MECS 5.0, 6.0. 7.0

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I've been invited by the Muslim Students Association and by the Ali Vural Ak Center. The last time I spoke there, somehow the lighting was perfect. So all the pictures of me online, it’s the only good one, so I was really impressed.

But because George Mason is so crucial for my ego now, you can't, I didn’t want to, it wasn't my idea to sell books here. It’s like the publishers and the students that had this idea. But if no one buys them, I'll be really devastated. So even if you don't buy them, just take a few copies, put them aside, don’t have to read them, just bring them out.

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Thanks very much for inviting me.

The good thing, well the unfortunately good thing about saying Islam, Islamic law is, it's always in the news. Unfortunately when I say it's always in the news, it's for bad reasons. Just a couple of days ago, I woke up in the morning, lo and behold, Ayaan Hirsi Ali, the well-known expert on Islam, who doesn't know anything about Islam, except the fact that she happened to be born a Muslim, had written a new book entitled 'Heretic: Why Islam Needs a Reformation Now'. I thought this was an improvement because her previous book was called ‘Infidel’, and Infidel was actually worse than Heretic so I thought maybe she was trying to improve her stand on Muslims. But anyway, I perused the book. As usual there were all sorts of mischaracterizations of Sharia, so I thought what better prompt to discuss a topic that I find so interesting. I love teaching about and talking about mainly Sharia and that is an important topic, when you talk about misquoting Muhammad or misrepresenting Islam, one of the ways in which it's most regularly misrepresented is through people not properly understanding the tradition of Sharia. So that's all we're going to discuss today.

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But the first question is - What is the Sharia?

Sharia in Arabic originally meant 'the path to the watering hole' or 'the path of the tribe' or 'the way of the tribe'—the custom of the tribe. In Islam, it becomes 'the way of the Muslim'—'the way of the Muslim tribe'. And it's best understood probably as the notion of God's law; as the idea of God's law. And it's important you think about it as an idea of God's law because its manifestation, like all ideas, its manifestation in life, is not the same as the idea. So ideas exist in the mind; they don't exist in reality. And when you take something that exists as an ideal and you make it real in the world, you get different representations of that idea. And that's what we see in the case of the Sharia tradition in Islam. It's a tradition of tremendous diversity. And I use the word tradition, Sharia tradition, because that's probably the best way for people in the United States to think about it.

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If you think about American law, which is based on British Common Law, it's not, there's no one American law. You can't just go and say, ‘I'd like to’, you can't go to the library and say, 'I'd like to check out the American law book.' You can go, you can find the law codes of 50 different states and you can check those books out. But even though it still represents the law of each state, the statutes or legislatures of those states, there's also the law that's just, the judge made law, the law that judges' manifest represent—the actual common law.

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So even American law, it doesn't exist as one thing, it exists as a tradition, as a legacy that's passed on and manifested here and there in different ways. Everybody knows what you're talking about when you mention it, but even if you can't go and point to one thing that is American Law.

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So, I was referring earlier to the Sharia Law tradition. The Sharia is tremendously diverse for a number of reasons. One, because it's based on sources, the authenticity of which are disputed. What does that mean? The, to put it very simply, and this is something you can talk about for a long time. To sum it up, the Sharia is based on several sources. Two of them are believed by Muslims to be revealed sources, so they come from God. The first one is the Quran, the actual revealed word of God in Arabic to the Prophet Muhammad, between 610 and 632, when he died; the year 632 of the common era. The Quran is a very small book. Many Muslims memorize, memorize the whole thing word for word. It's not that small, okay, but it's not the Bible. Maybe it's like a fourth the size of the Bible, fourth the size of the New Testament. So you can, but it's a challenge to memorize the whole thing, don't get me wrong.

