Perspectives on Islamic Law Reform

Posted By on September 11, 2019


>>From the Library of
Congress in Washington, DC.>>Roberta I. Shaffer: And today we are pleased
to be cosponsoring this event with our sister unit, the African
Hebraic and Middle Eastern Division of library services and you
will meet the esteemed head of that unit a little
bit later in the program. I just wanted to take a few
minutes to sort of set us up for Human Rights
Day and its origins. Most people in the audience I
don’t think looking out will recall that it was started as a universal
declaration of human rights in the United Nations in
1948 it was in Paris however. And it emanated from
the four freedoms that President Franklin Delano
Roosevelt had articulated in his 1941 State of the
Union address to Congress. And those four freedoms which were
very, very well known by everyone at the time were, of course, freedom
of religion, freedom of speech, freedom from want and
freedom from fear. Franklin Delano Roosevelt then
appointed the first lady Eleanor to spearhead an effort
through the United Nations to develop a universal
declaration of human rights. And I think what’s worth recalling at this time is the
composition of the delegation. So the delegation represented many,
many countries, Lebanon, Canada, the UK, Chile of course,
the United States, China, the then Soviet Union. But what I think is even more
striking to think about in terms of our discussions about human
rights today and then of course, our esteem colleagues and panelists
that we will hear from shortly, is the fact that the initial
drafters were not just lawyers and jurists. Among the drafters were playwrights,
art collectors, of course, educators, diplomats, trade
unionists, a former army official from World War One,
and a theologian. So I’m always struck when I think about human rights how
very interesting it was that that initial group
that first recognized that indeed there are universal
rights and that there, therefore, must be universal protections
and universal ways to assure that protections both
financial, as well as diplomatic and perhaps even the use of force. That it was not just the
law that set that milestone. So I hope you will
think about that today when you are listening
to our panelists. The more mundane thing
I need to ask you is to please silence your
electronic devices. To please note that you do have
a question sheet in your program, so if you would like to ask a
question to please write it down and submit it to one of the
law library staff members around the room. There is a program survey
and it is now my pleasure to just briefly tell you
about our wonderful moderator and convener for today. Jane McAuliffe is our colleague, she
is inaugural head of the National and International Outreach
Service Unit at the Library of Congress, a newly created unit. She comes to this position
with an enormous resume. Former president of Bryn Mawr
College, former Dean of arts and sciences at Georgetown
University. But most important, I think
for today’s discussion a very, very well respected and
prolific writer in the areas of Islam and religious studies. She has her doctorate
in religious studies from the University of Toronto. And the final thing I will do before
turning the podium over to Jane is to ask you to please make
sure that anything you brought in today is neatly tucked
in the seat in front of you and that your minds are in
the open and upright position. Jane, please take the podium. Thank you so much for
joining us today. [ Applause ]>>Jane McAuliffe:
Thank you Roberta. Good morning. Can you hear me, great? It’s my pleasure to
introduce the speakers who will tackle this fascinating and
ever so important topic this morning and then to moderate the panel
of discussion that will follow after their individual
presentations. We have for distinguished
speakers this morning and I will do very brief
introductions of each of them and then call them forward. The first is our own Issam Saliba
who is a specialist in Islamic law for the Law Library of Congress
and has been so since 2003. He’s written broadly and he’s
written some very important things on such matters as the
Saddam Hussein trial, on international tribunals, national
crimes in the Hariri assassination, on Lebanon its presidential
election, and the conflicting
constitutional interpretations. He’s also written on a place of
Sharia among the legal systems of the world, which would
probably be the very prelude for today’s discussion. Issam Saliba also testifies before
Congress on matters relevant to his field of Islamic law on such
matters as the Iraqi Constitution and the laws on oil and gas
production in those areas. So a broad range of expertise
is represented in his testimony. Prior to coming to the Library
of Congress he practiced law as a member of the Beirut bar
and he’s also an associate member of the District of Columbia bar. Our next speaker will be Dr. Kristen
Stilt who’s a professor of law and co-director of the
Islamic Legal Studies program at Harvard Law School. Before that she was at Northwestern
as a professor of international law at the Northwestern Law School
and is a professor of history in the university itself. Her JD is from the University
of Texas at Austin and her PhD in Middle Eastern studies
and history is from Harvard. She has had research
support from some of the country’s most
prestigious foundations, including the Carnegie Foundation
and the Guggenheim Foundation and has published material
which is particularly important for our conversation. Her book with Oxford University
Press in 2011 was Islamic Law in Action, a journal published this
year in the International Journal of Constitutional Law is
entitled Contextualizing Constitutional Islam. Her colleague at Harvard is Dr.
Intisar Rabb who is also professor of law at Harvard Law
School and co-director of its Islamic legal
studies program. Doctor Rabb is also a professor of
history at Harvard and a professor at the Radcliffe Institute
for Advanced Studies. Before coming to Harvard she
taught at New York University in their Middle Eastern
Islamic studies department and at NYU Law School. She’s been a visiting
associate professor in the Islamic legal studies
program at Harvard and a member of the faculty at the
Boston College Law School. Her bachelor’s degree is
from Georgetown University, her JD from Yale and bot her
MA and PhDs are from Princeton. Dr. Rabb was a law clerk
for Judge Thomas Ambro of the United States Court of
Appeals for the Third Circuit. She too has been supported by
major foundations in this country, including the Carnegie
Foundation and the Beckman Center for Internet and Society at Harvard. Her most recent publications include
an edited volume that she did with Michael Cook and others in
2013, entitled Law and Tradition in Classic Islam, as well as her
own monograph Doubt in Islamic Law that was published this year
by Cambridge University Press. And finally we have Dr. Sherman
Jackson who is the King Faisal Chair of Islamic thought and culture
and has been so since 2011. This is the first and the oldest
endowed chair in Islamic studies in the United States, it’s at the
University of Southern California. Sherman is in Southern
California now, but he has been in many other places including
University of Texas at Austin, Indiana University, Wayne State
and the University of Michigan. His PhD, however, is from the
University of Pennsylvania, so he has East Coast roots. His publication list is too long for
me to read every single one of them, but they come in an
amazing range of material. Most recent book is entitled
Initiative to Stop the Violence, Sadat’s Assassins and the
Renunciation of Political Violence that Yale published last year. He has written on Sufism,
he’s written on Islam in the black American and Islam
and the problem of black suffering and several other books
on Islamic law. He’s currently working on a book
called Beyond Good and Evil Sharia and the challenge of
the Islamic Secular. Each of our speakers has 15 minutes. We will keep the four
presentations to an hour. I will do kind of diplomatic
timing, but will also rely on my colleagues to
be good citizens. So with that I welcome
Issam Saliba to the podium. [ Applause ]>>Issam M. Saliba: Thank
you Jane, good morning. Islamic law is a legal system of
special characteristics described by the late Joseph Schacht
Introduction to Islamic Law. At the epitome of Islamic thought
the most typical manifestation of the Islamic way of life, the
core and kernel of Islam itself. Unlike its counterparts in the
west Islamic law regulates acts of worship and religious
rituals [inaudible]. And acts of regular
transactions or [inaudible]. The purpose of this presentation is
to inquire whether the reformation of the law of Muamalat
and not the law of any particular state is possible from within the Islamic
legal theory. The Islamic legal theory is based on
immoral concept of right and wrong or good and bad under which the
law mandates the performance of what is good and
forbids the performance of what is bad of the human acts. Back in the 1950’s, the late US
Supreme Court Justice Robert Jackson captured the essence of this
theory by pointing out that under American law in
contrast to Islamic law one may at the same time be
a law-abiding citizen and a totally shabby character. The majority of Muslim scholars
who organizing to schools of Islamic legal thought
or [inaudible] argued that a human reason cannot on
its own gain knowledge of the law because it’s determination
of the goodness and badness of human acts is relative and
with the changing identity of the person making
the determination. To illustrate this point Abu
?amid Mu?ammad Al Ghazali, the 12 century Muslim
scholar gives in his book. [ Foreign Language Being Spoken ] The example of killing a king. He states that the act of
killing is considered a good act by the King’s enemies and a
bad act by his supporters. Muslims believe the sharia
consisting of the divine commands of God regulates all
aspects of the human conduct, including in the field
of legal relations. What God describes
is necessarily good. What God forbids or
proscribes is necessarily bad. The Quran, the holy book of
Islam, and the traditions or the prophet Mohammed
contain the divine commands and are the primary
source of the law. The Sunnah was transmitted
through order reports or [inaudible] before
being collected into what is known
as Books of Hadith. God’s prescriptions and
proscriptions are rarely if at all readily identifiable
as legal rules. For example, verse 590 of
the Quran warns the believers against gambling and against wine. The meaning is relatively clear,
gambling and wine are prohibited. But it is not clear one, whether these prohibitions
entail worldly punishments. Two, whether the punishments
are civil or criminal. And three, whether the two
prohibitions have the same legal consequences. To deal with such questions the
school has developed a specialized discipline of study
known as [inaudible] or science of understanding. [Inaudible] gives a human
reason, the prominent role of interpreting the divine commands to derive the legal rules using
the utmost intellectual efforts in a process called Ijtihad. In [inaudible] Al Ghazali states that [inaudible] is among
the most noble sciences why? Because it is the place where reason
and revelation conjoin and opinion and divine commands coalesce. Through Ijtihad the schools
interpreted verse 590 to derive two different rules. One making the consumption of wine or any other intoxicants
a criminal act punishable by a number of lashes. The other making gambling a grave
sin for which expiation is due. The totality of the
interpretations produced by the schools during
a formative period of about 300 years constitutes
what we call today sharia law or Islamic law. Even though it has according to
Justice Jackson an amazing record of accomplishments, Islamic law
has been stagnant for a long time and some of its rules are
incompatible with modern norms. A Muslim who abandons
Islam is still subject to the death penalty notwithstanding
his [inaudible] right to believe or not to believe. A Jew is still required
to convert to Islam or pay the jizya notwithstanding the
instructions of the prophet Mohammed that no Jew shall be
enticed to leave Judaism. And the [inaudible] faith
is still the confessed form of government notwithstanding
the silence of the Quran on this subject. Three questions are
relevant to our inquiry. First, is Islamic law immutable? The majority of Muslims appear
to believe in the immutability of Islamic law by refusing to critically discuss past
interpretation of sharia. In his book The Reconstruction of
Religious Thought in Islam published in 1930 Muhammad Iqbal referring to
millions of Muslims in India writes, unfortunately, the conservative
Muslim public of this country is not yet quite ready for a critical
discussion of [inaudible], which if undertaken is likely
to displease most people and raise sectarian controversies. Attempts at legal reforms undertaken by self-proclaimed Muslim states
have largely gone backward. In the 1990’s Nasr Hamid Abu Zayd, an Egyptian professor was
judicially declared [inaudible] because of his academic writings. And as a result his marriage to
his Muslim wife was nullified. Going back to the Islamic
legal theory, we find no basis for the belief in the
immutability of the law as interpreted by the schools. None of the schools has ever
claimed finality or exclusivity of its interpretations of sharia. Imam Abu Hanifa [inaudible]
is reported to have said, our ruling is an opinion,
the best we could attain. Whoever comes with a better
option deserves our support. And the Islamic [inaudible] there is
room for different interpretations to coexist and by extension for such
interpretations to evolve or change. In one [inaudible] Prophet
Muhammad is reported to have said, the disagreement of my
community is a blessing. The Islamic legal theory itself
recognizes the evolving nature of Islamic law by adopting the
maxim that states there is denying that the changes in times
lead to changes in law. It incumbent upon the Muslim
polity to realize that the law as formulated by the schools
during the early centuries of Islam is not impervious
