Distinctive Features of Islamic Law
The notion of law in Islam is very comprehensive and encompasses practically all dimensions of human life, including beliefs and worship, social institutions, behavior, etiquette and contracts and agreements. The term Shariah (for which Islamic law represents an imperfect translation) comprises not just a set of legal rules, but something which is suffused with moral and spiritual values. Islamic law does not posit a duality or separation between matters relating to this world and those relating to the Hereafter, between the sacred and the profane. The much-acclaimed Code of Justinian, which consists of collections of laws and legal interpretations developed under the sponsorship of the Byzantine emperor Justinian I from 520 to 565, is confined to an enunciation of legal rules but makes no mention of worship and religious rituals. Muslim scholars and jurists generally describe Islamic law as consisting of four distinct components: worship and prayer, social interaction and dealings, matters relating to marriage and family and penology.
The fundamental Islamic principle of egalitarianism is conspicuously reflected in Islamic legal principles and rulings. Islamic history is replete with instances that show that the Islamic ideal of equality was translated into reality. Jabala al-Ghassani, the chief of a tribe from Syria, was performing the Hajj when his mantle accidentally fell under the feet of an Arab tribesman. Enraged, Jabala struck him a blow in the face. The bedouin complained to Caliph Umar, who summoned Jabala and told the bedouin to return the blow. “How can that be possible,” asked an astonished Jabala. “He is an ordinary man and I am a prince”. Umar replied, “Islam has made you one with him and you have no superiority over him except in piety and good deeds”.
Islamic law subjects the state and the ruling dispensation to the rule of law and admits of no exemption in favour of the head of state. The caliph or ruler and the common man are equal before the law. It is reported that Caliph Ali once lost his armour. After a few days he happened to see it with a Christian. He filed a complaint in the court of Qadi Shurayh, who summoned the Christian. The Christian claimed that the armour belonged to him. The qadi asked Ali if he had any proof or evidence in support of his claim, to which he replied in the negative. The qadi gave the verdict in favour of the Christian and dismissed the caliph’s petition. The Christian was so overwhelmed by this exemplary show of justice (on the basis of available evidence) that he announced his decision to embrace Islam and exclaimed, “This is like the justice of the prophets, that the caliph presents me before a city magistrate (who is subordinate to him), and the magistrate gives his verdict against the caliph!”
In Islamic society, the judiciary is independent of the ruling establishment. The judge is required to implement the provisions of Islamic law (Shariah) without fear or favour, and in the discharge of his obligations he is accountable, not to the powers that be, but only to God. An independent judiciary played a crucial role in ensuring compliance with Islamic law on the part of the ruling establishment as well as the general public.
All ancient civilizations had a body of laws or legal codes. What distinguishes Islamic law from other legal codes is that Muslim scholars and jurists not only enunciated and codified Islamic legal prescriptions and rulings on the basis of the Quran, Hadith, the precepts of the first four caliphs and of the Prophet’s Companions, but also conceptualized and formulated general, abstract legal principles. They described these principles as “the principles of jurisprudence” (usul al-fiqh).
Muslim scholars and jurists emphasize that the principles and provisions of Islamic law are essentially aimed at ensuring and enhancing human well-being. An eminent Muslim jurist Ibn al-Qayyim says: "The basis of the Islamic Shariah is wisdom and welfare of the people in this world and in the Hereafter. This welfare lies in complete justice, mercy, well-being and wisdom. Anything that replaces justice with oppression, mercy with harshness, welfare with misery and wisdom with folly, has nothing to do with the Shariah". Noah Feldman, a professor of law at Harvard University, has pointed out that for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world.
Muslim scholars draw a distinction between the fundamental principles of Islamic law (usul), which are universal and applicable to all societies and in all ages, and legal rulings (furu’), which are embedded in specific situations and contingencies. Islamic law possesses, on the one hand, a remarkable dynamism and vitality and, on the other, sufficient flexibility to deal with unforeseen situations and circumstances.
The French philosopher and sociologist Montesquieu, in his work Spirit of the Laws (1750), dwelt at considerable length on the linkage between laws and changing social, political and economic conditions. More than four centuries before him, Muslim scholars and jurists had dealt with this issue in an elaborate and nuanced manner. Ibn al-Qayyim, for example, had observed that “variations in space and time, social conditions and circumstances, intentions and motivations and habits have a close bearing on legal prescriptions and rulings.”
Islamic law takes cognizance of local customs and mores (urf and ‘adah) as long as they are not in conflict with Islamic legal principles or with the canons of reason. Ibn Abidin, a distinguished jurist, has observed that many Islamic rulings are based on local customs prevalent at given points of time. Imam Malik considered the customs of the inhabitants of Madinah as a legitimate basis for legal rulings. Imam Abu Hanifah has pointed out that in the case of legal rulings that are based on local custom, if these customs undergo changes with the passage of time, the legal rulings will not be automatically modified in accordance with the changed social context. Rather, he emphasized, the rulings will be reexamined and reinterpreted according to the fundamental tenets of Islamic law. Muslim jurists have explicitly stated that since customs can be based on both reasonable considerations and superstition and obscurantism, custom per se cannot be regarded as a legitimate basis for a legal ruling. They drew a distinction between customs which can be legitimated in the light of Islamic legal principles, and customs which are at variance with Islamic principles and are therefore unacceptable. Shortly after the passing away of the Prophet, Muslims spread out to far-flung areas and came across alien customs and traditions. Muslim scholars and jurists selectively appropriated those customs which were not at variance with fundamental Islamic principles. Caliph Umar, for example, allowed the traditional Iranian revenue system to continue in the conquered territories.