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The, the Quran is not really a book of law. In fact, most Islamic laws, most of the details of the Sharia don't come from the Quran. They come from what is called the Sunna of the Prophet Muhammad. The Sunna of the Prophet Muhammad is his authoritative precedent. It's his living explanation of the teachings of the Quran. It explains the Quran, it adds to the Quran; sometimes it modifies Quranic rulings. So the Quran tells people how to pray; it tells 'pray'—tells Muslims that they should pray. Doesn't tell them how many times they should pray, doesn't tell them how to pray, doesn't tell them what to do if they make a mistake in the prayer. This stuff all is taught by the Prophet.

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Now Muslims don't dispute the authenticity of the Quran. It's agreed upon; its text is agreed upon by all Muslims. And has been from around the year 650 of the common era. They do however, disagree on what constitutes the Sunna of the Prophet. Because unlike the Quran, the Sunna of the Prophet was not written down earlier on. It’s transmitted; sometimes it can have primitive written form. It's transmitted orally. It's transmitted through custom and tradition. And it really remains to this day a body of knowledge that is between oral and written form. Between written books describing what the Prophet said or did on a certain occasion. The way he ruled on a certain case that was presented to him. And it's also lived in the practice of the Muslim community and in the problem-solving methods of Muslim scholars, is how it's always been.

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So, because the Sunna is much more amorphous than the Quran, its, parts of it are disputed by some Muslims and parts of it are disputed by others. So some Muslim will believe that the Prophet let's say said that, ‘All deeds are determined by intentions’. Deeds are determined by intentions. So, by your intentions. So if you, Muslims who believe the Prophet said this, believe that’s an authentic report from him, will believe that if you don't have the intention of making ablutions before prayer, your, your prayer isn't valid because your ablutions aren't valid. Whereas Muslims who don't believe that the saying of the Prophet is authoritative or authentic, would not consider intentions to be essential for doing ablutions before your prayer.

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So there's a lot of, there’s diversity in the, in the Sharia tradition, from the beginning, because there's disagreement over some of its constitutive sources.

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Finally, the third, overall this is a big source, is just human reason. When I say human reason I don't mean necessarily logic or what somebody thinks is reasonable. Reason is just the activity of the human mind; whether it's the activity human mind sets to interpreting the Quran or the Sunna of the Prophet, whether it's specific rational tools that Muslim scholars developed, like analogy, analogical reasoning. So if you say that, has to be really detailed alright, if you say that human, that blood, human blood is, once it leaves the body it becomes ritually impure. So if you get blood on you, it’s like ritually unclean; even animal blood; you have to wash that off in a specific way. Okay?

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Well, what about other bodily fluids? What about, for example, breast milk? Is breast milk ritually pure? And this comes into the issue of can you buy, can a woman buy and sell breast milk; let's say you're raising a child, and you're not producing enough breast milk. In theory, you can't buy things that are ritually unclean. So, by analogy, if you think of breast milk as a bodily fluid like blood, then breast milk would be ritually impure and you couldn't buy and sell it. But you're going to have a lot of problems with women who don't have enough breast milk to feed a child and back then they didn't have formula, so scholars engaged and used another rational tool, which is called ‘Istislah’ in English it's best understood as equitable reasoning; which is you can see this analogy is leaving you with a kind of unjust result so you find another way to get to adjust the rule. In this case they would say necessity requires that you be able to buy get breast milk for their babies or their babies are going to die. And so in that case you'd say necessity makes this then permissible. So these are the different kinds of rational tools that Muslims scholars used in deriving the rulings that make up Islamic Law.

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As an example of the diversity caused by interpretation, you can take the case of how—this comes up in the news a lot—how Islamic legal scholars viewed places of worship of non Muslims living under Muslim rule. So, churches and synagogues and Jews and Christians or temple Hindu Buddhist, living under Muslim rule.

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One method of interpreting, let’s say a verse in the Quran, treats it as an exclusive text. So, the Quran talks about Jews, Christians, a group called the Sacaens—no one really knows who they are, okay? —it talks about these groups as people who perceive revelation before Islam. People who, groups who have, although their religion has been, from the Muslim perspective, corrupted, they are religions based on the revelations of God. So Jews, Christians and this group called the Sacaens.