to change. Second, can the sharia support
the new interpretations? The universal principles and
values of sharia, such as justice, equality, and the public
interest not only support but call in my opinion for new interpretations
of the divine commands. [Inaudible], a Muslim scholar who
died around 1316 argues in one of his writings that the principle of public interest is the ultimate
guide in deriving the legal rules of sharia and should be
given precedence even over contrary statements
of the divine text. In his collection of fataawas
[inaudible] the renowned 14th century Muslim scholar
quotes approvingly that God would support a just
government of unbelievers, meaning unMuslims and would not
support an unjust government of believers meaning Muslims. In 1925, Ali Abdel Raziq, a
faculty member of Islamic University of Al-Azhar published a book
titled, Islam and the Foundation of Governance in which he relies
on divine sources to conclude that sharia gives the Muslim
polity the right to adopt the form of government most
suitable to its needs. If the Sunni Muslim polity
ideas with [inaudible] and Ali Abdel Raziq there is no
doubt that the political theory of the caliphate would undergo a
dramatic reformation from within. And lead to the establishment of a
modern government without the need for assistance from
us here in the west. In the reconstruction of religious
thought Muhammad Iqbal writes the republican form of government is
not the only authority consistent with the spirit of Islam, but has
also become a necessity in view of the new forces that are
set free in the word of Islam. Because of his belief in
the compatibility of Islam with modern government Sheikh
Muhammad Abdu, the great reformer of the 19th century has allegedly
said after visiting friends. In France I saw Islam
I didn’t see Muslims. In Egypt I see Muslims
I don’t see Islam. My colleagues on this
panel may have more to say about how specific interpretations of sharia would support
through reformation. Third, who has the authority
to reform Islamic law? To answer this question we need
to go back to the formative period and find out how the work of the
various schools was legitimized into becoming a binding law. The schools did not have any
authority in this regard. None of the schools had any official
status, representative capacity or legislative mandate to decide
on what the law is or isn’t. They all came into existence
on their own initiative and acted independently
from and at times in confrontation with the state. The authority that legitimized
the law as formulated by the schools was the
authority of the Muslim people. Schools that did not garner the
consent of the people disappeared and their interpretations of the
divine commands never became law. Among the many schools that came
into existence only the work of a few got the support
needed to become binding law. The authority of the Muslim
polity as the legitimizing factor of Islamic law has been enshrined in
the doctrine of Ijma or consensus. And that this doctrine the
consensus of the Muslim polity on a legal matter not
only legitimizes that legal rule resulting therefrom,
but constitutes an original source of the legal rules themselves. As a consequence, the Muslim polity
not the Muslim scholars has the authority to reform Islamic law. In concluding, it is
reasonable to wonder if the Islamic legal theory
allows for the reformation of Islamic law from within. Why haven’t such reformations
materialized? The essence of the answer
given by Muhammed Iqbal early in the last century is
probably still valid today. The conservative Muslim public
is still not yet quite ready for a critical discussion of the
past interpretation of sharia. Thank you very much. [ Applause ]>>Kristen A. Stilt: Thank you to
Dr. Saliba and to Kimberly Zellars and everyone here at the Library
of Congress for this invitation to be here on or in honor of
I should say Human Rights Day. We have a few more days until
Human Rights Day itself. I am very pleased to be here with
such distinguished colleagues. And today I’ll be focusing on family
law in this short presentation. So family law in Muslim majority
countries has undergone tremendous change over the past century
and this change continues today with intensity and controversy. And change can happen in many ways and can be led by many
types of actors. But today I’m talking about
when actors such as legislators or activists or monarchs want to
change family law with the intention of improving the rights
of women and children. And in general, this change has
sought to adopt national laws that would modify the rules of
Islamic law that had been applicable and predominant in that
particular country. And these efforts and
I’ll call them reforms because that’s the term the
actors use themselves have focused on a number of areas in particular. So substantively, these efforts
have aimed at placing restrictions on a husband’s right to enter
into a polygamous marriage, limiting a husband’s right to unilaterally declare his wife
divorced, extending a mother’s right to custody of the children
and be compensated for it by her ex-husband, raising
the minimum marriage age, expanding a wife’s ability to get
a divorce at her own initiative and requiring a husband
to compensate his wife if he arbitrarily divorces her. So in some Muslim majority countries
and we’ll take Turkey as the example of this, major modification of
the family law have been made by essentially adopting
secular codes. In doing so in Turkey for example,
Turkey operated in the context of its form of secularism as
enshrined in its constitution and did not attempt to justify
any of its changes as compatible with Islamic law in any way. But in most Muslim
majority countries, the rules of Islamic law
are particularly relevant in the area of family law. And so the change process or
the reform process takes place within this space and changes are
presented as taking place internally to Islamic law rather than
something external to it. So just to be clear
what I mean by that. This may be in a country for
which religious law is not part of other areas of the law like
business law or criminal law or international law, but family
law often remains a domain where there’s a belief
that it is Islamic law and that it should remain that way. That belief is somewhat problematic
and we can talk about that later. So the reasons for this internal
approach range from faith-based to pragmatic, including the personal
beliefs of advocates and lawmakers and concerns over the lack of
popular acceptance of a family law that appears to be western
or secular in origin. And so my talk today will focus
very briefly on two changes in Sunni family law and how
those changes have been presented or justified to strategies. My focus in this project from which
this short presentation is derived is focused mainly on the Arab
Sunni world, but we can talk beyond that later if you would like. So one when more preliminary
comment. I think we want to think and
talk about what is gained and what is lost when family
law in a country is seen as the exclusive domain
of Islamic law. It tends to mean that when an
advocacy organization sees a social need for a change they
have to carefully think about whether they can
justify it in Islamic terms. But of course if they can
the potential for acceptance of the change can be much higher. But, of course, many of these
countries have signed international human rights treaties, such as
the convention on the elimination of all forms of discrimination
against women or CEDAW. Although, sometimes they have put
reservations with those treaties. And advocacy groups might be
very active in conversations about human rights treaties
like CEDAW and see them as setting important
benchmarks or goals. But is the fact that a
country’s laws are not compatible with CEDAW off for example, on its
own enough to garner the initiative to change the law and
that’s the big question. And the answer is probably
not for many places. An exhaustive study
of Morocco and Jordan that a scholar has just
completed she noted quote, despite women’s groups questioning
that family law should be or indeed is Islamic law publicly,
they still have to recognize that family law is Islamic law,
which limits the possible arguments that can be used to
advance their claims. So with that background I just
want to cover two areas of the law and show you what the change was and then how it was
justified in Islamic terms. And the first one is polygamy and the strategy that’s been
used is essentially taking powers that were left in the hands of
individuals and the husbands in particular and assigning
that power to a judge. So few Muslim majority countries
have abolished polygamy as a matter of national law, but most attempt
to curtail the rights of a husband to enter into a polygamous marriage. And they place emphasis
on the Quranic verse that requires equitable
treatment among wives. Quote, then marry from among other
women, such as are lawful to you, two, three or four, but
if you have reason to fear that you might not
be able to treat them with equal fairness that only one. And that verse seems to speak
to a man and cautions him. Yet another verse says, no it’s
not possible to do that quote and it will not be within
your power to treat your wives with equal fairness,
however, you may desire it. And so do not allow yourselves
to incline towards the exclusion to one exclusion of the other
leaving her in a state of having and not having a husband. I just paraphrased there. So many countries have adopted laws
that essentially require the husband to go to the judge and
not leave that decision about equal treatment
up to the individual. Morocco adopted this approach
in 2004 in its family law code that many you might
be familiar with. In the preamble the Moroccan king
said he would not allow outlaw polygamy due to his belief
that it is permissible. But he said that polygamous
marriages would only be allowed under compelling circumstances
and stringent restrictions with the judge’s authorization. The judge must verify that
the husband has the means and there must be an exceptional
mode of justifying polygamy and this perspective second
wife must know and must consent to the polygamist marriage. Most recently in Jordan the
Jordanian Women’s Union officially opposed polygamy, but
they were afraid that they wouldn’t achieve
that in the 2010 law. And so they instead proposed
judicial oversight along the same lines as what was done in Morocco. So notice how this strategy
works, it does not attempt to declare polygamy impermissible
or even illegal in the state, but instead uses those verses
to say to the husband more or less we don’t think you’re
the one that should decide and the judge will
be the one to do it. But I should note that even
that strategy has been seen as too controversial
in some countries. So the next area, the second
area quickly is the area of marriage contracts. And the strategy here is something
I call encouraging the permissible. So this strategy recognizes
that a gap exists between what’s permissible
as a matter of Islamic law and what reformers think they can
actually require as state law. And so they try to approximate
state law by encouraging people to take advantage of
options they already have. And so on one level this is sort
of like know your rights campaign, but the more you can encourage
something the more it would be potentially taken up by individuals
the more you can approximate something like national law. And so a good example of
this comes from Jordan. So marriage contracts can contain
additional stipulations as long as they don’t undercut the
essence of the contract itself. So the Jordanian laws of 1976 and 2010 specifically
identify conditions or clauses in the contract that are
considered acceptable and would be upheld
by a Jordanian court. These include for example,
requiring the husband not to take another wife, not to
prevent the wife from working, not to require her to move
to a place she doesn’t want and giving her the right
to divorce herself. And so the activists felt that
they were not able to achieve that as a matter of
national law for example, without anything else spoken about in the contract the
husband do those things. But by mentioning these in the
law there’s an implicit statement, you can do this, you can
put this into your contract and the state will uphold that. But in contrast, Egypt was not
able to go down that same path. So while women may add
stipulations in their contract and that’s not a problem at all
what activists had wanted was a way in which to make it known to women
here’s conditions you can put in. These the state will uphold and your
contract will not be considered null and void as a result. And so a coalition
drafted a marriage contract that not only included a blank space where these stipulations could be
written in, but also listed a number of questions that the notary was
supposed to ask the couple helping to perhaps prompt them to
consider these conditions. And the questions included
speaking to the husband, do you agree to abstain from
marrying an additional wife and if you do so, do you agree that your wife will have the
right to divorce herself. And so by posing questions like
this to the husband in a yes or no way the idea was at that
moment when the couple is filling out this marriage contract the
woman would understand she could ask for this and the husband would
have to essentially say no if he didn’t want that to be
included in the marriage contract. And so the Egyptian government
actually supported this new marriage contract that would have
these prompting questions and sought the opinions of
religious scholars on it. One of the highest
religious officials in Egypt, the Sheikh of al-Azhar actually
rejected this proposed marriage contract and he said while
it’s lawful for the woman to achieve these conditions in her
contract it should not be encouraged as a matter of state law. And he said it violated a concept
of the husband’s superiority or authority over the
particular — over the woman. And so the rejection of the standard
contract is essentially a rejection of that strategy of
encouraging the permissible, at least in that particular context. So the stipulation is permissible
