Follow up to last post
I've been following recent events concerning the Sudan and Saudi cases in Arab and American press and had a few additional comments based on this.
1. American press seems to make much of the fact that "hundreds" of Sudanese came out to protest the verdict and demand a harsher sentence. CNN went so far as to show this as a "divide" between British and Sudanese Muslims on the question of blasphemy.
The Arab press dismissed this showing as minimal. On this point, Arabs win, apparently the Americans don't have any idea how dreadfully easy it is in most Arab countries to get hundreds of people to show up to a demonstration the government wants to see (and let's face it, the government wanted this demonstration). The government's regular hired goons are probably in the hundreds, just call them up and it's done. Or head to the mosque, tell a friendly imam and have him send some folks out. Did anyone talk to these people to make sure they even knew what they were protesting in any level of detail beyond "death to those who insult our Prophet"? Hang out in most Arab capitals, and you figure schemes like this out pretty quickly. There is a divide between Western Muslims and those who grew up elsewhere to some extent, but this is not a good example to show it.
2. Okay, so I already said I very much believe in the existence of modern, general Islamic law, shari'a, as helping to set social order in many Muslim states and said it is related to but different from state law. This relationship, of Islamic law to state law, is a rich and complex one, and most of my current work focusses on this from the perspective of Shi'ism in Iraq in particular, where the shari'a operates parallel to the state and is not necessarily reflected in state law. The shari'a influence on legislation is less related to my current work.
But again, there is a relationship between legislation and conceptions of shari'a inspired by it and it's distressing the extent to which the media tends to subsume any law that looks "Islamic" entirely within some sort of pan-national conception that requires no examination of the state law in question. I welcome discussions, heck I'm trying to START discussions, on the relationship between the shari'a and the Sudanese law in this instance because quite clearly there is a relationship, but let's not confuse one with the other. Looking at CNN and the New York Times, you almost wouldn't even know that there was a Sudanese law at issue. There is, Article 125 of the Criminal Code. It's almost never mentioned, never quoted exactly, Sudanese legal experts are never consulted. Instead, what we get are imams from mosques at Georgetown University (on CNN) or British Muslims (NBC) explaining what Islam really has to say about blasphemy. Would these guys know anything about Sudanese law and specifically Article 125? Would it make sense to talk to someone who did know?
Then again, I'm sure CNN would be even handed about this, and talk to the pope about his opinion on the latest Supreme Court abortion case to help them understand American law. I'm waiting for that interview, CNN and His Holiness on Gonzales v Carhart.
3. There is tons of press now about the fact that this Saudi lawyer defending the rape victim is being threatened with disbarment. I think this issue of the attorney and his role is another wonderful example of modern shari'a being quite starkly different from medieval. When state law ends up reflecting contemporary notions of shari'a, as here, the state always adds in a requirement that the accused have a right to counsel. (When the shari'a, as in Shi'i Iraq, operates independently of the state, then this is not part of the deal, though this is not criminal in nature and besides, what good would a lawyer do anyway, the lawyer knows secular state law and these disputes are decided on alternative bases. Tribal leaders and whatnot who could help one navigate the system are very much involved in the matter).
So I would say pretty obviously modern conceptions of Islamic law include a right to counsel at least in criminal matters. I don't think it takes much imagination to suppose that classical jurists probably didn't think very hard about the accused right to counsel, and while I am sure a case can be concocted based on classical authorities, anyone I think can see it's taken from the West and then classically backdated or pulled from a hadith to demonstrate that the obvious transplant (I'll crib Abu Odeh's phrase here) has some sort of authoritative substance.
This happens in other contexts, when the Egyptian Supreme Constitutional Court declares legislation invalid because it conflicts with a provision of the constitution of Egypt requiring conformity with shari'a, for example. This, I am told, is a modern manifestation of Ibn Taymiyya's theory of siyasa shar'iyya. Really? Ibn Taymiyya the 13th century jurist said the way to achieve Islamicity is to create a nation state, divide it via written constitution into three branches, and give the judicial branch the authority to overrule the legislative when law that the latter promulgates conflicts with the constitution? Did John Marshall steal the idea from him then?
