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Joseph Schacht observed of Islamic law as described by premodern
jurisprudents, "Its hold was strongest on the law of family (marriage,
divorce, maintenance, &c.), of inheritance, and of pious foundations
. . . ; it was weakest, and in some respects even non-existent,
on penal law, taxation, constitutional law, and the law of war;
and the law of contracts and obligations stands in the middle" (An
Introduction to Islamic Law [1964], 76). Peters begins by explaining,
on the basis of premodern legal handbooks, why its hold on penal
law in particular should have been so weak. The Qur'an itself lays
out penalties for some crimes, notably theft and adultery. However,
Islamic law evolved so as to make qur'anic prohibitions highly impractical
to enforce. For example, theft was narrowly defined as the removal
by the criminal of property from someone's private space, so that
if someone handed out someone else's property to an accomplice through
a window, neither was guilty of theft, neither having crossed the
edge of someone's private space. Moreover, most crimes could be
proven only by the testimony of two eyewitnesses (adultery required
four), so that possession of stolen goods, for example, could not
be taken as evidence of theft. In consequence, Peters shows, premodern
Islamic countries normally had parallel judiciaries: the court of
the qadi, who would normally find that there was insufficient evidence
to convict, and an administrative court to which a qadi might turn
over a suspected thief, for example. Convicted on the basis of evidence
not admissible in the qadi's court, the thief might be beaten within
an inch of his life but he would probably not have his hand cut
off, the punishment prescribed in the Qur'an. In
the postcolonial era, Muslim reactionaries have regularly demanded
the application of Islamic law in place of codes drawn up in the
later nineteenth or earlier twentieth centuries on the pattern
of European ones. A religious difficulty is that premodern Islamic
law was never exactly a code. The very word for "Islamic law"
normally bandied about today, sharia (accent on the middle
syllable), is rare in medieval texts. The common word there is
fiqh, meaning not a set of rules but the discipline of discerning
God's intention from the scattered and often ambiguous evidence
He has provided of it. Handbooks normally lay out a range of possibilities
in dealing with any particular case, and Sunnis recognized four
equally legitimate schools, each with its own range of possibilities.
To come up with a single Islamic code is to alter radically the
character of the law.
Admittedly, some such alteration
was already under way from medieval times. In the Mamluk sultanate
(Egypt and Syria), before Peters begins his story, different sorts
of cases would be assigned to qadis of different schools according
to the expected rulings of the schools of law to which they adhered.
In the Ottoman Empire, as Peters outlines, a code was drawn up
mainly on the basis of the tradition of the Hanafi school to guide
qadis in their decisions, although they continued to hand over
most criminals to administrative courts.
Still, the thoroughgoing Islamicization
of law in a number of countries since the 1970s has resulted in
considerably elaborating and extending the law enforced by qadis,
so that it extends to offenses such as embezzlement and driving
without a license. Elaboration limits judicial discretion and
means that the offenses for which someone may be convicted and
the penalties that may be inflicted for them are expressly named.
In such ways as these, the new elaboration tends to bring Islamic
law closer to the universal norms to which most Islamic states
are formally committed by their signatures on, for example, the
1966 International Covenant on Civil and Political Rights. On
the other hand, the formal reinstitution of discrimination between
men and women and Muslims and non-Muslims, among other things,
conflicts with such universal norms. Muslims commonly object that
these "universal norms" are really peculiar to the modern West,
where they are hypocritically ignored at political convenience
anyway. Peters suggests that the conflicts are real and significant
but that offensive laws will not be altered in response to outside
pressure, rather only as Muslims draw on elements of their own
tradition to form a vital Islamic human-rights discourse.
This is an excellent book, well
informed and readable. I warmly recommend it as an introduction
to the history of penal law in Islam, even to Islamic law in general,
where it can stand beside Schacht's Introduction and, more
recently, Knut S. VikĖr, Between God and the Sultan: A
History of Islamic Law (2005).
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