Islamic law also takes into consideration situations which exercise severe constraint on the behavior of people at a given point of time. When Madinah was faced with a severe drought during the caliphate of Umar, he suspended the customary punishment for theft. Imam Abu Hanifah was of the opinion that it is not permissible to take remuneration for teaching the Quran or for leading prayers in a mosque. However, a situation arose in the third century of the Islamic era when it became difficult to find people who would be willing to teach the Quran or to lead prayers in mosques without any remuneration. Faced with this situation, Muslim jurists felt that if this kind of situation was allowed to continue unchecked, it would have adverse consequences for the transmission and dissemination of Islamic teachings and for carrying out Islamic ritual practices. Therefore, they gave a ruling to the effect that it was permissible to accept remuneration for such activities.
Sources and Methodology of Islamic Law
A distinction may be drawn between the fundamental, perennial sources of Islamic law and the secondary, derivative sources. There is a general consensus among all Muslim scholars and jurists that the Quran and the recorded sayings, precepts and actions of the Prophet constitute the fundamental sources of Islamic law.
The body of Islamic jurisprudence has cumulatively evolved and developed over the past several centuries. Since the early verses of the Quran did not contain any specific legal commandments, Muslims were allowed to follow the local customs prevalent in Makkah. In the course of time, some of these customs which were at variance with Islamic beliefs and principles were prohibited and replaced by acceptable modes of collective behavior. In some cases, the legal prescriptions in the Judaeo-Christian tradition were selectively appropriated. The Quran says: “Those were the Prophets who received Allah’s guidance; follow the guidance they received…..” (6:90). Sometimes, when the Prophet did not receive any clear instruction by way of revelation pertaining to a specific situation or issue, he followed the customs of local Jews and Christians, as Imam Bukhari reports in his authoritative collection of Hadith, Al-Jami’ al-Sahih. However, some of the legal prescriptions of the Judaeo-Christian tradition were rejected by Islamic law. For example, it was permissible for a girl under Jewish law to marry her mother’s brother. This was forbidden by Islamic law (Quran 4:23).
Broadly speaking, analogical deduction (qiyas), consensus among scholars and jurists about a specific legal issue at a given point of time (ijma), critical interpretation of legal rulings in specific social contexts (ijtihad) and juristic preference (istihsan) constitute the major methodological principles of Islamic law. Istihsan refers to a method whereby a jurist decides to give precedence to a given legal ruling over other options. This is done after a careful weighing of the merits of all available legal options and with a view to reduce the hardships of people.
The antecedents of ijtihad can be traced back to the time of the Prophet. When he appointed Muadh ibn Jabal as governor of Yemen, he asked him: “How will you give a judgement (in a given matter)?” Muadh said: “According to the Quran”. The Prophet asked him: “What if you do not find (any guidance) therein?” He said: “I will judge according to the Prophet’s precepts”. The Prophet then asked him: “What if you do not find (any guidance) in that also?” He replied: “I will then use my own independent judgement”. The Prophet was highly pleased with Muadh’s reply. After the passing away of the Prophet, when his Companions were faced with knotty issues, they sought to resolve them, both individually and collectively, through the principle of ijtihad. The principle of ijtihad symbolises the dynamic character of Islamic law and reflects its accommodative, inclusive and humane ethos. It has enabled Muslim scholars and jurists down the ages to deal with unforeseen situations and circumstances and to find solutions to intractable issues.
One of the methodological principles of Islamic law is what may be described as the principle of correspondence or similitude. Abu Yusuf, in his monumental work Kitab al-Kharaj, narrates an incident from the time of Umar’s caliphate. Once an officer on the borders of the Islamic state sent a letter to the caliph, saying that traders from foreign lands enter the territories of the Islamic state for the purpose of trade and commerce. He inquired with the caliph about the quantum of revenue to be collected frrom foreign traders. Umar wrote back to him, saying that foreign traders should be asked to pay the same amount of revenue which Muslim traders are required to pay when they they visit foreign lands for trading activities.
Islamic Law and Human Rights
In recent years human rights have been a subject of a great deal of discussion and debate around the world. The contemporary discourse on human rights is embedded in the Western doctrine of liberalism, which holds that the individual is the basic source and locus of identity. Consequently, the focus is on the rights of the individual. This discourse glosses over the fact that the individual cannot be disembedded from his social milieu and that not only individuals but groups and communities are also bearers of rights. A second problem with the dominant discourse on human rights is that it focuses exclusively on human relationships and has little or nothing to say about animals or about the environment. Another major problem with the contemporary human rights paradigm is that it relegates the issue of human responsibilities to the background.
While Islam shares the basic tenets and concerns of the contemporary discourse on human rights, its view of human rights is much broader and deeper in scope. For one thing, the Islamic discourse on human rights encompasses not only issues relating to human relationships but also to animals and the environment. Second, Islam views human rights as inseparable from human responsibilities. The Islamic term haqq (plural: huquq) connotes a fundamental linkage and reciprocity between rights and responsibilities. Third, the Islamic discourse on human rights is embedded in an overarching moral framework. This moral framework is defined by a consciousness of the ontological unity of reality, including cosmic, ecological and human, and a deeply-ingrained sense of responsibility and accountability to God. This sense of responsibility and accountability to God is exemplified in a Tradition of the Prophet: “All of you are (like) shepherds, and all of you are accountable for (the wellbeing of) your flock”. Seyyed Hossein Nasr has rightly pointed out that Islam never allowed the development of the idea of the Promethean man: man freed from any responsibility to a world beyond himself, to the sacred, to God, to humanity at large and to nature. For instance, Islam views the environment not as something out there, unconnected to human existence, but as a vestige or sign of God.
Islamic law recognises two sets of human rights: civil and political rights, and social, economic and cultural rights. The latter category of human rights was not recognised in the Western legal tradition until the adoption of the International Covenant on Economic, Social and Cultural Rights in 1966. Similarly, the right of privacy, which was not recognised in Western legal traditions until quite recently, was recognised in Islamic law since the early centuries of the Islamic era.
