by Sadakat Kadri
Farrar, Straus and Giroux, 2012, 332 pp., $28
First, a quiz: Which of the following are true about Islamic law? (1) Muslim women win their family law cases roughly 60–90 percent of the time. (2) Although its law permits the execution of homosexuals, Iran helps finance seven times as many voluntary sex-change operations as the entire European Union. (3) Academic lawyers have always dominated practicing lawyers; as Noel Coulson, the late dean of Western Islamic law studies, once said, “the chair was not only more comfortable but more influential than the bench.”
If you think only the last statement is true (it isn’t: the others are), we need to talk.
Shari‘a is a term of enormous scope and contention. To ordinary Muslims it can refer to anything from an arcane legal concept to the believer’s entire way of life. It is also a term, an image, an orientation so vital to some and so fearful to others as to mark the current version of an East/West divide. In Britain the 2008 suggestion by the Archbishop of Canterbury that Islamic law might help inform some legal proceedings unleashed frenzied criticism; during the Republican presidential primaries Newt Gingrich called shari‘a “a mortal threat to the survival of freedom; the heart of the enemy movement from which the terrorists spring forth.” More recently, it took a Federal appeals court to strike down a law supported by 70 percent of the Oklahoma electorate stating that “courts shall not consider international law or Sharia law.”
If, to many Westerners, the very mention of Islamic law conjures up punishments of primitive intensity or rules that uniformly oppress women, there is much in Sadakat Kadri’s Heaven on Earth: A Journey through Shari‘a Law that will help in understanding the background of Islamic law, but rather less that will shake these preconceptions. Kadri, a London barrister, calls his book “a journey” even though it involved only a few months of travel on his part and is mainly an armchair excursion through the textual and historical development of the shari‘a. In approaching the book a reader would therefore be well-advised to skip the book’s prologue—for reasons discussed in a moment—and instead dig right into the textual history of this system of faith and law.
That history would seem to begin with the Prophet Muhammad, except that it doesn’t. Yet Kadri, like most Islamic law scholars in the West, gives this axial figure rather little attention and the reason is not obscure. The Quran, conveyed through the Prophet, is not a vast compendium of legal strictures like portions of the Hebrew Bible, nor are the Prophet’s own acts and utterances couched as inviolable laws. The proposition familiar to all adult Muslims, that the majority of useful knowledge concerns the rules of inheritance, accords with the Quran’s nearly exclusive emphasis on that aspect of law. It was not until a century or more after the Prophet’s death that Islamic law began to take shape around several distinct schools of thought.
Yet downplaying the Prophet’s contribution to law misses the opportunity to note how crucial was the tone that he and the Quran set. It is a tone that stresses the contract as the key to peaceful relations; that ranks custom superior to law in most instances, which indicates that Islam does not displace local practice but leads converts to regard it as Islamic rather than separate from it; and that determining a man’s connections within social space—and hence his credibility—forms the centerpiece of all fact-finding.
Despite the forfeit of this opportunity, Kadri gains traction when he commences his account of the development of formal law within Islam. His description is one of the most accessible and well-presented syntheses ever penned. He shows us how, through innumerable regimes and scholarly disputes, from scenes of appalling brutality to the most thoughtful of jurisprudential theorizing, several distinct themes and consequences emerged: that law was not a preeminent vehicle for the centralization of Islamic states; that the force of personality was no less crucial to the development of legal thinking than it was to the ordering of the political or military domains; and that the shari‘a gives witness to the Muslim saying that three things are certain: life, death and change. Throughout this history one sees that power must be gathered up by each man working within an ethos that favors persons over institutions, and that favors the diffusion of power over its long-term consolidation. In his account of the conflicts and patterns that resonate to the present day Kadri is, however, at once enlightening and misleading.
Kadri’s style goes a long way toward enlightenment. Never one to take the easy potshot, he nevertheless peppers his story with anecdotes that give a vivid sense of the tumultuous history of Islamic law. Whether it is by referring to the Cairo shrine famous for curing constipated horses, the bidding war on a saint’s lice-killing necklace, or the requirement by the Saudis during the 1979 siege of Mecca that French troops convert to Islam before entering the holy city, Kadri keeps to his central theme—that Islamic law has always moved in tandem with the politics of the day, sometimes leading, sometimes barely keeping pace, but always changing.
At the same time, and for exactly the same reasons, the otherwise untutored reader may be easily misled. For Kadri accepts uncritically the foundational dichotomy drawn by Western Orientalists, namely that there is a sharp divide between what Muslim scholars propound and the way Islamic law is conceptualized by ordinary people and the courts. In fact, everyday assumptions about human relations and the procedures applied in court share much in common. If Westerners think they are great at ferreting out facts, Muslim judges think they are great at assessing persons, and when one grasps this emphasis many of the underlying textual themes become more comprehensible. Had Kadri approached Islamic law as he did Western law in his 2005 book, The Trial, readers would have seen that the shari‘a embodies a method and an attitude toward law that is revealed only when it is at work; it does not exist in statutes and texts alone.
