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Interpreting Shari’a


May 1, 2012

Sadakat Kadri on Muslim and Western ignorance of what Shari'a law really means--and the real concerns that should be targeted.

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Photograph Courtesy of lecercle

Muslims agree that Shari’a is God’s law. But the mysticism surrounding Prophet Muhammed’s nearly 1,400-year-old words has solidified to a point where finding a consensus on the particulars of Shari’a is difficult. The debate has now saturated modern politics and pop-culture around the globe. London-born Sadakat Kadri, human rights Lawyer, travel writer, and journalist, took on this collective confusion in his new book Heaven on Earth: A Journey Through Shari’a Law from the Deserts of Ancient Arabia to the Streets of the Modern Muslin World.

As he traveled through South Asia and the Middle East to conduct research, Kadri began untangling the edicts of Shari’a and its interpretations, which could allow for a sex change but not apostasy. His finished product, full of travel experiences, written through the lens of his knowledge of the law and his connection to the subject matter, “provides a compelling overview of the historical events that shaped Islamic law,” wrote Ian Critchley, in the Sunday Times, and delivers “an admirably even-handed account of [Islamic law’s] often fraught position today.”

At Asia House this February, Kadri sat with Mishal Husain to discuss Heaven on Earth, the history of Islamic law, and Islam’s interaction with the religious present—both Muslim and non-Muslim.

Kadri earned a Master’s from Harvard Law and spent time in Prague during the 1989 Velvet Revolution. He has written a travel guide to Prague as well as the book The Trial: A History from Socrates to O.J. Simpson (2005), after his experience moving to New York City just before 9/11. He currently writes a column for the New Statesman.

Mishal Husain was born in England and grew up in both the Middle East and the UK. She received a law degree from Cambridge and works as a BBC international news presenter on Impact Asia, BBC World News, as well as other programs.

The following is an edited transcript of a conversation between Mishal Husain and Sadakat Kadri, published here courtesy of Asia House London.

Mishal Husain: When (Asia House) asked me to be a part of this event, it struck a chord with me on many different levels. My family is from one Muslim country and I grew up in two others. I’ve worked a lot in the Muslim world. I do vaguely remember something of my law degree—not very much, I have to admit. And of course my work in the news. This issue, Shari’a law, is one that comes up frequently, so it’s a fantastic opportunity for me to remind myself how little I know, and to take the opportunity to learn a bit more.

Sadakat, I wonder if you could just start by explaining your own journey in writing this book. Because you’re a very successful barrister here in London, did you have cases that had anything to do with Shari’a? Or what was it that got you interested?

Sadakat Kadri: No, actually, I didn’t have any cases at all. I work in the human rights field and, as I say repeatedly in the book, there are serious conflicts between certain interpretations of Islamic law and human rights. That’s something which I don’t make any bones about at all, it’s something which I think is very important for everyone to address, including the Muslim community, and many Muslims are addressing that issue. That’s something we can deal with later, perhaps.

I finished (my previous) book around 2004 and I said very explicitly in the introduction that I was describing what made me want to write that book, and what that book was about. And I ended very explicitly saying, this is a book about the Western criminal trial tradition; it’s about how much the West lives up to its ideals or betrays its ideals. There are things to be said about other legal systems, but this isn’t the book which is going to say anything about them. But having written that I was still very interested in other criminal trial systems. Even then, 2003-2004, issues about Islamic law were coming onto the agenda.

I moved back to London, the book came out in April 2005, and then of course three months after that we had the 7/7 bombings in London. The four bombers responsible notoriously cited the Shari’a as their inspiration. You also had people coming on television and the radio in the days and the weeks afterwards saying, “No, Islam is a religion of peace, it has nothing to do with this. The Shari’a is in fact all about peace.” Then you had people who were non-Muslims hostile to Muslims who said, “No, actually they were right, the Shari’a is all about war, it is all about Jihad, it is all about suicide bombs.”