An important issue in the discourse on human rights relates to the means or mechanisms or motivational strategies whereby the ideals of human rights could be translated into reality. The process of socialization, education, legal provisions and social sanctions undoubtedly play a significant role in internalising the values associated with human rights. Islam emphasises the cultivation of a sense of moral responsibility and accountability as viable means whereby human rights—and responsibilities—could be ingrained in human consciousness. It is easy to pontificate about human rights but extremely difficult if not impossible to put oneself in the shoes of another person, as it were, and to be as sensitive about his likes and preferences as one is about oneself. This feat requires a good measure of selflessness, sincerity and compassion. The Prophet is reported to have said, “A Muslim cannot be a (true) Muslim unless he likes for his brother what he likes for himself”.
Generally, human rights and responsibilities are classified under two broad heads in Islamic law: rights and responsibilities relating to God (huquq Allah) and those relating to humans (huquq al-ibad). Specifically, the whole gamut of rights and responsibilities could be broadly grouped under the following heads:
(i) in relation to God and faith
(ii) in relation to oneself
(iii) in relation to one’s family, including parents, spouse and children
(iv) in relation to the community of believers
(v) in relation to relatives, friends and neighbours
(vi) in relation to fellow humans (regardless of religious distinctions)
(vii) in relation to animals
(viii) in relation to the environment
In Islamic view, the individual is entitled to wide-ranging rights, including the right to life, belief and conscience, equality, economic security, personal honour and dignity, justice and equal treatment under law without discrimination, information and freedom of expression, basic education, acquisition and ownership of property, choice of one’s spouse, and freedom of movement. These rights are not absolute but are subject to moral regulations and are inseparably bound up with their concomitant responsibilities.
Islam views man as essentially a moral being who has been endowed with the capacity for thinking, self-reflection and moral choice. As a moral being it is his responsibility to create and sustain an environment that is conducive to righteousness, brotherhood, cooperation and harmony and to combat evil and viciousness. An attitude of indifference and apathy not only encourages moral atrophy in society but also weakens the foundations of one’s cherished values. The Prophet is reported to have said, “If one of you witnesses an evil (being committed), he should stop it by physical force; if he cannot do this, he should try to counter it with his tongue; if he cannot do this either, he should condemn it in his heart. And this is the weakest part of faith”.
The Prophet emphasised that worship and prayer cannot absolve a man from his guilt of violation of human rights. He once asked his Companions: “Do you know who is a destitute?” They said, “A destitute among us is one who has neither money nor resources”. The Prophet said: “A destitute among my followers is one who would present himself on the Day of Judgement with prayers, fasting and zakat-tax (to his credit). At the same time, he had abused someone, had made a false accusation against someone, had usurped someone’s money, had spilled someone’s blood and had thrashed someone. All such people (who were victims of his harshness) would then be called; the virtues and good deeds of this man would be offered to them; their sins would be loaded onto him, and he would be thrown into hell”.
Legal Pluralism in Islamic Perspective
Legal pluralism is defined as a situation in which two or more legal systems coexist in the same society or social field. The contemporary discourse on legal pluralism takes little or no cognizance of the fact that a legal system may allow the coexistence of diverse legal cultures and traditions within its fold. This, for example, is the case with Islamic law.
Legal pluralism in the Islamic tradition is reflected in two distinct spheres: (i) the coexistence of divergent interpretations and schools of Islamic jurisprudence (ii) the recognition of the religious, cultural, legal and judicial autonomy of non-Muslim minorities living in Islamic state. The Prophet's Companions (Sahabah) and the Followers (Tabiun) had certain differences in matters of jurisprudence, legal pronouncements and religious rituals. Some of them recited the Bismillah aloud in prayers while others preferred to recite it quietly. Some recited the supplicatory invocation of Qunut in the pre-dawn prayers while others chose not to do so. Imam Shafii considered frogs, crabs and tortoises impermissible for consumption while some other jurists did not prohibit their eating. Imam Abu Hanifah was of the opinion that the quantum of blood money for a non-Muslim citizen of the Islamic state was the same as that for a Muslim. Imam Malik and Imam Ahmad ibn Hanbal, on the other hand, held that it should be half of that of a Muslim, while Imam Shafii opined that it should be one-third.
What is note-worthy is that, by and large, jurists, scholars and men of piety in the early centuries of the Islamic era viewed legal differences in terms of convenience and ease for the common people. They never doubted the honesty, integrity and sincerity of their contemporaries. They never allowed differences in legal matters to affect inter-personal relationships and viewed the legal differences among their predecessors and contemporaries not as a bane but as a blessing in disguise. Sufyan al-Thawri, for example, used to say: "Do not say that the Ulama have differed in such and such matter; say, instead, that they have provided convenience and ease for the people (by their difference of opinion)." Abu Yusuf and Muhammad ibn Hasan al-Shaybani, the distinguished followers of Imam Abu Hanifa, had certain differences in matters of jurisprudence and legal pronouncements with their mentor. Yet, their opinions were incorporated in the corpus of Hanafi jurisprudence. Hanafi scholars and jurists have maintained that there is nothing objectionable if Hanafi scholars and jurists reach a consensus in respect of an extraordinary case in an extraordinary situation, whereby they give a legal opinion in accordance with the principles and tenets of the Maliki school of jurisprudence, rather than with those of their own Hanafi school. Thus, Hanafi scholars and jurists in the pre-Independence period gave a ruling, based on juristic consensus, in regard to the dissolution of a Muslim woman's marriage whose husband has left her with no trace of his whereabouts.
In the early Islamic period, some rulers sought to bring about uniformity and homogenization in legal matters under the auspices of the state. However, they were dissuaded by eminent scholars and jurists from doing so. During the caliphate of Umar ibn Abd al Aziz, it was suggested that he should bring about uniformity and consensus in respect of legal rulings, to which he replied: "I would not have been very happy if Muslim scholars had not had any differences in legal matters. The companions of the Prophet had certain differences in legal matters. Therefore, anyone who follows the precepts of any of the companions is on the right path". He then circulated an order through the Islamic territories to the effect that the people of every region should abide by the ruling over which the local scholars and jurists had reached a consensus.
