Killing Satellite Providers in Islamic Law
A recent blowup in Saudi involving a rather prominent judge, Salih Bin Al-Luhaidan, is a wonderful demonstration of some of the deep tensions involved in any examination of Islamic law in our times, in particular as it relates to "law" as we understand it, as the product of the state (or states) and administered and enforced by them.
The fuss began when the judge was responding to a caller on a popular television program in Saudi, The Light upon the Path. Or maybe not popular, but aired on primetime on a major channel. The question came, what do you think of all these scurrilous programs airing on satellite stations showing immoral and debauched things and the like, targetted particularly at evening time during Ramadan, when people should be praying.
This is a common complaint among the devout, that people are missing the point of Ramadan with all their soap opera watching, and as noted two posts ago, even Sistani has taken a position on it. Now Sistani's position is more or less that it's not a state concern, not a matter of crime and punishment, the beleivers should be wary. If tribes and shaming and concerns about reputation make Sistani's rule as binding as any state law (and they can be in the south of Iraq), then an argument can be made that his pronouncements are some sort of form of law. But that's a separate argument. I want to talk about the notion of shari'a as state law, which is Luhaidan's province.
Luhaidan, though, wants more than this. He wants real punishment. So he went a step further.
Kill them he said. They know the type of corruption and strife they are spreading, and they know the effect they are having, so if you order them to stop, and then they don't, their killing is permitted. That appears to be for the owners of these channels, or at least their executive officers, I doubt he knows the difference, he just uses the generic Arabic term ashab, the Companions of the Channels
Here's the Arabic for those who want to question my paraphrasing.
"لا شك ان هذه بلاء وشر وفتنة، لكن اصحاب القنوات يكون عليهم وزر ما يدعون اليه . .عليهم مثل اوزار من تأثروا بدعوتهم ودعايتهم، وان من يدعو الى الفتن اذا قدر على منعه ولم يمتنع قد يحل قتله
Now inasmuch as this is supposed to be shari'a, and let's assume it is shari'a for some small but significant group of people (the faithful watchers of his show), still, it isn't law. Crazy old guys in beards telling you to kill people is not law. I don't know what it is, what do you call it when a radio talk show host tells you to kill abortion doctors?
This guy may be a judge, but this isn't a legal ruling in any sort of case. There is nothing that suggests he has some sort of unique ability to make these pronoucements in this context, no "rule of recognition" to use Hart's phrase where a person would know it was law because it was said on this station. It's a call-in show, not a report of the day's rules. Non-judges like Qaradawi do shows like this all the time. So nothing to suggest this is the law because said by a judge, as opposed to a shock jock spouting off.
Moreover, there is no specific accused really, it isn't clear who we are talking about, the defendant wouldn't be in the country. The state isn't being called upon to execute the judgment. Those doing the killing are unspecified as well. It is basically just go out, find these unspecified people, and kill them. It's precisely the absence of law, the private enforcement of criminal judgment as determined partly by the nut doing the urging, who could be anybody with a microphone really, and partly the interpretation of that nut's words by the other nut doing the killing, who also could be anybody. I don't want to belabor this with what is and isn't law, but I can't imagine a definition of law that would bring the pronouncement of a radio personality that certain unspecified people should be killed to be law, as opposed to a general exhortation to violence.
Now of course states, even states that sponsor Islamic extremism like Saudi, don't actually want their citizens running around with swords looking for people to kill. That hardly preserves the system that the elites who run the system would like to see preserved. They already have a Bin Laden problem in the country. And Luhaidan is an elite, as are his friends, and so he talked to his friends, and a couple of days later, he backtracked. I don't know if he was forced, maybe, but they come from the same club as he, surely they could talk to him in a way he might understand.
The backtracking was a long winded exegesis that involved his life story and took off from there. It started with "I don't like to talk about myself" which I knew was bad news. But after about 10-15 minutes of just crapola nonsense, we got to it. What I meant, said the not so learned judge, was that one could kill these people as part of a judicial process. First they are arrested and punished for their deeds, and if they don't relent after that, and are brought forward again, they can be killed. And this doesn't mean the judge pulls a sword out and cuts the guy's head off, it means an orderly process with due rights to the accused, and the rest of it. Here's a post with the precise words, in Arabic. Good luck getting through the bio bit.
