Sami A. Aldeeb Abu-Sahlieh Introduction to Islamic and Arab Law

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Sami A. Aldeeb Abu-Sahlieh

Introduction to Islamic and Arab Law

www.sami-aldeeb.com


Introduction

Number importance


One considers the number of Muslims at 1200 millions, about 20% of the world population.

Asia: 780'000'000

Africa: 380'000'000

Europe: 32'000'000

North America: 6'000'000

Latin America: 13'000'000

Oceania: 3'000'000

Switzerland

Year Muslims Total Population

1970 16'353 6'269'783

1980 56'625 6'365'960

1990 152'217 6'873'687

2000 310'807 7'204'055

France

Second religion after Catholicism, before Protestantism and Judaism.

Exact number is not known in reason of prohibition to carry out censuses based on religious membership.

Estimation: between three and seven millions out of approximately sixty million inhabitants


Geographic importance




Muslims in the word

Muslims in Europe


Religion's importance


Islamic conference organisation (ICO): 57 countries

22 Arab countries:

Algeria Saudi Arabia Bahrain

Djibouti Egypt United Arab Emirates

Iraq Jordan Kuwait

Lebanon Libya Morocco

Mauritania Oman Palestine

Qatar Somalia Sudan

Syria Tunisia Comoros Union

Yemen

Excepted Lebanon, the constitutions of these countries indicate that Islam is religion of state and/or Islamic law, the main source of law.


35 non-Arab countries

Afghanistan Albania* Azerbaijan*

Bangladesh Benin* Brunei

Burkina Faso* Cameroun* Ivory Coast*

Gabon* Gambia* Guinea*

Guinea Bissau* Guyana* Indonesia

Iran Kazakhstan* Kirghizstan*

Malaysia Maldives Mali*

Mozambique* Niger* Nigeria*

Uganda* Uzbekistan* Pakistan

Senegal Sierra Leone Suriname

Tajikistan* Chad* Togo*

Turkmenistan* Turkey*

Among the 35 non-Arab countries, 24 countries (with *) mention secularism of the state in their constitution in a form on in another.


Part I. Fundamentals of Islamic law

Chapter I. The legislator


The first question has a theological and philosophical nature: Who makes the law? The answer to this question directs all Muslim thought, and it is the basis of the claims of Muslims in Muslim and Western countries.

Section I. The legislative competence belongs to God


Car Driver in France goes to Great Britain: he drives on the left side without complaining.

British Driver goes to France: he drives on the right side without complaining.

Malian family goes to France: it practices female circumcision although forbidden.

Moroccan family goes to France: its daughters have their veil in school although forbidden.

Why Malian and Muslim families refuse to accept the French law? The answer: there is a difference in the concept of law.

I. Three main concepts of law

- As an emanation of a dictator

- As an emanation of the people, by direct or indirect democratic way: cheese method

- As an emanation of the divinity, transmitted either directly through the revelation to a prophet, or indirectly through the religious authorities representing the divinity on earth.

Jews and Muslims, to quote only these two groups, follow the concept of the law as emanation of the divinity. It is almost non-existent among Christians.

1) Jewish concept of law


At Jews, the law is in the Bible, notably in the first five books assigned to Moses: Torah

Moses was a Head of State.

The Bible is completed mainly by


  • The Mishnah (written between 166 and 216) and its comment,

  • The Talmud (that of Jerusalem, written in Tabaria and finished towards the end of the 4th century; and that of Babylon, written in Babylon towards the 5th century).

Mishnah and Talmud are considered as the oral Bible; they comprise the teaching of the Jewish religious authorities.

We read in the Bible:

Everything that I command you you shall be careful to do; you shall not add to it or take from it (Deuteronomy 13:1).

The secret things belong to the Lord our God; but the things that are revealed belong to us and to our children for ever, that we may do all the words of this law (Deuteronomy 29:28).

This shall be a perpetual statute for you and your descendants wherever you dwell (Leviticus 23:14).

Maimonides (died 1204), the most famous Jewish philosopher and theologian

Quoting these verses, Maimonides writes:

It is clearly stated in the Torah that it contains the Law which stands for ever, that may not be changed, and nothing may be taken from it or added to it.

According to Maimonides, if one pretends the opposite, "he shall die by hanging". This punishment is also foreseen for anyone who "uproots any of our verbal traditions or says that God had charged him to interpret the Law in such and such a way, he is a false prophet and is to be hanged even though he give a sign".

2) Christian concept of law


Although coming from the Jewish tradition, Jesus was not very in favour of the law as dictated by the Bible. He was a hippy.

Adultery case

The scribes and the Pharisees brought a woman caught in adultery, and having set her in the center of the court, they said to Jesus, "Teacher, this woman has been caught in adultery, in the very act. Now the Law Moses (Lv 20:10; Dt 22:22-24) commanded us to stone such women; what then do you say?" he said to them: "He who is without sin among you, let him be the first to throw a stone at her". When they heard it, they began to go out one by one, beginning with the older ones, and he was left alone, and the woman, where she was, in the center of the court: Jesus said to her, "Woman, where are they? Did no one condemn you?" She said: "No one, Lord". And Jesus said, "I do not condemn you, either. Go. From now on sin no more." (Jn 8:4-11).