Once the Abbasid caliph al-Mansur told Imam Malik that he proposed to circulate copies of the Imam's books in every city and town, with the instruction that people should follow only these books. Imam Malik dissuaded the caliph from doing anything of the kind. He told him that people in different cities were following the rulings of local scholars and jurists and that it was advisable to allow this situation to continue. Likewise, caliph Harun al-Rashid told Imam Malik that he wished to have the latter's celebrated work Al-Muwatta to be hung in the Ka'bah, so that the Muslim masses could follow it in a uniform manner. Imam Malik advised him not to do so.
Islamic law makes it incumbent upon the Islamic state to ensure the safety of its non-Muslim citizens and to protect their religious, cultural, and judicial autonomy. In fact the Islamic state assumed responsibility for the maintenance and even defence of Jewish, Christian and pagan identities. The protection of minority rights under the Islamic dispensation has no parallel in the annals of history. The Prophet exhorted his followers to scrupulously protect the legitimate rights and privileges of the dhimmis (non-Muslim subjects of the Islamic state). Non-Muslim citizens of the Islamic state are exempt from the payment of the surplus property tax (zakah) as well as the tithe-tax, which are obligatory on Muslims. They are also exempt from military service. In lieu of these exemptions, they are required to pay an annual tax, known as jizya, ranging from 12 to 48 drachmas (dirhams), depending on their capacity. During the time of the Prophet, the quantum of jizya was 10 dirhams in a year, which amounted to the household expenses of an average family for about 10 days. The rich were required to pay 48 drachmas, people with average means 24, and those who earned their livelihood by means of handicraft 12 drachmas. Women and minors were exempted from the payment of this tax. Similarly, the tax was not collected from the indigent, the blind who had no source of income, the disabled, the very old, slaves and from monks. In some instances, the tax was waived in recognition of public service rendered by a non-Muslim. In the battle of Yarmuk, when Muslim forces were unable to defend the non-Muslim subjects of the Islamic state, they returned to them the entire amount of jizya. Jizya was not invented by Muslims; it existed in Iran in earlier times, where those who did not discharge military duty were required to pay a tax.
The attitude of tolerance and sympathy was continued by the four caliphs and the Companions. It is remarkable that the occupation of Syria by the Muslim army during the caliphate of Abu Bakr met with no resistance from the local Christian population who welcomed the Muslim soldiers not as invaders but as liberators. After the conquest of Jerusalem, Caliph Umar gave the following assurance, in writing, to the Christian population of the town: “This is the assurance which Umar, the servant of God, the commander of the faithful, grants to the people of Aelia. He grants to all security for their lives, their possessions, their churches and their crosses, and for all that concerns their religion. Their churches shall not be converted into dwelling places, nor destroyed, nor shall any constraint be put upon them in the matter of their faith. During his caliphate, some Muslims usurped a piece of land belonging to a Jew and constructed a mosque on the site. When the Caliph got to know about it he ordered the demolition of the mosque and the restoration of the land to the Jew. While on his deathbed, Caliph Umar is reported to have said, “I exhort my successor regarding the treatment to be meted out to the people protected by the Messenger of God non-Muslims). They should receive the fullest execution of their covenant, and their life and property should be defended even by going to war, and they should not be taxed beyond their capacity”. During the caliphate of Uthman, Jeserjah, the bishop of Merv, wrote a letter to the Patriarch of Persia, saying that the Arabs, whom God has given dominion over the world, did not attack Christianity. On the contrary, they helped our religion, respected our priests and shrines, and offered donations to our churches and convents.
Under the Islamic dispensation, non-Muslims were entitled to preserve and maintain their places of worship and to construct new ones. In some cases, the expenses for the maintenance and repair of their places of worship were met from the state treasury. Similarly, the salaries of Jewish rabbis and Christian priests were often paid from the state treasury. When Amr ibn al-As, a distinguished companion of the Prophet, conquered Egypt in 640 AD, he left the Christian population in undisturbed possession of their churches and guaranteed to them independence and autonomy in all ecclesiastical matters. He allowed the properties and endowments attached to Christian churches to remain with the Christian custodians. When Khalid ibn Walid signed a treaty with the Christian population of Hirah following the city’s conquest by the Muslim army, he gave a written assurance to them that their churches would not be destroyed or desecrated and that they would not be prevented from ringing their bells or from carrying crosses in their religious processions.
Islamic law guarantees religious and cultural protection not only to the Jews and Christians but also to the followers of other religions, including Zoroastrians, Sabaeans and worshippers of idols. After the conquest of Persia, the fire temples of the Zoroastrians were left untouched by the Muslims. In the 10th century, 300 years after the Islamic conquest of Persia, fire temples were to be found in every province of the country. Following the conquest of Sind, Muhammad ibn Qasim gave a written assurance to the local Hindu population to the effect that their temples would not be harmed or destroyed. Daibul continued to have a majestic Buddhist temple perched on a hillock while Hindu worshippers continued to throng Multan’s magnificent temple.
Islamic law for Muslim minorities
In 1994, the North American Fiqh Council launched a project to develop a distinctive sub-field of jurisprudence for Muslim minorities living in non-Islamic countries. Dr. Taha Jabir al-Alwani, Chairman of the Council, has used the term ‘Jurisprudence of the Minorities’ (fiqh al-aqalliyyah) and has argued that this constitutes an autonomous body of jurisprudence based on the principle of the relevance of Islamic laws to specific conditions and circumstances. He argues that the traditional categories of Dar al Islam and Dar al Harb have become obsolete and meaningless in the context of our globalising world. The eminent Egyptian scholar Yusuf al-Qaradawi has carried the argument further in his books Fiqh al Aqalliyyah al Muslimin (in Arabic) and Fiqh of Muslim Minorities (in English). The European Council for Fatwa and Research, created in London in 1997, is an important initiative in developing the field of jurisprudence for Muslim minorities living in Western countries.