Now he couldn't have meant that the first time, what use is it to tell a caller who wants to know what to do about this stuff to suggest a judicial process the caller wouldn't have anything to do with? But Luhaidan was persuaded in one way or another of it, or maybe he actually didn't mean the first statement, he was just angry, who knows. Anyway, THIS is law. I'm not a fan of this guy, but he is talking law now, punishment as determined, administered enforced by a state through recognizable rules binding on the social order.
The irony though is, that if, as Luhaidan seems to think, and as Sistani, who is happy to keep these things dealt with privately, clearly does not, that the exercise of shari'a should be through state or quasi-state organs, the question becomes what to do if the state won't administer the right Islamic rules. If Luhaidan suggests you change the state, he's back to his old problem, his own state has been challenged on precisely that basis. All you have left is an argument about whose rules are the right ones, and fight to get those, and that hardly ensures stability. If you passively just deal with it because only the state can make such decisions, then shari'a is more or less irrelevant in this sort of context and you start to sound silly raising it. The Turkish director of Noor, it can be fairly assumed, won't be heading to Saudi any time soon. And therein, I think, lies a paradox, one of many, for any state system claiming to embody true Islam.
HAH
The fuss began when the judge was responding to a caller on a popular television program in Saudi, The Light upon the Path. Or maybe not popular, but aired on primetime on a major channel. The question came, what do you think of all these scurrilous programs airing on satellite stations showing immoral and debauched things and the like, targetted particularly at evening time during Ramadan, when people should be praying.
This is a common complaint among the devout, that people are missing the point of Ramadan with all their soap opera watching, and as noted two posts ago, even Sistani has taken a position on it. Now Sistani's position is more or less that it's not a state concern, not a matter of crime and punishment, the beleivers should be wary. If tribes and shaming and concerns about reputation make Sistani's rule as binding as any state law (and they can be in the south of Iraq), then an argument can be made that his pronouncements are some sort of form of law. But that's a separate argument. I want to talk about the notion of shari'a as state law, which is Luhaidan's province.
Luhaidan, though, wants more than this. He wants real punishment. So he went a step further.
Kill them he said. They know the type of corruption and strife they are spreading, and they know the effect they are having, so if you order them to stop, and then they don't, their killing is permitted. That appears to be for the owners of these channels, or at least their executive officers, I doubt he knows the difference, he just uses the generic Arabic term ashab, the Companions of the Channels
Here's the Arabic for those who want to question my paraphrasing.
"لا شك ان هذه بلاء وشر وفتنة، لكن اصحاب القنوات يكون عليهم وزر ما يدعون اليه . .عليهم مثل اوزار من تأثروا بدعوتهم ودعايتهم، وان من يدعو الى الفتن اذا قدر على منعه ولم يمتنع قد يحل قتله
Now inasmuch as this is supposed to be shari'a, and let's assume it is shari'a for some small but significant group of people (the faithful watchers of his show), still, it isn't law. Crazy old guys in beards telling you to kill people is not law. I don't know what it is, what do you call it when a radio talk show host tells you to kill abortion doctors?
This guy may be a judge, but this isn't a legal ruling in any sort of case. There is nothing that suggests he has some sort of unique ability to make these pronoucements in this context, no "rule of recognition" to use Hart's phrase where a person would know it was law because it was said on this station. It's a call-in show, not a report of the day's rules. Non-judges like Qaradawi do shows like this all the time. So nothing to suggest this is the law because said by a judge, as opposed to a shock jock spouting off.
Moreover, there is no specific accused really, it isn't clear who we are talking about, the defendant wouldn't be in the country. The state isn't being called upon to execute the judgment. Those doing the killing are unspecified as well. It is basically just go out, find these unspecified people, and kill them. It's precisely the absence of law, the private enforcement of criminal judgment as determined partly by the nut doing the urging, who could be anybody with a microphone really, and partly the interpretation of that nut's words by the other nut doing the killing, who also could be anybody. I don't want to belabor this with what is and isn't law, but I can't imagine a definition of law that would bring the pronouncement of a radio personality that certain unspecified people should be killed to be law, as opposed to a general exhortation to violence.
Now of course states, even states that sponsor Islamic extremism like Saudi, don't actually want their citizens running around with swords looking for people to kill. That hardly preserves the system that the elites who run the system would like to see preserved. They already have a Bin Laden problem in the country. And Luhaidan is an elite, as are his friends, and so he talked to his friends, and a couple of days later, he backtracked. I don't know if he was forced, maybe, but they come from the same club as he, surely they could talk to him in a way he might understand.