according to the religious leader who essentially who said
he wouldn’t support it. But encouraging it through the
national marriage registration process was not according to him. So just to sum up this strategy of encouraging the permissible it
is distinct from a national law that would require that
result on every individual. It would leave it to the individuals
to adopt it or not to adopt it, but the extent of encouragement
could come close to approximating a national law
if indeed everyone adopted it. But it’s easier, it’s more palatable because it doesn’t raise
the same level of opposition as perhaps a national law that
would prevent polygamy for example, to go back to the example
I started with. So in being mindful of my precise
time limits I’ve given you here just two areas of law, polygamous
marriages and then marriage contracts and
marital relations more generally, along with a strategy that went
along with each particular area. Encouraging the permissible
and delegating authority to a judge or other official. This comes from a larger work I have
in which I discuss nine strategies across a wide array of
substantive areas of family law and can certainly talk about that
later or send anyone the paper if this is a concern of yours. But given that our context today is
Human Rights Day I want an echo an issue I mentioned at the outset. So one of the goals of this
project of identifying strategies is to contribute to a larger
conversation about the benefits and disadvantages of using
strategies rooted in Islamic law in comparison with other
ways that could be used to achieve improvements in this
case for women and children in the context of family law. And of course, a prominent other
source of law or change comes from the convention on the rights of
women as I mentioned at the outset. So I just leave us
with four questions that I hope we can talk about. So the first is what is gained
and what is lost when family law in a particular country is seen as
the exclusive domain of Islamic law. And what is gained and what is
lost and from who’s perspective. Secondly, what is gained and what
is lost when Islamic arguments on family law are particularly
relevant in a society and what if they’re the only relevant
argument in a society. The third one is how can
international human rights based arguments become persuasive
in a context where they have not been
very persuasive right. What about a country or a society
or a component of a society where the international human rights
arguments have not been considered persuasive or even important. And then the last one is how can
international human rights norms and Islamic law work together
and I do think they can. Can they be mutually reinforcing? So let me leave with
those open-ended questions that we can come back to. Thank you. [ Applause ]>>Intisar A. Rabb: He
was handing me a pointer, I thought about doing a PowerPoint
presentation, but I’ve heard that power corrupts and
PowerPoint corrupts to a point so I thought I’d avoid that
for right now that comes later. I’d like to thank Issam Saliba,
Kimberly Zellars, Cliff Brown and all the other librarians
who are here and have invited us to inform this session
which I’m honored to join. I’ll be talking about
Islamic criminal law through internal critique or as
related to internal critique. And this is the talk in a
nutshell, so I’ll try and say this in 30 seconds and then you
can you ignore the rest or you can stay tuned
for the details. So basically I’ll be talking — I want to discuss the doctrine
of doubt in Islamic law as a significant feature of Islamic
criminal law and make the argument that this concept of doubt
and dynamic interpretation that goes along with it are key
to what I’m calling a process of internal critique that pervades
Islamic law on a meta-level and that could lead to
positive change in criminal law. So that’s the talk in a nutshell. So as to the details let
me start by saying a word about why we should be interested
in the idea of internal critique, which as I’m using it is a process
through which an illegal arena that I’m concerned with Muslim
jurists critically assess the rulings and applications
of Islamic law. So they critically
assess Islamic law. And this process tends to happen
at particular historic moments, both medieval and modern. And such moments might occur when
the entire system of Islamic law and governance does not exemplify
the values it purports to espouse or it does not serve the purpose of
ensuring law and order with respect to a greater moral system
or it functions in a context in which those preserving or seeking to preserve the moral order lack
the political or legal authority to do so, to provide
the type of individual and institutional guidance or governance required
for a just society. So in short, internal critique
often follows moments of crisis, such as the fall of Baghdad in 1258
or the fall of Baghdad in 2003. So this moment is arguably
one such moment. Today we might expect
to see internal critique where there is a widespread lack
of authority, ongoing questions about who speaks for Islam, such
questions as Issam Saliba raised. The tragic rise of extremist
groups like ISIS who use violence in the form of war and egregious
harsh criminal punishments and that’s something I’ll focus
on in particular as a means of social control of
gaining territory, instilling terror all
the while claiming that their actions are
based on early Islamic law. So nothing could be more false. And then the rest of the talk I
have aimed to explain what I mean by that, not by refuting what
are simply outrageous discussions that question whether sex, slavery
or wanton killing are sanctioned by Islamic law they’re not. But by giving a sense of the type
of reasonable decision-making that Islamic law does historically
sanction in areas of law and policy in the criminal arena. And then I want to talk about
the type of dynamic rules that Muslim thinkers,
judges, jurists, other scholars produced
historically with respect to what I call a doctrine of
doubt in Islamic criminal law. And then I’ll end with a look
at some modern experiments in Islamic criminal law
that seek to use or that through internal critique
seek to change or update their Islamic
criminal law codes. And just one word about
— one more word about the term Islamic
critique or internal critique. I prefer to use this term over
reform, although our title for the talk is called
perspectives on Islamic law reform because this is a sort of
critique that is a means of updating Islamic law through
using Islamic legal arguments. And this relates to what Kristen
Stilt was saying about the resonance or salience of international
human rights norms as opposed to Islamic legal arguments and
perhaps the end is the same of universal or shared
values, but the articulation of them may resonate
more in one context. And I think internal
critique captures that better than human rights reform. So let’s start with
what do I mean by doubt. I want to start with an
episode from early Islamic life, it’s something that’s reported in
both Sunni and Shia sources repeated across the board and
throughout Islamic history as one of the iconic examples of — an illustrative example of what should happen
in criminal law context. So in this early episode there’s
a type of early police force in a small Arabian
town out patrolling. And members of the patrol come
across a man in the town ruins and he’s holding a bloodstained
knife and he’s standing over another man who apparently
has just been stabbed to death. So the patrol arrest the man
with the knife and upon arrest that man confesses
and says I killed him. And the suspect is brought before
Ali, who is the beloved cousin and son-in-law of the
prophet Muhammad who had died just a
few decades before Ali in Islamic history is the fourth
caliph according to Sunni accounts and the first imam,
according to Shia accounts. So he’s an authoritative early
figure and he’s presiding over criminal trials in
his capacity as leader of the young Muslim community. And upon hearing the defendant’s
story Ali reportedly sentenced the man to death in accordance with
the Islamic law of homicide which accommodates the death
penalty, life for life, unless there’s commutation at the
request of the victim’s family. So before the sentence was carried out another man rushed forward
telling the executioners don’t be so hasty, don’t kill him
I did it he announced. And Ali returned to the
condemned man incredulously well, what made you confess to a
murder that you did not commit. And the man explained that while
he thought Ali would never take his word for it because all the
signs had pointed to him as the perpetrator, but in
reality he was a butcher who had just finished
slaughtering a cow and immediately after the slaughter he
needed to relieve himself. So he entered the area of the
ruins, bloody knife still in hand and upon return he came across
the dead man and he stood over him actually in
concern and it was then that the patrol encountered him. And he figured that he couldn’t
plausibly avoid admitting to the crime and so
he did so and decided to leave the matter in God’s hands. And a second man, the
actual perpetrator, purported actual perpetrator, he offered a corroborating story
explaining that he was the one who had murdered the
man for his money and then he fled upon hearing the
sounds of the patrol approaching. And on his way out he passed
this butcher entering the area and watched the events unfold just
as the butcher had described them. And once the butcher had been
content condemned to death that man didn’t want the
blood of two men on his hands. So this episode and we can
refer to it as the case of the falsely accused butcher, we see that things are not
exactly always how they seem. And it really depicts
and was used in the — whether or not it’s an actual case
and this is a case or similar cases like it have been reported
in the Jewish tradition, early Christian traditions,
etcetera. So whether the case is
historically accurate in all of its facts the point is that it
was used by Muslim jurists over time to be a guide to how Islamic
criminal law should be applied and critically so. So the case depicts the
difficulties that the early and medieval Muslim judges
faced when attempting to apply Islamic criminal law
without the benefit of being able to discern the facts fully, the
law fully or the morality fully of any particular case
with any certainty. So as for the facts here confession or witness testimony typically
suffices to establish guilt in Islamic criminal law, but
here Ali was presented only with circumstantial evidence
and contradictory evidence. So the facts didn’t help and
then there was some doubt about the facts. As for the law or the Islamic
law of homicide the Quran and other foundational
texts contain clear rules about intentional murder
being the only area for which the life
for life rule applies. But was this intentional, the facts
didn’t seem to quite point there and so the law, therefore,
was not quite on point. There was some doubt about
whether the law applied. And as for morality and, therefore, legitimacy of punishment given
scriptural commands to punish but not do so when there was
any doubt about the facts or the law Ali needed to stay
his hand in the interpretation of the Muslim jurists
discussing this case. The question is why and to what
extent and the answer is shrouded by a tangled web if
you look at the history that took Muslim jurists
centuries to weave and, therefore, take some time to unravel. And don’t worry I’m
not going to take all that time to unravel it here. But I’ll cut to the center that
based on Islamic values of justice and fairness Muslims may doubt
an avoidance of punishment on its basis a central pillar
of Islamic criminal law and they expressed it in the form of a legal maxim what
I call the doubt canon to avoid criminal punishments
in cases of doubt, avoid criminal punishment
in cases of doubt. This was repeated over
and over again, avoid criminal punishments
in cases of doubt. So [inaudible] episodes
like this one, the case of the falsely
accused butcher, they occur in early Islamic sources and Muslim jurists explain these
cases with reference to doubt. And I want to say here for anyone
familiar with American criminal law that the Arabic term for doubt
should shubha was a term of art. It assumed a much more expansive
meaning than the common conception that we have as American
lawyers of reasonable doubt, which is largely a
fact-based concept. So rather than representing a
principle effect [inaudible] standard of proof the Islamic
doctrine covered factual uncertainties, legal ambiguities, even extralegal considerations
that I call moral doubt. And moreover, the Islamic
doctrine of doubt corresponds to analogous American doctrines
that are seemingly as disparate as the principle of legality,
the presumption of innocence, legal ambiguity and the
corresponding rule of lenity. The requirement of proof
beyond a reasonable doubt and lesser standards of proof,
mens rea requirements, mistake, ignorance, impossibility, and other
potentially mitigating circumstances and even mercy. All of these are covered
by this term shubha. And in addition to that there’s
another uniquely Islamic aspect or valence that also applies to
the term that comes to the floor, something called contractual
doubt or interpretive doubt and we can discuss those. I hear Sherman Jackson laughing because he knows what
these refer to. But we can discuss those in the Q&A. So to be sure this notion of doubt
pervading Islamic criminal law is contrary to conventional
notions of Islamic criminal law into the conventional practice that
we see reported about in the news. The conventional theory posits
God as a divine lawgiver who asserts absolute
supremacy over the law. The classical textbook version of Islamic legal theory posits this
idea of divine legislative supremacy where God is the sole lawgiver
who expresses himself in the form of a set of texts, the Quran Muslim
Scripture and the Sunnah as reports from the prophet and the
Imams in the Shia tradition. And there’s no questioning or interpreting really
what these texts say, that’s a conventional sort of
narrow version of Islamic law. And the most strictly textual
version of this theory then looks to Islamic criminal law in ways
