The Portable Atheist: Essential Readings for the Nonbeliever (75 page)

Sudan

At the moment of writing (June 1994), genocide is in progress in Sudan where Islamic law was imposed by the then-dictator General Numeiri in 1983, even though almost one-third of the population is not Muslim, but Christian or Animist. The Islamic North of Sudan has been waging a pitiless war on the Christians and Animists of the South. Since 1983, more than half a million people have been killed. An equal number of people have been forcibly displaced from the Sudanese capital, Khartoum, to campsites in the desert where the temperatures can reach 120 degrees F., and where there are no health facilities, water, food, or sanitation. As an article in the
Economist
(9 April 1994) pointedly titled “The Blessings of Religion” said, “Financed by Iran, the Government has equipped its troops with modern Chinese-made weapons. In recent months the war has taken on a still cruder air of jihad, as the ranks of the army have been swelled by large numbers of young Sudanese mujahideen, ready to die for Islam.”

Indonesia

The details of the massacre of somewhere between 250,000 and 600,000 Indonesians in 1965 are only now beginning to emerge. After a failed
coup d’etat
in 1965, the Indonesian army (with at least tacit approval from the United States) took its revenge on the Communists. The army encouraged nationalist and Muslim youth to settle old scores; gangs of Muslim youths massacred Chinese peasants in the most horrific manner. “‘No-one went out after 6 p.m.,’ recalls a Chinese whose family fled East Java. ‘They cut off women’s breasts; they threw so many bodies in the sea that people were afraid to eat fish. My brother still had to serve in the shop. In the morning young Muslims would come in swaggering, with necklaces of human ears’” (
Guardian Weekly,
September 23, 1990). In Indonesia’s 1975 invasion of East Timor, at least two hundred thousand civilians were killed.

I emphasize these atrocities as a counter to the sentimental nonsense about the “spiritual East,” which, we are constantly told, is so much superior to the decadent and atheistic West; and as counterexamples to the belief that religion somehow makes men more virtuous. Europeans and Asians, Christians and Muslims have all been guilty of the most appalling cruelty; whereas there have been thousands of atheists who have not only led blameless lives but have worked selflessly for the good of their fellow humans.

Perhaps it was Charles Watson who, in 1937, first described Islam as totalitarian and proceeded to show how, “By a million roots, penetrating every phase of life, all of them with religious significance, it is able to maintain its hold upon the life of Moslem peoples.” Bousquet, one of the foremost authorities on Islamic law, distinguishes two aspects of Islam that he considers totalitarian: Islamic law, and the Islamic notion of jihad that has for its ultimate aim the conquest of the entire world, in order to submit it to one single authority. We shall consider jihad in the next few chapters; here we shall confine ourselves to Islamic law.

Islamic law has certainly aimed at “controlling the religious, social, and political life of mankind in all its aspects, the life of its followers without qualification, and the life of those who follow tolerated religions to a degree that prevents their activities from hampering Islam in any way.” The all-embracing nature of Islamic law can be seen from the fact that it does not distinguish among ritual, law (in the European sense of the word), ethics, and good manners. In principle this legislation controls the entire life of the believer and the Islamic community. It intrudes into every nook and cranny: everything—to give a random sample—from the pilgrim tax, agricultural contracts, the board and lodging of slaves, the invitation to a wedding, the use of toothpicks, the ritual fashion in which one’s natural needs are to be accomplished, the prohibition for men to wear gold or silver rings, to the proper treatment of animals is covered.

Islamic law is a doctrine of duties—external duties—that is to say, those duties “which are susceptible to control by a human authority instituted by God. However, these duties are, without exception, duties toward God, and are founded on the inscrutable will of God Himself. All duties that men can envisage being carried out are dealt with; we find treated therein all the duties of man in any circumstance whatsoever, and in their connections with anyone whatsoever.”

Before looking at Islamic law in detail, we need to know why it developed the way it did.

No Separation of State and Church

Jesus Christ himself laid down a principle that was fundamental to later Christian thought: “Render unto Caesar the things which are Caesar’s and unto God the things which are God’s” (Matt. 22.17). These two authorities, God and Caesar, dealt with different matters and ruled different realms; each had its own laws and its own institutions. This separation of church and state is nonexistent in Islam—indeed, there are no words in classical Arabic for the distinctions between lay and ecclesiastical, sacred and profane, spiritual and temporal. Once again, we must look to the founder of Islam to understand why there was never any separation of state and church. Muhammad was not only a prophet but also a statesman; he founded not only a community but also a state and a society. He was a military leader, making war and peace, and a lawgiver, dispensing justice. Right from the beginning, the Muslims formed a community that was at once political and religious, with the Prophet himself as head of state. The spectacular victories of the early Muslims proved to them that God was on their side. Thus right from the start in Islam, there was no question of a separation between sacred history and secular history, between political power and faith, unlike Christianity, which had to undergo three centuries of persecution before being adopted by “Caesar.”

