12. The prospect of Islamic criminal law

12.1. Fundamentalism and Modernism

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The Islamic world of today is sharply divided between modernism and fundamentalism. This is a result of a supposed Western cultural hegemony as well as the Islamic perception of the West as economically and scientifically superior. Islamic intellectuals either justify a proposed effort to catch up with the West as absolutely necessary for the survival or their thoughts are predominated by revivalism, which implies a backward movement to the said true sources of revelation.

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Both streams of thought may be defined to a large extent by their relationship to the West. Modernism takes into account what the West has achieved and calls for an adaptation to one’s own ideas, values and practices. They advocate a broad interpretation of Islam for harmonising the traditional Islamic teachings and principles with the needs of a modern, progressive society.

Fundamentalism, on the other hand, implies a return to a supposedly original core Islamic concept that rejects Western achievements. The group of traditionalists that is hostile to any modernisation of society and advocates a return has been gaining influence especially since the beginning of the new millennium. As a matter of fact, both movements have been thriving and rivalling with each other for almost two centuries now and are still doing so. Their combat becomes increasingly fierce.

The issue of Sharia as an integral part of the religious, social and cultural life of a Muslim is, of course, in the centre of the struggle described above since it is all inclusive and all persuasive at the same time. Joseph Schacht, a leading scholar of Islamic jurisprudence, has described the principles of Sharia as “the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself.”162 Following this assertion one can easily understand why any proposed change of Islamic jurisprudence or even a moderation of legal views may result in a political earthquake that could threaten the stability of an entire region. Adjustments done to legal systems in the Muslim and especially the Arab world have far graver repercussions than equal measures in the Western hemisphere. The example of Nigeria where an implementation of Sharia principles is sought by the country’s Islamic population and which is equally fierce contested by other population groups provides a good example in regard of possible consequences.163

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Traditionalists view the Sharia as sacrosanct and immutable. All proposed reforms in the realm of Sharia law that aim at a moderation of principles considered as too harsh in a modern world were fiercely rejected. On the other side, members of the reform party in various Islamic countries hailed those projects. They recognize that the closure of the gates with the final establishment of Islamic Law Schools in the 10th century had sad results. On account of this, Islamic law and society remained to a certain degree stagnant for many centuries and the tremendous social changes of modernity quietly passed the Muslim world of different parts of the world by.

To men who believe that the Koran is the very word of God, “the idea of changing or abrogating these fundamental laws is equivalent to apostasy.”164 They call upon the state to forsake values, laws and regulations that are believed to be contrary to the Sharia and view it as the constitution of Islam. How successful such a movement can shows the Wahabi movement in the Arabian Peninsula in the 18th century that has sought to expunge all of Islamic practice that has occurred past the year 1000. They still triumph under the Saudi family. The short-lived but nevertheless radical success of the Taliban in Afghanistan is another, even more threatening example.

The view at past times and the eventual desire to return to those ancient times marks precisely the dividing line between the traditionalists on the one side of the battle field and the modernists on the other side.

12.2. Need to change

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Despite all intellectual struggling and efforts of traditionalism, an adoption of modern standards of law is inevitable in a world that is rapidly growing together and does not permit any isolationist approach anymore. Therefore, the question of reforming the Islamic legal corpus only calls for a “How?” and not for an “If?” How can the law code of predominantly Islamic countries and societies be adopted to the challenges of the modern world without leaving large groups of people behind? No precise answer can be given to this question because the situation in every Muslim country is a different one and must be taken into consideration.

One possible approach to finding a solution is the legal foundation of Sharia. The sources of Islamic criminal law leave a certain margin of manoeuvre in terms of defining justice. In many fields of justice one can apply modern standards that are in full accordance with Western ideas without contradicting or rejecting legal principles based on the Koran or the Sunna. However, an enormous effort must be made in order to convince even the staunchest advocate of Islamic orthodoxy from the validity of this assertion. It is, nevertheless, of paramount importance to leave as few people as possible behind. One argumentation strategy could, for instance, insist on a stricter theological definition of Islam with less interference with political and judicial aspects. An attempt to radically islamise Muslim societies must under all circumstances be countered.

As a matter of fact, one does not have to start from the scratch. Much of the work has already been done because vast parts of the Islamic world have been introducing European legal measures for the past two centuries already. In many areas of jurisdiction one only needs to go a few steps further by cutting back on archaic measures of penalty or introducing modern human right standards in all fields of justice. The example of Turkey which has recently abandoned death penalty and is making big efforts to meet central European legal standards shows what is possible.

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Eclecticism, the device of searching for precedents in the four schools of Islamic law but also in the opinions of individual jurists would already conform to most needs of modern life if one did not take the prescribed rules literally but allowed some fantasy interpreting them. Orthodoxy in legal thought must therefore be superseded by creativity and enough reason to search for a possible solution without harming basic principles of Islam. The totality of the desirable legal rules of all the schools may prove to be quite rich, flexible and progressive and answer most of the challenges and needs of the present age. Many classical jurists permit already to follow one approach to finding a solution in one particular issue and another in others if the conscience so permitted.165

The real problem is often to be found on a completely different field which has less to do with religion and jurisprudence. Often, the real problem is not so much incorporated by the rules and restrictions implied by Islam itself but rather questions of power and political authority that withhold ambitions to reform. Islamism is used as a political weapon and issues concerning the Sharia are a superb tool for it in the eyes of many. Shariah is currently being used to justify oppression and tyranny, injustice, and political coups. However, this might backfire one day because “Islam has consistently turned back heterodox movements that see the message of Muhammad entirely in political terms.”166

