04 April 2013

Justice in Islamic Law and Ethics

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“The [Shari’a] is there to serve the cause of justice and not to apply rules for the sake of rules”- PROF DR MOHAMMAD HASHIM KAMALI “The [Shari’a] is there to serve the cause of justice and not to apply rules for the sake of rules”- PROF DR MOHAMMAD HASHIM KAMALI http://thestar.com.my/news/story.asp?file=/2010/4/4/focus/5988816&sec=focus

I now come to my last Singapore lecture on justice – the first was a secular version through the lens of philosophers John Rawls and Agnes Heller; the second on Jesus and justice with the help of Yale’s Nicholas Wolterstorff; and now I end with a two-part peek into some debates Muslims are having with one another on justice, human rights and ethics. And this, with special attention to Southeast Asia, since my lecture was given in Singapore.

An oversimplification, to be sure, but a saying with more than a grain of truth to it is this: love is the central value of Christianity corresponding to justice in Islam.

You might retort that 113 out of 114 of the Qur’an’s suras (chapters) start with the formula, “In the name of the Merciful, the Compassionate” (the besmallah) and that God’s mercy runs all the way through its pages, including this striking verse about God’s merciful nature, “Your Sustainer has willed upon Himself the law of grace and mercy” (6:54 Asad). Literally, “your Lord has written mercy upon Himself.” And so mercy should be the candidate. I think not.


Justice, a central qur’anic theme

As someone who specializes in reading Islamic texts and who seeks to understand some of the crosscurrents of Islamic thought today, I would have to say that justice is the highest value in Muslim discourse. Here is a quote from one of the most respected scholars of Islamic law today – an Afghan who has been teaching in Malaysia for three decades – Mohammad Hashim Kamali (see the above picture and source):


“The demand for providing justice at every level of society features very prominently in the Qur’an. At every level, be it personal or public, in dealing with friends or foes, Muslims and non-Muslims, both in words and deeds, the Muslims are urged to be fair and just. Justice is an integral part of the faith and upholding the principle of justice is not confined to the courtroom environment or to a set of formal injunctions but commands a high priority in the order of Islamic moral and spiritual values.”


You will find about fifty qur’anic verses on justice (using one of the two synonyms, ‘adl and qist), and hundreds of verses on injustice (zulm). One of the most explicit and oft-quoted verses is this one:


“O ye who believe! Stand out firmly for justice as witnesses to God, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor; for God can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily God is well acquainted with all that you do” (Q. 4:135).


Even in just one verse you can see how broadly justice has to be defined. The allusion to “the lusts of your hearts” points in the direction of personal righteousness, which we encountered in the teaching of Jesus as well. In fact, we discovered that the Greek word used in classical Greek literature, in the Greek translation of the Hebrew Bible (the Septuagint) and in the New Testament itself, the words dikaios (just) and diakaiosuné (justice) refer both to righteousness and justice.

Kamali in his 2001 book, Freedom, Justice and Equality in Islam, defines justice as “placing something in its rightful place … according equal treatment to others or reaching a state of equilibrium in transactions with them” (p. 103). Interestingly, he sees justice as “a universal value” that is understood in roughly the same way across “the major traditions of the world.”

Among the kinds of justice he discusses in his book are procedural justice (how fairly a court system works); commutative justice (fair sentencing by judges); retributive justice (meting out penalties for crimes committed); corrective justice (similar to former, but focused on the rehabilitation of prisoners); political justice (discussed in my first blog); and distributive justice (an even distribution of social, economic and political goods among a population). That last category covers what we often refer to as “social justice,” the main theme of my first two blogs.

While care for the poor, the orphans and the widows figures prominently in the Qur’an (and most obviously in the institution of zakat – see my blog on this issue), there is also much about personal righteousness defined as “not transgressing the bounds” or “limits” (hudud). For instance, “Whoever transgresses the limits of God does verily wrong his own soul” (Q. 65:1). Or this, “These are the limits ordained by God. So do not violate them. If any do violate the God-ordained limits, verily they are the transgressors” (Q. 2:229).

The Qur’an teaches that people are created according to a good pattern (fitra, Q. 30:30) and that this good nature has its roots in a “primordial covenant” by which God convened all of Adam’s descendants before him as souls and made them solemnly testify that he indeed is their “Lord” (Q. 7:172, 173). And though Satan seeks to entrap humankind from all sides, righteous people are able to resist him. Muslims agree with Jews that there is no such thing as “original sin” – and hence, no need for “the cross,” or the Christian concept of redemption.

That said, human beings easily “gravitate down to the earth and follow their own desires” (Q. 7:176). And when they refuse to ascend the heights of purity and godliness (taqwa, lit. “fear of God,” or “guarding oneself” or “God consciousness”), they allow themselves to be dragged down to the level of their base instincts and hence transgress “the limits of God.” This in turn causes the evil committed to fall back on its perpetrators. It is, in the language of the Qur’an, to visit “injustice on oneself” (zulm al-nafs). So justice, or righteousness, consists in becoming a person of taqwa, that is, someone who obeys God and is wise enough to balance those demands with the challenge of daily life on earth. This ability to submit to God while giving earthly concerns their proper place is how humans give God his rightful place. It’s about justice – keeping God’s justice intact and thereby not harming one's self.

