In many Muslim-majority countries, voters say they favor Sharia as a source of civil law. It’s not always clear what this means. Does “Sharia” refer to classical fiqh or something else? Is “Sharia” meant to apply as law or serve as a background norm for judging the validity of other laws? In a new article, Designing Islamic Constitutions: Past Trends and Options for a Democratic Future, Clark Lombardi (University of Washington) explores the trend of enshrining Sharia in recent constitutions in Muslim-majority countries. Here’s the abstract:
In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a “Sharia Guarantee Clause” depends to a large degree on questions of constitutional design — on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGC’s, and it considers the impact that different schemes have had on society. Building on this background, the article considers what type of SGC enforcement scheme, if any, are likely to permit (and ideally promote) a state to pursue democratic policies. As it notes, SGC’s are often found in authoritarian or imperfectly democratic constitutions. Unsurprisingly, the designers of SGC enforcement schemes in non-democratic countries have generally tried to ensure that their SGC will be interpreted and applied in a way that permitted or even promoted non-democratic policies. Nevertheless, we can draw from the experience of these countries some important lessons about the types of SGC enforcement scheme that will allow more democratic states to promote both democratic political participation and rights. At the same time, recent debates have erupted in Western liberal democracies about how best to reconcile rights enforcement with democracy. These debates clarify some issues that aspirational Islamic democracies will face as they try to develop SGC enforcement schemes for a democratic society, and they provide insight into the qualities that an institution must possess if it is to address such issues effectively. A number of Muslim countries are currently debating how best to square a constitutional commitment to respect Islam with parallel commitments to democracy and rights. Acknowledging that these countries will need to tailor their SGC enforcement schemes to very different local conditions, this paper describes some basic design features that effective democratic SGC enforcement schemes are likely to share.
In Washington on June 4, the Law Library of Congress will host a panel, “The Role and Impact of Islamic Law in Transitioning Arab Spring Countries”:
The panel, led by moderator Mary-Jane Deeb, Chief of the African and Middle Eastern Division, will discuss the role of Shari’a law in the recent and ongoing constitutional drafting processes of Egypt, Tunisia and Libya. The discussion will also concentrate on the broader impact of Islamic law on the legal systems of Arab Spring states, looking particularly at personal status issues. Other points of discussion will include the compatibility of Shari’a law and human rights, and some of the challenges facing women and minorities in transitioning Arab Spring countries.
The distinguished panel will include Nathan J. Brown, Professor of Political Science and International Affairs at the Elliot School of International Affairs at the George Washington University; Lama Abu-Odeh, Professor of Law at Georgetown University Law Center; and Issam Saliba, Senior Foreign Legal Specialist at the Law Library of Congress.
Details are here.
This month, Stanford University Press will publish a new edition of a famous series of essays by the twentieth-century Pakistani intellectual Mohammad Iqbal, The Reconstruction of Religious Thought in Islam. First published in the 1930s, the essays have had a major impact on contemporary Muslim thought. This version contains an introduction by Javed Majeed of King’s College, London. The publisher’s description follows:
The Reconstruction of Religious Thought in Islam (1930) is Muhammad Iqbal’s major philosophic work: a series of profound reflections on the perennial conflict among science, religion, and philosophy, culminating in new visions of the unity of human knowledge, of the human spirit, and of God. Iqbal’s thought contributed significantly to the establishment of Pakistan, to the religious and political ideals of the Iranian Revolution, and to the survival of Muslim identity in parts of the former USSR. It now serves as new bridge between East and West and between Islam and the other Religions of the Book. With a new Introduction by Javed Majeed, this edition of The Reconstruction opens the teachings of Iqbal to the modern, Western reader. It will be essential reading for all those interested in Islamic intellectual history, the renewal of Islam in the modern world, and political theory of Islam’s relationship to the West.
In classical Islam, the Muslim community, or umma, is both a spiritual and political entity, the body of believers that lives, but also rules, by God’s law. Obviously, this conception of Islam is in some tension with contemporary Western pluralism. Lately, some Muslim scholars in the West–Abdullahi An-Na`im and Tariq Ramadan, for example–have offered conceptions of Islam that separate the spiritual from the political. These progressive versions fit better with Western ideas about citizenship, but have encountered resistance from tradition-minded Muslims.
Next month, Fordham University Press will publish a translation of a new book by one such scholar, Abdelwahab Meddeb (University of Paris-Nanterre). Meddeb’s book, Islam and the Challenge of Civilization, looks for inspiration to the Sufi tradition. The publisher’s description follows:
Abdelwahab Meddeb makes an urgent case for an Islamic reformation, located squarely in Western Europe, now home to millions of Muslims, where Christianity and Judaism have come to coexist with secular humanism and positivist law. He is not advocating “moderate” Islam, which he characterizes as thinly disguised Wahabism, but rather an Islam inspired by the great Sufi thinkers, whose practice of religion was not bound by doctrine.