that that you might read about. As you know someone
steals cut off their hand. But in point of fact Islamic
law historically favored a more pragmatic textualist account,
meaning there’s reliance on the text and interpreted — the text is
interpreted as lawyers do relevant to the context in front of them and the surrounding factors
that go into the text. So I’ll say that and I
hope we can get a chance to talk about that more. But I want to move next to asking
how all this is relevant today. Islamic law is as pervasive as our
other speakers have pointed to. Since the 1970’s, some 28 countries
have introduced constitutions with clauses referring to or
incorporating Islamic law sharia as a source or the source of laws. So these constitutions
have sharia clauses. And in that same time, at least a
dozen states have adopted Islamic penal codes or Islamic criminal law
codes as well in countries ranging from Iran, Pakistan and Saudi
Arabia to provinces in Malaysia, northern Nigeria and now Syria. And more recently in the wake of the
tumultuous Arab uprisings that began in 2010, the ongoing crisis in
Iraq because of groups like Isis, there’s a lot of uncertainty
about the status of Islamic law or the status of justice in
these regions based on arguments that Islamic law is being applied
in ways that make people suffer. And the emergence of these ideas
of Islamic law has prompted more than anything fears
of its punishments. In fact, those punishments have come to represent sharia itself
often we leave it untranslated to highlight the exoticism and
the danger that it can evoke. And on this view sharia is only
a religious code that seeks to oppress women, amputate hands,
execute apostates and indeed, reports of summary executions and
other types of violence on the part of state and non-state actors
in some of these countries. They fuel this perception, I
mean there’s something to that. So it’s no wonder then that sharia
inspires fear of its spread not only in the Muslim world,
but across the globe. But what I want to
say is that contrary to these ahistorical manifestations
of Islamic criminal law, there is the history that I talked
about of the pervasiveness of doubt and then I want to now briefly
to try to keep within time look to a situation or situations now where there’s some internal
criticism amongst Muslims about the Islamic criminal laws
that they see applied in ways that promote injustice
rather than justice. Examples of the codes that
are emerging out of this sort of internal critique have
come up in Iran in 2013. And I should say none of these
examples have actually been applied they’re codes that have been
drafted very, very recently. So this is a new cutting-edge
phenomenon and it remains to be seen what the
application will be. For the country Iran
in 2013, Brunei in 2014 and the Maldives just earlier
this year and for the sake of time I’ll just focus on Iran. So in Iran after the 1979 revolution
all pre-revolution criminal laws, which were based on the
French code were abolished. And right after the
revolution or some years after the revolution the
criminal law was replaced with Islamic criminal law that was
un-codified, it was finally codified in 1883, some four years
after the revolution. And in substance the code
followed the same basic structure as classical Islamic criminal
law where you had a set of fixed punishments for
violations of a limited set of crimes called hudood laws. You had a set of non-fixed
punishments for violations of lesser crimes called Ta’Zir
laws or misdemeanors we might say, I’m really simplifying here. And then you had this
law of retaliation, eye for an eye, tooth for a tooth. So in big picture terms the code
generally followed that structure, but with the rise in
political excess in executions in Iran many Muslim jurists began to
debate the use of the death penalty and the application
of this code itself. And so this is the —
and these debates raised over the course of 10, 15 years. Those complaints from the jurors
culminated in a suspension or moratorium on the
death penalty in 2002. And then finally the revision of the
Islamic criminal law code in 2013. And one of the elements that
I’ll point to and again, this is all hypothetical we
haven’t seen any applications yet. But it’s a significant element in
that those critiquing the code said that there was not enough emphasis
on procedure and in the idea that jurists or judges don’t always
know whether the facts, the law or the moral concerns that should
go into an intelligent application of a criminal law system, especially
an Islamic criminal system were there. And so they’ve incorporated the
doubt doctrine that looks to ensure that the facts of the law and
the moral or the legitimacy of the punishment is
not in question. And they actually incorporated
the doubt doctrine for the first time
into the new code. This canon that says avoid criminal
punishments in cases of doubt and exactly that formulation
is now in the new code. It remains to be seen
how it is applied. So I’m going to conclude. I’ve tried to address both
problems and prospects for change or updating Islamic criminal law
with respect to internal critique and highlighted some of the
modern experimental examples. Judges tend to appeal to and
I just want to end by saying that why the history of doubt in
Islamic criminal law is important to these internal critiques and to
looking forward to both the problems and prospects that I
tried to highlight. So judges tend to appeal to
conceptions of Islamic law drawn from its foundational
text and understandings from the ever authoritative founding
period we might say of Islamic law from the 7th to 11th centuries. And law is like that, it’s tradition
bound whether we’re speaking about American or Islamic
law or most other systems. Just as we American lawyers look
to America’s founding period for authority often Muslim jurists
look to Islam’s founding period. So the history ends up
being very important. The local politicians and Islamists
tend to be ignorant or illiterate of the history and
I think that adding that to the larger
conversation could be of help to the project of internal critique. So what happens when jurists and
lawyers contemplate the history and operation with a wider
expanse of sources and attention to Islam’s overarching
values and purposes? What happens if we pay more
attention to both the problems and the prospects endemic
to internal critique? These are the questions
that I posit in my own work, I pose to others working on these
issues and they are questions that I hope to discuss
with you today. Thank you. [ Applause ]>>Sherman A. Jackson:
Well good morning everyone. I want to begin by thanking
of Jane and Issam and Kimberly and everybody who’s responsible
for affording me this opportunity to before you this morning. But I’m really worried about time
so I’m just going to jump in. I would like to begin with
the matter of nomenclature, particularly the term reform. Specifically, I would like to
underscore an important distinction between reform as an attempt to
correct, adjust, improve, update, edit or even add to the
enterprise of Islamic law. A reform on the other
hand as a gesture indebted to the Protestant Reformation. The latter reference implies that
the problem rests fundamentally with the basic structure,
institutionalized understandings and interpretive methods through which Islamic law
traditionally negotiated social, political, economic
and cultural reality. On this understanding meaningful
reform requires a whole scale scrapping or at least
marginalization of the classical tradition and its
replacement with a brand-new set of modern methods, institutional
structures and points of departure. To my mind, however, as attractive
as this may seem to some, this is not the most useful
approach to reforming Islamic law, certainly not in the long run. And let me take a moment
here to give at least one major reason why
I believe this to be the case. Key to any successful reform of
Islamic law or any legal system for that matter is the
concept and value of authority. By this I am not referring to any
power of coercion, but more simply to the ability to enlist the
community’s assent by conveying to them a palpable sense that it
is right for them to follow one. Of course, in the modern
west we generally assume that reasonableness is or should
be all the authority one needs to enlist a community’s assent. In truth, however, there is not
one but many forms of reason and this raises the need for an
authority beyond reason itself to adjudicate all of
our reason debates. In the United States speaking in
talk constitutional terms at least, this is the U.S. Constitution. As Americans we often disagree and
put forth all kinds of reasons for and against positions on abortion,
affirmative action or free-speech and we may even see our
opponents’ views as unreasonable. In the end, however, we accept
the Supreme Court’s authority to terminate these
disputes in the interest of preserving the civic order. In law then authority works a lot
like trumps in the game of pinochle, I hope you know pinochle. And to borrow the expression
of Thomas Hobbes where there is no agreed-upon
authority clubs become trumps. The civil order in other
words simply falls apart. Of course, one might argue in the
case of Islam that something other than sharia, for example
liberalism could assume the role of authority broker. But even beyond the
substantive problems with such a proposition it
would take literally centuries for such a substitution
to take place. And in the meantime, massive,
unpredictable instability and dislocation would
be the order of the day. My approach to reform, therefore,
proceeds on the understanding that reform is most effectively
achieved by engaging rather than jettisoning the
classical tradition. Of course, this too raises
significant problems. To begin with there
are literally dozens of present contemporary topics that the classical tradition never
contemplated from stem cell research to copyright law to
sex change operations. Beyond this many issues in which
the classical tradition spoke definitively for example
issues relating to women, religious minorities
or the authority of the Muslim ruler cry
out for reconsideration. Here the fear is that engaging the
classical tradition will either blind us to contemporarility or
entrap us in forms of thinking about an arranging society from
which we desperately seek to escape. In the brief time I have remaining,
therefore, I would like to point to just a few features of
the classical tradition that might give some indication
about how Islamic law might come to terms with these
related challenges. The first feature is actually the
easiest, namely the institution of Ijtihad or fresh unmediated
interpretation of the sources. Obviously, where the issue at hand is historically
unprecedented one cannot rely on the classical schools
of law for solutions even through extensions by analogy. Ijtihad in this context becomes
an obligation by default. This is actually quite
straightforward from the perspective of the classical tradition. Modern Muslims, however, often
invents a certain diffidence or even hostility towards Ijtihad. This is less a question
though of Ijtihad’s status as a legitimate approach
to sharia than it is a sort of resentment towards the sense
that it is largely western modernity that is generating the need
for Ijtihad to begin with. With time of course, such
feelings can only dissipate. In fact, I would hazard that a good
deal of Ijtihad is likely to emerge out of those Muslim communities from
whom western reality is not imposed or sensed as being imposed, but is rather the only
reality they have ever known. But what may be difficult to imagine
in the present moment this points to the importance of western
Muslim communities and the future or to the future of Islamic law. Now having said this much, Ijtihad
remains limited in its utility. For many of the most
problematic features of Islamic law are
precisely those rules that the classical tradition has
upheld for literally centuries. Of course, one could
argue and many Muslims do that Ijtihad is also
the solution here. We simply need to go back
and reinterpret the sources in order to produce new rules. Ultimately, however, this takes us
back to the problem of authority for like it or not the classical
tradition will likely retain much more authority than any
contemporary individual or movement could hope to muster. Nor are we guaranteed that new rules
will necessarily be better rules as we see in the case of so-called
extremist movements today. Nor will contemporary
interpretations necessarily win the day by simply declaring
themselves to be right and classical rules to be wrong. This recognition, however, of
the basic authority wielded by the classical tradition need
not bind us to the perspective or to the perspectives of the
classical jurists themselves for there was an important
distinction between their statements of law and their assessments
of fact. On this distinction classical
rules can be right in terms of their legal substance
and it is not my contention that they’re necessarily
right, but they could be right. While at the same time being
wrong when the attempt is to apply these rules to change
the factual circumstances. Recognizing this feature
renders any number of the rules on the books totally
obsolete and inapplicable to a modern set of circumstances. Classical deliberations were not
theoretical, but rather practical. They aim to address the concrete
everyday realities of society. As such, almost all classical legal
conclusions include an admixture of law that is the jurists’
interpretations of the sources and fact of the practical
circumstances the jurists were seeking to adjudicate. While the strictly legal dimension
of these rulings might be assumed to entail an element of transcendence being presumably
grounded in some interpretation of scripture the factual
dimensions could not. To take one example, based on
prophetic precedent contracts of sale generally entail an implied
warranty with a specified amount of time to check the
product’s integrity. How much time, however, dependent
on the jurists’ factual assessment of what prevailing circumstances