Islamic Law

The sharia or Islamic law is based on four principles or roots (in Arabic, “usul,” plural of “asl”): the Koran; the sunna of the Prophet, which is incorporated in the recognized traditions; the consensus (“ijma”) of the scholars of the orthodox community; and the method of reasoning by analogy (“qiyas “or “kiyas”).

The Koran

The Koran, as we saw earlier, is for Muslims the very word of God Himself. Though it contains rules and regulations for the early community on such matters as marriage, divorce, and inheritance, the Koran does not lay down general principles. Many matters are dealt with in a confusing and perfunctory manner, and a far greater number of vital questions are not treated at all.

The Sunna

The sunna (literally, a path or way; a manner of life) expresses the custom or manner of life of Muslims based on the deeds and words of the Prophet, and that which was done or said in his presence, and even that which was not forbidden by him. The sunna was recorded in the traditions, the hadith, but these, as we saw earlier, are largely later forgeries. Nonetheless, for Muslims the sunna complements the Koran and is essential for understanding it properly, for clarifying the Koranic vaguenesses and filling in the Koranic silences. Without the sunna Muslims would be at a loss for those details necessary in their daily lives.

The Koran and the sunna are the expressions of God’s command, the definitive and inscrutable will of Allah that must be obeyed absolutely, without doubts, without questions, and without qualifications.

But with all their attendant obscurities, we still need some kind of interpretation of the sunna and the Koran, and this is the task of the science of sharia (fiqh). The specialists on law were called “faqih.” They founded many “schools” of interpretation, four of which have survived to the present day and share among the whole population of orthodox (sunni) Islam. Oddly, all four are considered equally valid.

1. Malik ibn Abbas (d. 795) developed his ideas in Medina, where he is said to have known one of the last survivors of the companions of the Prophet. His doctrine is recorded in the work, Muwatta, which has been adopted by most Muslims in Africa with the exception of those in Lower Egypt, Zanzibar, and South Africa.
   
2. Abu Hanifa (d. 767), the founder of the Hanifi school, was born in Iraq. His school is said to have given more scope to reason and logic than the other schools. The Muslims of India and Turkey follow this school.
   
3. Al-Shafi’i (d. 820), who was considered a moderate in most of his positions, taught in Iraq and then in Egypt. The adherents of his school are to be found in Indonesia, Lower Egypt, Malaysia, and Yemen. He placed great stress on the sunna of the Prophet, as embodied in the hadith, as a source of the sharia.
   
4. Ahmad ibn Hanbal (d. 855) was born in Baghdad. He attended the lectures of al-Shafi’i, who also instucted him in the traditions. Despite persecution, ibn Hanbal stuck to the doctrine that the Koran was uncreated. The modern Wahhabis of Saudi Arabia are supposed to follow the teachings of ibn Hanbal.
   

When the various school came under criticism for introducing innovations without justification for adapting religious law to suit worldly interests, and for tolerating abuses, the learned doctors of the law developed the doctrine of the infallibility of the consensus (ijma), which forms the third foundation of Islamic law or sharia.

IJMA

The saying “My community will never agree on an error” was ascribed to the Prophet and, in effect, was to make an infallible church of the recognized doctors of the community as a whole. As Hurgronje says, “This is the Muslim counterpart of the Christian Catholic doctrine of ecclesiastical tradition: ‘quod semper, quod ubique, quod ab omnibus creditum est.’” The notion of consensus has nothing democratic about it; the masses are expressly excluded. It is the consensus of suitably qualified and learned authorities.

However, there were still disputes as to whose ijma was to be accepted: some only accepted the ijma of the companions of the Prophet, while others accepted only the ijma of the descendants of the Prophet, and so on.

The doctrine of the infallibility of the consensus of the scholars, far from allowing some liberty of reasoning as one might have expected, worked “in favor of a progressive narrowing and hardening of doctrine; and, a little later, the doctrine which denied the further possibility of ‘independent reasoning’ sanctioned officially a state of things which had come to prevail in fact.”

By the beginning of A.D. 900, Islamic law became rigidly and inflexibly fixed because, to quote Schacht:

The point had been reached when the scholars of all schools felt that all essential questions had been thoroughly discussed and finally settled, and a consensus gradually established itself to the effect that from that time onwards no one might be deemed to have the necessary qualifications for independent reasoning in law, and that all future activity would have to be confined to the explanation, application, and, at most, interpretation of the doctrine as it had been laid down once and for all.

This closing of the gate of independent reasoning, in effect, meant the unquestioning acceptance of the doctrines of established schools and authorities. Islamic law until then had been adaptable and growing, but henceforth, it

became increasingly rigid and set in its final mould. This essential rigidity of Islamic law helped it to maintain its stability over the centuries which saw the decay of the political institutions of Islam. It was not altogether immutable, but the changes which did take place were concerned more with legal theory and the systematic superstructure than with positive law. Taken as a whole, Islamic law reflects and fits the social and economic conditions of the early Abbasid period, but has grown more and more out of touch with later developments of state and society.