As a lawyer, as a Muslim, and as someone who’d written a book about the Western trial system I thought to myself, “Well, if there’s so much arguing about the Shari’a there must be something to say about it.” I spoke to my father—my father’s from Pakistan and he’s also a lawyer—I said to him, “Well what does the Shari’a say?” And he said, “Well, of course it doesn’t justify suicide bombs,” but he didn’t seem to know where the Shari’a came from or what it was all about. The more I asked people in my family as well as friends, the more I realized that there seemed to be widespread ignorance in the Muslim community. And that’s something which I actually found to be the case over the next two and a half, three years I spent writing the book—I realized that the ignorance was profound. And I don’t mean that in a pejorative sense, it’s just that people didn’t know what the Shari’a was, as such. They knew that it was something good. I should say perhaps that the Shari’a, etymologically in Arabic, means a desert path to water. It means a path towards salvation, in the seventh-century context, to the desert people. If you have a path to water, that’s the path you want to take to get you where you want to get to; where you should get to. And that much was clear but beyond that people didn’t know what the rules were. People didn’t know when the rules had been written down or who had written the rules down. And first of all I thought it would be very interesting to find out the answer to those questions, but I also thought it was very important to find out the answer to those questions. One of the big problems in this field is that there’s so much mystification that surrounds talk of the Shari’a, whether its saying that Islam is all about peace or whether its people saying that Islam is all about Jihad and all about suicide bombs. People will make statements which don’t seem to be backed up by any sort of historical context.

Mishal Husain: A lack of knowledge is no impediment to having an opinion.

Sadakat Kadri: Absolutely.

Mishal Husain: And presumably the lack of knowledge you’re talking about applies to Muslims who really ought to know about the system, and indeed to non-Muslims as well.

Sadakat Kadri: It applies to both. It applies to Muslims and to non-Muslims. Whenever one writes a book one should have a notional reader in mind. It was very tricky with this book because I didn’t quite know whether I was writing for the non-Muslim or the Muslim, and at the end of the day I’m writing, I hope, for people who are interested, whatever their faith. Even if they don’t have any faith.

Mishal Husain: And so you set it in a historical context and you look at it with a lawyer’s mind and yet with enough space for the rest of us to understand. But you also went on an actual journey because you wanted to see Shari’a in action in Muslim countries.

Sadakat Kadri: Yes. As a barrister I had certain advantages—I could think like a lawyer and I knew how all the laws were fitted together and all the rest of it. One of the things I realized pretty early on while I was writing this book was that that was as much a hinderance as it was a help because the Shari’a isn’t just a system of rules. You know, “You do this at this hour. You don’t do this when this happens.” It’s actually an incredibly all-encompassing body of presets; it’s the correct way to live one’s life. There’s a quote from a fourteenth-century jurist, a man called Ibn Qayyim and this is his definition of the Shari’a:

“It is the absolute cure for all ills. Every good in this life is derived from it and achieved through it, and every deficiency in existence results from its dissipation. If God wished to destroy the world and dissolve existence, he would void whatever remains of its injunctions, for the Shari’a which was sent to his prophet is the pillar of existence and the key to success in this world and the hereafter.”

Now, as a London-based barrister that isn’t really the way that one thinks about the law, and I actually began realizing how broad this was. I was aware right from the very beginning that I didn’t want to just talk about amputations and beheadings. I wasn’t going to avoid the issue either. One concerns apostasy and the huge problems there are in the Muslim community about people who renounce their faith and convert away from Islam—or the oppression of religious minorities. The other chapter is about criminal justice systems which have been introduced in certain countries like Pakistan and Iran, so I don’t shy away from those issues but on the other hand I did want to, right in the very beginning, talk about the broader issues, and so what I did was I went back to my dad’s hometown, which… I could do a reading…

Mishal Husain: Yes, do a reading. You wanted to do the beginning?

Sadakat Kadri: Yes, because it gives a general sense of how, when I started to write this book, I gradually began to realize how broad a scope the Shari’a covered. So I’ll read this bit. This is from the introduction to the book: [Editor’s note: to read the introduction in full, published at Guernica on March 15, go here]

“What people are doing all the time is arguing over the correct interpretation of the Shari’a, arguing over the Fiqh. That’s something that has been going on throughout Islamic history.”

Mishal Husain: I’d like to address the central issue that many people in this room, and many people generally have with the Shari’a, which is the sense of disquiet, distaste, maybe even disgust at what they hear about Shari’a in parts of the Muslim world and the suggestion that it is already being used in this country—and some people would like to see it used more in this country—and the unsettling effect that that has on many in mainstream society here; I mean, is this a system that has merit?