These twinned elements of clarity and misconstruction are further evident when the author turns to the contemporary scene. Focusing almost exclusively on criminal matters, Kadri sounds the expected themes: that in many Muslim countries the laws carry extravagant punishments, that women are often the special victims of these laws, and that present-day fundamentalism recapitulates the approaches of earlier eras. Yet once again Kadri’s own honesty comes to the fore: He is careful to note that many of the most egregious penalties are rarely applied—as, for example, that the stoning of an adulterer was recorded only once in Ottoman history and never during Zia ul-Haq’s restoration of strict Islamic punishments in Pakistan. And, once again, Swiftian consequences do not escape the author’s notice: We learn that in 2002 the Egyptian jurist Yusuf al-Qaradawi mused as to whether a condemned woman may be sent to her execution unchaperoned; that Pakistani mullahs refused to reset their clocks because daylight savings time was regarded as an unholy innovation; that some mullahs believe unpunished fornication can set off earthquakes; and that Saudi Arabia allows hospital-based destruction of an eye for an eye.
What we do not get to see in Kadri’s account, however, is Islamic law in the everyday lives of Muslims. He refers to none of the studies done by scholars working in contemporary Muslim courts or on the Ottoman court records. Spending almost all of his time talking to a few intellectuals and reading standard texts, he misses crucial facts relevant to his own claims. Consider a few examples.
Contract law is vital to relationships in most of the Muslim world. Harking back to the business career of the Prophet and the Quranic stress on keeping to one’s bargains, contract law as actually practiced reveals some stunning propositions: that a contractual stipulation may take precedence even over a Quranic injunction, or that many of the adverse consequences of marital law may be changed by conditions built into a woman’s marriage contract. Moreover, Muslims are not shy about using the courts, which is why it is important to understand the reasons that Muslim women win their family law cases the majority of the time. The matter is complex, but no one who has worked in Muslim courts or watched Iranian films like A Separation or Divorce Iranian Style can come away thinking the women of post-revolutionary Iran or other Muslim countries are simply compliant to overbearing judges or that the law one-sidedly favors men.
Similarly, the ways in which Muslim scholars’ opinions are actually employed underscores the popular concept of shari‘a. People have always shopped for authoritative opinions (fatwas) from multiple scholars whose credibility depends on their personal followings rather than some institutionalized standing alone. If, as Malise Ruthven properly argues, the watchword for Muslims is not “rights” but “justice”, then it is vital to understand that for most Muslims justice does not mean equality but equivalence—granting each person what is appropriate to his or her needs and character. Watching this in action gives life to legal texts, and shows that Islamic law is more akin to common law systems, where fact-finding is pushed down to the local level and change comes from below. Hence, the comfortable but actually not more influential chair is displaced by the creative discretion promulgated from the judge’s bench.
Iranian authorities may offer sex-change operations while threatening your life if you do not accept their offer, or seek the death penalty if you choose to change your faith. Their Malaysian counterparts may try to forbid non-Muslims from using the word Allah, and Pakistani ones may require all passport applicants and voters to state in writing that they do not accept the Ahmadi sect’s claim to a later prophet. Certainly there is a long way to go if women are to have the full array of protections that by any standard of human rights is their due. But as fine as Kadri’s description of the history of Islamic legal development is at the textual level, a more nuanced picture emerges when one looks at Islamic law as a living thing. And that is the reason why skipping the author’s prologue is also relevant.
In that prologue Kadri focuses on those situations where Muslims attribute events to genies, as if this were evidence of the irrationality of Islamic law and the static traditionalism of its culture. What he never cites are the studies showing that reference to genies commonly relieves women of (highly questionable) accusations of illicit sexual intercourse and men of punishment for unintended harm. His examples of worshippers offering bags of offal to sacred crocodiles or being cautioned to avoid a tree where a genie may be hanged (instead of, he fails to explain, the woman defendant) sets a tone that is somewhat false to his own account of Islamic legal development and contemporary criminal practice. Yet readers starting with these evocative instances may approach the book with all their unfortunate predispositions intact and never see the limitations Kadri puts on his own observations, or the fact that Islam—and with it the shari‘a—is what Muslims think and do, not just what a text or an inadequately researched act might seem to display.
Archibald MacLeish once said that “there are two kinds of people in the world, the pure and the responsible.” Though a finer literary gloss on the old saw about not letting the best become the enemy of the good, MacLeish may not be entirely right. Purity and responsibility need not be absolute and contradictory ideals, and the search for the kind of justice that seeks balance between them is not a futile one. No less than millennia of rabbinic interpretation has changed what a vast number of key Biblical texts mean for all practical and legal purposes, so the Quran’s tonal middle path and the Islamic legal concepts and practices through which it enters the everyday lives of Muslims have changed the meaning of legal codes long since set in print. Law embedded in an explicitly religious system is no more like a vending machine than it is in secularized Western systems; rather, it better resembles a continuous dance with many partners and a variety of rhythms, whether in torts, criminal law or family matters.