HAH
1. American press seems to make much of the fact that "hundreds" of Sudanese came out to protest the verdict and demand a harsher sentence. CNN went so far as to show this as a "divide" between British and Sudanese Muslims on the question of blasphemy.
The Arab press dismissed this showing as minimal. On this point, Arabs win, apparently the Americans don't have any idea how dreadfully easy it is in most Arab countries to get hundreds of people to show up to a demonstration the government wants to see (and let's face it, the government wanted this demonstration). The government's regular hired goons are probably in the hundreds, just call them up and it's done. Or head to the mosque, tell a friendly imam and have him send some folks out. Did anyone talk to these people to make sure they even knew what they were protesting in any level of detail beyond "death to those who insult our Prophet"? Hang out in most Arab capitals, and you figure schemes like this out pretty quickly. There is a divide between Western Muslims and those who grew up elsewhere to some extent, but this is not a good example to show it.
2. Okay, so I already said I very much believe in the existence of modern, general Islamic law, shari'a, as helping to set social order in many Muslim states and said it is related to but different from state law. This relationship, of Islamic law to state law, is a rich and complex one, and most of my current work focusses on this from the perspective of Shi'ism in Iraq in particular, where the shari'a operates parallel to the state and is not necessarily reflected in state law. The shari'a influence on legislation is less related to my current work.
But again, there is a relationship between legislation and conceptions of shari'a inspired by it and it's distressing the extent to which the media tends to subsume any law that looks "Islamic" entirely within some sort of pan-national conception that requires no examination of the state law in question. I welcome discussions, heck I'm trying to START discussions, on the relationship between the shari'a and the Sudanese law in this instance because quite clearly there is a relationship, but let's not confuse one with the other. Looking at CNN and the New York Times, you almost wouldn't even know that there was a Sudanese law at issue. There is, Article 125 of the Criminal Code. It's almost never mentioned, never quoted exactly, Sudanese legal experts are never consulted. Instead, what we get are imams from mosques at Georgetown University (on CNN) or British Muslims (NBC) explaining what Islam really has to say about blasphemy. Would these guys know anything about Sudanese law and specifically Article 125? Would it make sense to talk to someone who did know?
Then again, I'm sure CNN would be even handed about this, and talk to the pope about his opinion on the latest Supreme Court abortion case to help them understand American law. I'm waiting for that interview, CNN and His Holiness on Gonzales v Carhart.
3. There is tons of press now about the fact that this Saudi lawyer defending the rape victim is being threatened with disbarment. I think this issue of the attorney and his role is another wonderful example of modern shari'a being quite starkly different from medieval. When state law ends up reflecting contemporary notions of shari'a, as here, the state always adds in a requirement that the accused have a right to counsel. (When the shari'a, as in Shi'i Iraq, operates independently of the state, then this is not part of the deal, though this is not criminal in nature and besides, what good would a lawyer do anyway, the lawyer knows secular state law and these disputes are decided on alternative bases. Tribal leaders and whatnot who could help one navigate the system are very much involved in the matter).
So I would say pretty obviously modern conceptions of Islamic law include a right to counsel at least in criminal matters. I don't think it takes much imagination to suppose that classical jurists probably didn't think very hard about the accused right to counsel, and while I am sure a case can be concocted based on classical authorities, anyone I think can see it's taken from the West and then classically backdated or pulled from a hadith to demonstrate that the obvious transplant (I'll crib Abu Odeh's phrase here) has some sort of authoritative substance.
This happens in other contexts, when the Egyptian Supreme Constitutional Court declares legislation invalid because it conflicts with a provision of the constitution of Egypt requiring conformity with shari'a, for example. This, I am told, is a modern manifestation of Ibn Taymiyya's theory of siyasa shar'iyya. Really? Ibn Taymiyya the 13th century jurist said the way to achieve Islamicity is to create a nation state, divide it via written constitution into three branches, and give the judicial branch the authority to overrule the legislative when law that the latter promulgates conflicts with the constitution? Did John Marshall steal the idea from him then?