Sadakat Kadri: Well, I mean, there’s crucial distinction that has to be drawn between the Shari’a, which is this hugely expansive vision of cosmic order that I’ve been describing, and principles of Islamic law, known in Arabic as “Fiqh”—a word that means understanding. If you’re a devout Muslim, you don’t argue against the Shari’a; the Shari’a is the path that God has laid down. But what you can do, and what people are doing all the time, is arguing over the correct interpretation of the Shari’a, arguing over the Fiqh. That’s something that has been going on throughout Islamic history. The first rules about Islamic law weren’t even written down for a century and a half after the Prophet’s death, and it was another five centuries, half a millennium, before they assumed anything like a definitive form. So there have always been huge arguments over what Islamic law actually requires. There are four main schools of law in Sunni thought and there’s a separate school of law in Shia thought, so these arguments do take place. But I guess we can boil it down saying that people have disquiet about things like chopping the hands of thieves off, which is laid down in the Qur’an, there’s no denying that. Stoning adulterers to death—that’s not, interestingly enough, laid down in the Qur’an—the penalty laid down in the Qur’an is one hundred lashes, but it was subsequently developed as a rule by jurists in years after the death of the Prophet that actually the Qur’an, while none of them would have said the Qur’an was wrong on that point, would have said, well, the fact that there’s no revelation doesn’t mean that you shouldn’t stone adulterers to death.

In parentheses on that point, even though the Qur’an among non-Muslims has this reputation for being a violent book in the context of criminal justice, if one actually looks at the criminal justice provisions, there are only four criminal offenses laid down in the entire Qur’an. Apostasy isn’t made punishable, blasphemy isn’t made punishable. There are four criminal offenses, there is no mandatory death penalty in the Qur’an. The death penalty is referred to twice in the Qur’an, once for the crime of Heraba, which is waging war against God and his prophet, which was always understood to mean highway robbery, and then there’s the replication of the Torah rule, an eye for an eye, a tooth for a tooth, a life for a life, which is dependent upon the wishes of a victim. Now that’s a seventh-century rule. A basic point, which I deal with in my book, is that we’re talking about a seventh-century system of justice here, and clearly I’m a human rights person. I’ve defended plenty of thieves in my time and I’m not going to suddenly start saying that we should start chopping thieves’ hands off. I think that these rules have to be updated to take into account the fact that 1,400 years have elapsed since the revelation.

Mishal Husain: That’s a very controversial point.

Sadakat Kadri: It is a controversial point.

Mishal Husain: The idea of updating is actually something that’s never happened with the body of Islamic law and with Islamic teaching over the centuries.

Sadakat Kadri: Well, that’s not strictly true. As far back as the ninth century you had a group called the Mu’tazilite who, I won’t get into the big theological discussions, but basically there was a big argument in the ninth century in Baghdad about whether or not the Qur’an had always existed or whether it was created by God. And the argument was set off by esoteric arguments which had themselves been set off by the reception of Greek philosophy in Persia and Aristotelian ideas about the primary attributes of God and secondary attributes of God. The Mu’tazilite basically said, look, if you’re a monotheist, you have to believe that God existed independent of himself before the Qur’an, so the Qur’an was clearly created. And there were traditionalist opponents of them who said, no, no, that’s not right, look at the words of the Qur’an, the Qur’an says that it’s an eternal book, so it’s always been there.

Now that does sound like a really esoteric argument, but basically it’s got crucial significance, because if the Qur’an was created, it means that it was given voice to by God at a specific moment in history, and if that was the case, then it’s meaning will change over time. And that argument was battled over in the ninth century. Sunni Islam doesn’t take the Mu’tazilite view. Sunni Islam is hostile to that idea, admittedly, that the Qur’an’s meaning can change over time. But the Shia have always adopted the Mu’tazilite view that the Qur’an’s meaning can change over time and that’s why Shia Islam is significantly more flexible than Sunni.

Mishal Husain: That’s interesting, because Shia Islam—we think of Iran as being the most known example—I mean, generally one sees, the common perception is that Shia Islam must be more conservative, more narrow-minded, less flexible.

Sadakat Kadri: No, no, the politicized version of Shia Islam that we see in the Islamic Republic post-1979 clearly is very conservative, but, there are other things one could say about Ayatollah Khomeini’s concept of a Shia state because that in itself is a blasphemy as far as most Shia clerics are concerned. There’s a theory that he developed in the early 1960s in the town of Najaf talking about—well not liberalism, necessarily, but flexibility though. One of things that surprised me when I was in Iran was to find out that the country finances seven times as many sex change operations as the entire European Union. And the reason for that is because Ayatollah Khomeini himself, in the early 1960s, in the same time that he was developing this other idea of an Islamic state, also hit upon the idea that if a person is born into the wrong sex, it was entirely proper for them to change sex.

Mishal Husain: That’s accepted in Islam?