Now if you believe that when the Quran mentions these groups, that's all the groups that could have the status—that's one approach to the text. So, you can imagine if I say, ‘Bring me a egg salad sandwich, tuna salad sandwich and a brownie,’ so from this perspective, it would mean, do not bring me any pieces of fruit or one of those oatmeal cookies and no drink.

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The other perspective would be, the other interpretive approach would be, if I say, ‘Bring me a egg salad sandwich, tuna salad sandwich and a brownie', I might also want an oatmeal cookie and a drink and some fruits. And we should be open to the possibility. So the majority of Muslim scholars understood that the Quranic list of these groups that were legitimate religions that could practice their own religion under Muslim rule, they thought that this list is not exhaustive. It is just a listing of few groups and any other group you come across, like Hindus and Buddhists and Zoroastrians. You can, they are also allowed to continue to practice their religion under Muslim rule. And this is the majority opinion of Muslim scholars.

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The other approach, which was the minority, which said no, this is an exclusive group. So if you come across Hindus or Zoroastrians, they don't need that type of promotion. Similarly, what about repairing or building churches or synagogues? So, say you're say the Muslim ruler of Baghdad in the 1000s, and there's lots of synagogues and churches in Baghdad. What happens if the Jewish community wants to build a new synagogue or wants to repair an existing synagogue? One approach to reading the Quranic text says, the Quran mentions that if God did not use one group of people to oppose another group of people, then many synagogues, monasteries and churches and mosques, where the name of God is mentioned, would be destroyed.

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So it talks about synagogues, churches, monasteries and mosques as being places, all the places, where God's name is mentioned and this is a good thing. So from that perspective you would say, even if as a Muslim you don't agree with Christianity and you don't agree with Judaism, or you don't agree with Zoroastrians, the people in those churches and mosques and synagogues and fire temples are honoring God, in whatever the way they believe subjectively to be the correct way. And that's something that's inherently good and therefore it should be promoted.

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So they can build new, new mosques, or sorry, new temples or new synagogues or repair existing ones. The other perspective would say, would not look at that angle, would say, ‘Wait a second, these other religions are engaging in practices Muslims find religiously unacceptable and therefore it's wrong for us to sanction those, those practices, by allowing them to build, rebuild or build new places of worship’. You can see it's not that these two approaches, they are both the same sacred scriptures but they're coming at it from different assumptions. One assumption is to honoring subjective worship of God and the other one is concerned with not allowing practices and beliefs that Muslims don't agree with.

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Finally, and a very important cause of diversity in the Sharia tradition, is the tremendous geographic diversity of Islamic civilization. So, Muslims within a 100 years or a 150 years of the death of the Prophet Muhammad in 632, Muslims are in, in 711 they entered the Iberian Peninsula; in the same year they also begin their conquest of India; in 750 they reach inner Central Asia. And over the next centuries, Muslim, Islam as a religion and Muslims as a community spread through Southeast Asia, China, Sub-Saharan Africa, the Balkans, and then in the 20th century to Europe and to the United States. So, Muslims lived and followed the Sharia in a tremendous diversity of geographic locales, different cultures or where they have different customs, where people had different needs. So, the Sharia is constantly adapting to these local situations. And you get also tremendous diversity.

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So a good example of this would be in the, one of the Sunni schools of law, the Hanafi School, which is the most numerically, numerous largest school of law in terms of followers, which is almost all the Muslims in South Asia are Hanafis. Now in Hanafi School of Law, you cannot eat anything that comes out of the water, any any sea-creature except fish, except fish. Now, is anyone here from Bangladesh originally? No one from Bangladesh. Okay. Yesterday I gave a talk at SUNY Stony Brook and almost the entire audience were Bangladeshis, so we clearly have a different representation here. Bangladesh is a country that's just surrounded by water, inside and outside. And Bengali Muslims eat lots of things that aren't fish that come out of the water, even though they are technically Hanafi Muslims, because that rule just wasn't going to last. It was, it was a meaningless standard of the needs of Muslims in that community. Similarly, if you, Muslims today in Europe and the United States, theoretically, ideally in Islamic law, Muslim men and women would not shake hands with the opposite gender. But because this is culturally essential in Europe and America, Muslim scholars and scholarly institutions in Western Europe and North America have generally said it's permissible for the Muslims to shake hands with the people of the opposite gender, because this is part of local culture.

