Sunday, November 18, 2007

Crime & punishment in Saudi Arabia

After the cases of Nigerian women Safiya Husseini and Amina Lawal, both sentenced to death by stoning for violations of Sharia (Islamic religious) law (but later acquitted), comes that of "the Qatif girl”, as she is called. Violating the law against being in seclusion with a man not her husband or a relative, this 19-year-old joined a former boyfriend in his car. Soon to be married, she wanted to recover photos he had of her. The pair were dragged from the car by 7 men who then raped both of them. At trial, the victims each received a sentence of 90 lashes; the rapists were sentenced 80-1,000 lashes each and prison terms of 10 months to 5 years. The “Qatif girl” appealed and the decision has shocked even Saudis, which many feel to be motivated by spite against the girl’s human-rights-activist lawyer, Abdulrahman al-Lahem. The victim’s original sentence was already harsh – the standard Saudi punishment for adultery is only 60-80 lashes. Agreeing that the rapists’ punishments were insufficiently severe, the appellate court upped the prison terms to 2-9 years. But it also increased the girl’s sentence to 200 lashes and 6 months in jail. She has not yet been punished and her husband intends to appeal the judgment.


Patrick S. O'Donnell said...

Cf. my introduction to Sharī‘a:

Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper, i.e. righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one's life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. The latter involves the human process of understanding and implementing the divine law. It is a serious (religious, epistemological, ontological, ethical…) mistake to conflate Sharī‘ah and fiqh, or to use these terms, as often happens today, as synonyms. The Sharī‘ah, writes Khaled Abou El Fadl, ‘is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will. In this sense, the Sharī‘ah is always fair, just and equitable, but the fiqh is only an attempt at reaching the ideals and purposes of Sharī‘ah (maqāsid al-Sharī‘ah). [….] The conceptual distinction between Sharī‘ah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.’ The function of Sharī’ah is here analogous or similar to that of Natural Law among the Stoics. Recently, Abdullahi An-Na‘im has made the provocative argument that ‘precisely because sharī‘a is supposed to be binding on Muslims out of religious conviction, a believer cannot be religiously bound except by what he or she personally believes to be a valid interpretation of the relevant texts of the Qur’ān and Sunnah. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of the state.’ Moreover, such ‘objections to the enforcement of sharī‘a through positive law and the notion of an Islamic state do not, of course, preclude Muslims from personally conforming with every aspect of sharī‘a.’ We might describe the function of Sharī‘ah along the order of a Platonic Form, at least in its ‘bedrock version’ as outlined by T.K. Seung in Intuition and Construction: The Foundation of Normative Theory (1993). In this account, intuition and construction are two integral processes intrinsic to the functional role of Platonic Forms (or ‘Ideas,’ ‘Archetypes,’ etc.). Platonic Forms—like the Sharī‘ah—are (is) indeterminate, while nonetheless serving as normative, intuitive, and nonpropositional foundations (in theory, accessible to any Muslim) for constructing (propositional) models as guides for determinate social realities, thus, for example, (the Form) Justice is only the normative foundation for constructing models of determinate social orders, none of which fully realizes Justice, and all of which endeavor to approach Justice, succeeding by degrees. What is more, the attempt to instantiate or embody the model is never wholly successful, given the nature of the human condition and the model’s idealized qualities in reference to the Form itself: ‘The indeterminacy of Platonic Forms makes them flexible standards, and their flexibility assures their eternal durability.’ Sharī‘ah is like the Platonic Form in being universal, abstract, indeterminate, and nonpropositional, and thus cannot directly serve as a normative standard (i.e., any interpretation of the divine will needs religiously rationalized justification by way of textual hermeneutics and exegesis). This is perhaps one reason Norman Calder writes that, ‘in modern academic analysis of Islamic law, the word Sharī‘ah is of little use: what we can study and describe is always fiqh.’ Fiqh represents a Platonic-like endeavor to translate Sharī‘ah into direct, concrete, and normative models for particular contexts. As with Platonic intuitionism in which all human beings have access to Platonic Forms, all Muslims, as noted by An-‘Naim above, have access to Sharī‘ah, indeed, they are under a spiritual obligation to attempt to understand (and live by that understanding) the divine law. Such understanding is necessarily partial and fallible and may vary according to the individual (every Muslim is different): ‘Indeterminacy and relativity are inseparable in the domain of realization.’ The divine nature of Sharī‘ah means it retains a normatively transcendent and evaluative function whatever the extent of its positivization as fiqh. In other words, law as such cannot exhaust the evaluative function of divine law as one’s understanding of same can always deepen, one’s intuitive discernment can always be keener. As a transcendent (nonpropositional) guide for action, and despite its integral relation to Islamic law, Sharī‘ah should not be confused or conflated with any of its propositional constructions by way of fiqh, or any political proposal for a putatively Islamic state. Nonetheless, fiqh can serve as an aid in coming to understand divine law insofar as it enables us to obtain further, dialectical insight into that which transcends positive law; discursive reasoning and rational understanding, in other words, and in this case intrinsic to the Islamic science of jurisprudence, are part and parcel of the process of acquiring nonpropositional insight into divine law. That is to say, there is a dialectical relation between divine and human law that represents, in epistemic terms, a dialectic between propositional knowledge and ‘knowledge by acquaintance’ in a Platonic sense or ‘knowledge by presence’ after Shihāb al-Dīn Suhrawardī: ‘The insight that transcends words cannot be attained except by means of words; what cannot be spoken of becomes manifest in the very act of speaking.’ Like Socrates in the agora, Islamic scholars (jurists, theologians and philosophers) can examine and refute propositions that claim to fully capture the nature or essence of the divine will, that pretend to fully embody the Sharī‘a. The jurist’s fallible, limited, and historical understanding of Sharī‘ah, in other words, is evidenced by his facility with ’usūl al-fiqh: how he has arrived at the determination of law, rather than simply the result, that is, the legal determination or ruling itself, or, in the case of furū‘ al-fiqh, the persuasiveness of the arguments explicating the concepts and rules that relate to religious rituals and ethico-religious conduct in the widest sense. And it is fitra, the Islamic term that designates our primordial inclination or general predisposition to the good as a constituent feature of human nature, that allows individual qua individuals, to have insight into the divine will (and thus functions like soul memory in Platonic thought: permitting individual intuitive awareness, however dim or partial, into the Good; this insight is what Socrates set out to awaken in his interlocutors in dialectical dialogue). In fact, fitra can serve as the Islamic equivalent of individual conscience, according individuals in effect the right of principled objection to interpretations of Sharī‘ah that violate their sincere and sustained endeavors (made in the context of the Islamic tradition) to realize this dispositional awareness of “the Good,” the divine will, or Sharī‘a.