Sadakat Kadri: Ayatollah Khomeini issued a fatwa to that effect, which was then given effect in the Islamic Republic of Iran, so in the Islamic Republic of Iran, it’s flexible enough to allow for sex changes, and it encourages sex changes. One of the points I make in the book is that it encourages the change of sex, but if you want to change your religion in Iran, you’ve got some serious problems. And you know, there are other problems. You’re allowed to change sex, but if you want to be a homosexual, theoretically at least, you face the death penalty. Quite how often these penalties are carried out is a moot point, but it’s there on the statute books.

“I’ve defended plenty of thieves in my time and I’m not going to suddenly start saying that we should start chopping thieves’ hands off. I think that these rules have to be updated to take into account the fact that 1,400 years have elapsed since the revelation.”

Mishal Husain: Can I ask you one thing, before we open the floor to questions? Does it not make—one contemporary example, the examples we sometimes hear of Shari’a law operating in this country among some western communities—doesn’t that make you feel uneasy, as someone whose work…?

Sadakat Kadri: Me personally? Would I say uneasy? It’s a matter for some concern. My background—I’ve already told you enough about my background—my father’s from Pakistan and he has been a secularist all his life. In the Pakistani context, there’s no messing with religion. There’s been a battle for the soul of Pakistan since 1947 and I have grown up without any illusions about the dangers of religious power in the context of a country like Pakistan.

I was a teenager when General Zia took power in the country; I was in my twenties when I went there during the late 1980s and I saw then not only the novel punishments that he was introducing—because they were novel, and this is again something that’s very important to understand, it’s only in the last thirty, forty years, since 1979 in fact, that these penalties have been revived anywhere in the world apart from Saudi Arabia. In 1979, you had the revolution in Iran. You had the Hudood Ordinances in Pakistan, which are the laws that are notoriously used against women, which are theoretically used against thieves although they’re never carried out—an actual amputation or an actual stoning. The blasphemy laws, again, never actually carried out, though they’re there, heavy with menace on the statute books.

Sorry, going back to the question you asked. My background is such that I am uneasy about religious laws, I think there’s always a real danger when you start appealing to a higher authority. It’s self-righteousness, it’s not righteousness, it’s self-righteousness that takes control. But I think that it’s absolutely crucial that that’s not confused with the debate that takes place over Shari’a law in this country at the moment. I think that it’s been skewed by the fact that the Archbishop of Canterbury made his intervention, which he clearly thought was helpful a couple of years ago, which just has completely confused matters. Because as far as anybody is concerned, when you talk about Shari’a courts now you’re talking about—I don’t know what people think.

What I understand by it, if Muslims want to take their disputes to religious arbitrators because they genuinely believe that it’s a matter of great spiritual importance that they do that, they shouldn’t be the only community in this country that’s denied the opportunity to do that. Because the Jewish population has been entitled to take their disputes to tribunals known as the Beth Din for over one hundred years, and the Church of England is integrated into the fabric of this country, and there are ecclesiastical tribunals where religious disputes can be dealt with.

Mishal Husain: So we should feel relaxed about Shari’a Court?

Sadakat Kadri: No. We shouldn’t be relaxed, all of these things should be kept under scrutiny, but what we shouldn’t do is victimize and target Muslim communities specifically. But as things stand, there’s one tribunal which has drawn a lot of flack–the Muslim Arbitration Tribunal. And the Muslim Arbitration Tribunal, if you look at its website, it basically deals with commercial disputes, it’s not allowed to deal with matters involving children, it’s not allowed to deal with criminal matters, it’s subject to judicial review, it’s subject to the Human Rights Act, it’s subject to the Children’s Act, and it’s completely proper and right that it should be subject to all those things.

One other thing I should say, is that it appeals to a miniscule proportion of this country’s Muslims as well. It’s a Deobandi tribunal, probably the majority of Muslims in this country belong to another sect, which is a Barelvi sect. I won’t bore you with the details and distinctions, but suffice it to say that if you’re a Barelvi, you’re not going to go to the Muslim Arbitration Tribunal, still less if you’re a Shia are you going to go to the Muslim arbitration tribunal. It’s there if you want to take your dispute to it, and it’s also subject to all the ordinary laws of the land, and if you didn’t have that system then it’s completely conceivable that you would have people still believing that it was important that they have their disputes resolved by spiritual arbiters well-versed in Islamic law, but the arguments would take place behind closed doors, we’d know nothing about them.