To accomplish this, Meddeb returns to the doctrinal question of the text as transcription of the uncreated word of God and calls upon Muslims to distinguish between Islam’s spiritual message and the temporal, material, and historically grounded origins of its founding scriptures. He contrasts periods of Islamic history—when philosophers and theologians engaged in lively dialogue with other faiths and civilizations and contributed to transmitting the Hellenistic tradition to early modern Europe—with modern Islam’s collective amnesia of this past. Meddeb wages a war of interpretations in this book, in his attempt to demonstrate that Muslims cannot join the concert of nations unless they set aside outmoded notions such as jihad and realize that feuding among the monotheisms must give way to the more important issue of what it means to be a citizen in today’s postreligious global setting.
Islam begins with the hijra, the Prophet Mohammed’s flight from persecution in Mecca to the city of Medina, where Muslims first organized themselves as a spiritual and political community–the Muslim umma. This founding event has led to a debate in Islamic law that continues to this day. Does the Prophet’s example suggest that Muslims may not reside in a non-Muslim polity? The dominant position, according to scholar Andrew March, is that Muslims may reside in non-Muslim states, as long as they are free to practice their religion. A minority tradition, however, holds that Muslims may not reside in non-Muslim states and that migration is a religious obligation. This latter view obviously creates complications for citizenship in pluralist democracies.
These questions are no doubt addressed by a book to be published later this month by Britain’s Islamic Texts Society, Muslims in Non-Muslim Lands: A Legal Study with Applications, by author Amjad M. Mohammed. The publisher’s description follows:
Since the Second World War, there has been a significant migration of Muslims to countries in the Western world. Muslims in non-Muslim Landstraces the process by which these migrants arrived in Western Europe-in particular Britain-and explains how the community developed its faith identity through three particular stances: assimilation, isolation and integration. The findings argue that the assumption that Islam causes Muslims to isolate from the indigenous population and form ‘a state within a state’ is false, and that Islamic law actually gives Muslims confidence and the ability to integrate within the wider society.
This July, the University of Texas Press will publish Pakistan’s Blasphemy Laws: From Islamic Empires to the Taliban by Shemeem Burney Abbas (SUNY Purchase). The publisher’s description follows.
Under the guise of Islamic law, the prophet Muhammad’s Islam, and the Qur’an, states such as Pakistan, Afghanistan, Egypt, Saudi Arabia, and Bangladesh are using blasphemy laws to suppress freedom of speech. Yet the Prophet never tried or executed anyone for blasphemy, nor does the Qur’an authorize the practice. Asserting that blasphemy laws are neither Islamic nor Qur‘anic, Shemeem Burney Abbas traces the evolution of these laws from the Islamic empires that followed the death of the Prophet Muhammad to the present-day Taliban. Her pathfinding study on the shari’a and gender demonstrates that Pakistan’s blasphemy laws are the inventions of a military state that manipulates discourse in the name of Islam to exclude minorities, women, free thinkers, and even children from the rights of citizenship.
Abbas herself was persecuted under Pakistan’s blasphemy laws, so she writes from both personal experience and years of scholarly study. Her analysis exposes the questionable motives behind Pakistan’s blasphemy laws, which were resurrected during General Zia-ul-Haq’s regime of 1977–1988—motives that encompassed gaining geopolitical control of the region, including Afghanistan, in order to weaken the Soviet Union. Abbas argues that these laws created a state-sponsored “infidel” ideology that now affects global security as militant groups such as the Taliban justify violence against all “infidels” who do not subscribe to their interpretation of Islam. She builds a strong case for the suspension of Pakistan’s blasphemy laws and for a return to the Prophet’s peaceful vision of social justice.
This month, Routledge published Islamic Law and the Law of Armed Conflict: The Conflict in Pakistan by Niaz A. Shah (University of Hull, UK). The publisher’s description follows.
Islamic Law and the Law of Armed Conflict: The Conflict in Pakistan demonstrates how international law can be applied in Muslim states in a way that is compatible with Islamic law. Within this broader framework of compatible application, Niaz A. Shah argues that the Islamic law of qital (i.e. armed conflict) and the law of armed conflict are compatible with each other and that the former can complement the latter at national and regional levels. Shah identifies grey areas in the Islamic law of qital and argues for their expansion and clarification. Shah also calls for new rules to be developed to cover what he calls the blind spots in the Islamic law of qital. He shows how Islamic law and the law of armed conflict could contribute to each other in certain areas, such as, the law of occupation; air and naval warfare; and the use of modern weaponry. Such a contribution is neither prohibited by Islamic law nor by international law.