Kiyas

Kiyas or analogical reasoning is considered by many learned doctors to be subordinate to, and hence less important than, the other three foundations of Islamic law. Its inclusion may well have been a compromise between unrestricted liberty of opinion and the rejection of all human reasoning in religious law.

The Nature of Islamic Law

1. All human acts and relationships are assessed from the point of view of the concepts obligatory, recommended, indifferent, reprehensibl , and forbidden. Islamic law is part of a system of religious duties, blended with nonlegal elements.
   
2. The irrational side of Islamic law comes from two of its official bases, the Koran and the sunna, which are expressions of God’s commands. It follows from the irrational side of Islamic law that its rules are valid by virtue of their mere existence and not because of their rationality. The irrational side of Islamic law also calls for the observance of the letter rather than of the spirit: this fact has historically facilitated the vast development and acceptance of legal devices such as legal fictions. For example, the Koran explicitly prohibits the taking of interest, and, to quote Schacht:
   “This religious prohibition was strong enough to make popular opinion unwilling to transgress it openly and directly, while at the same time there was an imperative demand for the giving and taking of interest in commercial life. In order to satisfy this need, and at the same time to observe the letter of the religious prohibition, a number of devices were developed. One consisted of giving real property as a security for the debt and allowing the creditor to use it, so that its use represented the interest…. Another…device consisted of a double sale…. For instance, the (prospective) debtor sells to the (prospective) creditor a slave for cash, and immediately buys the slave back from him for a greater amount payable at a future date; this amounts to a loan with the slave as security, and the difference between the two prices represents the interest.”
   How can we characterize the above practices? “Legal fictions” is too kind an expression. Moral evasiveness? Moral hypocrisy? Moral dishonesty?
   
3. Although Islamic law is a sacred law, it is by no means essentially irrational; it was created not by an irrational process of continuous revelation…but by a rational method of interpretation, in this way it acquired its intellectualist and scholastic exterior. But whereas Islamic law presents itself as a rational system on the basis of material considerations, its formal juridical character is little developed. Its aim is to provide concrete and material standards, and not to impose formal rules on the play of contending interests [which is the aim of secular laws]. This leads to the result that considerations of good faith, fairness, justice, truth, and so on play only a subordinate part in the system.
   
4. Unlike Roman law, Islamic law brings legal subject matter into a system by the analogical method, by parataxis and association. Closely linked to this method is the casuistical way of thinking, which is one of the striking aspects of traditional Islamic law. “Islamic law concentrates not so much on disengaging the legally relevant elements of each case and subsuming it under general rules—as on establishing graded series of cases.” For example, on the question of succession, we find discussions of the case of an individual who leaves as sole inheritors his thirty-two great-great-grandparents; the rights of succession of hermaphrodites (since the two sexes do not have the same rights); the inheritance of an individual who has been changed into an animal; and, in particular, the inheritance of that same individual when only half has been transformed, either horizontally or vertically.
   Thus, a soul-destroying pedantry, a spirit of casuistry took over. As Goldziher says:
   “The task of interpreting God’s word and of regulating life in conformity to God’s word became lost in absurd sophistry and dreary exegetical trifling: in thinking up contingencies that will never arise and debating riddling questions in which extreme sophistry and hair-splitting are joined with the boldest and most reckless flights of fancy. People debate far-fetched legal cases, casuistic constructs quite independent of the real world…. Popular superstition, too, furnishes the jurists with material for such exercises. Since…demons frequently assume human shape, the jurists assess the consequences of such transformations for religious law; serious arguments and counterarguments are urged, for example, whether such beings can be numbered among the participants necessary for the Friday service. Another problematic case that the divine law must clarify: how is one to deal with progeny from a marriage between a human being and a demon in human form…. What are the consequences in family law of such marriages? Indeed, the problem of (marriages with the Jinn) is treated in such circles with the same seriousness as any important point of the religious law.”
   
5. In what we would call penal law, Islamic law distinguishes between the rights of God and the rights of humans.
   Only the rights of god have the character of a penal law proper, of a law which imposes penal sanctions on the guilty. Even here, in the center of penal law, the idea of a claim on the part of God predominates, just as if it were a claim on the part of a human plaintiff. This real penal law is derived exclusively from the Koran and the traditions [hadith], the alleged reports of the acts and sayings of the Prophet and of his Companions. The second great division of what we should call penal law belongs to the category of “redress of torts,” a category straddling civil and penal law which Islamic law has retained from the law of pre-Islamic Arabia where it was an archaic but by no means unique phenomenon. Whatever liability is incurred here, be it retaliation or blood-money or damages, is subject of a private claim, pertaining to the rights of humans. In this Held, the idea of criminal guilt is practically nonexistent, and where it exists it has been introduced by considerations of religious responsibility. So there is no fixed penalty for any infringement of the rights of a human to the inviolability of his person and property, only exact reparation of the damage caused. This leads to retaliation for homicide and wounds on one hand, and to the absence of fines on the other.