In fact, traditional Islam can comprehend both, reform and orthodoxy. The question about what it takes to be a good Muslim is as old as Islam itself. The same conflict that has occurred at the time following the Prophet is still present. Than and now it takes a period of creativity and liberty to meet the present challenges and reverse Islam’s century old decline. As a matter of fact, in the long run the Islamic state always managed to escape the restrictions imposed by a too narrowly defined Sharia rule. If the modern Islamic world does not follow that pattern, it will have long reaching repercussions because the alternative would be a politicised form of Islam, including a narrow minded regard on Sharia principles that led Muslim countries into stagnation, crisis and final downfall.

12.3. Examples for a successful adaptation

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By the beginning of the 20th century there was a consensus among liberal Islamic thinkers about the necessity to reform and to meet modern legal standards without totally abandoning Islamic restrictions. Their reflection resulted in several legal constitutions within the Muslim world that are still in place and could lead the way to reform.

What those thinkers basically did was to go back to the original sources of Islamic jurisprudence and reinterpreting them in the light of a changed world. They had to overcome strong resistance among more conservative scholars which is why it took about half a century to implement many of their suggestions.

The 1953 Syrian Law of Personal Status, for instance, enacts that the permission to a man already married to take a second wife could be refused on the grounds that he could not support them both. The 1957 Tunisian Law of Personal Status even goes a step further outlawing completely polygamy. It is argued that although the Prophet has permitted the taking of more than one wife in principle, he has also declared that a husband should treat his wives equally and with complete impartiality. The Tunisian law makers argued that this was not possible under today’s circumstances and therefore outlawed polygamy. 167

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The cited examples give an idea of the nature of change and the methodology employed to implement the necessary changes without rejecting Islamic principles. Those modernist reforms have helped to abandon polygamous marriages, taken away much of the husbands power over his wife, enabled wives to seek judicial dissolution of their marriages on certain, well-defined grounds, restricted child-marriages and softened the rigours of inheritance laws. The modern Islamic Personal Statute laws of Syria, Egypt, Jordon, Kuwait and Tunisia imply all similar measures aimed at protecting and asserting a woman’s right and at preventing some of the most unfair injustices. Those are significant gains that have enabled Muslims to adapt to the needs of a modern system of laws without loosing the link to tradition and faith. Furthermore, they have helped to lessen tensions implied by the impact of western ideas and values.

There remains, however, the reproach of legal opportunism because modern liberal legal scholars in the Islamic world heavily rely on picking and choosing aspects of Islamic legal sources that fit their needs. On the other side, one could respond to those accusations by stating that orthodox or even fundamental advocates of a more conservative interpretation of Sharia measures do exactly the same.

12.4. Problems implied

The major limitation to any pattern of change - however promising it might be - is the fact that reform-minded scholars have failed so far to develop a firm and systematic juristic principle of reform that is capable of dealing with all present needs and that also takes future developments into consideration. But only a suggestion for a systematic layout of a reformed law code, whether it takes its inspiration rather from the traditional Muslim jurisdiction as represented in the Sharia or accords a high priority to Western models, is the starting point from which a true reform can take off.

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Adding to that, even the most positive and optimistic thinker must acknowledge that there rest several problems that could not that easily be solved. Portions of the Islam such as prohibitions against apostasy, the oppression of religious minorities in some countries, restrictions on women, and the cruelty of some penalties imposed on criminal offenders violate modern international legal standards and challenge the worldwide implementation of basic human rights. Those are issues that are not that easily to overcome since they are in the core of Islamic thought and practice. They represent prescriptions of the Sharia which cannot be overwritten or easily adapted to the circumstances and demands of modern life by the procedural and eclectic expedience of reform.

In a more general context, the problem lays within the cultural gap between different parts of the world. Due to the globalisation efforts of the past decades, its nations, ethnicities and religious groups have approached each other in terms of economic and social issues. They may also share certain values and lifestyles. But one should not forget that all those ideas derive from the Western hemisphere and are always followed with overwhelming enthusiasm. Especially the Muslim world partly resists a complete immersion into Western models. Even if members of non-western societies are aware of Western lifestyles by the means of modern media and strife for their share in Western consumer societies, they do not necessarily have to share all ideas that come from the economically and politically most advanced and most prosperous parts of the world.

Globalisation does have an impact on all civilisations and permanently contributes to a gradual change. However, globalisation does not automatically imply a unification of values. Within this context it becomes clear why so many non-Europeans and non-Americans resist giving up their own sets of values that are – among others – expressed in a system of laws.

Fußnoten und Endnoten

162  Schacht , Origins of Muhammadan Jurisprudence, Oxford 1950, 124 ff.

163 Levtzion, Nehemia, Patterns of Islamization in West Africa, in: Nehemia Levtzion (ed): Conversion to Islam, New York 1979, 207 ff..

164  Gibb, H.A.R. Modern Trends in Islam, Chicago 1947, 90ff.

165  Guillaume, Alfred, Islam, London 1956, 170ff.

166  Forte, David, Studies in Islamic Law, Oxford 1999, 235ff.

167  Coulson, N.J., History of Islamic Law, Edinburgh 1964, 208ff.

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