dictated as fair and reasonable. In that light the maximum time
allowed for real estate was set at 36 days and this is the maximum
warranty period that one will find in classical laws on classical
manuals on Islamic law. But this 36 day allowance
was clearly not a matter of permanent law even if the rule
[inaudible] implied warranties was. And in modern context where commercial real estate is
extremely complicated this period could easily be extended to allow
years to test a building’s integrity and such an adjustment would
be perfectly legitimate as a standard feature
of Islamic law. We see the importance and
authenticity of this approach to Islamic law and in exchange
recorded by an old friend of mine on whom I actually will
my dissertation way back in the last century. The 13th century Egyptian jurist
of the [inaudible] school, Shihab al-Din al-Qarafi and I’m
translating here from the Arabic. Question, what is the correct view
regarding those rulings upheld in the school of Maliki, Shafi’i and
the rest which have been deducted on the basis of habits
and customs prevailing at the time these jurists
reached these conclusions. When these customs change
and the practice comes to indicate the opposite of what it
used to, are the rulings recorded in the manuals of the jurists
rendered thereby defunct. It becoming incumbent to issue new
rulings based on the new custom or is it to be said we
are merely followers of the independent,
authoritative jurists. It is thus not our place
to innovate new rulings as we lack the qualifications
to do so. Therefore, we issue rulings
according to what we find in the books handed
down on the authority of the independent
authoritative jurists. Answer, holding to rulings that
have been deduced on the basis of prevailing customs even after these customs have changed is
a violation of unanimous consensus and an open display of ignorance
of the religion, end of quote. Again, almost every area of
Islamic law consists of rules that include an admixture of legal
interpretations on the one hand and factual assessments
on the other. This includes rules in areas ranging
from family law to the status of non-Muslims, commercial
law, jihad and even aspects of the criminal law for example,
rules governing apostasy. In all of these areas
where the rules of the books reflect
the lived realities of pre-modern Muslim society
these rules can be adjusted to modern facts without in
any way violating the sanctity of Islamic law. Another major feature of the classical tradition
is its recognition of the limits of Islamic law. This is a difficult point
to make in a modern context where secular is assumed to take
over where the religious leaves off. And secular is understood to
be the antithesis of religious. My point, however, is simply
that Islamic law recognized that the law itself was not
intended to address all issues. And that beyond the scope of the
source’s jurisdiction other forms of deliberation, including those
that rely on reason, science, practical experience, even
perhaps spiritual epiphany could be legitimately invoked. To be sure this never
amounted to what we in the modern west would
identify as secular for Muslim jurists never
acknowledged the propriety or proceeding as if
God did not exist. They did recognize, however, that Islam as a religion is
broader in scope than sharia. And that the limits of
sharia do not, therefore, equal the limits of Islam. Thus, assuming that sharia did
not address an issue concretely an approach to that issue that
was grounded say in chemistry or actuarial science or plain old
mathematics could be perfectly Islamic even if it was not based
in sharia in the strict sense. This is the area for which I have
coined the term the Islamic secular rather than opposing
or even competing with sharia is simply
complement sharia by recognizing that in many instances
Muslims cannot rely on sharia for concrete answers. In fact, in any number of instances
their reasoning will be generically indistinguishable from that of
their non-Muslim compatriots. Take an issue for example,
such as speed limits or licensing medical doctors, excuse
me or licensing medical doctors. The most sharia could provide here
would be the value of ensuring that such policies served the
communal interests of safety, competence, and the like. What actually constitutes
safety or competence, however, in concrete terms could not be
determined on the basis of sharia for there simply is
nothing in sharia that could identify 55 miles per
hour as an appropriate speed limit or three or four or
six years of rotation as a requirement for
medical licensing. Rather, in deliberating these
issues, Muslims would have to rely on the same kinds of considerations
upon which non-Muslims rely physics, actuarial science, insurance
adjusters, experience and the like. And this would extend to a
virtually endless list of issues in the contemporary public
domain from immigration policy to national healthcare, from
FAA regulations to tenure and promotion procedures
in our universities. All of this is extremely
important for at least two reasons. First, precisely because
things such as speed limits or building occupancy codes or national healthcare plans
are not governed by sharia in the strict sense Muslims
and non-Muslims can be brought into conversation and
debate over these issues on a shared intellectual plane. Sharia in other words, does not
constitute a barrier between Muslims and non-Muslims when it comes
to debating these issues. Second, because society is perhaps
more affected on a daily basis by regulations in the
non-sharia realm than it is by rules strictly dictated by
sharia, even in a polity governed by sharia the area of presumed
conflict between Muslims and non-Muslims might be much
narrower than is commonly presumed. And the area of what
John Rawls will refer to as public reason might be much
broader than is commonly assumed. Attention to the Islamic
secular is also important to the modern political order
of Muslim states for part of the problem here is the
tendency on the part of governments on the one hand and Islamist
movements on the other to invoke the unassailable
authority of sharia as a means of raising whatever rules or policies they propose
beyond critique. Careful attention to the Islamic
secular meanwhile could confer at least three distinct advantages. First, it could insulate Muslim
governments from inflated charges of violating Islamic law every time
they institute economic, educational or bureaucratic policies that are
not explicitly dictated by sharia. Second, it could empower
Muslim communities to hold their governments to
greater degrees of accountability by denying these governments
the ability to wrap their everyday policy in the
unassailable authority of sharia. Finally, it could contribute to
the domestication of power itself by forcing power to negotiate its
right to coerce rather than assuming that Muslim rulers in governments
have some uncontested right to coerce in the name
of what a friend of mine would call
God’s pious dictator. I would like to end these incomplete
ruminations on reform in Islamic law by referring to what remains in
my mind an outstanding problem. And I’d like to take advantage of the intellectual
[inaudible] room underscored. The problem of which I am
speaking is quite simply history. More specifically, unlike modern
states Islamic law never devised a mechanism for wiping the
books clean of outmoded, discarded or discredited rules. Rather, juristic culture as
a whole oversaw this process by constantly identifying and updating what each school
identified as its going opinion. With the marginalization of this
legacy in modern times, however, the entire record of every opinion
ever reached lay at the disposal of the Muslim masses, including
moderate Islamist movements, the majority of whom are
untrained in the law. This means that they can
go back and access rules that have been long
discarded or discredited by the sharia establishment
and treat these rules as if they were the going opinion. And this without the benefit of knowing the important
distinction between law and fact. What renders this even
more problematic, however, is the fact that this rich
and variated [inaudible] of Muslim juristic opinion
is extremely valuable in demonstrating both the
pluralistic nature of Islamic law and the degree of intellectual
boldness and sophistication that went into Muslim
legal deliberations. Thus it would be remiss to try
to block access to this very rich and inspiring legacy and yet this
very access itself poses real problems and even potential dangers. Devising a solution to this
problem in my mind will be key to preserving any gains
that a successful attempt to reform Islamic law might achieve. Yet, I must admit that I
remain stymied by this problem, I’m not sure how to handle it. In the end, however, whatever
solution the Muslim community ultimately settles upon one can only
hope that the cure does not turn out to be worse than
the very disease. Thank you very much.>>Jane McAuliffe: Let me
kick off with this question. As many of you know, Prime Minister
Tony Blair was here last week to give the Kissinger lecture
on international affairs and his remarks got a lot of press. In his remarks Prime
Minister Blair said that defeating Isis what he insisted
on calling [inaudible] was to quote, only a necessary beginning
because again to quote, force alone will not prevail and the Islamist ideology
has also to be confronted. So my question to the four of you
is what does Islamic law reform or to use Intisar’s
words, internal critique, have to do with confronting Islamist
ideology, something that’s on a lot of people’s minds right now?>>Issam M. Saliba: Who would
like to, would you like?>>Jane McAuliffe:
Deer in the headlights. Why don’t you start Sherman?>>Sherman A. Jackson: Oh my God.>>Jane McAuliffe: Oh
Lordy, Lordy, Lordy.>>Sherman A. Jackson: I
was thinking that, you know, whoever plans to run for
president should probably try and answer that question. I think that there are
a couple of things. I think that with regard to
Islamic law one of the things that I think would play
an important role in all of this is a greater diffusion of religious literacy
within society at large. Because it is in some
sense the absence, the lack of religious literacy
in Muslim society generally that enables these views
to gain an audience and to get a multiplier effect. And, you know, I travel in
the Muslim world more often than my wife would like, but
one of the things that I — an impression, just an
impression I’ve not done any sort of study or anything like this. But one of the impressions
that I get is that in a number of instances sort of official
policy seems to be to sort of keep public religious discourse
at a minimum as a means of sort of controlling religion in general. And I think that what that does
is that sustains a reality, a very limited religious literacy
and that opens up the way for those who want to make all kinds
of other outlandish claims, particularly given the reality of
the internet and things like that to be much more effective
in that regard. So I think that one of the keys to turning this corner is a greater
diffusion of religious literacy and I’, going to be very clear about
what I have in mind in that regard. I’m not talking about turning
society into a society of clerics, that’s not what I’m
talking about at all. But there are a number of just
sort of general literacy issues in Islamic law that could be
very useful and stemming the kind of extremism and I’m going to
give you just one small example so that you know that I’m
speaking in concrete terms. If you have a command in the Quran or the [inaudible] the
prophet do, do this. Classical Islamic theory
universally recognizes the fact that that command can mean
either must do, should do, may do and this is standard,
this is standard gear. But for the uninitiated any
command that they might encounter in the Quran or the Sunni will
represent to them must do. And this can have far-reaching
implications and effects. And this is why I think
that greater diffusion of religious literacy is a key to
turning the corner in this regard.>>Jane McAuliffe: Thank you.>>Intisar A. Rabb: I’m going
to say something briefly. I mean I was sitting here trying
to think of how even to approach that question with
respect to context here. What would we — that
relate to extremists who commit acts of violence. What would we say about
the person that blows up the planned parenthood
office or facility and claims that they’re doing so on the
basis of their Christian values and aims to support life? And I think, I mean in addition
to the sort of religious literacy which I think is on point I mean
one would want for not just those who may be in communities that may
encounter someone who is likely to blow up a planned parenthood
office about what the religious — that the religious requirements in Christianity do not
support such a thing. And all of this by analogy
to what’s going on in some of the regions in the Islamic world. But also that the greater
community, policymakers, educators, and the like also have this sort
of basic literacy in order not to by way of buying into the
extremist claims sort of reify it and create this echo
chamber that results in policies that are problematic. So it’s a political
problem I suppose more than one that’s directly
related to Islamic law, but Islamic law certainly
relevant I think in the educational and policy sense.>>Jane McAuliffe:
Thank you, Kristen.>>Kristen A. Stilt:
I would just recently when you first asked the question
it took me a minute to think about the connection between the
two because in some ways the kind of Islamic law reform we’re talking
about a little bit here at least with the criminal and the family
law context is sort of national laws and what nations do in terms
of their own legal system. But ideology of course
is boundaryless, it doesn’t respect boundaries, it
doesn’t respect national states, it’s a vast, vast question. And, you know, I think Sherman ended
with something that’s right on point if I could just echo it, which
is that every opinion ever is at everyone’s disposal and that is
as you said, positive and negative. And that is not something that the
current structures are necessarily set up to address. You can’t change an internal law