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There are certain aspects of Islamic law that are not going to adjust to local culture. Because they are specifically stated in the Quran or the Sunna of the Prophet. For example: alcohol is prohibited; alcohol is prohibited in the Quran. So, you're never going to go to a place, say you come to an American university, where students love to drink and it's part of the culture, or you go to Boston, you live next to an Irish pub, and you feel part of the local culture to drink beer. That doesn't matter. That's never going to overcome this textual prohibition on drinking alcohol. So there are certain fixed points in Islamic law that are never going to change but a lot of the details on the contact surfaces of where that law and life meet, they will change based on local needs and local cultures.

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So, the tremendous diversity of the Sharia leads to numerous rules of law forming, in the Islamic period. And these rules of law kind of some of them become extinct some of them don't become very popular for a variety of reasons. And basically, by the 1100s or 1200s in the common era, in Sunni Islam there are four schools that survived, in Shiite Islam there are two schools that survived. You also have the Ibāḍī School, which is found only in Oman and parts of Algeria, the other sects of Islam. But so these schools have tremendous internal diversity both within each school but also amongst themselves. So you have, when anyone says the sentence—Islamic Law or Sharia says ‘x’—that sentence is almost always automatically incorrect. Because there is almost always more than one opinion on Islamic Law, more than one ruling from Islamic law on any issue you can imagine. From how you pray to whether or not you can eat certain foods to whether or not you can engage in certain kinds of financial transactions, there's always more than one opinion. And so I think again American law is kind of a useful analog because we all understand that American law is one unified tradition. But if you ask, someone asks you, you know let's say there's a tree growing in my neighbor's yard and it's dropping these stinky berries on to my house, on to my garden and the roots of the tree are going under my deck and pushing up the stones, what can I do, what's my legal remedy? And if you'd asked a lawyer they'll tell you it depends on which jurisdiction you're in, on which state you're in.

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The rules of Virginia are very different from the rules in Hawaii, very different from the rules in Maryland. Some states allow you to go and chop that part of the tree down. Some states say if the tree is is is harming your property you can do something about it. Some states say no no a living thing, if it's naturally occurring, you can't do anything about it. So so we all we know that there's tremendous diversity in the actual rules of American law but we think of it we understand it as being one unified tradition. That's the same way with the Sharia.

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Perhaps the most important, perhaps the most important distinction that keep in mind when we're thinking about the Sharia as opposed to Christian law, American law, is that the bulk of the Sharia, the bulk of its rulings, subjects that are dealt with under Sharia, will never see the inside of a courtroom. They are not things that people actually we would think of as law, as disputes between people. They involve things like ritual purity, performing ablutions before prayer, prayer, fasting, pilgrimage to Mecca, giving charity, manners, treatment of your relatives, how how you how you dress, how you sleep, how you eat. So these are all things that in in the United States we would consider either ethics, personal ethics and conduct, or management of personal religious personal religious practice.

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But if you take a book where a Muslim scholar has actually tried to set out what their version of the Sharia is, Islamic law is, you would have a book let's say 12 volumes, which is not an unusual size book for Islamic law, 12 volumes; probably the first two books volumes would be ablution and prayer. Then you're going to have a whole volume on fasting, a whole volume on pilgrimage, a whole volume on marriage and divorce. A couple of volumes or two on sales transactions, irrigation of fields, business partnerships, lending, mortgages, everything you can imagine and then you'll have a volume on personal behavior, on laws of war, things like that. And actually only a few of these subjects actually you'd take to a court, to a Muslim court. Most of these subjects are never going; judge wouldn't even know what to say. You're going to go to a judge and say, ‘I'm taking myself to court because I don't think I'm praying well’. That's ridiculous. No, these things are never going to go before a judge.