Mishal Husain: Can we get some microphones now please, for anyone who would like to ask a question. I’m sure there are lots of contemporary examples that we could look at in different parts of the world.

Audience Member: Something that always fascinated me was the position of Ulemas and the way that they can give fatwa. Who is it, or how is it that they get the authority? And how is it that people accept or don’t accept that authority? Because it seems to me that this is one of the great problems with Shari’a, that it is so interpretable. You look beyond your description of the all encompassing past—how did you find this revealed as you traveled around?

Sadakat Kadri: Well I should just say for the benefit of the audience that Ulemas are scholars basically—people with knowledge—and it’s an interesting question which doesn’t have an easy answer unfortunately. Basically it depends on consensus. You have authority if people accept that you have authority, and that is a problem in one way but on the other hand is also part of a strength and also potentially a very positive aspect of Islamic law. There isn’t a single figure who possesses ultimate authority, so it does mean that people who are sufficiently well versed and who do have sufficient authority within their community can issue fatwas. The one that everyone here is probably familiar with is the Salman Rushdie fatwa, but a fatwa doesn’t have to be a violent thing at all. A fatwa is simply a ruling on Islamic law; there can be fatwas on clothing.

Mishal Husain: In fact there have been fatwas against violence, haven’t there?

Sadakat Kadri: Of course, yes, there have been lots and lots of fatwas against violence. But it is an interesting question. I mean Osama Bin Laden himself didn’t write a fatwa until 1996. He was too wary of asserting a claim to be speaking in God’s name and he actually delegated the responsibility to an electrical engineer of Al Qaeda in Sudan who was an electrical engineer by day and read scholarly texts by night. He had the authority in the kind of latent membership of Al Qaeda in Khartoum in the 1990s to deliver fatwas.

So there are hierarchies in the sense that if you go to a Madrasa in Pakistan, if you go to—there are differences between Sunni and Shia—but a Mufti is the person that issues the fatwa and you’ll find Muftis at all the Madrasas. Basically once you’ve studied for long enough you have the authority to issue a fatwa. But there are limits. I can bang on and on on the point but all I’m really saying is that there isn’t a simple answer.

Mishal Husain: So there’s no qualification?

Sadakat Kadri: There are many, many qualifications.

Mishal Husain: There are?

Sadakat Kadri: Yes but say—when we were talking about the Muslim Arbitration Tribunal—they have very specific qualifications. It’s got to contain two arbitrators, one of whom is a member of the Ulema, a scholar, the other of whom is a barrister or a solicitor, and again it’s consensual. If these people say we recognize that guy’s authority or that woman’s authority, these are questions which are important as I say in the book–will the Muslim Arbitration Tribunal allow for female judges? Because say in nineteenth-century Baghdad there were thousands of scholars for whom such judges were permissible.

I’m not complacent about the existence of these things, but what I am cautious about is a sense that I’ve got that as racial identities have turned into religious identities over the last twenty years, some of the hostility directed against race has started to be directed against religions, and I think there’s a real danger that Islamophobia can actually be a cover for something far more malign. I don’t want to sound like a spokesman for the Muslim Arbitration Tribunal but I am a supporter of autonomy for religious communities and for non-discrimination.

Audience Member: My understanding of Shari’a is that it is man-made. If, theologically speaking, it is only the Qur’an which cannot be changed then perhaps Shari’a law–for example stoning and apostasy I don’t think are in the Qur’an, they are man-made–can be changed?

Sadakat Kadri: Well it clearly depends on what view you take of the nature of the Qur’an. The Shari’a itself—this is possibly a kind of verbal debate—is understood to be something different from the Fiqh, and the Fiqh is the man-made element and the Shari’a is theoretically the divine element but it depends on one’s personal beliefs.

Mishal Husain: Shari’a is not just what’s in the Qur’an?

Sadakat Kadri: Shari’a is not just the Qur’an, you see Shari’a is comprised according to all the doctrines. So there’s the Qur’an, there’s the Hadith…

Mishal Husain: The Hadith are the sayings of the prophet—collected and written out long after his death.

Sadakat Kadri: Right, and then there’s consensus and analogy–argument by analogy. These are the four components in the Shari’a. An orthodox Sunni would not accept that the Shari’a was simply comprised of the Qur’an itself and actually there are people who say that it’s heretical to believe that. They have to say that because if they don’t say that then they would have to accept that, for example, stoning is not a punishment which appears in the Qur’an–it doesn’t. Amputation, take my word for it, does, and I’ll give you the chapter and verse afterwards, but amputation is in the Qur’an. Stoning isn’t, apostasy isn’t, blasphemy isn’t–plenty of other things–what the Qur’an says about blasphemy is that you just walk away from the blasphemer, ignore them, they’ll be punished in due course. There’s no mention of punishment for such statements anywhere in the Qur’an.