Nearly one-fourth of Muslims around the world live as minorities in non-Islamic countries. About 90% of Muslim minorities are concentrated in Asian and African countries and around 10% in Europe, North America, Australia and New Zealand. Unfortunately, much of the discussion in the ‘Jurisprudence of the Minorities’ focuses on the problems and challenges faced by Muslim minorities living in Western countries. This imbalance needs to be corrected.
Islamic Law and Globalisation
Most commentators trace the beginnings of globalisation in the second half of the 20th century. However, globalisation is neither such a recent nor an absolutely unique phenomenon. The distinguished economist and Nobel laureate Amartya Sen emphasises that “globalisation is neither new nor a folly, but a global movement of ideas, people, technology and goods from one region to others, benefiting the people at large”. Sen argues that globalisation’s history spans several centuries and that it has contributed to the progress of the world through travel, trade, migration, the spread of cultural influences and the dissemination of knowledge and understanding.
Historians A. G. Hopkins and Christopher Bayly have used the term proto-globalisation to describe the phase of increasing trade links and cultural exchanges that characterised the period from 1600 to 1800, which preceded modern globalisation. I would like to make three observations in this connection. First, the current discourse on globalisation, which is manifestly Eurocentric or West-centric, needs to be deconstructed and decentred. Amartya Sen has rightly argued that the active agents of globalisation have sometimes been located quite far from the West. He points out that around 1000 AD, some of the most important technological inventions and innovations such as the clock, magnetic compass, paper, printing, gunpowder and the wheelbarrow were invented by the Chinese and subsequently spread across the world, including Europe. Second, we need to look at globalisation not as an isolated phenomenon that emerged in the West in recent times, but as the outcome of historical, social and cultural processes that took place in many non-Western contexts and that preceded modern globalisation by many centuries. In other words, we should look at globalisation from the perspective of social and cultural history and, as in the case of science and technology, as the product of cumulative progress and development. Third, a distinction needs to be drawn between modern globalisation and proto-globalisation or incipient globalisation. Furthermore, the scope and span of proto-globalisation or incipient globalisation needs to be extended beyond the 17th century. Proto-globalisation or incipient globalisation should not be looked upon as merely an earlier phase of globalisation, but as an important precursor or forerunner of globalisation which significantly impacted processes and linkages that have become a hallmark of modern globalization.
Proto-globalisation or incipient globalisation encompasses all those historical events and processes that covered a vast expanse of territory, entailed transcending geographical barriers and national borders and involved diverse peoples and cultures. These include the Silk Road (a vast network of trade and cultural linkages and transmission routes that linked East and West for nearly two millennia), the worldwide sweep of global religions such as Christianity, Buddhism and Islam, the worldwide diffusion of Chinese technology, especially papermaking, printing, magnetic compass and gunpowder, and world empires such as the one created by Genghis Khan and his son and successor Ogodei and the Ottoman Empire. Islamic civilization made an enduring and highly important contribution to proto-globalisation.
This section deals with the globalization of Islamic law in the context of Islamic international law and its impact on Western international law, Islamic law in Western countries, the global dissemination of Islamic law through modern information and communication technologies, and the need for the reinterpretation of Islamic law in the context of globalization.
Islamic International Law
International law, including international treaties, covenants and conventions, constitutes an important aspect of globalisation. Generally, the Dutch jurist Hugo Grotius (d. 1645) is regarded as the founder of international law. But the fact of the matter is that the foundations of international law were laid eight centuries before him, by Muslim jurists, especially Imam Abu Hanifa, Imam Zayd ibn Ali and Imam Muhammad ibn Hasan al-Shaybani. The first and earliest treatise in international law is Shaybani’s monumental book Kitab al-Siyar al-Kabir. Imam Sarakhsi wrote a detailed commentary on the book, called Sharh al-Siyar al-Kabir, which was printed, together with the original book, in Istanbul in 1827. When a German Orientalist Joseph von Purgstall read the book, he was amazed by Shaybani’s erudition and foresight and described him as the Hugo Grotius of the Islamic world. Another German orientalist, Hans Kruse, has written: “If we compare the views of Shaybani and Hugo Grotius, it become obvious at the first glance that even after eight centuries (after Islam), European law had not reached the lofty level of humanism that we find in Islamic law.”
Early Islamic international law influenced the development of European international law through various routes, including as the Crusades, the Norman conquest of Sicily and the Reconquista of Spain. The earliest European writers on international law, such as Francesco de Vitoria (d. 1546), Ayala (d. 1584), Albericus Gentitlis (d. 1608) and Pierre Bello hailed from Spain and Italy and were significantly influenced by the intellectual legacy of Islamic civilization. Hugo Grotius was influenced by a 13th century Spanish treatise Siete Partidas, written by Alphonso X, which owed a great deal to Islamic legal treatises written in Islamic Spain. He appreciated the contribution of Muslim jurists to international law. He expressed amazement over the fact that Muslim jurists had written about postliminium several centuries before European jurists began to touch upon the subject. In international law, postliminium refers to the rule by which persons or things captured in war resume their original status when restored to the jurisdiction of their own country.
Islamic Law in Western Countries
In recent years some European countries have begun to informally recognise the loosely constituted religious courts of Muslims for the settlement of family disputes. In the US and Canada, the family courts recognise the Islamic marriage contract as a valid legal document.
Under Britain’s 1996 Arbitration Act, alternative forums like tribunals can function as official courts of arbitration in the consensual resolution of civil disputes such as divorce or inheritance. The Orthodox Jews living in Britain have their own Beth Din or rabbinical courts, which have been in existence for more than a century. Rabbinical courts, run under the authority of Britain’s Chief Rabbi, are voluntary and subordinate to the overarching British legal system.