Yet talk about “the limits” in Islamic law quickly brings up the issue of the hudud (“limits”), or the “fixed penalties” – penalties which can vary somewhat between the various schools of law for theft, highway robbery, adultery, fornication, alcohol, apostasy. For many reasons, these apply to few Muslims in the world today (see “Severe Penalties and Human Rights”). So what is the relationship between Shari’a, Islamic law, and justice in an “Islamic state”? Muslims covering the spectrum between Salafis, moderate islamists and secular Muslims will naturally offer different answers. I turn here to Mohammad Hashim Kamali’s view in his contribution to a recent book, Justice & Rights: Christian and Muslim Perspectives.


Kamali on Shari’a, justice and constitutionalism

In his chapter entitled “The Ruler and the Ruled,” Kamali starts with two qur’anic verses about political leaders:


“Allah commands you to render the trusts (al-amanat) to whom they are due and when you judge among the people, you judge with justice … Obey Allah, and obey the Messenger and those in charge of the affairs (uli’l-amr) among you. If you have a dispute concerning any matter, refer it to Allah and the Messenger, if you believe in Allah and the Last Day. This is better and more becoming in the end” (Q. 4: 58-9).


Clearly then, the duty of the ruled is to obey the ruler, but this is conditioned on the ruler faithfully discharging “the trusts.” The emphasis here is on his accountability to God – and therefore, his obligation to govern with justice. Ibn Taymiyya (d. 1328), a respected jurist and theologian, commented on these “the trusts.” They are fulfilled, he writes, when selected officials are both qualified and honest and when they ensure a fair distribution of wealth in the community. This is because justice is the key “trust.” He then cites Umar, the second caliph (successor to the Prophet), who disbursed state monies to compensate people based on their service and to help those in need, depending on their financial condition.

Kamali also explains “the trust” in relation to the qur’anic concepts of wakil and wakala (trustee and fiduciary contract), which for him implies a theory of representation. The expression “those in charge of affairs among you” implies “that leadership in an Islamic polity must arise from the community itself. An imposition of power from outside the Muslim community cannot therefore be in conformity with the Qur’anic vision of leadership.” Of course, this points to a democratic body politic.

Traditional Islamic polities certainly had structures of accountability in place, but it wasn’t until the 19th and 20th centuries that better “opportunities for organized opposition and criticism of the government in power” were established. Yet, he notes, “constitutionalism in the postcolonial period in the Muslim world has been less successful than it has been in the West.”

Striking a note reminiscent of Agnes Heller’s article (in the first blog), Kamali argues that justice starts with the individual (ruler or ruled), and then is applied to all strata and spheres of society, though it must also be tempered by ihsan (kindness). So leniency should be applied whenever possible.

Kamali then turns to the issue of Shari’a courts. Contrary to what many believe, he argues, they are civilian, not “religious.” For “justice in Islam transcends the barriers of religion and creed … The religious affiliation to litigants is not a factor to be taken into account in trial procedures, presentation of evidence, and adjudication.” In fact there is no contradiction between an “Islamic” polity and modern constitutional states. Quite the contrary, he avers:


       “Modern constitutional law is entrenched in the idea of commitment to the rule of law and the imposition of limits on the coercive power of government, protection of civil liberties, and accountability in government. In this sense, constitutionalism is in substantial harmony with the value structure of Islam. Contemporary constitutions tend to embody, to a large extent, organized forms of consultation and bay’a [oath of loyalty], and laws and rules that are duly ratified by the people’s elected representatives may be seen as the embodiment of the command of the uli’l-amr.”


In my lecture I then inserted a brief introduction to the idea of Shari’a, something you can pick up in a previous blog on the topic. These bullets are relevant to the next installment of this lecture:


*** Shari’a is God’s revealed path in the Qur’an and Sunna leading to blessing in this life and salvation in the next; yet it was never codified (like a law code enacted by a parliament in a modern nation state)

*** Shari’a always remained an ideal, particularly on the political level; it is just about silent on what we call “constitutional law” today

*** Shari’a was interpreted by the jurists (the ulama) in their various schools of law and they formed a particular class of leaders whose religious authority usually stood as a complement to the rulers’ authority; sometimes they stood in opposition to the rulers

*** Islamic jurisprudence was used over the centuries to justify a wide variety of political arrangements; today there are three kinds of Muslim-majority states:

Dual legal system: government is secular, but people can choose to use Shari’a courts for family and financial disputes (Nigeria, Kenya, Qatar, and UK – since late 2008)

Government under God: Islam official religion and Shari’a is “a” or “the” source of legislation: Saudi Arabia, Egypt, Iran, Iraq

Completely secular: Turkey, Azerbaijan, Chad, Somalia and Senegal


But why does it seem that with the growing religiosity of Muslims worldwide (like people of other faith traditions) over the last forty years Shari’a gets interpreted in more restrictive ways? Here’s an interesting case study just out on Malaysia. This creates a “disconnect,” argues the author, a clash between the aspiration for greater freedom and the reality of more intrusive “religious laws” (see next blog for this and the series’ conclusion).