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But it doesn't mean they're not 'the' most important areas of Islamic law. So here you have to think of Muslim scholars who in many ways are equivalent to, it's actually kind of ironic, but they're like rabbis, they're not, Muslim scholars, the clerical class of Muslims, are not akin to priests, in the sense they don't perform sacraments, they don't mediate war between man and God, they're like rabbis in that their primary job is to study the sacred scriptures of their religion and to guide their, to guide the Muslim community, to guide their followers, their flocks, towards the proper understanding of God's will. They don't have formal process of ordination. You become a Muslim scholar when you are viewed as a scholar by those around you.

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But these judges, sorry, these scholars can and serve in two important capacities; one is as a judge sitting in a court where they'll actually be doing things like applying laws of contract, and people coming to settle disputes over buying and selling things, over land. And the other thing is the role of muftis. And a mufti is a Muslim scholar who is just giving, so a mufti is a Muslim scholar who's just giving his opinion on a matter of Islamic law to a Muslim. And it's not a, it's a non-binding thing. And this is where you get Muslim scholars talking about prayer and fasting and so if I say, ‘I'm, I have an ulcer in my stomach by fasting from sunrise to sunset, especially in summer, I get, I mean I haven't eaten all day. Do I have to fast?’ That's not a legal issue in the sense that that's nothing that going to go into a court. But that is a legal issue in the sense that it is part of God's law and so I would go to a mufti and ask that mufti, what his or her opinion is on that issue. And the most respected the mufti, the more learned the mufti, the more compelling their opinion is going to be. But muftis' opinions and their authority is given to them by people who have respect for them. There's no official way for making a man pledge allegiance.

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Of course, the the thing that people that comes to people's minds is first, and the only thing that comes to their mind when you talk about the Sharia is people getting stoned, people getting their hands cut off. So, I wanted to turn your attention to this issue. These are called the 'Hudud'. Hudud means, this word in Arab means, the boundaries of God, the limits of God. The Hudud are the boundaries of God. Now I'll explain what that means in a second.

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It's important to keep in mind, however, that if you imagine that big 12 volume book Islamic law that I was talking about earlier, only maybe half of a volume of that is going to be on hudud. So it's a very small part, a very small share of Islamic legal discourse.

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In order to understand how hudud functions, whether it functions historically, not in historically in Muslim practice but in actuality of the imagination of the envisioning of Islamic law in the original scriptures of Islam. You have to think of the different between what Muslims consider the rights of man and the rights of God. So when I have a contract with, what's your name? When I have a contract with Bilal, and I break my contract or when I, what's your name? When I run over Musira's foot with my car, okay or when I say, what's your name? Sunir's you know living in my basement. These are all rights of man, rights of mankind. Someone is being wronged, proclaims they've been wronged by another person. So the the the law seeks to rectify this problem. To remove the harm, the person who you’ve harmed, somehow to pay them back for what's been done to them.

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That is the majority of of of Islamic law and the things in courts is rights of the man, the rights of mankind. The Hudud are the rights of God. These are certain offences that are mentioned in the Quran, and some of them mentioned in reports of the Prophet, mostly in the Quran, as being things that offend the rights of God. And a lot of these things don't hurt other people. So for example what are the Hudud? Apostasy is one of the Hudud, so it's for if a Muslim abandons their religion. Fornication or adultery is one of the Hudud. Slander, especially sexual slander, is one of the Hudud. Drinking and intoxicants or getting drunk, getting intoxicated is one of the Hudud. Certain kinds of theft is one of the Hudud; not all theft because as we were discussing it has to be certain types of theft, is one of the Hudud.

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So some of these things like if I drink, if I sit at home and I get the giant forty of malt liquor, and I drink the entire thing and just pass out in my armchair, I haven't hurt anybody. But that has offended God; that is an offence against God. Similarly, if someone fornicates, and no one even sees them do it, that's still an offence against God. So it's not, you'll notice that murder is not one of the Hudud. So just because something is a Hudud crime doesn't mean that it has a really high, what we would consider, social cost. So really murder has a very high social cost. Getting drunk in your basement, with no one to see you, does not have a very high social cost. But the latter is a Hudud crime, the former is not. Because it's important, it's it's not about the seriousness of the crime, it's about the seriousness of the crime in God's eyes.