in a country and address this kind of problem they’re connected,
but perhaps by steps. But it’s a much bigger question
that spans places and times.>>Jane McAuliffe: Absolutely, yeah.>>Issam M. Saliba: My study of Islamic law even though I’m not a
Muslim really made me very impressed with the legal theory that has
been formulated centuries ago. I mean here you have the 7th,
8th, 9th, 10th century people who are talking about the
importance of human reason, human reason not God,
of human reason in understanding what
God wants to say. Unfortunately, whatever happened
and this has nothing to do with Islam has to do with history. There was some kind of a
blockage, complete blockage. We have to accept the fact, we
have to admit that what some of what ISIS is doing has
a root in the traditions. Now this is not the whole
tradition, but there is some roots and I think the Muslim community, especially the intellectual
leaders have to come up and say that whatever they are
relying on is a portion that does not represent
the full Islamic tradition. And this I think would agree with
Sherman teaching the public opinion, the public Muslim, the
general people what Islam is, what religion is, true
religion is I think will help.>>Jane McAuliffe: Let me
raise the question of the Quran in relation to this conversation. You know, it’s often said
by scholars of the Quran that only a small proportion of the Quran contains
explicitly legal content, yet obviously the Quran continues to loom very large among
the sources of the law. So obviously, very large and any
thinking about a reformulation or reform of Islamic law. In fact, I would ask in a more
pointed way isn’t the conversation about Islamic law reform
fundamentally a conversation about the willingness
to reconceptualize and reinterpret the Quran? Doesn’t that go to the heart of what we’re discussing,
what we’re trying to do?>>Intisar A. Rabb: Sure, one thing
that I can say about that and I have to be careful because Jane
McAuliffe she was my dean when I was in Georgetown as a
scholar of the Quran. But yes, it’s been said
that something like 500 out of the some 6,000 plus verses of the Quran have explicitly
legal content or write content. But by that scholars making
these claims are looking at the explicit rules that might
govern things like inheritance, laws of war, family
law and the like. But I don’t think they mean to
suggest that the overarching values and lessons in parables
that come out in the rest of the Quran are not relevant
to Islamic law or sharia in its broader terms of the law of
ethics, etcetera that are wrapped up in interpreting
what Islamic law is. And so it’s something that
I think a short answer to your question is
yes, is the conversation about Islamic legal change
really a conversation about reconceptualizing
understandings of the Quran in the modern world. I think yes, but I think it’s not
with respect to the limited set of rules but the standards
as well and values that have always been a
part of the Islamic law mix.>>Issam M. Saliba: I was thinking
about this question very long time. That there in the Quran something that is unquestionable you cannot
interpret one way or the other. And one of the things that usually
people think about is the adultery and the adultery has a
punishment that the Quran specify. How can we change that? Is there a way to change
that through interpretation? And I was thinking very deeply about
that until I got to read Al-Muwatta. Muwatta Imam Malik who wrote it and it is considered the
first legal book in Islam. And what caught my attention
is Hijaz that goes to prophet, a man who came to [inaudible]
before he came [inaudible] and told him I committed adultery. What do you expect if the Quran is
saying adultery has to be punished by death, what should he say? Well Abu-Bakr told him did
you tell anybody, he said no. He said go and repent, God
will accept your repentance. And he went and he wasn’t satisfied. He went to [inaudible] he
asked him the same question and [inaudible] answered
him the same thing. Then he went to the prophet
and what did the prophet say? He turned his face against
from him for three times and then he continued, this man
continued to want to clean himself. And then the prophet asked
him to [inaudible] one of his family and he did. And he asked, the prophet asked
him is he sick, is he mad, is there anything, they said no. And then the prophet was forced
to condemn him to be stoned. Now this story, I mean
this is coming Imam Malik and this is you cannot have
more authentic source more than Al-Muwatta. And this tells you something that
you can interpret from this story that even though is immoral
condemnation, the adultery, it’s not necessarily has to be a
legal rule that you as a society or as a government should apply. So I think through the
Islamic [inaudible] in existence there is a lot
of room for improvement. And I’m not claiming that we
should just wipe away everything and come back start anew, but there
is a way for the deep thinkers of Islam to form Islamic
law from within. Not rely on the declaration
of the human rights or declare about what we say in the west, but in their own traditions
there are a lot of things that have not been consulted.>>Intisar A. Rabb: I know I said
something here, but could I just because this actually a case that
features largely in this history about — you’re referring
to the case of [inaudible].>>Issam M. Saliba: Yes.>>Intisar A. Rabb: Who went to the prophet three times
saying I’ve committed adultery.>>Issam M. Saliba: That’s right.>>Intisar A. Rabb: And
was sort of turned away. And finally the prophet said
fine you committed adultery, but he didn’t say anything
about punishment and the Quran doesn’t say anything
about stoning as a punishment for adultery that was a Middle
Eastern tradition, perhaps it came from Jewish law in
the Old Testament. But it was not in Islamic
punishment it’s not in the Quran. So the townspeople based on that
local tradition ended up stoning him and in fact, when the prophet
heard about that he said, if you would have just let him go. And then there was a huge discussion
after that in the literature over the centuries
and until this day. And I’m sure you know this story about whether the prophet was
advising folks to let [inaudible] go in his prophetic capacity
and that is the rule, the rule of doubt essentially
that I talked about or was it his personal
capacity and he was softhearted. I think, I mean and the
general interpretation was that it was the prophetic capacity and this is actually
the Islamic legal rule that undergirded this idea
of avoid criminal punishments in cases of doubt. But I think your general point is
right and I totally agree with that that there’s a lot of
room for internal review and lots of room for revising.>>Issam M. Saliba: This
is my point, this my point. Why, for example, [inaudible]
doesn’t have somebody to come out and say, yes our tradition,
our tradition allow for this type of changes. We are not in need to go
to the United States law or to the French law,
it’s our tradition. And there is a wealth of great
things in the sharia traditions that can not only reform Islamic
law, but can make it even better in my opinion than other laws. And here I remember what Jackson,
Jackson the Supreme Court, Robert Jackson about what he said.>>Sherman A. Jackson: Close.>>Issam M. Saliba: That’s very,
very, very impressive what he said and he said that the
Islamic law has an amazing, I mean he used the word amazing
record of accomplishment. But [inaudible] letting them be
hidden because of our action today.>>Jane McAuliffe: Well you’re
really raising a question of authority here. Well you reference
[inaudible], you know, within Sunni Islam is there a
sufficiently overriding authority that legal reform could have
any hope of implementation on a worldwide or a very
large scale or the reform of Islamic legal thinking. Sherman, I may have cut you off.>>Sherman A. Jackson: Well,
I mean I think that, you know, Muslim countries can, you know, institute whatever reforms
basically fit the context of what the political situation in that particular
country will accommodate. So terms of formal reforms,
I mean that can take place. I guess the broader question
is the degree of resonance that those reforms have among
the population to the extent that they are accepted as being
sort of legitimate reforms. And that’s a more complicated
question, I think that with regard to institutions such as [inaudible],
I think one of the things that we have to be more aware
of in the west is this is that on the one hand we want
[inaudible] or any other sort of official sharia establishment,
you know, to take the lead in instituting some of
these reform measures. While at the same time not
fully appreciating the extent to which Alzar’s inability
and I’m not picking on Alzar I’m just using him as
an example, inability to address, you know, major sort of issues in
society from wealth distribution to poverty to corruption
to foreign policy. Their inability to address these
issues undermines the authority with the masses and in so
doing undermines their ability or certainly limits their
ability, you know, to have the kind of authority that could enlist
the assent of the population. And in that vacuum that’s
where many of, you know, the Islamist movements
come in to fill the void. So I think that, you know, just
looking at these institutions in isolation from the
ongoing political realities of the Muslim world I think it’s
sort of naive and it’s asking Alzar, I mean essentially
to do the impossible. And I think that on the issue
of reinterpretation of the Quran and I say this in the interest
of trying to move us to a point where the kinds of
conversation between Islam and the west can actually
have a greater ability to actually lead somewhere. Look, in terms of let’s
say this thing on adultery, the evidentiary burden for
adultery has been I mean almost impossible to.>>Issam M. Saliba: Absolutely.>>Sherman A. Jackson: To
achieve from the beginning.>>Issam M. Saliba: Absolutely.>>Sherman A. Jackson: And so
with regard to interpretation, there’s not very much you need
to interpret very much there, I mean it’s almost
impossible to prove. But what we have to recognize is
this is that many Muslims feel that what they’re being called upon
to do is reconcile Islam with a sort of hegemonic liberalism
that would basically argue that well there is no justification for having any rule
on adultery period. And what they’re being asked
to do is reinterpret the Quran to the point that there
is no regulation on something like adultery. And I think that those,
I mean that kind of what I would consider extremism on the other side also preempts a
possibility of meaning conversation.>>Issam M. Saliba:
Sure [inaudible].>>Sherman A. Jackson:
But that’s [inaudible].>>Jane McAuliffe: Let’s switch
the conversation a little bit here because I think one of the
other things that we really want to explore is what are the
engines of change here. Some of what you had to say Kristen
talked about particular forms of — particular kinds of
reform, who started them, where are things bubbling up, where
we actually getting some action. Intisar you too when you
talked about the code in Iran. How is it happening on the ground
can you speak to that a little bit?>>Kristen A. Stilt: Yeah
and I think just to pick up on the comment just
about Alzar to be clear. I think it’s very important
to segment these conversations into substantive areas of the law. Alzar is very permissive
on Islamic finance, but has not been a very
strong supporter of changes that have been requested
by women’s groups to enhance the rights
of women for example. So I think we want to segment out
these kind of conversations and say, when it comes to inheritance
law which is quite specific in the Quran, you see that
really holding on even in a place like Tunisia where a lot of the family law has become move
towards a much more egalitarian model with Islamic justifications. But the inheritance portion has
remained pretty, pretty tight. Whereas, of course, in
criminal law very few countries as Intisar said apply
classical criminal law. So looking at different
substantive areas of the laws gives us another lens
on how things change, you know, Islamic law is not consistently
applied the same way in every place. There’s extreme variations
depending on the country and even within countries in a
place like Malaysia. But then to the point of where
the change comes from, you know, I think the bottom up is
a very important place and that’s not always a good thing. But it’s sometimes a very good
thing when we look at, you know, activism around women’s issues
for example and other areas in which activists are driving and
demanding change and finding ways to justify it and trying
to get someone in authority to agree with them.>>Jane McAuliffe:
Yeah, would you agree to that mechanism that
was working in the?>>Intisar A. Rabb: I think
bottom-up is a part of it and I think top-down and lateral are
also parts of it, important parts, meaning that civil society
groups, human rights groups and the like they may come
with arguments seeking to identify economic disparities,
gender injustices and the like. And then perhaps the jurists
as in the criminal law case or the professors at the secular
university who draw on both Islamic and state law, which is still
generally based on European codes in the Muslim world tend to come up
with arguments to push the envelope, push the laws to change much in
the way it happens in this country. You look at the civil
rights movement and we had, I mean it’s a question about social
change or legal change right. Where you have a confluence of the
civil rights movement and people in the trenches, as well as
a willingness on the part of the legislators
and the government to listen perhaps together
with economic — with it falling into
the economic interest. I think a lot of that is happening around critical justice
reforms today. So I think it takes all sides, but I think what Sherman Jackson
just pointed to about the necessity of bringing the conversation
to a level of sophistication and constant engagement
in identifying and continuing those conversations with those various