Inheritance case

In another case, someone in the crowd said to him, "Teacher, tell my brother to divide the family inheritance with me". Jesus said to him, "Man, who appointed me a judge or arbitrator over you?" And he added for the crowd which heard him: "Beware, and be on your guard against every form of greed; for not even when one has an abundance does his life consist of his possessions" (Lk 12:13-15).



Law of retaliation

You have heard that it was said, 'An eye for an eye and a tooth for a tooth.' But I say to you, offer no resistance to one who is evil. When someone strikes you on (your) right cheek, turn the other one to him as well (Mt 5:38-39)


Famous sentence

"Render to Caesar the things that are Caesar's; and to God the things that are God's" (Mt 22:21).


Maintaining Roman concept of Law

Because of the absence of legal norms in a sufficient number in the Gospels and the writings of the apostles, the Roman Empire after its Christianization kept following the Roman law. The jurist Gaius (d. v. 180) defines the law as being "what the people prescribes and establishes" (Lex est quod populus iubet atque constituit) (Gaius: Institutes, I.3). The modern democratic system is based on this concept of the law.


3) Muslim concept of law


Return to the biblical concept of the law

The message of Muhammad constitutes a return to the concept of the law in the Bible, from which it takes many norms (e.g. the law of retaliation: 2:178-179 and 5:45).

The Islamic lawyers use the term legislator to designate exclusively God, the only one able to fix laws. This concept is determined by Koran, which says:

O you who believe, you shall obey God, and you shall obey the messenger, and those in charge among you. If you dispute in any matter, you shall refer it to God and the messenger, if you do believe in God and the Last Day (4:59).

According to Koran, only God can decide what is licit and what not it is:

You shall not utter lies with your own tongues stating: "This is lawful, and this is unlawful," to fabricate lies and attribute them to God. Surely, those who fabricate lies and attribute them to God will never succeed (16:116).


Adultery case

This concept of the law is illustrated by the attitude of Muhammad vis-à-vis a case of adultery similar to that with which Jesus was confronted. Jews brought to Muhammad a man and a woman who had made adultery. He asked about the sanction envisaged in the Bible. The Jews answered him that the Bible envisaged lapidation (Lv 20:10; Dt 22:22-24), but their community had decided to change this norm because it was applied only to the poor. Instead of this sanction, this community had decided to blacken the face of the culprits by coal, to carry out them in procession and to whip them, independently of their social status. Muhammad refused this modification estimating that it was his duty to restore the norm of God. He recited the verse then: "Those who do not rule in accordance with God's revelations are the wicked" (5:47).


Islam means submission

Etymologically, the term Islam means submission, Muslims means (submitted). This religion proclaims the submission to the will of God as expressed in Koran and the Sunnah (tradition) of Muhammad, the two principal sources of Islamic law:

Those who do not rule in accordance with God's revelations are the disbelievers, […] the unjust, [...] of the wicked (5:44, 45, 47).

No believing man or believing woman, if God and His messenger issue any command, has any choice regarding that command. Anyone who disobeys God and His messenger has gone far astray (33:36).

The only utterance of the believers, whenever invited to God and His messenger to judge in their affairs, is to say, "We hear and we obey." These are the winners (24:51).

Mitwalli Al-Sha'rawi (d. 1998), famous Egyptian sheikh and minister says:

If I were the person responsible for this country or the person charged to apply God's law, I would give a delay of one year to anyone who rejects Islam, granting him the right to say that he is no longer a Muslim. Then I would dispense to him of the application of Islamic law, condemning him to death as apostate.



Jad-Al-Haq, sheik of Azhar (d. 1996), declared in a fatwa 1994:

If a region stops, of common agreement, to practice male and female circumcision, the chief of the state declares war against that region because circumcision is a part of the rituals of Islam and its specificities. This means that male and female circumcisions are obligatory.


II. Absence of the concept of the sovereignty of the people

The above-mentioned Muslim position has as corollary the absence of the concept of the sovereignty of the people among Muslims, key concept for any democracy.

Consequently, even if many Muslim countries gave up the Islamic law, partly or in totality, they could not abrogate it. The Islamic law is put merely aside, with the constant risk of seeing it re-appearing.

Muslim authors who accept to speak of the people's sovereignty hurry to fix its limits:

- If the question to regulate has been the subject of an authentic and clear text of the Koran or of the Sunnah, the nation has to obey to it; it could not establish a contrary rule.

- If the meaning can have various interpretations, the nation can try to deduce a solution starting from the comprehension of the text, by preferring an interpretation to another.