Shah applies the Islamic law of qital and the law of armed conflict to a live armed conflict in Pakistan and argues that all parties, the Taliban, the security forces of Pakistan and the American CIA, have violated one or more of the applicable laws. He maintains that whilst militancy is a genuine problem, fighting militants does not allow or condone violation of the law.
I spent this morning at the fourth annual Religious Legal Theory Conference, hosted this year by Sam Levine at Touro Law School. I moderated a panel, “Religious Legal Theory and the Perspectives of ‘Others.’” The idea for the panel, which was Sam’s, was to bring together scholars who write about law in religious traditions other than their own, something that I tried to do a few years ago at the first Religious Legal Theory Conference with my essay, Fiqh and Canons.
The presentations were interesting and covered a variety of perspectives. Randy Lee (Widener) spoke about his experience as a Christian studying Jewish law. He said that this experience had taught him the importance of “listening Jewish”–to find the best in others. He wondered whether “Godly lawyers” who listened to clients in this way might actually transform lives. In response to a question from me, Randy stated that he did not think that all lawyers who study religious law would have his experience, or should; but, in studying Jewish law, he realized that he himself was a “variable,” not a “constant,” and that he himself had been transformed.
David Friedman (Santa Clara) is an atheist who studies the history of religious legal systems. He argued that Jewish and Islamic law both rest in part on pre-existing, decentralized ”feud systems,” characterized by private retaliation for wrongs. He gave examples from both systems. Friedman also addressed the problems that arise in legal systems that have God, rather than humans, as “the legislator,” and the various interpretive devices such systems employ to mitigate what seem to be disproportionate penalties called for in sacred scripture- Islamic law rules calling for amputation as punishment for theft, for example.
Philip Ackerman-Lieberman (Vanderbilt), who is Jewish, spoke about his work on the interactions between Islamic and Jewish commercial law in medieval Cairo. He argued that scholars should not concern themselves only with a comparison of legal details, but should study social and legal structures as a whole. Structural analysis reveals that the Islamic legal culture and Jewish legal subculture influenced each other in a kind of “dialogue.” The two systems shared ideas, but also differentiated themselves from one another–and in this differentiation may be found the distinctive elements of each legal tradition. Philip suggested that the study of legal theory and commercial practice in medieval Cairo could have an impact on contemporary issues faced by Islam and Judaism.
Russell Powell (Seattle University School of Law) has posted Evolving Views of Islamic Law in Turkey. The abstract follows.
The tradition of Kemalist secularism (laiklik) in Turkey is often cited to distinguish Turkey as an exceptional case among predominantly Muslim countries. While it is true that the Turkish Constitution, laws, and legal opinions approach the relationship between the state and religion very differently than those of Iran, Saudi Arabia, Egypt, or even Indonesia, it would be wrong to underestimate the role that religion plays in the formation of Turkish legal norms, including citizen understanding of those norms. There is a wealth of literature describing the nature of Turkish secularism and its evolution. A number of both quantitative and qualitative studies inquire about the preference for Shari’a among Turkish voters. The typical question asks whether respondents favor the establishment of a Shari’a state. Over the past fifteen years, these surveys have received response rates ranging between five and twenty-five percent in favor of such a state. However, these results are extremely problematic, because they do not provide any context or meaning for “the establishment of a Shari’a state,” either for those who favor it or for those who oppose it. This study begins to unpack the range of possible meanings attributed to Shari’a within Turkey, both among voters and among intellectuals, as a framework for future empirical studies and as a basis for deeper understandings of the role of Islam within Turkish law and politics.
This April, Cambridge University Press will publish Women and the Transmission of Religious Knowledge in Islam by Asma Sayeed (University of California, Los Angeles). The publisher’s description follows.
Asma Sayeed’s book explores the history of women as religious scholars from the first decades of Islam through the early Ottoman period (seventh to the seventeenth centuries). Focusing on women’s engagement with ḥadīth, this book analyzes dramatic chronological patterns in women’s ḥadīth participation in terms of developments in Muslim social, intellectual, and legal history. Drawing on primary and secondary sources, this work uncovers the historical forces that shaped Muslim women’s public participation in religious learning. In the process, it challenges two opposing views: that Muslim women have been historically marginalized in religious education, and alternately that they have been consistently empowered thanks to early role models such as ‘Ā’isha bint Abī Bakr, the wife of the Prophet Muḥammad. This book is a must-read for those interested in the history of Muslim women as well as in debates about their rights in the modern world. The intersections of this history with topics in Muslim education, the development of Sunnī orthodoxies, Islamic law, and ḥadīth studies make this work an important contribution to Muslim social and intellectual history of the early and classical eras.