Law, Jurisprudence, and Revolution in Islam

[From Mark Welton, based on his excellent presentation to The Villages Philosophy Club, Florida, 08 May 2015, Powerpoint available HERE. Photo above, Jameh Mosque, Yadz, Iran]

Often heard today is that the Quran contains many verses authorizing, or justifying, violence, and therefore Islam is an inherently violent religion.  This is both simplistic and wrong.

First, a hypothetical case often used in jurisprudence courses (including my own at West Point).  President Reagan said that the one law everyone needs to follow is the Ten Commandments (he did say this).  One declares “Thou shalt not commit adultery.”  Mr. Jones, a businessman, offered $10,000 to any of his married employees who obeyed this law for at least ten years.  After ten years, three couples came to Mr. Jones to claim their reward.

The first couple told Mr. Jones that the wife had never had relations with any other man after marriage, but the husband had had numerous affairs.  Nevertheless, the husband stated that when this commandment was given to Moses, Talmudic law (indeed all law throughout the Near East) held that adultery could only be committed by wives.  Married men could have as many partners as they desired without committing adultery [this is in fact correct].  Thus this commandment should be interpreted as it was understood by everyone at the time it was revealed, and the couple should receive the money since no adultery had been committed.

Should they?  (hint:  US Supreme Court Justice Scalia might say yes; laws are to be interpreted as they were understood when issued, and if people don’t like the results, the laws should be changed through democratic means, not by judicial interpretation.  But Justice Breyer would probably say no, laws are to be interpreted as they are understood by contemporary society).

The second couple told Mr. Jones that they both had many affairs after their marriage, but it was an open marriage, there was no deceit, and they loved each other and their children as much now as when they got married.  Since the purpose of the law against adultery is to preserve and strengthen the family, this purpose was met, and they should receive the money.

Should they?  (hint:  some judges today do not convict people for shoplifting if they exit a store without paying if they can demonstrate that they honestly forgot that they had the item, since the purpose of the law is to deter intentional theft, not punish innocent carelessness).

The final couple told Mr. Jones that neither of them had had any partners other than their spouses since they married.  The husband admitted, however, that he had occasionally looked at other women and felt desire, though he had never acted on that feeling.

Should they receive the money?  (hint:  the Gospel of Matthew, Pope John Paul, and Jimmy Carter have all stated that anyone who looks with lust on another person has committed adultery in their heart).

Regardless of your own opinion in these cases,  it should be evident that no law, however “clear,” has only one single possible interpretation or “plain meaning.”  Laws, like religious texts, need authorities to interpret and apply them in various situations (e.g., judges and Supreme Court Justices for U.S .law and the Constitution, the Pope for Roman Catholic doctrine, and rabbis for Talmudic law).  These authorities apply many different methodologies to interpret texts.  They also often change their interpretations over time, and they often disagree among themselves.  The process of interpreting texts (exegesis, or more broadly hermeneutics) is complex and always evolving, but never simple.

This is no different when interpreting the Quran.  The difficulty in Islam (more so for Sunnis than for Shiites) is that there is no single person or group like a Pope or a Supreme Court with authority to say what the current best interpretation of a passage in the Quran or other text should be.  Thus some “cherry pick” verses; that is, they pluck them out of the text and apply their own interpretations to justify their personal or political aims, disregarding the entire corpus of hermeneutics that has developed around them (this is called proof texting).

However, the majority of Muslims, both scholars and others, seek a more authentic contextual interpretation of the Quran and other texts so as to make them meaningful to their lives.

For example, the so-called “sword verse” (“so when the sacred months have passed away, slay the idolaters wherever you find them”) is sometimes cited to demonstrate that the Quran advocates violence.  But according to virtually all scholarly accounts, this verse was revealed late in the Prophet’s life when the small community of Muslims at Medina was under attack by the Meccans (who worshipped the many idols in the Kaaba, and were hence “idolaters”).  In the view of many who apply historical context and various other interpretive methods to this passage, when that threat ended with the surrender of the Meccans and other polytheists in the region, the non-historically constrained principles of the Quran that command respect for the other monotheistic faiths, and the exhortation that peace is better than fighting except in self-defense, take precedence over this historically conditioned verse.

This is just one illustration of the obvious point that passages extracted from the foundational texts of any legal system or religion can never be understood as having a single “plain meaning.”  Grammar, semantics, pragmatics, historicity, and other linguistic and related considerations and approaches are all necessary in interpreting the Quran, or for that matter any other foundational text.  The Quran and other textual sources of Islam have undergone centuries of study and interpretation by scholars (ulama) who sometimes, like the US Supreme Court, disagree among themselves, and who have evolved different understandings over time about the meaning of a given text.*  It was this process that created the religious/legal foundation of Muslim societies until relatively recently.

That foundation has now ruptured, with conflict, violence and extremism in some parts of the Islamic world, with many historical, social, political, and economic causes.  But to assert that Islam is an inherently violent religion because the Quran or the Sunnah clearly (or “plainly”) state such and such about fighting and violence (or any other matter) is inaccurate.

*To extract from the Quran and other texts principles and rules of Islam and Islamic law, scholars have traditionally applied numerous interpretive techniques, including al-dalalat (textual implications), naskh (abrogation), ijma (consensus), qiyas (analogical reasoning), istihsan (equity), istishab (presumption of continuity), sadd al-dhara’i (blocking the means), maslahaha (public interest), and many others.  There is nothing simple or obvious about this process.