There are nearly 2.4 million Muslims living in Britain. By and large, they have maintained their religious and cultural identities, which are reinforced by a wide network of mosques, Islamic schools, community organisations and Islamic courts. Loosely structured arbitration councils, sometimes described as Islamic or Shariah courts, have been in existence in Britain over the past two decades. Under Britain’s 1996 Arbitration Act, Islamic tribunals or councils can give rulings which can be enforced by county and High Courts. The Islamic Arbitration Council in Leyton is one of the oldest and largest Islamic tribunals in the country. It has been quietly engaged in resolving civil disputes since 1982 and has dealt with more than 7,000 divorce cases.
A large majority of cases brought before Islamic tribunals involve women asking for divorce on grounds of ill-treatment, domestic violence and torture by their husbands. Other cases involve disputes over inheritance and property. If a wife wants a divorce and the husband refuses, the Islamic tribunal can grant her unilateral request to dissolve the marriage, after exploring avenues of reconciliation. Sometimes cases are brought in from Denmark, Ireland, the Netherlands and Germany. The tribunals stay away from criminal cases.
Islamic arbitration councils are becoming increasingly popular across large parts of Britain. Offices of the Muslim Arbitration Council, the country’s largest apex body, are now operating in London, Bradford, Manchester, Birmingham and Nuneaton, with more planned for Glasgow and Edinburgh. The cases brought before local tribunals are sometimes referred to an apex body of law experts and scholars at London’s central mosque for final arbitration and judgement. Since the Muslim population of Britain is ethnically diverse with different national backgrounds, arbitration procedures are coordinated through representatives of different ethnic communities.
British government has accorded a tacit but guarded approval to Islamic tribunals in the country. In October 2008, Jack Straw, the justice minister, said that “There is nothing whatever in English law that prevents people abiding by Shariah principles if they wish to, provided they do not come into conflict with English law”. He added that “British law would always remain supreme and that “regardless of religious belief, we are all equal before the law”. Baroness Warsi, the Muslim Shadow Minister for Community Cohesion and Social action, said that there were many forums for arbitration and alternative dispute resolution in Britain. “There is no problem with that, as long as it is always subject to English law”.
According to a report in The Times (July 21, 2009), an increasing number of non-Muslims in the UK are turning to the Muslim Arbitration Tribunals (MAT)—generally known as Shariah courts--for the resolution of civil disputes. It is reported that five per cent of the cases that were brought before the MAT involved non-Muslims. In a case last month, a non-Muslim Briton took his Muslim business partner to the MAT to arbitrate in a dispute over the profits in their car fleet company. The tribunal gave its verdict in favour of the Briton and asked his Muslim partner to pay him £ 48,000. This year the tribunal adjudicated in at least 20 cases involving non-Muslims.
Archbishop Rowan Williams on Shariah Courts
The Archbishop of Canterbury, Dr Rowan Williams suggested in February 2008 that there could be a “plural jurisdiction” in the UK in which Muslims could freely decide whether they wanted to have their family disputes resolved in secular courts or through Islamic legal institutions which offer an alternative forum for arbitration. He pleaded for “transformative accommodation”, which would incorporate features of alternative legal cultures in the country. The Archbishop pointed out that certain provisions of Islamic Shariah are already recognised in British society and under British law. He said some aspects of Islamic personal law relating to marriage could be included in the British legal system as a way to accommodate Muslims who did not defer to British law. What he seemed to suggest was that the secular legal system should accommodate the Shariah councils, which exist around the country, for dealing with family matters. This move, he suggested, would foster the integration of Muslims in the wider society.
The Archbishop opined that Shariah could play a role in “aspects of marital law, the recognition of financial transactions, and authorised structures of mediation and conflict resolution”. He clarified that his suggestion for the incorporation of some aspects of Islamic Shariah in the British legal system was confined to family law and that the question of introducing Islamic penal laws was unthinkable in the context of British society. Similarly he discounted the notion of parallel systems of law in the country.
Britain’s Chief Justice, Lord Philips of Worth Matravers, in a speech to the London Muslim Council on 3 July 2008, said there was “widespread misunderstanding of the nature of Shariah law” and added, “There is no reason why Shariah principles, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution”. Lord Philips said he was willing to see Shariah laws operate in the country, so long as they did not conflict with the laws of England and Wales, or lead to the imposition of severe physical punishments.”
Supporting Archbishop Rowan Williams’ observations, Lord Philips said, “It is not very radical to advocate embracing Shariah law in the context of family disputes, for example, and our system already goes a long way towards accommodating the Archbishop’s suggestions”. He added, “It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by a law other than English law. Those who, in this country, are in dispute as to their respective rights, should be free to subject that dispute to the mediation of a chosen person or agree that the dispute shall be resolved by a chosen arbitrator or arbitrators.”
Lord Philips suggested that marital arrangements could be mediated through Shariah principles. He also supported the creation of specialist Shariah-compliant financial products and services, something the UK Treasury has acknowledged since 2002. Lord Philips clarified that he was not countenancing “any notion of Shariah courts operating in this country and seeking to impose such punishments.”
Of late there has come about a resurgence of sentiments and outbursts against Islam and Muslims in Germany. The context is provided by the growing popular resentment against immigration and the increasing visibility of Germany’s 4 million Muslims. According to a recent survey conducted for the tabloid Bid, nearly 66% of Germans believe that Islam does not belong to Germany. Germany’s Chancellor Angela Merkel recently said that Islamic law or Shariah had no place in Germany. “In Germany it is the constitution that applies, not Shariah law,” she said. Merkel is wrong. Elements of Islamic law have been applied in Germany as well as other European countries such as the UK, Norway and Greece. Under Britain’s 1996 Arbitration Act, which allows disputes to be resolved through recourse to alternative legal avenues such as tribunals, Islamic tribunals are authorized to give rulings in matters relating to marriage, divorce and inheritance, which can be enforced by county and High Courts. Principles and provisions of Islamic law relating to marriage, divorce and inheritance are taken into account by German courts while deciding cases involving Muslims. Family matters involving Jordanian couples living in Germany, for example, are decided according to Jordanian law, which are at least partially based on Islamic Shariah. Similarly, multiple wives in a polygamous marriage involving German Muslims of immigrant background, provided such type of marriage is permissible in the country of origin, have legal rights, alimony and social security benefits stemming from the husband’s occupation and a portion of his inheritance in the event of his death.