One of things that surprised me when I was in Iran was to find out that the country finances seven times as many sex change operations as the entire European Union.

There’s scope for interpretation about what happens subsequently but certainly there were periods in Islamic history when things like apostasy and blasphemy were made punishable. So you know it kind of depends–there’s no argument, quite apart from the question of the divine or otherwise nature of the Qur’an, that huge swathes of Islamic law are man-made. No one would ever deny that, but the thing is the people who have a vested interest–I’m talking about clerics here–in maintaining their power, will often try to elide that and say “Well no, actually this isn’t man-made at all. Stoning is part of the divine revelation.” It isn’t in the Qur’an but the way this has been done over the years is to take the Hadith and argue by analogy, and argue that the consensual view of scholars is also party to revelations.

Mishal Husain: You tell us in your book about the origins of Shari’a law that first people came and asked the prophet for his advice during his lifetime and then later on how that came to be codified. You use a lovely phrase: “Hadith inflation.” Perhaps you could explain how after his death there was an explosion in, you know, “the prophet said this, the prophet said that.” There were thousands and thousands of these sayings and they were eventually whittled down to about three thousand as a more manageable number. It just shows the complexity of what we’re dealing with.

Sadakat Kadri: I thought it was very important, and that’s why the first half of the book is historical because the thing is otherwise one has to talk about abstracts and generalizations. I think it’s important for this to be rooted in history–what we know about the history and what we don’t know about the history. So then, if people want to argue, at least they’re arguing from the same point and we know what we know, and we know what we don’t know.

Audience Member: I’m still rather confused about the subject of Shari’a law in this country vs. the law of the land. Are you saying that if somebody commits a crime say against the law of the UK legal system that that person can be judged by Shari’a lawyers?

Sadakat Kadri: No. The first thing to say is that the ordinary criminal law in this country, the Human Rights Act, the Children’s Act, all of the laws of the country take precedence, but what I’m also saying is that within the context of a secular country, which Britain now kind of is, or at least a country which purports to be relatively equal between religions, there should be some scope for allowing faith communities to govern themselves–subject to it being consensual and subject to everyone’s human rights being observed. So there being no machinations or women being coerced into abandoning of rights they would normally have.

Mishal Husain: How certain is this? Perhaps you could give an example of the kinds of things that people do bring before Shari’a courts.

Sadakat Kadri: OK. Well one classic example, which has been in operation since the 1980s, is that women have gone to these courts for what is known as a Khula, an annulment of a marriage. Because a big problem (which isn’t a problem just in Muslim communities in this country but in Pakistan and many other Muslim countries) is that men will abandon their wives without speaking the words of divorce, the words which are required for the marriage to be annulled in the eyes of God.

So what that means in practical terms–if you are religious–what it means to the woman is that in the eyes of God she is married and she can’t do anything to change her status, she’s got to… she can’t move on, she can’t walk away from that marriage, she can’t form another relationship, can’t do anything. Whereas a man is entitled to marry three more times and that fosters great abuse, even scholars accept that. So certainly since the 1980s Shari’a courts have been established and they allow for women to go to them and they basically grant them annulment. It’s not a civil divorce, they don’t have the right to grant alimony or maintenance or custody.

Mishal Husain: It’s not on paper.

Sadakat Kadri: Or yes, it’s never annulled on paper in the first place. What happens is that the thing that took place on the spiritual plane ends. And then another example would be two Muslim businessmen have a dispute, they have a choice of law courts in the dispute–which is a perfectly normal thing–they say they want the dispute to be judged as of Shari’a law by the Muslim Arbitration Tribunal. If these people want to do that, it’s no problem as far as I’m concerned.

Mishal Husain: Could someone say, “I want to divide my estate by Shari’a law and give my daughters half of what I give my sons?”

Sadakat Kadri: Well, that is a problem insofar as inheritance laws are given practical recognition, and there is an issue about the discrimination provisions because the Qur’an does say that women should have half the share of men. Again, in the seventh century perhaps that kind of made sense, but in the twenty-first it very often doesn’t. But in the arbitration contract that won’t arise. An inheritance dispute might arise after someone dies but the two sides have to come together consensually.

