About a week ago I returned home from a fascinating criminal law conference in Antalya Turkey. Truly extraordinary internationally respected academics in attendance, from Muhammad Munir (Islamic International University of Islamabad) to Sadiq Reza (New York Law School).
In addition, there was a huge bevy of strong traditionalists led perhaps most prominently by the Syrian cleric Muhammad al-Zuhaili. I was placed on one of the two reformist panels I think, or at least it was the internationals who wanted to tease out particular notions of fiqh and subject them in my case to some level of scrutiny, criticism and (re)consideration. This definitely put me in the minority relative to those who stood shoulder to shoulder with Zuhaili whose views let’s just say are not widely shared in the company I normally keep. This is not a criticism of the conference, I find it important to engage with such people even if they don’t appreciate my own position and dismiss it as so much Westoxification. If you want change, you can get everyone in a room and air the differences and hear the cross concerns, even it gets acrimonious, or you can think invading their country will work better. I’ll play by the former set of rules.
In any event, a wonderful conference, well organized and administered. It left me with two lingering thoughts, related to but perhaps distinct from the contrasting views of reform and tradition about which much has been and will be written. I set them out below.
1. The field of Islamic criminal law really needs more rigorous empirical work. Some of the things being stated seemed so obviously contrary to basic empirics that if those who pronounced them were aware of it, they might avoid some of the silly self congratulation that seemed totally unwarranted. For example, the argument runs, the hudud, the strict Islamic crimes involving (depending on the crime) lashing, amputation, crucifixion, stoning and other forms of corporal punishment, help to deter crime. Hence Western societies which have banned the death penalty suffer from high crime rates, and societies that have kept capital punishments do not have similar problems.
So, first, the irony was that one of the people saying this was an Iraqi. One of the countries where capital punishment is the most widely used. And trust me, as one who has been to Baghdad many a time, it is not as safe as Oslo. That doesn’ t mean an academic can simply stand up and say the death penalty acts as no deterrent, look at Baghdad and Oslo, that’s almost as silly. But the question, do the hudud deter? is purely empirical, and a study could assess the truth of it. That wouldn’t settle the debate, of course, whether or not they deter has nothing to do with whether or not they are morally reprehensible (killing a mother’s children if the mother commits a crime might also deter, after all). But it would answer the empirical question being raised, or rather being answered as proof of something without the answer being itself backed up by any sort of data at all.
The empirical problems run deeper. In response to the reformist “but isn’t it just a wee bit Stone Agey to be killing people with rocks for having sex with the wrong people”, the traditionalist retort at the conference was something along the lines of the fact that the hudud are not often applied, because the conditions to meet them are so strict. Fornication is the most common example–either you confess, four times, and you can recant up to the time that the rocks start hitting you, or four Muslim men have to have witnessed vaginal penetration, which is hardly an easy standard to meet.
The problem here of course, relating us back to the original point at issue, is that this completely undercuts the idea of the hudud as deterrence. You can’t both barely ever apply something and then claim it is a deterrent. If social science studies have taught us anything, it is how real what is called the valence effect is. The presumption is that good things happen to us, and bad things happen to other people. So if you tell someone this truly horrible result will come out if they commit this crime (i.e. I will sever your hand if you commit a theft), then that might deter. Tell them that there are 30 conditions to execution of that sentence and less than 3% of the people convicted will lose their hand, and the deterrent value is all but dissipated due to the valence effect. Nobody actually thinks they’ll be one of the unlucky 3%. (Or, to bring the matter home, I tell my contracts students that if they are in the bottom 20% of the class there are particular things they should do to ensure effective bar passage. Every single one, and I mean every one without exception, asks me what they have done to make me think they will be in the bottom 20%. The answer is of course nothing. Except I’m looking at 80 people, and 16 of them by definition are going to be there, a fact they all intellectually know, but assume means it’ll be some 16 other than them.)
Now if you want to argue that valence effect doesn’t apply here, then that would be interesting indeed. But you’d have to have data. You can’t just say “the hudud deter, and are rarely applied” without realizing you are saying something terribly contrary to what social science seems to suggest and use it as a form of self congratulation for Islamic criminal law. And if you want to respond to me, as some did, that I am failing to realize God’s wisdom and that’s the problem, I’ll say here what I said there, “you didn’t say God is Wise and He thinks we should apply the hudud sparingly.” If you did, I’ll answer accordingly based on texts and religious interpretation and you can dismiss me as a silly liberal masquerading as an Islamic scholar if you like, and then we’ll part ways.” But you said, “the hudud deter and they are rarely applied.” That’s not a metaphysical or moral question, it’s an empirical one. So defend it empirically.
2. While the Middle East is overrun by defensiveness and insecurity, it runs particularly rampant among defenders of Islamic criminal law.
I neither know nor care whether the actual idea of a presumption of innocence in Western law came from Islamic law, as some claimed at the conference. It certainly is true that Islamic criminal punishments are not imposed absent proof, though it can be said at times the proof is formalistic and not necessarily an attempt to determine the likelihood of something happening. (After all, pregnancy is a far better determinant of whether someone had sex than four men. Four men can lie, virgin births are quite rare.) Whether or not this idea was taken in Spain or somewhere else and developed into our modern system is not something I’ve spent ten minutes thinking about.
I do know that Western notions of legality (there is no crime except when set forth in a preexisting law) did not come from us. That is not to say it is inconsistent with the core texts of Islamic thought, Muhammad Munir has done excellent work suggesting it is a core principle of Islamic law, but it is fair to say it is not one emphasized in the classical texts at all, a point he makes in his good work on the subject. So even if we had it, we didn’t emphasize it, though we should have, so they didn’t get it from us.
But the need, the compelling push, to insist that all great Western ideas on crime and punishment came from Islamic law seemed overwhelming among many. And this was absent any explicit historical link, as if correlation proved causation. (I.e. we ate fish before the Norwegians, so it must be that they learned that fish are edible from us. No other possible explanation, including maybe they figured it out on their own, what being near the ocean and all). Then there was the need to say the West is not a model for Islamic societies, which wasn’t a point I think anyone was making (do X because America does wouldn’t sell in France, let along Saudi Arabia). My favorite, however, was that the West removed Islamic criminal law and imposed colonial transplants because it realized how great Islamic criminal law was and felt jealous of it and sought to excise it. Which of course when put together with the first claim that demonstrated insecurity (their criminal law is based on ours) renders the matter incoherent. They took our law, made it theirs, and then hated us for coming out with it, so they removed it in our societies and replaced it with their law, which is of course our law so aren’t we around full circle and in that case, what are we talking about?
This sort of anticolonial we aren’t the West and refuse to submit to it can prove useful in some contexts, but positively blinding in others including questions of Islamic law tradition and reform. The fact is that Islamic political movements like the Muslim Brotherhood and Ennahda do not and did not (in the case of the MB, even when it ruled) actually make much noise about instituting Islamic criminal law. Usually, they do as much as they can to distance themselves from it. The same is true of the Islamist parties of Iraq–in fact, it’s more often the caricature of the secular parties, precisely because everyone knows, if you want to lose votes in these highly imperfect sort of democratic states, you start talking about amputations and stonings. So long as everything is attributed to the West as omnipresent demon, and a fair and full accounting of what the actual Muslim people want is ignored, or dismissed as only so much Western brainwashing, then solutions of a sort that will fit individual Islamic societies will continue to evade us.
Again, great conference, thanks to all at the respective Turkish universities for the opportunity.