 71 of them, according to one authoritative estimate.” Islamic scholars explain that “God’s responses to changing circumstances meant that many older verses of the Qur’an could be legally ineffective.” This is the same with the Hebrew Bible and the New Testament. The former has many laws only applicable in ancient times, such as the laws of slavery and sacrifices. The New Testament discusses demons and has many internal inconsistencies such as when Jesus was crucified.

 

Muslims differ as to when the Qur’an appeared. It “was first enunciated by the Prophet Muhammad during the 620s.” It is not chronological, but organized according to the size of its chapters. Its name means “recitation,” and many contend that it wasn’t written until after Muhammad’s death. Others insist that it was published during his life. Some say that Allah (God) composed it. Others insist that it existed as long as Allah, suggesting that the Qur’an’s content doesn’t reflect divine will or earthly circumstances; it is truth personified. However, this view is contradicted by its changes due to altered circumstances. The ancient rabbis also discussed whether the Torah existed forever and many Jews still believe this. Many rabbis also say that the Torah is not chronological.

 

Shari’a is Islamic laws on all subjects, from inheritance to warfare. The name conveys “the idea of a direct path to water – a route of considerable importance to a desert people.” However, it is more than that. Water is a sustainer of life. As one Syrian jurist put it: “If it had not been for the fact that some of its rules remain [in this world] this world would [have] become corrupted and the universe would [have been] dissipated.” Changes in human circumstances also resulted in changes in shari’a. As with the US Constitution, Muslim scholars differ how to interpret it. Some are open to modern interpretations, seeking how ancients might have resolved legal questions that they knew nothing about. Others are strict constructionists and insist that God manifested his will through the shari’a; obliging Muslim judges to interpret shari’a according to its ancient no longer relevant meaning. Kadri writes that this traditional approach has “the whiff of a séance about it… (and) seems akin to ancestor worship.”

 

Judaism’s halakhah (law) also means a “path.” Judaism also compares the goal of halakhah to water, for without water people cannot survive. As with shari’a, many halakhahs are outdated such as the rule that women can’t institute divorces.

 

The third part of the Islamic legal system is fiqh, meaning “deep understanding,” legal decisions by Muslim jurists designed to explain the Qur’an and shari’a. Like religious leaders of other religions, they “Hypothesized fantastically unfortunate dilemmas: what Muslims should do on a desert island, for example, if they found themselves pining away alongside a dead shipmate, a pig, and a flask of wine (avoid the pig and alcohol until desperate).” Various Islamic schools interpret fiqhs differently. Christians also mock scholars who count how many angels can stand on a pin point.

 

The fourth and most troubling in every religion are hadiths, fantastic tales about ancients, from Muhammad on, designed to encourage religious people to copy their behavior and justify acts not in shari’a or fiqhs and contrary to their spirit.

 

The fifth level is fatwas, religious opinions issued by any religious leader and only binding on Muslims who attach themselves to the religious leader who issues the opinion. Thus, Pakistan’s schools “refused on religious principle to put their clocks forward for the summer, because the muftis in charge considered daylight saving time to be an unholy innovation.” Similarly, although ancient laws forbid murdering civilians, Osama bin Laden in the 1990s bizarrely relied on a fatwa by ibn Taymiyyah (1263-1328) to justify killing non-combatants, Muslim and non-Muslims, during and not during war, even though ibn Taymiyah’s fatwa only addressed the conditions of his time. Ibn Taymiyyah allowed Muslims to defend themselves against Mongol attacks and to kill Muslims who had joined the Mongols, but only in self defense and during the battle.

 

There is no overall religious body in Islam today which decides which ruling is correct. As in Judaism and among most Protestants, Islam has no Pope capable of resolving earthly disputes. Thus there is disagreement among Muslims about how to act. The only certainty, as with the other religions, is that Islam is generally more radical today than it was in the past. Thus, for example, “The very idea that Muslims might blow themselves up for God was unheard-of before 1983…. The arguments for violence are recent.”

 

The thinking behind this new behavior is macabre. “After a twenty-seven-year-old woman killed herself and an eighty-one-year-old Jewish man outside a shoe shop on Jerusalem’s Jaffa Road in January 2002, for example, the only moral qualms expressed by the Egyptian jurist Yusuf al-Qaradawi concerned the propriety of a female martyr traveling to her death unchaperoned.”

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