sides is important. So I think it’s both
horizontal and vertical.>>Jane McAuliffe: What about
the possibility of interference and I’ll pose it this way. What right does a non-Muslim
institution like the Library of Congress have to
even raise these issues, I mean or to hold a
conference like this? That it really is a matter of
do the efforts of, you know, western universities, think tanks, NGOs to foster discussion
of Islamic law reform. Do they help or do they
hinder efforts undertaken in the Muslim world?>>Intisar A. Rabb: I don’t want
to keep talking, but that’s okay. I mean it’s a great
self-reflective question, you know, what are we doing, what
are we talking about. I always tend to think
that I mean to the extent that we can educate ourselves
and other students or uses of the library or policymakers to
the extent that we all interact in this world, which is shrinking
and where we as I alluded to before I think need
also to be educated. It’s not just the Muslims who
need to have some literacy about their religion and what
it permits and doesn’t permit and how it can be used as a
positive force in society. But it’s also those outside of the
Muslim world, it’s non-Muslims, it’s lawyers, it’s
policymakers and to that extent, I think there’s a very
significant role. This is extremely important
and I’m happy to be part of this conversation to help us
better understand and grapple with and raise these questions
that relate to Islamic law and legal change.>>Issam M. Saliba: What is
wrong I think for us here in the west is we want to impose
or think that our way of life or thinking [inaudible]
has to prevail. We have to understand that in the
Islamic tradition there is great possibility and great
treasure that has to be used for any changes to happen. But the way it has been happening
nowadays is we come to them and say, human rights, declaration of human
rights rather than saying what is in your own tradition that
would lead to the same result. Helping them thinking
through their own traditions, their own heritage
and there is a lot.>>Kristen A. Stilt: So I think
this conversation is critical and I think not to
have it is a mistake because it’s basically saying, you have your conversation we’ll
have ours, we don’t have anything in common with each other.>>Issam M. Saliba:
No, no, no I’m saying.>>Kristen A. Stilt: No, I’m
supporting you, I’m supporting you. This conversation is crucial, but also just to nuance
that a little bit. Muslim majority countries
have adopted many of the international human
rights treaties and people in those countries believe
that they are entitled to those rights as well. And so for us to be
concerned about there being, it’s good to be concerned
about imposition, but it’s also I think important
to say you want that too. And we’re part of a big conversation
and maybe how you think about it or justify it or reach
certain points you might go through a different thought process. But when people are standing up and
saying, we want the same rights, you know, our country
has signed this. Pushing their countries as
women’s groups have done to drop the reservations
to CEDAW that say, no except for Islamic
law then we don’t have to adhere to these rights. I think we want to see that
and recognize that and say that we’re part of
one big conversation and that it’s important
to have this here today.>>Jane McAuliffe: Your
thoughts on that Sherman?>>Sherman A. Jackson: Yeah, I mean look I think it’s
important to keep talking. And I do think that and I
mean that very seriously. And I do think that there is a
certain danger of people sort of sitting around talking
to themselves in a manner that those conversations are never
open to a sort of critical gaze from another perspective. And I think that works on both
sides of the conversation. I think at the same time, I mean these conversations
can be hegemonic. They can start off
from premises that sort of basically turn the conversation into have you stopped
beating your wife yet. Whereby, the other side can only
sort of continually apologize itself into more ever deeper holes. And I think that that kind of
conversation has to be avoided. But there’s a very important
role for conversations like this because I think that — I
Kristen alluded to it a bit. Without conversation we
don’t even know those areas in which there is actual
or possible agreement. And I think that with more and
more conversation that’s likely to be further flushed out. And I think that the
real key is, you know, how do we have these conversations, how do we sustain these
conversations, but how do we do so in a way that they
don’t turn hegemonic.>>Jane McAuliffe: We’ve
got 15 minutes left and I have promised the
panelists that I would ask them to ask each other any questions
that have occurred to them as they listen to each other. And I also am going to
point to a bit of a dilemma. I have questions from the audience,
which unfortunately are illegible because they are blue ink
against a blue background. So I’m really struggling
to get them. I’m going to pass these
questions to the panelists to see if their eyes are working
any better than mine. But if they start to read a question
and you recognize it as yours by all means, you know,
you may stand up and give some clarification
of the question. But we’ve got a little
technical difficulty here. But as I pass these
out are there questions that you have of each other. Go ahead.>>Kristen A. Stilt: I do. Something I want to add Professor
Saliba and Professor Jackson. So Sherman, you said when customs
and habits change and to me that raises the question
of who decides when customs and habits change and you mentioned
Nasr Hamid Abu Zayd and his views. And one of his views was
that economics have changed and inheritance — there should
be an egalitarianism inheritance that was not widely accepted. So custom and habits changing
that in itself of course is a test of fear who decides and I was
wondering if you had a thought about that as you were talking
about how [inaudible] updated?>>Sherman A. Jackson: Yeah, I think the custom is a
double-edged sword in this sense. That on the one hand it clearly
changes, but on the other hand in a sense there can
be no single entity that can determine that change. Because part of what renders
custom custom is the very fact that it’s unowned.>>Kristen A. Stilt: Right.>>Sherman A. Jackson: So
for example where I grew up in Philadelphia the custom
was guys wear one earring in the left ear never
in the right ear. Over a period of time the
custom changes so that and only females wore two earrings and now there’s a custom
guys wear two earrings. Now who determined that, you know, that was okay against
the old, nobody knows. But it’s in a sense
Kristen precisely the fact that nobody knows is
what renders it a custom.>>Kristen A. Stilt: Right.>>Intisar A. Rabb: Yeah.>>Kristen A. Stilt: That there
wasn’t a law hinging on it?>>Sherman A. Jackson: No.>>Kristen A. Stilt:
[Inaudible] difference right.>>Sherman A. Jackson: No,
no and so I think that, I mean what you have are jurists who
will make this claim on the basis of custom and that claim will
either resonate or it won’t. So for example, my own best
friend Al-Kharafi talks about how the custom
had changed in terms of the formulae used for divorce. And he was arguing against his
Malaki fellow jurists saying that this stuff that
you find in the books of Maliki is no longer applicable
because the custom has changed. Now some of them agree, some of them don’t end this kind
of thing is argued out. But I don’t think that there’s
any single entity that has sort of formal authority to say,
this is now custom that is not.>>Jane McAuliffe: Okay.’>>Kristen A. Stilt: And someone like Nasr Hamid Abu Zayd says
[inaudible] and then is rebuffed, that’s the nature of customs.>>Issam M. Saliba: Yeah, I would
say here there is two issues. Either there is a change that
come like in the common law, then things have changing gradually and then the judges are articulating
this change and become law. In the Islamic tradition it’s
not the judges who articulate but scholars, which unfortunately we
didn’t have since the 10th century. So this is one way.>>Sherman A. Jackson:
But not even scholars.>>Issam M. Saliba:
Well in the past years.>>Sherman A. Jackson:
But the problem, I mean even Kharafi says this,
scholars may hold something to be customary because
it’s in the books. And [inaudible] saying
you have to go and see what’s customary in society.>>Issam M. Saliba: But
articulating that how in the common law the judges
articulate that change. That the judges are not making
the changes they are articulating the changes. So this is one way. The other way is through
the people deciding and how the people deciding nowadays
is through whatever form they want. And this point for example
specifically Muhammad Iqbal who is a great Muslim
scholar and a great thinker and a great [inaudible] he
mentioned that in his writing when they were thinking about
creating books Pakistan. I don’t think he had in mind at all
Pakistan like the present Pakistan and he was a devout Muslim
committed to his religion. So these are two ways. There is nothing wrong about the
people deciding through elections or whatever, but this has
to be articulated by someone who has some kind of credentials
that Muslims believe in the public and I don’t know where to find that.>>Jane McAuliffe: Well if
we’re going to keep the faith of this audio I think we’ve got
to try and tackle the decipherment of a few of these question.>>Issam M. Saliba: Yeah.>>Kristen A. Stilt:
Can you read yours? I can read mine.>>Jane McAuliffe: All right, why
don’t you take the start Kristen?>>Kristen A. Stilt: Do
you want me to read it?>>Jane McAuliffe: Yeah.>>Kristen A. Stilt: What advice
would you give to policymakers who are not Islamic scholars
yet wish to be effective at reconciling religious
and cultural traditions with governments, human
rights obligations under international treaties, particularly on the rights
of women such as CEDAW?>>Jane McAuliffe: Well go ahead.>>Kristen A. Stilt:
It’s a great question. I teach a class that tries to
deal with this and in looking for materials I’ve found
this fantastic report by a group called Massawa
[phonetic], a group of women that started as sisters in
Islam Malaysia and expanded. And as I mentioned before,
a lot of countries will say to CEDAW we can’t do this, we can’t
do that because of Islamic law. And Massawa has a report that
basically takes apart every claim and says yes you can
and let me show you why. Yes you can and they’re
speaking to the CEDAW commission and they say don’t let these
countries get away with this under the guise of Islamic
law, it’s really patriarchy and we’ll show you how you
can get there from here. And that’s fascinating and following
a group like that allows you then to work under the rubric
or in conjunction with someone who’s trying
to operate internally. And yet at the same time be
supportive of their endeavor. So I’ve put that out there as
one example where that kind of conversation is taking place
within in an internal community, but they’re taking to task there
are other countries that are trying to use these exceptions as
really what they say is a guise for just your patriarchy.>>Intisar A. Rabb:
I have a question that I think is directed
at Sherman Jackson. It doesn’t say it but.>>Sherman A. Jackson:
[Inaudible] Intisar Rabb.>>Intisar A. Rabb: Is law reform
inhibited by different degrees of passion analogous
to gun control here where arguably the majority mildly
in favor of controls is thwarted by a passionate anti-control
minority?>>Sherman A. Jackson:
Yeah, I mean I think that that’s definitely the
case, I mean whatever the sort of prevailing sensibilities, passions in society are will
have an effect on the extent to which reform can
actually take place. You know Muslim reformers are
human beings in parts of society like everybody else and,
you know, proposing this or that idea can be
easier or harder depending on the circumstances
that they’re facing. I think the real question, however, is you know how much authority does
the proposer of a particular reform, how much authority do they possess. And here I’ll go back to a point
that Kristen made earlier and say that we have to differentiate, I mean there are different
kinds of authority. And let me just give you one
example of what I’m talking about. Most of us in this room
are probably old enough to remember the assassination
of Anwar Sadat in 1981. In 1997, the group that assassinated
Sadat basically came out and renounced political violence. Now there have been all kinds
of meetings and back and forth between them and the government
and government officials and [inaudible], etcetera
all of them failed. It was when the leaders of this
group, however, decided on their own that we’re going to
renounce political violence, then they were able to sell that to
a much broader segment of society. So they had a form of authority that
even, you know, jurists and clerics of [inaudible] might not have
had in that particular context. So I think that there are lots
of different players and we have to be sensitive to the type
of authority that is possessed and the type of authority that is
needed to address specific groups. What type of authority is needed
let’s say to address ISIS right now? Is it [inaudible] or
is it the [inaudible]?>>Jane McAuliffe:
Intisar do you have?>>Intisar A. Rabb: Another
question here is how to tell when, how do you tell when consensus on legal change is pervasive
enough to be authoritative? And it seems — this question
seems linked to this question of authority, but also to that
earlier question about, you know, just how does legal change happen. And I will only say this
that I think that every — we have to be careful to not speak in excessive generality even
though Islamic law is something that in some ways can be amorphous
and cross-border transnational. But I mean there are states
and different manifestations of Islamic law and
I think one element of authority is state
authority to control and monopolize violence
and other forms of law. And that’s one easy way
of telling when a method of change is authoritative
you’ve convinced your legislators through all of these different
actors that might do the convincing. As we talked about