Mishal Husain: And negotiate…

Sadakat Kadri: Yes.

Mishal Husain: What about someone in a Muslim community in this country, who end up assaulting someone else, could that be settled?

Sadakat Kadri: No.

Mishal Husain: In this kind of arena?

Sadakat Kadri: No. There’s a feminist critique of Muslim Arbitration Tribunals, which I’m certainly not unsympathetic to, because as I keep saying, I come from a human rights context. But there’s a feminist critique of Muslim Arbitration Tribunals specifically, which says women are going to have their rights eroded by virtue of the fact of these courts are going to negotiate settlements and negotiate the dropping of criminal charges against men. There’s not been any evidence of that taking place–that would be a criminal offense, compounding a criminal offense, if that were to happen, being an accessory after the fact.

And again, perhaps most crucially, this is the kind of thing that’s going to happen anyway, if you close down these tribunals, these things aren’t going see the light of day. You’re not going to get, if it came to a court’s notice now, that there had been chicanery machinations by the Muslim Arbitration Tribunals, which had resulted in the concealment of a criminal offense. Not only would the decision be struck down, but that would probably be the end of the Muslim Arbitration Tribunals certification on the Arbitration Act 1996. I’m not saying for a moment that they should have criminal jurisdiction. They’re not saying that, to spring to their semi-defense. Insofar as there are extremists who do call for the killing of homosexuals, or the stoning of adulterers or God knows what else–I’m against it, but the vast majority of Muslims in the country are against it as well.

Audience Member: If you’re talking of divorce, if a gentleman says to his Muslim wife: “I divorce you, I divorce you, I divorce you”–that is then seen as divorce in the Shari’a law, but if he then re-marries, is that not going against the law of polygamy, that is forbidden within say, the British law, legal system?

Sadakat Kadri: Well no, because they operate on separate planes. You can’t remarry twice in this country, in a registry office. What you do with a Muhlar or a Mufti is your own business, and quite rightly too; it’s not the state’s business to say you can or you can’t formalize your relationship by a formula of words. People are coupling and decoupling all the time in this country. The fact that Muslims choose to precede it with a certain formula of words, shouldn’t bar them from anything. But, no one’s saying that polygamy should be institutionalized in this country. That Muslim’s uniquely should be allowed to have two or three or four marriages.

Audience Member: You’ve talked about blasphemy law, and apostasy in Islam and you said that there is no punishment prescribed in the Holy Qur’an. Why is it then that those laws take precedence in certain Muslim countries, and have actually become very controversial in terms of application in those countries? Misaq-e-Madina was a practice that the Holy Prophet set the rules for, by signing the Misaq-e-Madina with the Jews of the time. So why does blasphemy law something that is more politicized, as opposed to Islamic jurisprudence?

Sadakat Kadri: Yes, apostasy and blasphemy aren’t mentioned in the Qur’an. In the years subsequent––in the centuries subsequent–there were instances of execution of blasphemers. I should say putting it into some kind of context, if you look at one statistic which I came across while writing the book, over the entire fourteenth century in Egypt, Syria, and Palestine you had something like twenty-six recorded executions for blasphemy and apostasy. Now, twenty-six is twenty-six too many for twenty-first century standards, but put that in fourteenth-century standards… this is a time when heresy persecutions are kind of developing into the witch hunts, when you could get more than twenty-six people killed at a single trial. You’d have tens of thousands of people killed over the course of the next two and a half centuries.

But going back to your specific point: it’s politicized. In the mid-1980s, General Zia decided for various political reasons (which I do go into in the book, but I won’t go into here) to Islamisize the country. Part of his process of his Islamisization was to scapegoat minorities, one of which was the Ahmadi community–which is regarded by the mainstream as being heretical because it recognizes nineteenth-century scholars as being a successor to the prophet–and of course the Christian community, and we’ve seen that in Pakistan in recent years, with the assassination of Salman Taseer and the governor of Punjab. It’s terrible, it’s a desperate, desperate situation.

But it’s a new thing. It’s something which didn’t happen thirty years ago. I looked at a book from the mid-1970s and it was talking about apostasy and it just said that these penalties have disappeared and are never used any more. That was in 1975. It’s still very strange, because even though they’re now enshrined in Pakistani law, in Iranian law, in Saudi law, in most of these countries, they’re still not applied, and it’s a mystery which again I look at in the book––these laws are there and they send out a message, they sound out a terrible kind of dark message, but they’re not applied.