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This distinction between rights of men and rights of God is very important because one of the commands that the Prophet Muhammad gave to his followers about dealing with crimes is that, he said, ‘idra'u al-hudud hi'l-shubuhat’—ward off the Hudud crimes by any ambiguity or doubt you can find. "...."—if you find a way out for the person, the person, let them go. For it is better for the judge to err on the side of mercy than to err on the side of severity. So this is a command from the Prophet to the Muslims. And Muslim judges from the very beginning of Islam took this extremely seriously, to the point that the Quran says, ‘If the thief, male or female thief, if if they're caught, cut that hand off as a punishment for what they did.’ That seems very clear. Anybody who steals anything, they'll have their hand cut off. Now you see the way, however the way the Sunna of the Prophet functions to adjust the Quran. The Prophet says that the things stolen has to be above a certain value, it has to be something that was put in a protected place. It can't be a food stuff or a piece of food or fruit. So if I leave out my phone right here and someone comes and steals it, that that is a crime of theft but it's not a Hudud crime of theft. If I have a really cheap phone and I even hide it under the desk and I don't want anyone to take it, and someone comes and steals it, it's not going to be a Hudud crime because it's too cheap. If I have my big you know foot-long Subway sandwich that I've been planning to eat all day, dearly, I put it under here so no one else will take it and somebody comes and takes it, it's not going to be a Hudud crime because it's a food stuff.

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Similarly, what are what are the types of ambiguities that judges accepted? If if in theft, and this was actually practiced during the Prophet's own lifetime, the judge would ask the accused thief, ‘Did you steal the stuff?’ And if the thief denied it, even if the thief's holding the thing in his hands, if he denied it or she denied it, this was not considered to be a Hudud crime. I'll talk in the next slide about how you deal with theft that's not Hudud crime.

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It's important to keep in mind that this is a duty that Muslim scholars as judges believed they had to conduct. So they really believed they had to conduct. There's a wonderful story that, what time do I stop talking? My, I think I started after time—half an hour ago? Okay.

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There's one of the story in the late 1400s in Cairo. There's a couple who's caught fornicating. They're caught together and they admit to fornicating. And so so they're going to be, the Hudud punishment for fornication is either a lashing or getting stoned, whether you're married or not. And they're gonna be punished; they they confessed. The couple then withdraws their confession and the judge says okay, they can no longer be punished in severe manner. They can be lectured, they can be given a talking to, or, you know, put in prison for a few days. The the the ruler of Egypt didn't like the guy who was caught so he said no I want this guy executed. The chief judge of Cairo, chief scholar, the scholar who was the chief judge says, 'Whoever executes this man, will be executed or should be executed for the crime of murder.' So what he's saying to the ruler is, 'If you execute this man, you in turn should be executed.' The Sultan got so mad at him because the judge refused to carry out the ruling that he exiled him to Gaza. And he lost his job and his career and everything. He was driven from his home, this judge. Because he considered it his duty to ward off the Hudud crimes by any ambiguity possible. And in this case the people had withdrawn their confession, he could no longer, as he understood the application of Islamic law, he could no longer punish them.