If Islam is not intrinsically violent (see above discussion on interpreting the Quran), why is there now so much conflict in the Middle East (and in some other Islamic areas and communities)?  Obviously there is no single answer, as history, politics, economics, and religion all play a role.  But an important factor, a broader context in which these events are unfolding, is the current Islamic revolution.

In his two volume “Law and Revolution,” Harold Berman described the modern West as the product of six great revolutions: the Papal Revolution (1075-1122), the German Revolution(1517-1555) (also called the Reformation), the English Revolution (1640-1685), the French and American Revolutions of the late 18^th century, and the (only partly successful) Russian Revolution of the early 20^th century.  These were true revolutions in that each ultimately affected every aspect of society (economically, politically, legally, religiously, and culturally).  Like the process of scientific revolutions described by Thomas Kuhn in “The Structure of Scientific Revolutions,” they erupted when existing societies could no longer assimilate or constrain new economic, political, legal, religious and cultural ideas and forces.  They were total revolutions as they created new forms of government, new structures of economic, social, legal and state-church relations, new perspectives on history and new sets of values and beliefs.  Importantly for this discussion, each revolution was marked by violence and war; each sought legitimacy in a remote past; each took more than one generation to take root; and each eventually reverted in part to its pre-revolutionary past but also evolved in new ways thereafter.  The modern West is a product of these revolutions.

The Muslim world has undergone two such revolutions.  The first was in the 7^th century ce, when the Prophet Muhammad turned the Arab world upside down.  Islam required equality instead of privilege, community instead of tribalism, monotheism instead of polytheism, law instead of private vengeance.  Like the western revolutions, this period was marked by war and violence (during the Prophet’s lifetime and in the subsequent Riddah wars), grounded itself on continuity with the past monotheistic prophetic tradition of the Near East (Judaism and Christianity), took several generations (roughly three centuries) to take root, and reverted in part to pre-Islamic patterns of tribalism, kingship, privilege and local customs, all of which were nevertheless transformed thereafter by the revolutionary ideas of Islam.

Most important, the religious/legal scholars (ulama), not the rulers, gained control of the formulation and interpretation of Islamic law, which to a remarkable degree (for the times) protected the people against the excesses of kings, sultans, and other rulers, and forced those rulers, whose task was to enforce rather than create the core religious law, to abide by that law and to restrain their arbitrary power (or they would lose legitimacy and thus the source of their power).  The “golden age” of Islam in science, literature, arts and commerce was made possible in large part by this basic “rule of law.”  

In the 19^th and 20^th centuries this system collapsed.  (Why the Muslim world, unlike the West, did not experience other revolutions after the era of the Prophet has many reasons; see Bernard Lewis’ “What Went Wrong” and Timur Kuran’s “The Long Divergence” for some of these reasons).  Beginning around 1800, nearly all of the Islamic world was colonized by European powers, especially by the British, French, and Dutch.  The Islamic law and its morality was almost completely replaced by western law and colonial government, partly because European colonialists desired a political and legal system more favorable to their economic and imperial interests, and partly because many Muslim reformers believed that European law was necessary for modernization.  The authority of the ulama and Islamic law disappeared, save in a few areas such as family matters, and was replaced by western legal codes and procedures, with rulers chosen or approved by the colonial powers.

The era of overt colonialism ended in the 20^th century, especially after World War II.  As the Europeans left, the void was filled by various political movements: national socialists (e.g., Nasser in Egypt, the Ba’athists in Iraq and Syria), modernists (e.g., Ataturk in Turkey and Reza Shah in Iran), and others.  These were authoritarian and dictatorial, but unlike the classical era (and even under the Ottomans) there was no longer the ulama with their religious/legal authority to restrain them.  The rulers themselves now “owned” the law, had almost absolute power, but with some exceptions failed to deliver the kinds of societies most people expected.

The collapse of the old order, the effects of colonialism, the failures of political leadership, and the imposition of modernity on traditional societies led to societal pressures and fissures that, like each of the western revolutions, finally erupted in the second Islamic Revolution, beginning in 1979 in Iran and continuing throughout much of the Middle East and North Africa today.  Like the western revolutions (especially the German one, leading many commentators like Robin Wright and Reza Aslan to term the current revolution an “Islamic Reformation”), it is accompanied by violence, and a search by some for a return to the remote founding era of the Prophet (e.g., by the Salafists), or at least by many others to the “traditional” mores and values of Islam (e.g., in dress and religious observance).

Like the German and English Revolutions, when translations and dissemination of the Bible broke the exclusive power of the Church to interpret and proclaim its meaning, translations of the Quran and other Islamic texts from the old Arabic which few could read (especially the vast majority of Muslims who are not Arabs) into modern languages, and their spread through modern media like the internet and TV, have enabled everyone to read, interpret, and sometimes proclaim their own views of those texts.  New figures have emerged to engage ordinary Muslims with their faith in the modern world (such as popular Muslim “televangelists” like Moez Masoud and Amr Khaled), or to claim leadership of the revolution, ranging from modernists like the Gülen movement to radical “puritans” like Osama bin Laden.

History does not repeat itself, nor is it a predictor of future events or outcomes.  But like the great western revolutions it is likely that the current Islamic revolution, already characterized by violence and a reference to its remote past, will take more than one generation to play out and take root, and will absorb existing traditions and patterns, but will imprint those traditions and patterns with revolutionary ideas.  The results will take different forms in different places, but the process will transform the Islamic world in every respect.

Dr. Mark David Welton

Professor Emeritus

United States Military Academy, West Point

Aside from the books and authors mentioned above, all of whom are well worth reading, an excellent and relatively short book on this subject is Noah Feldman’s “The Fall and Rise of the Islamic State.”