The backtracking was a long winded exegesis that involved his life story and took off from there. It started with "I don't like to talk about myself" which I knew was bad news. But after about 10-15 minutes of just crapola nonsense, we got to it. What I meant, said the not so learned judge, was that one could kill these people as part of a judicial process. First they are arrested and punished for their deeds, and if they don't relent after that, and are brought forward again, they can be killed. And this doesn't mean the judge pulls a sword out and cuts the guy's head off, it means an orderly process with due rights to the accused, and the rest of it. Here's a post with the precise words, in Arabic. Good luck getting through the bio bit.
Now he couldn't have meant that the first time, what use is it to tell a caller who wants to know what to do about this stuff to suggest a judicial process the caller wouldn't have anything to do with? But Luhaidan was persuaded in one way or another of it, or maybe he actually didn't mean the first statement, he was just angry, who knows. Anyway, THIS is law. I'm not a fan of this guy, but he is talking law now, punishment as determined, administered enforced by a state through recognizable rules binding on the social order.
The irony though is, that if, as Luhaidan seems to think, and as Sistani, who is happy to keep these things dealt with privately, clearly does not, that the exercise of shari'a should be through state or quasi-state organs, the question becomes what to do if the state won't administer the right Islamic rules. If Luhaidan suggests you change the state, he's back to his old problem, his own state has been challenged on precisely that basis. All you have left is an argument about whose rules are the right ones, and fight to get those, and that hardly ensures stability. If you passively just deal with it because only the state can make such decisions, then shari'a is more or less irrelevant in this sort of context and you start to sound silly raising it. The Turkish director of Noor, it can be fairly assumed, won't be heading to Saudi any time soon. And therein, I think, lies a paradox, one of many, for any state system claiming to embody true Islam.
HAH
So you are saying that "commanding the right and forbidding the wrong" can never be studied as part of legal thought or practice? What if (a) a legal system recognizes the existence of extra-judicial bodies of commanding/forbidden but does not claim epistemic authority over them; (b) the state creates such bodies with partial epistemic oversight; (c) creates such bodies and sharply defines the wrongs which they are allowed to address? (Or, rather, read c-a in reverse!)
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Clearly then it could be law. I wasn't trying to create any single comprehensive definition of law. But if we have no recognized bodies, just talk radio shows, no figures that have specific authority where they can make specific claims, if instead "enjoining the right and forbidding the wrong" simply means what it seems to after Friday prayers here, the God given right of every instrusive fellow with an unkempt beard to tell me how I should have prayed, that I shouldn't stop in the 7-11 to get a snack because it is Ramadan even after I explain my office hours will run me through iftar and i would like to eat right at iftar, which then earns another lecture on how immediately at sunset I have to pray and cancel my office hours, well that's not law, and if he takes out a sword and beheads me for not listening to him, it's not a law, and if the Jum'a speaker told him to do it, it's still not a law. Now if you told me there is a state, it's terribly weak and what people do in order to set social rules is follow high clerics, and there are three, and these are who they are, and what they say goes, and tribes make sure it is done, and yeah it's not done by the state, but the state knows they are around and deals with them as such (perhaps your a, perhaps a fair rendition of the Ottoman vilayet of Basra), I think a stronger argument can be made. Obviously the more state recognition through b and c, the closer we get. It all depends on what conception of law one might have.
I am not sure though that Luhaidan's original statement can really be understood as any of these. It is a government controlled television station, and he is a judge, but really, he could have been just about any Salafi with views sympathetic to those of the Saudi regime to get on a program, and statements made on these programs aren't normally understood to be announcing law to which citizens must adhere as opposed to reflecting the views of the learned man. The other day a fellow was on one of these stations, I don't know who, declaring the purchase of flowers at hospitals un-Islamic. Nobody listened, just as plenty of Saudis still follow Noor. There doesn't seem tobe an agency or authority interested in dealing with this stuff. I think it's more like the Jum'a sermon guy and the fellow with the unkempt beard.
HAH
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What a great post. I'm still laughing about getting through the bio.
It sure sounds like Luhaidan took the bait and spouted off reflexively. The alternative explaination is too distubing.