And cf. my introduction to fiqh:

fiqh: understanding, knowledge; Islamic jurisprudence (law) as derived from Sharī‘ah (lit., the way; divine law, God’s will). Sharī‘ah is perfect: immutable and infallible, God’s will as abstractly and ideally understood, while fiqh is fallible and changeable, the product of a human attempt to understand that which is divine. There is, in other words, a logical, conceptual and practical distinction between Sharī’ah and fiqh, however much the latter is inspires the former. As Norman Calder observes, there are two broad types of jurisprudential literature: usūl al-fiqh (‘roots’) and furū‘ al-fiqh (‘branches’) (there is a third type, the tabaqāt—biographical—genre which is common beyond fiqh proper and not treated here). Islamic law itself is the product of the application of usūl al-fiqh (the ‘roots’ or sources of law), the principles and methods through which practical rules are developed from the tradition’s foundational sources: a) the Qur’ān, b) the Sunnah, c) ijmā‘ (consensus) of Muslim scholars on a legal rule about a topic not explicitly covered in the aforementioned sources (Shī‘ī jurists deny this is possible; and differences arise as to the possible value of ‘implied’ or ‘silent’ consensus, with Hanafī jurists speaking in its favor), and d) analogy (qiyās), involving reliance on precedent. In conjunction with these sources, subsidiary or supplemental presumptions and principles may aid the jurist in deriving interpretive rules: istihsān (considerations of equity and the application of discretion or preference, the ratio legis or ‘effective cause of the ruling’ differing from one obtained strictly through qiyās); ‘unregulated interest’ or masālih mursalah, explained by Wael Hallaq as arising in relation to a rationally suitable benefit motivated by public interest ‘that is not sustained by textual evidence,’ later this method of reasoning was approved provided ‘it could be shown that the feature of public interest adopted in a case was suitable (munāsib) and relevant (mu‘tabar) wither to a universal principle of the law or to a specific…piece of textual evidence’ (Hallaq); and istishāb, the rational presumption of continuity. There are four major schools (madhhabs) (five, when we add the Shī‘ī) of Islamic law: the Hanafī, the Hanbalī, the Mālikī and the Shāfi‘ī, along with a fair number of other teachers and ‘schools’ (e.g. the Zāhirī, Zaydī, Ibādī, and Ismā‘īlī) throughout Islamic history. In Twelver Shī‘ism, the Usūlī school of jurisprudence predominates. After Shāfi‘ī, the jurist’s decision in a new case of law must fall into one of five categories: the obligatory (wājib), the recommended (mandūb), the permissible (mubāh), the prohibited (harām), or the repugnant (makrūh). Calder defines the scope of the second type of jurisprudential literature, furū‘ al-fiqh: [Furū‘ al-fiqh] sets out…concepts and rules that relate to conduct, and arguments about them. Its headings are purity, prayer, fasting, alms, pilgrimage…and then such topics as warfare, marriage, divorce, inheritance, penalties, buying and selling, judicial practice, etc., in variable order. The whole is a conceptual replica of social life, not necessarily aspiring to be either complete or practical, but balanced between revelation, tradition and reality, all three of which feed the discussion and exemplify the concepts. Thus described, this literature is reminiscent of both Mishnah and Talmud in Judaism as discussed by Jacob Neusner.

Undisclosed said...

Fucked up does not even BEGIN to scratch the surface.

Patrick S. O'Donnell said...

I would also recommend Rudolph Peters' Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (2005), should one want to understand such putatively Islamic criminal law (e.g., why it came about) and the kind of things Muslims and non-Muslims might do to eliminate it once and for all.

sheiknisar said...

i like in this punishments because its comes in the all worlds all are became a human begin.i think saudi punishments related to quaran ayath