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So why do you, the question is, why do you have these very harsh laws like, why does the Quran say cut the hand of a thief off? Why does the Quran talk about lashing the adulterer or fornicator? Why is this if if if if the job of the judge is to get the people out of these crimes? Here we have to keep in mind that law isn't just about solving, resolving disputes. Law is also a teacher. Law's also a statement about what our values are. What people's values are. How they want their society to be. and in the case of these Hudud offences, these are things that the Quran, the Sunna of the Prophet, the precedent of the Prophet, want to make clear to Muslims to understand is these are severe sins in the eyes of God. These are severe sins in the eyes of God. Note, some of them are not actually crimes that really affect other people. But they are severe sins in the eyes of God. And if you, prior to the late 1800s when you get formal police forces and things like the telegraph, and good systems of filing, and then electricity and modern bureaucracies and modern court systems and transport, and you can actually have an efficient police service, prior to that, the legal culture generally, legal system generally was characterized by extremely harsh punishments. So in 1820, the year 1820, in England, guess how many death penalty offences there were in English law. Anyone have a guess? Death penalty offence, 1820. There were 200, 200 death penalty offences in 1820 in England, including stealing firewood, poaching fish from someone's fish pond, taking your shoe buckles when you're drunk; these were all death penalty offences. Do you think people were actually put to death for these crimes? Definitely not. If someone was actually caught, there would be some for the judge to find some procedural irregularities to punish them for a lesser offence. The purpose is, if you don't have police that can go out there and just sit on the road because you don't have that much of money to hire a policeman who can sit out and prevent crimes. If you're to trust people to police themselves, the way you do that is by scaring the heck out of them. You terrify them with severe punishments in the hope that this will deter them.

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Okay, so, let's look at actually then how a Sharia court would function. And this is again, you know, I stressed on the tremendous diversity of Islamic history and Islamic civilization. So, the way Sharia court functions in Morocco in the 1200s is different from the way the court functioned in Indonesia or Aceh in the 1800s or Saudi Arabia today or the Istanbul in the 1800s. But these are general features. They might take on specific considerations. You see that the blue things, the blue things are rules that are set in one way or the other by the Quran and the Sunna of the Prophet, although a lot of their details are gonna be determined by scholarly interpretation. But the meat, the kind of basis for the rules is set in Quran and Sunna. The yellow is solely the discretion of the judge, and that is called 'Ta'zir' in Arabic. Ta'zir is discretionary punishment.

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So you see up at the top, the Hudud. The Hudud laws are effective in theory but what happens? The evidentiary standards are so high, they're so high, that they're almost never carried out. To the extent that, so for Ottoman Istanbul, the Ottomans occupied Istanbul in 1453. For the duration of the Ottoman Empire, until about 1924, do you know how many people were stoned for fornication or adultery in Ottoman Istanbul? That's almost 500 years. Any guesses? One. One person. There was a lot of fornication, obviously. Interesting fact, there are laws of prostitution, like all places, there's prostitution in Ottoman Istanbul, in the Ottoman Empire in Ottoman Istanbul. Prostitutes got caught with their customers. Weren't they engaging in fornication? Shouldn't they be punished? No. Because what is prostitution? It's somebody paying money for sex. What is marriage, at least in its legal dimension, in Islam; the husband pays the wife a dowry and in return they're married and sex becomes legal. So Muslim scholars said that is an ambiguity. It's an efficient ambiguity to say that this is this has some slight relation to marriage and therefore we can't punish this as fornication. What you can do it you can yell at the prostitute, you can yell at the john, you tell the john he has to carry firewood all night until the morning prayer, you can kick the prostitute out of the neighborhood. But people were not punished for fornication, by the Hudud laws for prostitution.

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The second, so here you have Hudud. So what happens is because evidentiary requirements for Hudud are so high, anything that is a case of theft, automatically isn't a Hudud crime of theft, it becomes what we call ‘gafz' or usurpation or what we call in American law conversion of property. So, if I see, if I catch Musira? Wow. Good job. I catch her, I actually see her walking out with my computer, and she has one of like a little like thief mask on, like a kid on Sesame Street, like black outfit, so I know she's a thief—I see her do that, she gets caught with my computer. If she doesn't confess, which she doesn't have to do, automatically this is dealt with as a crime of usurpation. She owes me either to replace my item, give it back to me, or if it's damaged, has to replace the value of the item at the time it was stolen. Very simple.