It says something about being a responsible public official. Bill O'Rielly, as a public personallity makes his living off throwing red meat to the wolves. I think even he knows where the line is.
I've often thought about how to quantify the power of a positive message vs. a negative message. It's disturbing because fear is a primal emotion that is easily tapped. There is no counter-emotion to fear; there is only the complex process of reason.
B.T.W. I usually click on the link from the email alerts I receive when you post a new entry. The link takes me to the bottom of the page where the form is. I happened to scroll to the top on this article and I noticed a link called Buy My Book.
I just ordered a new copy from Amazon. There are some excellent reviews of your book.
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Thanks for the support and do enjoy the book!
HAH
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I agree with your response, but here's another scenario (my Hisba/Mutawwi'/Amr,Nahy cttes counter-example was just a way of hooking you in).
Let's say that you have a society where there is a functioning state, but there is an explicit or even tacit understanding that (a) certain groups or figures have authority to issue binding commands, (b) to enforce them and (c) will not be punished for that.
So if we really want to know whether all this fiqh stuff is "law" then one could propose another standard: are persons who act extra-judicially on the recommendations or commands of these non-state authority figures *punished* for this by the state? If not, then we might say that fiqh (or something like it in non-Muslim countries) is "law." So, what I would want to know is what would happen to a person in KSA who acted on the fatwa permitting the murder of the ashab al-qanawat. One can easily imagine all sorts of hybrid situations (weak state, strong society type places) where customary or religious (or clan, or mafia) law is applied and not punished for.
If it is the fact that persons can get away with acting on fatawa (or even radio splutterings), or even have the de facto expectation of pardon or reduced sentencing, then there is a strong case that fiqh *is* law, even -nay, especially- on a realist conception of "law."
By way of a related example, consider Abou El Fadl's research on the laws of rebellion. Briefly: classical doctrine held that if rebellious groups had (inter alia) a ta'wil justifying their revolt, they were entitled to special treatment and consideration. (One sees this also today in Saudi efforts to rehabilitate jihadis, and indeed even in the way rebel groups are often given amnesty as part of peace deals in non-Muslim settings, like Northern Ireland.) Here, the religious doctrine at play is relevant for law. What if that were generalized to cover persons "commanding the right and forbidding the wrong," something easily imaginable in an Islamic context?
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First, I don't think your example works terribly well in modernity. In a stronger state, I can't imagine any non state individual has so much authority as to be able to issue an edict that anyone can carry out with impunity. I can't imagine a state actually allowing that, and we know Luhaidan at least as revised did not. I can imagine a state so weak as to not be able to prevent authoritative figures from doing as they please, but then those figures can be religious, tribal, mafia or militia heads with really big guns. If that makes fiqh law, then Charles Taylor's marauding through Liberia is also law. I don't think so though.
I think its very hard to call this law. Sure a realist would say the protections granted in the legal texts against the killing are meaningless because they don't do anything, but I don't think you'd say the killings were acts of law.To me realism is about trying to figure out how rules are going to be applied by decisionmakers in determinative/adjudicatory sessions. That's not happening here, the "judge" in the Taylor sceniario is just some coked up 8 year old on speed doing the killing, the "rule" more or less some directive to kill a lot of people. Now a rule passed by a body that declares an insult to the Prophet to be a capital crime, where judicial processes are used to enforce that law, sure. I can even see it if the state more or less delegates the rulemaking, and even the decisionmaking, to particular bodies over which it exercises little or no control. But enforcement of a nonstate directive, even of a specified individual, by anybody who listens, no I don't think that's law, even if the guy can get away with it.
In your example, how do we know he got the right person? Who counts as the ashab al qanawat? What if he repents as the assassination is being done? What if he used to spread the programs but doesn't now? What if he says this was his last day, he's done and he has repented, he's returning from the mosque now. Are there mitigation circumstances? Can others be killed who support him, or who obstruct the carrying out of the sentence and no other way of carrying it out exists? Not only don't we have answers, we'll never have answers to these things, because it's more or less entirely dependent on whoever happens to decide to execute the sentence. There's no legal culture, no constraining institutions, no developing rules and understandings on the application of rules, just folks killing people and getting away with it.
HAH
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Ok, I thought your original post was making a broader post: that these utterings (or "fatwas" as they are sometimes called) of these Saudi scholars are never law, or rather that the presumption is that they are not unless embedded strictly in state structure, not merely that this uttering on this radio show was not law.
