Wednesday, May 01, 2013

More Notes on Muslim Law and Misreading Thereof

The combination of a comment on a recent post and material from of a couple of books on Islamic law I have recently been reading provide enough material for a new post. 

The comment claimed that, under Muslim law, there was no punishment for a Muslim who killed either a non-Muslim or his own child or grandchild. When I asked the poster what he had read on the subject, he said that he had read Reliance of the Traveler. A brief Google search found a webbed translation of the book, a 14th century text by a scholar of the Shafi'i school, one of the four mutually orthodox schools of Sunni law. A brief search in it found that, while there was no retaliation for a Muslim who killed a non-Muslim, there was indemnity. 

A more careful examination made it clear what was going on. There are three categories of punishment for killing someone in Islamic law. Retaliation is the biblical eye for an eye, hence, in the case of homicide, capital punishment. Indemnity is a fine paid traditionally in camels—a hundred camels for killing a male Muslim, a third as much for a Christian or Jew—by the criminal and/or (in the case of an unintentional killing) his kin to the kin of the victim. Expiation is the penance the killer is required to do—freeing a slave or fasting for two months. 

Retaliation and indemnity are alternatives. In some cases, such as unintentional homicide, retaliation is not an option, in others the kin can choose either to retaliate or to accept an indemnity. In the case of a Muslim killing a non-Muslim or his own children or grand-childen, there is no retaliation, no capital punishment of the killer, but indemnity and expiation are still owed—whom the indemnity is owed to in the latter case I do not know.

I was curious as to how the commenter happened to have acquired his mistaken view of the law. Further Googling revealed several web pages with versions of the same mistake, based on the same text. I put up comments pointing out that it was only retaliation, not all punishment, that did not exist in those cases. To their credit, the web pages have so far left my comment up.

Going on to other subjects ...  .

I knew that one of the theological arguments in medieval Islam was over whether the Quran was create or uncreate, whether it had been composed by God to be delivered to Mohammed or had existed along with God from eternity. What I think I have now learned is why such an apparently abstract question actually mattered, and mattered quite a lot, for Islamic law.

If the Quran was composed for Mohammed, its rules were rules for the Muslim community at a particular time and place. As the circumstances of that community changed, the appropriate rules might change as well. That fits the actual text, which in some places replaces an earlier rule with a later and different one. If, on the other hand, the Quran existed from eternity, then presumably its rules were intended to apply through all time and to all Muslims. For that view too it was possible to find (different) textual support.

After Mohammed's death, Sunni Muslims no longer had a direct line to God through which to confirm changes in the rules—the Shia kept their line open a little longer. But even without divine assistance, human reason could try to deduce from the rules in the Quran and the practice of Mohammed the general principles that those rules and practice instantiated and try to work out the implications of those principles under changing circumstances, as some legal scholars attempted to do. They were opposed by others who held that the Quran was uncreate and its rules applied forever. The controversy was closely linked to the one mentioned in my previous post between the Ash'arites and the Mutazilites, with the latter giving human reason a role in working out law and morality—both, in the Islamic view, part of the same structure.

The abstract theological question of the nature of the Quran still matters, since one answer does and one does not permit the sort of updating of Islamic law that some modern scholars favor, revision, working within the existing intellectual structure, to produce a version better suited to the modern world.

I knew that al-Ma'Mun, for other reasons one of my favorite Caliphs, had persecuted those who held the Quran to be uncreate. Now I think I know why.



10 Comments:

At 6:36 PM, May 01, 2013, Blogger The Sanity Inspector said...

I'm currently enjoying Sadakat Kadri's Heaven On Earth: A Journey Through Sharia Law From The Deserts Of Ancient Arabia To The Streets Of The Modern Muslim World. It's a general audience history of sharia, pretty even-handed so far.

 
At 11:23 PM, May 01, 2013, Anonymous Anonymous said...