- In the absence of text, the nation is free to establish the norm which is appropriate to it, provided that this norm respects the spirit of Islamic law and its general rules and that it is not contrary to another Islamic norm.


Complete law and covering everything. The Koran says:

We have revealed to you this book to provide explanations for everything (16:89).

Today, I have completed your religion, perfected my blessing upon you, and I have decreed submission as the religion for you (5:3).

Influence of the Islamic concept of law on Human rights

The Universal Declaration of human rights (1948) and other international documents, mainly of Western inspiration, do not mention God. The attempts aiming at mentioning it in these documents failed. The preamble of the Universal Declaration says:

The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations…

The preamble of the Universal Islamic Declaration of Human Rights (1981) says:

- Strong of our faith in the fact that God is the sovereign master of all things in this immediate life as in the ultimate life...

- Strong of our conviction that human intelligence is incapable to elaborate a better way in view to assure service of life without God’s guidance and revelation: We, Muslims, ...

we proclaim this Declaration of Human Rights made in the name of Islam, as one can understand them of the very noble Quran and the very pure prophetic Tradition (Sunnah)….

III. Can man establish a law?


To make a law means to determine what is good and what is bad, what one must do and what one must avoid. The major opinion says law could not be the product of human beings, but of God alone, through his prophets. This debate raises the question of the need for prophets for the management of society.


Ibn-Khaldun (d. 1406) famous Muslim philosopher and historian

He notes that the societies, which do not know religious laws, were, in his time, much more than those, which know religious laws. Yet these secular societies were prosperous and were not anarchistic (as Muslim society in his time). He concludes that theocratic authority is not essential for the maintenance of men in society. Ibn-Khaldun makes however an exception for the Arabs,

Arabs can obtain royal authority only by making use of some religious colouring, such as prophecy, or sainthood, or some great religious event in general. The reason for this is that because of their savagery, the Arabs are the least willing of nations to subordinate themselves to each other, as they are rude, proud, ambitious, and eager to be the leader. Their individual aspirations rarely coincide. However, when there is religion (among them) through prophecy or sainthood, then they have some restraining influence in themselves. The qualities of haughtiness and jealousy leave them. It is then easy for them to subordinate themselves and to unite. This is achieved by the common religion they now have. It causes rudeness and pride to disappear and exercises a restraining influence on their mutual envy and jealousy

Koran confirms the idea of Ibn-Khaldun:

He has reconciled the hearts (of the believers). Had you spent all the money on earth, you could not reconcile their hearts. But God did reconcile them. He is Almighty, Most Wise (8:63).

Although admitting the possibility of having a secular society without prophecy, except for the Arab society, Ibn-Khaldun prefers the theocratic society. He distinguishes to this effect the management of the society in view of its temporal success, and the management of the society in view of the salute of its members. According to him, only theocratic society, managed by a divine law, can assure this salute.


An encyclopaedia published by Egyptian ministry of waqf (2003):

People who reason well are unanimous on the fact that reason and social science can in no way replace the guidance of the Messages that God revealed, whatever be the rational knowledge of wisemen and thinkers. Their wisdom, their knowledge and their science are only lacunar human opinions, are only conjectures …, and are in all the cases subject to errors and divergences, and their judgements are relative. Who can then arbitrate in the event of divergences between the opinions resulting from the rational effort? It is there that materializes the necessity of the revelation and the prophetic clarification to decide conflicts and divergences, as God says: "We have revealed this scripture to you, to point out for them what they dispute, and to provide guidance and mercy for people who believe" (16:64).


IV. Amalgam between law and religion


Religion

The term religion (din), in Arabic as in other Semite languages, means the last judgement, the debt, etc. Technically, it is defined by the lawyers as follows: "The divine system which leads the person who follows it to straightness and virtue in this life, and salvation in the other life". Religion includes thus not only cultual questions (how to pray), but also legal questions.



Shari'ah

Etymologically, it means the road that leads to the water stream, which does not dry. Still today, the term shari' is used to indicate the street. A contemporary Muslim author defines shari'ah as being:

The norms transmitted by the revelation to Muhammad which improve the state of people with regard to their terrestrial life and the other life, whether these norms are dogmatic, cultual or ethical.

Fiqh

Etymologically, the term fiqh mean: comprehension, knowledge. For Islamic lawyers, fiqh indicates knowledge par excellence, the religious knowledge that consists in knowing the rights and the duties of man. For this reason, it is a synonym of shari'ah.

The religious scholar who deals with Islamic law is called faqih. He deals not only with temporal aspects (such as sale contract) but also with the religious aspects (how to achieve prayer and pilgrimage).


Qanun

Arab language inherited the Greek term Qanun through the syriac language. Saudi Arabia replaces this term by the one of decrees (nidham). Because of the presence of two legal systems, the Arab countries often have two distinct academic institutions: Faculty of law and Faculty of Shari'ah. There is no faculty of law in Saudi Arabia, only faculty of decrees, or Faculty of Shari'ah




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