HAH
I'm interested in reading more about your work on "modern" Islamic law. One thing you haven't explicitly addressed yet is the claim that Islamic law is "God's law." That may be because the claim is too preposterous to consider in a secular context. However, it seems clear to me that this claim is the culprit behind any meaningful development in Islamic law today.
Best.
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Well sure the story is it's God's Law. But really it's man's interpretation of God's Law. What is preposterous to me is to imagine it could be anything else (of course not suggesting you are thinking that). We know the Qur'an doesn't slap you upside your head if you "misinterpret" it, so we are left with how humans understand God's Law.
I will get to modern Islamic law in future posts, but I guess I would want to flag now that I think Islamic law HAS developed. Not always in the way that western liberals (Muslim or non-Muslim) like me would like but Islamic finance is terribly modern. Yeah you ask me I think it's silly and I will post on it but it certainly isn't classical or anything related to it. Jihad is the same, you look at the classical era rules, and they assume there are two polities, the House of War, which is basically anything not Muslim, and the House of Islam, led by a righteous caliph/Imam. Jihad is then done by the one polity against the other, sometimes aggressively, at other times defensively with different rules for each. I don't think those rules even reflect the reality of the classical world, but looking at jihad today, it's dramatically different. It's the language of anti-colonialism, resistance to Western imperialism, national or regional independence, and I don't mean by this it's always justifiable, only that it's a thoroughly modern discourse we are talking about, reacting to modern circumstances. I refer you to my Muezzin's Call article on SSRN for more info on this, linked in the first post, but my next post will try to address it to, I promise. Thanks for the comment
HAH
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Thanks for this interesting blog. However, I'm confused by your comment, "When state law ends up reflecting contemporary notions of shari'a, as here, the state always adds in a requirement that the accused have a right to counsel." How does this explain that the lawyer is being threatened with disbarment?
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Oh, sure, absolutely the right is being eviscerated the way they're handling this poor fellow. But if you asked the Saudis, they'd tell you he violated court orders on speaking to the press and raised his voice in proceedings, the sorts of things that could depending on circumstances get you in trouble in the US. Not so much talking to the press after judgment, I don't think I'm getting that part of it, but certainly if you start screaming at a judge, for example, you could get in trouble.
Now it seems by all appearances that this accusation is concocted in this case, but that's sort of standard authoritarian fare--claim to give someone a right, and then take it away via manufactured facts. It doesn't, however, detract from the reality that the Saudis, purporting to apply shari'a, gave this woman a lawyer, and then took it away not through denying that the shari'a affords a right to counsel, but through presenting highly suspect facts that if true would be legitimate in any system. They didn't, and couldn't, argue that the shari'a affords no right to an attorney. This is not because of classical doctrine, it has nothing to do with that, but with modern Muslim sensibilites concerning the necessity of a right to counsel.
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Interesting new blog. One suggestion, though -- consider either making your text larger, or double-spacing the text. As it is, and given the length of your posts, it is somewhat difficult to read the blocks of small-sized, single-spaced text.
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Thanks!
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Your point about CNN asking the Pope's opinion about Gonzales v. Carhart is well taken.
I'm wondering, though, how far this analogy is supposed to go? That is, are you saying that the relationship between Islamic law and the Sudanese legal system is as tenuous as the relationship between Catholic law and the American legal system? I realize that the Sudan is not a theocracy, but isn't there a tighter relationship between Islamic law and secular law there (especially outside of Khartoum) than there is in a lot of places? (What exactly is that relationship?) Or have I just fallen prey to the very stereotype at issue which is being falsely promulgated by the media?
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No you are right, I was being deliberately provocative you can't take that analogy too far. Clearly there is a much closer relationship between this law and the shari'a than between Catholic theology and the Carhart case. Still, there is a certain absurdity to the whole affair with Sudan. You have guys on television and in the newspaper pointing out that demonstrators are calling for the death of this woman, and then others suggesting that could never happen for geopolitical reasons. Is that all that matters, international relations? Can someone please point out that this law doesn't specify death as a punishment for its violation?
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