Actually the Fiqh aspect of Sharia (Jurisprudence) has gone through development (in all 5 major schools of law). And all these schools acknowledge that the human intellect must use reason to find solutions to problems---but can use various tools to do so such as the hadith/Sunna, the ethic-moral principles of the Quran, and precedents set in Medina community---how these tools are balanced differs in all 5 schools of law. Other tools are also considered/used such as ijma(consensus),shura(consultation) qiyas (reasoning),al-istislah (public interest), al-urf (precedent, custom),...etc. The jurists issue "fatwas" or legal opinions and these are based on the circumstance and time. It is true that Sharia has become stagnant---but I think this has to do with various geo-political circumstances and other factors rather than if the Quran is created/uncreated.

 
At 12:05 AM, May 02, 2013, Blogger David Friedman said...

To Anonymous:

Strictly speaking, what you are discussing is fiqh, not Sharia, as I understand the terminology. Sharia is law as it exists in the mind of God. Fiqh is law as humans get it in their imperfect attempt to figure out God's law.

But there really was a dispute between Ash'ari and Mutazilli, and the Ash'ari more or less won. One issue was whether human reason is limited to interpreting what God has revealed, for instance using qiyas (analogy) to get from specific rules in the Quran or Sunnah to analogous rules to answer questions that those sources do not answer, or whether human reason can go farther, either see some moral truth itself or at least see the general principles underlying the rules of Quran and Sunnah and reason from those principles to new rules suited to new conditions.

All four Sunni schools ended up with the position that the only sources of rules are Sunnah, Quran, and consensus--the rest is merely applying those sources to problems they don't immediately bear on. Outside of the Shia schools, I think it ended up mostly down to just the three sources plus qiyas, as ra'y went out of favor.

And I think if you look at all five schools (counting the Twelver Shia as the fifth, as I think you are doing), they rely heavily on answers produced by scholars in the distant past.

 
At 6:29 AM, May 02, 2013, Anonymous Anonymous said...

Ibn Khaldun's view that God predated the divorce of Saturn and Leviathan has stuck in my head as the rough equivalent of CS Lewis' view that God stands outside space and time as Shakespeare stands outside Hamlet. How this would affect created and uncreate Scripture, I dunno.

Bruce

 
At 1:45 PM, May 02, 2013, Anonymous Wonks Anonymous said...

The Quran is ordered by the length of suras, not by "earlier" vs "later". Is it later hadiths you are saying superseded earlier ones?

 
At 4:16 PM, May 02, 2013, Blogger David Friedman said...

Wonks:

Islamic scholars believe they can reconstruct the order in which the suras were revealed--how completely and confidently I am not sure.

 
At 12:34 PM, May 03, 2013, Blogger Anarchist Chossid said...

> Ibn Khaldun's view that God predated the divorce of Saturn and Leviathan has stuck in my head as the rough equivalent of CS Lewis' view that God stands outside space and time as Shakespeare stands outside Hamlet. How this would affect created and uncreate Scripture, I dunno.

Here is how it affects it. There are two views on what Law is:

1. It is an expression of God's general will for a particular people. Or, it is just a recommendation for a particular people how to live based on God's general will. For instance, God wants that people live in a healthy, happy, prosperous, peaceful society. He recommends we don't eat pigs. He doesn't care about pigs per se; He just wants us to be healthy, and He can't tell the people living in the 12th century about parasitology, etc., but He can say: "Don't eat pigs. They are unclean animals."

2. The Law is part of God Himself, because God's Essence and God's Will are inseparable. God's Will is a pure expression of God's Essence, not something external to it. Of course, Will has to be about *something*, so God can have a Will about purely spiritual matters, but also about physical matters.

In the latter case, not only can Will not change willy-nilly (unless the conditions of change are included in it a priori), but also it doesn't have to make sense, just like God's Essence is beyond reason and full comprehension.

In that case, God doesn't want people to eat pigs not because He cares about their health (even though He might care about it too), but because of whatever reason internal to God's Essence. We can find some superficial reasons for this or that law, but the ultimate reason is that God willed so.

 
At 3:43 PM, May 03, 2013, Blogger David Friedman said...

Chossid:

Thanks. Nicely put.

 
At 3:07 PM, May 05, 2013, Anonymous Anonymous said...

Chossid:

Thanks.

Bruce

 
At 5:47 AM, May 08, 2013, Anonymous Jim Hodge said...

I agree and would argue that Freedom is often times less than free. It hard work. Jimhodgeallied.com

 

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