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.
In sum, sharia is the total collection of theoretical laws that apply in an ideal Muslim community that has surrendered to the will of God. It is based on divine authority that must be accepted without criticism. Islamic law is thus not a product of human intelligence, and in no way reflects a constantly changing or evolving social reality (as does European law). It is immutable, and the fiqh or the science of the sharia constitutes the infallible and definitive interpretation of the Sacred Texts. It is infallible because the group of Doctors of law have been granted the power to deduce authoritative solutions from the Koran and the traditions; and definitive because after three centuries, all the solutions have been given. While European, law is human and changing, the sharia is divine and immutable. It depends on the inscrutable will of Allah, which cannot be grasped by human intelligence—it must be accepted without doubts and questions. The work of the learned doctors of the sharia is but a simple application of the words of Allah or His Prophet: it is only in certain narrowly defined limits, fixed by God Himself, that one can use a kind of reasoning known as qiyas, reasoning by analogy. The decisions of the learned, having the force of law, rest on the infallibility of the community, an infallibility that God Himself conferred through Muhammed on his community [Bousquet, Hurgronje, Schacht].
1. Two of the roots of Islam are the Koran and the sunna as recorded in the hadith. First, we have already given reasons why the Koran cannot be considered of divine origin—it was composed sometime between the seventh and the ninth centuries, full of borrowings from talmudic Judaism, apocryphal Christianity, the Samaritans, Zoroastrianism, and pre-Islamic Arabia. It contains historical anachronisms and errors, scientific mistakes, contradictions, grammatical errors, etc. Second, the doctrines contained therein are incoherent and contradictory and not worthy of a compassionate deity. Nowhere is there any proof for the existence of any deity. On the other hand, the Koran also contains praiseworthy, even if not particularly original moral principles—the need for generosity, respect for parents, and so on. But these are outweighed by unworthy principles: intolerance of pagans, the call to violence and murder, the lack of equality for women and non-Muslims, the acceptance of slavery, barbaric punishments, and the contempt for human reason.
2. Goldziher, Schacht, and others have convincingly shown that most—and perhaps all—of the traditions (hadith) were forgeries put into circulation in the first few Muslim centuries. If this fact is allowed, then the entire foundation of Islamic law is seen to be very shaky indeed. The whole of Islamic law is but a fantastic creation founded on forgeries and pious fictions. And since Islamic law is seen by many as “the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself,” the consequences of Goldziher’s and Schacht’s conclusions are, to say the least, shattering.
3. Priestly Power:
That there is a will of God, once and for all, as to what man is to do and what he is not to do; that the value of a people, of an individual, is to be measured according to how much or how little the will of God is obeyed; that the will of God manifests itself in the destinies of a people, of an individual, as the ruling factor, that is to say, as punishing and rewarding according to the degree of obedience…. One step further: the “will of God” (that is, the conditions for the preservation of priestly power) must be known: to this end a “revelation” is required. In plain language: a great literary forgery becomes necessary, a “holy scripture” is discovered; it is made public with full hieratic pomp…. With severity and pedantry, the priest formulates once and for all, …what he wants to have, “what the will of God is.” From now on all things in life are so ordered that the priest is indispensable.
Muslim apologists and Muslims themselves have always claimed that there were no clergy in Islam; but in reality, there was something like a clerical class, which eventually acquired precisely the same kind of social and religious authority as the Christian clergy. This is the class I have been referring to throughout this chapter as “the learned doctors” or the “doctors of law,” otherwise known as the “ulama.” Given the importance attached to the Koran and the sunna (and hadith), there grew a need to have a professional class of people competent enough to interpret the Sacred texts. As their authority grew among the community, they grew more confident and claimed absolute authority in all matters relating to faith and law. The doctrine of “ijma” merely consolidated their absolute power. As Gibb says, “It was…only after the general recognition of ijma as a source of law and doctrine that a definite legal test of heresy was possible and applied. Any attempt to raise the question of the import of a text in such a way as to deny the validity of the solution already given and accepted by consensus became a ‘bid’a,’ an act of ‘innovation,’ that is to say, heresy.”