A Cologne court forced an Iranian man living in Germany to pay his ex-wife 600 gold coins in bride price (mahr) upon divorce and cited the ruling applied in such cases in Iran. “We have long been practicing Islamic law,” says Hilman Kruger, a law professor at the University of Cologne. Mathias Rohe, a lawyer in Erlangen, says that the existence of parallel legal structures is an “expression of globalization” adding, “We apply Islamic law just as we do French law”.
Global Dissemination of Islamic Law
In the past few years the Internet has emerged as an important source of information on Islam and Muslims in general and on Islamic legal rulings in particular. The entire text of the Quran, including recitation and translations and commentaries into many languages, several collections of Hadith and Islamic law and legal edicts (fatawa) are now available online. In 2000 more than 14,000 fatawa could be found on the Internet. The US-based IslamiCity has published more than 5000 fatawa on the Internet.
In the past few years, one of the gravest threats to peace, stability and societal cohesion in Europe and the United States in particular and in the wider world in general has come from transnational terrorist groups and networks, in which a radical section of Muslims is prominently involved. The growing tentacles of global terrorism have led to the killing of thousands of innocent civilians, including Muslims, damaged property and infrastructure worth billions of dollars, created an atmosphere of fear and insecurity, and reinforced mistrust and hostility against Muslims. Global terrorism has strengthened xenophobic and racist sentiments in the continent and has reinvigorated far-right political parties across large parts of Europe.
Thankfully, the overwhelmingly majority of Muslims around the world have denounced violence and terrorism carried out by a fringe group of Muslim youth in the name of Islam. The 2007 Gallup data show that Muslims across the world denounce terrorist attacks on civilians as morally unjustified. Acts of wanton killings and reckless violence and destruction have been condemned by Muslims around the world, and especially by Muslim scholars and Islamic seminaries.
A leading Pakistani-born Muslim scholar, Dr Muhammad Tahir-ul Qadri, who is at present based in Canada, issued an online fatwa on March 2, 2010, backed by extensive references to Islamic legal principles and precedents and judicial pronouncements, denouncing terrorists as the enemies of Islam. Dr Qadri, the founder of an influential religious and educational organization and a socio-religious movement called Minhajul Quran International, said in his 600-page edict that suicide bombers were destined for hell. “There is no room for any martyrdom and their act (of terrorism) is never, ever to be considered jihad,” he said. Dr Qadri emphasized that Islam is a religion of peace that promotes beauty, betterment, goodness and “negates all form of mischief and strife”. “Terrorism is terrorism, violence is violence, and it has no place in Islamic teachings and no justification or excuse on its behalf can be acceptable,” he said. Dr Qadri emphatically pointed out that attacks against innocent citizens are “absolutely against the teachings of Islam” and that Islam does not permit such acts under any excuse, pretext or reason.
Reinterpretation of Islamic Law in a Globalising World
Large-scale international migrations and transnational diasporas are among the defining features of globalization. Muslims living in Western societies are faced with a variety of problems and challenges, including conflict between traditional values and ethos and those of Western societies, exposure to an environment that is suffused with sexual images and permissiveness, confused identities and alienation. The following presents a case study of such problems in the context of globalization.
Surgical Restoration of Virginity
Since ancient times, the vaginal membrane has been regarded as a crucial marker of virginity. In Muslim societies as well as in other traditional cultures, the dilation of the hymen of an unmarried woman is perceived as a proof of having indulged in premarital or illicit sex.
As a result of large-scale migrations, modernity and globalization and living in a cultural environment that is suffused with sexual freedom and permissiveness, some Muslim women in Western societies fall a prey to the lure of premarital sex. The violation of this deeply ingrained religious and social taboo is often accompanied by feelings of remorse, guilt and anxiety, particularly in respect of prospects for marriage.
Now modern medical technology has come to the rescue of women who have had their hymen ruptured as a result of premarital sex. Young Muslim women in France and other European countries are increasingly turning to hymenoplasty or hymen restoration surgery. Hymenoplasty is a surgical procedure designed to restore and reconstruct a ruptured hymen. The tearing of the hymen—named after Hymen, the Greek god of marriage—is typically caused by a woman’s first experience of sexual intercourse. However, in rare cases, the hymen may accidentally rupture during sports like cycling, horseback riding or gymnastics.
Hymen restoration surgery pulls the tissue back together to restore a “virgin-like” condition. The surgery takes about 30 minutes under local anaesthesia and costs between 1500 and 3000 euros. The demand for hymenoplasty in France, especially among young women of North African origin, has been rising for the past three or four years. Some of the patients are reported to have said that most women who undergo hymen restoration surgery do so out of respect for their culture and family traditions.
Dr Marc Abecassis in Paris performs a hymenoplasty at least two or three times a week. He says that the average age of the women who come to his clinic for the procedure is about 25 and that they come from different social backgrounds. Some of the women take a virginity certificate from him in order to ensure that their marriage is trouble-free.
The increasing demand for hymen restoration surgery is not confined to Muslim women alone. It is becoming increasingly popular in Latin America as well as in Britain and the US, especially among women from conservative Christian families where virginity is highly valued. The American Society of Plastic Surgeons says that vaginal surgery, including hymenoplasty, is one of the industry’s fastest-growing segments. In the US, some women are going for hymen restoration surgery for cosmetic and libidinous purposes. Gynaecologists in many American cities are marketing hymen restoration surgery in magazines, local newspapers and online.