before the horizontal and the vertical to
create legal change. But I mean there of course is a
social, religious aspect as well for those who follow
Islamic law that is private and there may be elements
of infusing or degrees to which you can infuse more of
the values of Islamic law relevant to the context in which you
live and that manifests itself in some changes in Islamic law. The extent of authority I think
then depends on the extent to which these individuals
follow an authoritative figure or school of thought.>>Jane McAuliffe: Probably have
time for one last question, Issam.>>Issam M. Saliba:
I think [inaudible].>>Kristen A. Stilt: Ayan
[phonetic] [inaudible].>>Issam M. Saliba: Ayan in
her recent book [inaudible] for reforming Islam,
including Islamic laws focused on the afterlife as
I don’t know what — as an obstacle to everyday
secular life. Your comment. If this is what I understand. I personally from my reading
and study of Islamic law and Islamic tradition, I think
this is a great tradition. It has a great potential for correcting what we see
wrong here from within. And I don’t think that
only can it be said to be for the afterlife it can
be for this life as well because there is a tremendous
principle and good traditions in the Islamic history that is not
being even known to most Muslims. For example, when you read, you
know, [inaudible] what he said about [inaudible] getting into the
church of [inaudible] in Jerusalem and the time of the [inaudible] came
the patriarch invited him to pray in the church and he refused. Why, he said probably some of my
Muslim in the future will come and say this is where [inaudible]
prayed and we want to convert that. He went outside and
prayed in front of the. Now some Muslim, scholars even
they say this is not a true story, but whether this is true story or not it represents a great
part of the Islamic heritage. How can you [inaudible]
with what ISIS is doing by destroying the churches
in [inaudible]. And this is what I’m saying,
I mean we have to go back to the Islamic traditions themselves
and there is a tremendous, tremendous possibilities there to correct what I think is wrong
today with the likes of ISIS.>>Jane McAuliffe: Well maybe we’ll
let that be the last word in terms of our open panel discussion,
but I’m going to go to the podium and introduce our very final
speaker of the morning. But before I do that may I ask you
to join me in thanking our panel. [ Applause ] And now I would like to ask Dr. Mary
Jane Deeb to come to the podium. She is chief of the African
and Middle East Division here at the Library of Congress
and she’s going to wrap this all up in a few words. I mean it’s an impossible task that
we have asked Dr. Mary Jane Deeb to undertake, but I know you
will enjoy her final remarks. Thank you.>>Mary Jane Deeb: Thank
you Jane and thank you. I want first to thank the Law
Library, its acting law librarian, Rebecca Schaffer, for hosting it and
the law librarians who organized it and who invited me to this
discussion, [inaudible], Kimberly Zellars and all the others. So thank you for being here. My division is cohosting this event
and so I’m delighted to be here just to make a few closing remarks. There are a few and I’m not going
to try to put everything together because it’s been very
exciting and I’m going to leave you with their ideas. I’m going to wrap up
the program today, I will just make a few comments. The speakers have made fascinating
and thought-provoking presentations and have challenged
many of the stereotypes that people have in
mind about sharia. So let me add my two cents to the
discussion, not as a legal scholar which I’m not, but as a
political scientist which I am. From that perspective that
is of a social scientist, I approach all law whether western
or Islamic as interpretation. It is the interpretation of
religious text, ethical principles, philosophical thesis
and/or cultural traditions. Islamic law as we have heard today or sharia is the interpretation
of mainly three things. The Quran, which is a
sacred religious text. The Hadith, which is verbally
transmitted sayings of the prophet. And the Sunnah, which
is a reported record of the prophecy reads and teachings. In addition, there is [inaudible],
which are the customs and traditions of the many Muslim
societies around the world. Again, as a social scientist I have
to categorize, to classify things. So how to classify Islamic law in
order to be able to analyze it. The issue I raise is an issue which
is important in the Muslim world and that is whether Sharia can be
classified as sacred law and so by definition unchanging. Example, you cannot really
change the 10 Commandments or is it secular law,
which is man-made and, therefore, can be changed. Professor Schacht maintains that
because Islamic law is derived from the Quran, which is a
sacred text and I’m quoting him, Islamic law is a particularly
instructive example of a sacred law. He argues that the individuality and
I think Professor Jackson referred to it, the individuality
of legal subject matter and religious norm is additional to
the [inaudible] variety of legal, ethical and ritual rules,
which is typical of sacred law. But others, such as Nasr Hamid Abu
Zayd whom we’ve been talking about, have argued that once the
revelations reach human beings and were interpreted by them
they were no longer in the sphere of the sacred, but rather
in that of the mundane. He stated that Quranic
interpretation I’m quoting him, was one of the tools
used in intellectual, social, and political struggles. For him sharia cannot be considered
sacred or consequently unchangeable. It is unarguably man-made
having been created by jurists and Muslim scholars
over the centuries. The history of Islamic law seems to lean towards Abu Zayd’s view
whom we have just discussed. The Sunnah existed in pre-Islamic
times and meant then a body of customs, beliefs and
traditions later in Islamic came to be associated as Muhammad’s
reported conducts and sayings. But as you have heard, there
were competing views and reports in the prophet’s sayings and doings
and the Muslim jurists needed to interpret them in
order to create a body of cohesive legal doctrines
and practices. [Inaudible] the customs and traditions was also
taken into consideration. They developed early on
the four major schools of Islamic jurisprudence, the
[inaudible] that we have talked about and with the founding
of the Hanafi School with [inaudible] Abu Hanafi. And then there was [inaudible] who established the Malaki
School of Jurisprudence. And Muhammad [inaudible] who
established Shafi’i School. And finally came the fourth
jurist Ahmed Ibn Hambal who established the Hanbali School
and you must have heard a lot about the Hanbalis and the impact
of that school of jurisprudence on Islamists, radical
Islamists today. In other words, from the very early
days of Islam there was debate as we have talked about
regarding Islamic law, it was not static as
sacred law would be. But instead, it was dynamic,
changing and evolving. And at the end there was
no consensus of the jurists on all aspects of law,
hence the emergence of these four schools
of jurisprudence. In addition, through the divergences
between these four schools of sharia there exists another
perhaps even more important that between the two major branches
of Islam, the Sunni and the Shia, the approach of Shiism to
[inaudible] is somewhat different from that of the Sunnis as they have
their own school of jurisprudence. There’s the Ja’fari
school, the school was named after [inaudible] Ja’fari in the
8th century, the religious imam. By the way, since 1959
the Ja’fari School of Jurisprudence has been recognized
as the fifth school of jurisprudence by the [inaudible] in Cairo. Among Shiites the door
of Ijtihad seems to be slightly more open whilst
the door of Ijtihad and we have, Professor Jackson has
been talking about it. The door of Ijtihad among Sunnis
seems to be somewhat closed, although you know not
operationally closed, but not theoretically closed. This in terms of Shiism allows
the [inaudible] to make judgments and to issue rulings
on legal matters and to interpret the
[inaudible] of religion and the principles of sharia. Shiites accept, again there’s
a difference between Shiites and Sunnis when we talk about reforming Islamic law we
should be clearer on those things. The Shiites accept only the
interpretation of law based on the Sunnah concerning the family
of the prophet and his descendants, the successors and not
necessarily the [inaudible], the people around the prophet. Furthermore, Shiites will accept
the interpretation of law only if validated by the imam. And one of the pillars of Shiism
is the imamate or the succession of the prophet, which is not
really acceptable to Sunnis. And then you have other Muslims with
varying approaches to Islamic law, such as the Ismaili whose
legal system is based on the [inaudible] Islam,
the pillars of Islam. But they hold that there are
seven not five pillars of Islam that includes the [inaudible], the devotion to the imam Ja’fari
[inaudible], again he’s back. [Inaudible] ritual purity, which
somehow [inaudible] the Sunnis because they’re not
comfortable with the concept of an imamate, [inaudible]. And then there is the [inaudible],
one of the main branches of the Muslim [inaudible] who are
to be found in Iman for example, as well as in North Africa,
Libya, Algeria, Tunisia. We just had a group of
[inaudible] from Algeria came and gave us their publications
and told us about the work they’re doing there,
which I immediately said okay, you know, bring in your publications
we need to see those as well. And [inaudible] also
found in East Africa. They also have a concept of the
imamate, but somewhat different from that of the Shiites. The imam is elected secretly
by council of prominent laymen or by sheikhs and then
proclaimed in public. Often the eligibility is limited
to a single tribe or even a family. However, the concept
of several imams in different regions
is also allowed. That’s interesting when we’re
talking about the state for example as we were referring to earlier. So one is a discussion such
as the one we’ve had today, so important to political
scientists. Well first, as it was
pointed out by the speakers because Islamic law focuses on
the organization of the state. As we have seen concepts
of the caliphate and the imamate are critical to our
understanding what Muslim rebels such as ISIS or the
Qaeda are calling for. They’re calling for the
caliphate, but not all of them. And Islamic law also focuses
on the organization of society and we had Professor
Stilt talk about it. And we have seen with the discussion
on women and family law and again, the ISIS [inaudible]
these groups are claiming that they know how society should
be organized that they know. And somehow those who fail to
follow the sharia according to ISIS should be punished and [inaudible] we’ve seen
quite clearly on television. And thirdly, this discussion is
important to social scientists because we are discussing change,
reform, modernization as a way to address the challenge
posed by these and other groups demanding
change in Muslim society. So the problem with these
three reasons I’ve given is that there is no single
answer to any of these issues. And in fact, there may
be many contradictions. So going back to the dichotomy
of sacred versus secular low for instance, how can there
be reform or modernization or even change of sacred law,
sacred law should be, you know, by definition perfect, immutable
if not, how can it be sacred. And this is certainly the position
of the most conservative groups and of the radical Islamist
groups such as ISIS. This is why they do not
want change, it is sacred, it is untouchable you
do not make changes. Second, when we talk about change
and reform of sharia what exactly, what school of jurisprudence
are we focusing on? That of the [inaudible],
the Shiites, [inaudible] for instance introduce
a number of changes in the concept of the state and the imamate and the
role of the clergy and the state. Are we addressing the Ja’fira
School of Jurisprudence for example or are we focusing primarily
on Sunni Islam and if so, why? Thirdly, when we discuss
the concept of the state as you’ve all been discussing today,
there is really no clear agreement of what is the best
form of the state. The imamate and the
caliphate are not the same. Also the process historically
of selecting Islamic leaders as you know has been a very bloody
business and continues to be so. There is no agreement across the
Muslim world on either process or representation and
I’m saying this with qualifications,
but should there be. And with regards to social
organization, women, the family, as was pointed out with Professor
Stilt, there is so much variation. In fact, over the past 1,400 years,
since the beginning of Islam, there has not been uniformly
applicable laws throughout the Muslim worlds regarding
the family, women, social organizations, society. In fact, look at societies with
predominantly Muslim populations. Indonesia for example,
Nigeria is another example, Saudi Arabia have all
very different patterns of social organization
and family relations. It is tradition, it is
customs, worldviews that seem to have had a greater impact in
the final analysis than sharia law. Okay, I am sticking my neck out
in all this, but I claim ignorance but I’m only a political scientist. Then again my question is what is it
that we really are trying to change? Is it customary law, are we
talking about human rights, what part of Islamic sharia, which groups are we trying
to affect and to change? And as was raised, who is the we, I
mean is it we here, is it we there, is it one particular group,
is it one particular country, is it one particular authority. And I am not going to present any
answer I’m just raising questions from one perspective and
I’m leaving it at that. So thank you very much and
thank you all for being here and this panel was wonderful and
let us give them all a big clap because they’ve done
a fantastic job. And thank you Jane for
moderating it so well. This has been a presentation
of the Library of Congress. Visit us at LOC.gov.

Posted by Lewis Heart

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