The changes that are taking place, from Tunisia to Tahrir Square, hopefully to Tehran one day, they’re going to happen. And Islam is going to be at the center of them.

Mishal Husain: But once they are increasingly used, it’s very, very hard to roll back from that. It’s very hard to say anything that is perceived against…

Sadakat Kadri: No. In Pakistan it’s proved its virtually impossibility. You had a woman called Sherry Rehman who wanted to pilot a bill through the legislature, abolishing blasphemy law, and after the assassination of Salman Taseer, she was just told, “Look, drop this.”

Mishal Husain: Well, she ended up as a virtual prisoner in her own home.

Sadakat Kadri: Hasn’t she ended up as an ambassador for the United States?

Mishal Husain: Now! Now! She ended up as an ambassador, but before that she was a prisoner. Before she ended up in D.C. But, can I just ask one question to close? Which is again contemporary, but not to do with this country or to do with Pakistan. That is that, I reported a lot on the Arab Spring, and if you look at Libya but perhaps much more importantly Egypt, where they’re in the process of thinking about a new constitution–should we be worried at the idea that if Islam is enshrined in the constitution, what that would mean for a modern Egypt? What that might mean for Egypt’s minorities? Is it something that should be fought against in the constitution of a country?

Sadakat Kadri: No, absolutely not. Islam’s been enshrined in the Egyptian constitution since the early 1970s. I can’t remember the precise wording now, but it changed–President Sadat enacted a law which said that shari’a should be a source of law, and then it got changed. Shari’a should be the source of law. That’s been the case since the 1970s. The fact that shari’a was the source of law in Egypt didn’t stop him enacting the Camp David agreement, for example, which is incredibly unpopular among groups like the Muslim Brotherhood.

Whether we should be concerned or not is almost irrelevant because it’s going to happen. There’s no point saying that these states should not pay heed to the Shari’a. What there is a point in doing is saying: look, there’s so many interpretations of the shari’a and actually it is possible. Rather than saying (as some anti-Muslims or some of the more strident anti-Muslims do), look shari’a is all about jihad, its all about suicide bombs; it’s all about stoning adulterers to death. One should look for the points of commonality rather than the points of difference and try to build on those. The changes that are taking place, from Tunisia to Tahrir Square, hopefully to Tehran one day, they’re going to happen. And Islam is going to be at the center of them–even, I think, in Tehran if there is a change.

And to say that these things should not be Islamic is first of all absolutely nonsensical. Secondly its arrogant, because it’s got nothing to do with the West–to say what should and shouldn’t happen. There are concerns because these laws, like any system of law, can be used against minorities, and can be used against the vulnerable, and can be used against the weak, and that’s what needs to be targeted.

G

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4 comments for Interpreting Shari’a

  1. Comment by Rockderk the Infidel. on May 4, 2012 at 3:34 am

    So basically, what the Prophet gifted us was a pool of crystal clear cool water, where one could come, see his reflection and be enlightened. And ever since that time, one Mufti, Mullah or Ayatollah after another has poked his stick in the water to stir up the muddy bottom and render the waters opaque. I’m grateful to Mr Kadri who, through his research has further bolstered my active repudiation of all forms of organized religion.

  2. Comment by J. Todd Ormsbee on May 4, 2012 at 3:10 pm

    I find it disturbing that sex changes are used as an example of the flexibility of Iranian Shari’a. If one is a transgendered Iranian, this would seem really liberal and compassionate. However, in fact the mullahs use sex changes as a way to evade the existence of homosexuality and to punish homosexuals. Sex change operations are among the only ways out of the death penalty in Iran for gay men, who claim to be transgendered to avoid being hanged. Or more insidious is the psychological impact of growing up in a culture that frames homosexual desire as an indication of transgender rather than of homosexuality, so that the only way to make sense of one’s life within the confines of the society is to submit to body mutilation.

    Whereas I am open to discussions of the complexities of Shari’a, both in terms of its practice and the perceptions of it, and whereas I find Mr. Kadri’s work compelling, I found myself wanting deeper more critical analysis. His responses sometimes felt like apologia, or more problematically, like an argument from within, which accepts the basic premises of the religio-legal structures at issue, and argues about “doing it right” rather than seeing them as historical, cultural constructions all the way down.

  3. Comment by David Manheim on May 6, 2012 at 3:21 pm

    It should read “1,400 years,” not “14,000”

  4. Comment by The Editors on May 6, 2012 at 5:00 pm

    Thank you very much for this note, David Manheim. It now correctly reads “1,400 years.”

    -The Editors

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