The issue of the permissibility of hymenoplasty from the perspective of Islamic Shariah was discussed for the first time at a meeting of the Islamic Organization of Medical Sciences in Kuwait in 1987. At this meeting, an Egyptian medical doctor, Kamal Fahmi, made a presentation in which he described several medical situations in which doctors might be asked to perform a hymenoplasty operation. Theo other presentations were made by Muhammad Naim Yasin, dean of the Shariah Faculty at the University of Kuwait, and Izz al-Din Tamimi, the Mufti of Jordan. While Yasin argued in favour of the permissibility of hymenoplasty, Tamimi argued against it. Both, however, recognized that hymen dilation could be caused by factors other than illicit sexual intercourse.
Tamimi opined that hymen reconstruction amounts to a potential fraud against the future husband of the woman. He argued that according legitimacy to hymen restoration surgery would result in the dilution of societal sanctions against premarital sex, which in turn would encourage waywardness. He concluded by saying that though hymenoplasty is not without certain benefits, its negative consequences and implications far outweigh these benefits. Therefore, in his opinion, hymen restoration surgery is not permissible.
Yasin, on the other hand, pointed out that the Islamic Shariah accepts only two kinds of proof in respect of illicit sex: confession by the accused, or the testimony of four eye-witnesses. The Shariah prescribes harsh punishments for false accusations of illegitimate sex. He argued that to conclude from a dilated hymen that a woman has indulged in illicit sex is against the regulations and spirit of the Shariah. He dwelt at some length on the positive and negative consequences of hymen reconstruction surgery in different situations and suggested that it may be permissible in cases where the woman did not indulge in illicit sex or had erred just once.
Yasin’s paper was severely criticized at the meeting. The final recommendation issued at the end of the meeting stated that any alteration of the human body aiming at deceit should be forbidden.
This broad recommendation is undoubtedly in keeping with the principles and guidelines laid down by the Islamic Shariah. However, the Shariah also admits of exceptions to the general rule in extraordinary situations. One frequently hears of physical violence and rape against innocent girls and women, which not only causes unspeakable agony and distress to the victims but also puts their marriage prospects in jeopardy. During the civil war in Bosnia-Herzegovina in the early 1990s, tens of thousands of innocent Muslim women were brutally raped by the Serbs. Documents submitted by the wartime Bosnian government in 1993 put the number of rape victims at 20,000 to 50,000. A committee of the European Union estimated the number of rape victims in Bosnia at 20, 000.
Sexual violence, including the rape of adolescent girls, has assumed epidemic proportions in the Democratic Republic of Congo. Nearly 27,000 cases of rape were reported in 2008 in a single province of the country. Nearly 70 per cent of the women of one town were sexually assaulted and raped. According to the United Nations estimates, nearly 200,000 women and girls have been raped in Congo since 1998. When war broke out with Rwanda and Uganda, rape became a weapon of war. The majority of those who are raped are adolescent girls, and most of the perpetrators are militia fighters and government troops. South Africa has one of the highest incidences of child rape in the world.
Is it permissible to make an allowance for hymen restoration surgery, as an exceptional case, for victims of physical violence and rape, or in the case of an accident involving injury or rupture of the hymen?
In the past few years the Internet has emerged as an important source of information on Islam and Muslims. The entire text of the Quran, including recitation and translations and commentaries into many languages, several collections of Hadith and Islamic law and legal edicts (fatawa) are now available online. In 2000 more than 14,000 fatawa could be found on the Internet. The US-based IslamiCity has published more than 5000 fatawa on the Internet. A number of Islamic websites offer information as well as learned articles on the multifarious legacy of Islamic civilization.
In the past few years, one of the gravest threats to peace, stability and societal cohesion in Europe and the United States in particular and in the wider world in general has come from transnational terrorist groups and networks, in which a radical section of Muslims is prominently involved. The growing tentacles of global terrorism have led to the killing of thousands of innocent civilians, including Muslims, damaged property and infrastructure worth billions of dollars, created an atmosphere of fear and insecurity, and reinforced mistrust and hostility against Muslims. The terrorist attack on New York and the Pentagon on September 11, 2001, in which nearly 3000 innocent people, including 300 Muslims, were killed, the 2004 Madrid train bombings, in which 191 people were killed and more than 2000 wounded, and the July 2005 bombings on London’s public transport system, which killed 52 commuters and injured 700, have radically altered the global scenario and have widened the gulf between Muslims and mainstream societies across Europe and the United States. Global terrorism has strengthened xenophobic and racist sentiments in the continent and has reinvigorated far-right political parties across large parts of Europe.
Thankfully, the overwhelmingly majority of Muslims around the world have denounced violence and terrorism carried out by a fringe group of Muslim youth in the name of Islam. The 2007 Gallup data show that Muslims across the world denounce terrorist attacks on civilians as morally unjustified. Muslims in the Netherlands responded to the release of Geert Wilders’ highly provocative and anti-Islam film “Fitna” on the Internet with remarkable restraint. Acts of wanton killings and reckless violence and destruction have been condemned by Muslims around the world, and especially by Muslim scholars and Islamic seminaries.
A leading Pakistani-born Muslim scholar, Dr Muhammad Tahir-ul Qadri, who is at present based in Canada, issued an online fatwa on March 2, 2010, backed by extensive references to Islamic legal principles and precedents and judicial pronouncements, denouncing terrorists as the enemies of Islam. Dr Qadri, the founder of an influential religious and educational organization and a socio-religious movement called Minhajul Quran International, said in his 600-page edict that suicide bombers were destined for hell. “There is no room for any martyrdom and their act (of terrorism) is never, ever to be considered jihad,” he said. Dr Qadri emphasized that Islam is a religion of peace that promotes beauty, betterment, goodness and “negates all form of mischief and strife”. “Terrorism is terrorism, violence is violence, and it has no place in Islamic teachings and no justification or excuse on its behalf can be acceptable,” he said. Dr Qadri emphatically pointed out that attacks against innocent citizens are “absolutely against the teachings of Islam” and that Islam does not permit such acts under any excuse, pretext or reason.
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