But, of course, according to your questions in the last paragraph, the radio blurb is not even not "law," it is not even "fiqh." But that leaves open the question of when "fiqh" is "law," because there are plenty of good fiqhi answers to all of those questions.
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Ah, I see. Well, I guess my point was this--at first, Luhaidan started with a means of maintaining social order that really was not, and is not, law. In his backtrack, he moved to something that is clearly law in even the narrowest definition of the same. Yet in so doing, he made fiqh law, but in a manner that was so narrow that it was hard to see how relevant it could be in most states, or what the basis would be for overthrowing those states that didn't choose to apply these rules, given the way he (not me) married fiqh to state law in the backtrack. Are there middle grounds between the non law marauding model and pure state law implementation? Sure, but he never really tried them, and so I didn't mean to address them.
Though I will say I'm not sure why you think the radio spluttering fatwa aren't fiqh. They seem to be fiqh to me. He is reading texts, and coming up with a rule he thinks is compelled in Islam and telling us what they are. In the first case, that fatwa isn't law, and in the second case, it's meant to be legal but irrelevant in the broader Muslim polity and he doesn't tell us what to do about that, but still, it seems in both cases, to me they are classic examples of fiqh that are not law. Which again isn't to suggest fiqh can never be law separate from being entirely embedded in state structure.
HAH
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Two points:
1) I don't think on principle that "the radio spluttering fatawa AREN'T fiqh." Rather, that your long list of demands for precision (how do we know he got the right person? Who counts as the ashab al qanawat? What if he repents as the assassination is being done? What if he used to spread the programs but doesn't now? What if he says this was his last day, he's done and he has repented, he's returning from the mosque now. Are there mitigation circumstances? Can others be killed who support him, or who obstruct the carrying out of the sentence and no other way of carrying it out exists?) were not addressed in THAT PARTICULAR radio spluttering. (Soon I predict "radio spluttering" will be a terminus technicus in the literature!) But, as you know, fiqh could give great answers to all those questions, so in principle if what you want in order to call something "law" are answers to those questions, fiqh could fit the bill. (Question: do you require that there be single recognized answers to those questions for something to be "law," or authoritative bodies to determine which of the multiple coherent answers will be enacted?)
2. I think it is ok to have multiple conceptions of the master concept "law" as long as we don't get our wires crossed. You can say, "for the time being I am interested in binding rules and decisions articulated and enforced by institutions with these characteristics, and nothing else." No one would object to that. But then when one has another body of data that one wants to study with certain features, it may be reasonable to say "for the time being I am interested in discourses and practices which emerge from these other communities and institutions which I will also call 'legal' in nature." The problem is that one can call fiqh (or social customs/customary rules) by other names (ethics, ideology, religious doctrine, culture) but all of those other names imply certain assumptions about the nature of fiqh, assumptions which might not be shared by its practitioners and consumers.
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As to (1), of course fiqh CAN provide answers to such questions, but the problem is, that if one chooses to suggest that fiqh can be exercised through radio splutterings, many of these questions are not going to be capable of answer because of the medium through which the fiqh is employed. There isn't any realistic way, that is, for the fatwa to receive further definition or refinement at time of enforcement, and so there is going to be imprecision, if the radio spluttering method is going to be the way to do it. It's sort of like a legislature passing a law and then telling everyone "go enforce it." Is that law? It would be an odd conception at the least. No matter how specific the legislation, there are going to be gaps, and it's left to a community of people who might not share the same vision and certainly are not of similar training or background to decide on what it all means, on a case by case basis, individual enforcer by indivudal. It's hard for me to push that into a conception of law I can understand. So yes fiqh is capable of acting in a legal capacity, but in many cases it isn't going to, if it's going to operate in the manner suggested by Luhaidan I.
As to (2), yes I agree. You can call the rules by which a bouncer lets people into a nightclub some sort of law because it is a binding custom (if you want to get in, that is, it is binding). And if you do, then of course it would be silly to exclude binding social customs derived from fiqh. Still, I would like to think there are acts of force and violence that are legal, and others that are not, and I think any legal conception would have to draw the line coherently as to where that is. I think that's tough if red faced radio incitements to the general public really count but i'm willing to listen. Not only am I not wedded to any particular conception of law in this context, I haven't really offered one.
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