[00:40:51]

And that's how the majority of these cases of theft are dealt with, have to be dealt with. The other thing you see up here is 'Qisas'. Qisas is mandated, the details of it are set in the Quran and the Sunna of the Prophet; and this is retaliatory punishment. This is in American law we would call torts; tort law and also murder fall under this. This is personal injury. So I go up to Bilal and I, wait, who get that foot run over, yours or yours? Musira again? Sorry, I again punished you. I ran your foot over with my car. I owe you, even if it's not intentional, I owe you the value of your injured foot. If I hit Bilal with a baseball bat, I owe him the value of the injury. If I kill Bilal, if I kill Bilal, then if it's unintentional, my family or if I don't have a family, the state, will pay him, his family, compensation. If I kill him intentionally, then the Quran says either his family or if he doesn't have any family, the judge, the state, can either have me executed, take the compensation money or forgive me entirely. These are the options that you have. And what happens is for the most part in practice in Islamic history, everything's dealt with through compensation. So if you remember, anyone remembers couple of years ago when that CIA, American CIA contractor in Pakistan, Raymond Davis I think his name was, killed three people or killed two people and the other person was killed in Pakistan, how was he eventually let off and returned to United States, because, I think it was Saudi Arabia actually who paid the compensation money to the deceased’s family.

[00:42:51]

So to the right of a source you have, and the size of these rectangles is not incidental. A huge huge portion of the cases that went for Muslim judges dealt with inheritance issues. And inheritance, the rules of inheritance are specified in the Quran, the Sunna of the Prophet and then details were added by Muslim scholars. To the right over here of Ta'zir you have what is calle 'Mu'amalat'. Mu'amalat are transactions, contracts, buying, selling, renting, business partnerships, gifts, use of property, crop share, share cropping, anything you can imagine, irrigation agreement, all of this go under Mu'amalat and these are all things that are judged, the rules of this are set in the Quran and Sunna and the details provided by scholars. But also it can be influenced by Ta'zir.

[00:43:48]

So let's say I break a contract with Bilal. In theory I owe him the damages due for me breaking this contract. He was gonna, he went and bought a bunch of bunnies, rabbits, we were going to sell to the zoo. I say I no longer want to do this business with you. Now he's stuck with all these bunnies and I have to pay him some damages, okay? But let's say I'm also a real jerk; I'm a liar, I'm disrespectful, I do shady deals all the time, the judge, the judge can up the punishment based on his own discretion. And the limit in the majority of Muslim schools of law, the limit for discretionary punishment, you can do it, you can charge people fines up to a certain amount, you put them in person for a certain amount of time, or you could lash them up to 10 lashes. That's the maximum you can do in that case, by majority of Muslim scholars.

[00:44:50]

Finally, over on the far right, the thing that took up the most space in the Muslim judges' docket was marriage, divorce, family law issues. This was the thing, the topic that most came before Muslim judges and the details of the marriage law or divorce law are set in the Quran, the Sunna of the Prophet, and then lots of details, lots of interpretations provided by the Muslim scholars.

[00:45:16]

Another interesting, another interesting feature of Islamic legal system is the Muslim scholars by the early 700s, so within, I'm sorry, by the late 700s, so within about a century and a half of the Prophet's death, the Muslims adopt a custom that was prevalent in the near east, Middle East before Islam, which is a notion that the ruler is the ultimate guarantor of justice. And what this provides the Muslims with is what they call the Mawala. Mawala means wronged Muslim. Wronged. Like some who has been wronged. This is an exact equivalent in English and American legal system of what is called equity courts. In England and American in the early 20th century, these are joined together; in American law we still have equity law and common law right next to each other. And sometime judges go through both at the same time. These are two different, this is a totally different body of law than the Sharia. This is based on, what what why would someone go to equity court? One, if a government official has wronged you- someone who's too powerful to take into court. Two, if a judge has wronged you. This is where you go for appeals. I went to a court and the judge I don't think is fair, I would go to the mawala equity court. Sometimes the rules the procedures of Sharia court were very strict. So if you, let's say I know somebody stole something, but they're not confessing, and I don't have any witnesses, it's just me. I I I saw this person. But I don't have any witnesses that this person stole something, and I know they took my thing. And even let's say the judge interviews this person and really gets a strong of this person's guilt, you can then, but in Sharia court there's nothing you can do. The judge's hands are tied. If there's no witnesses against the person, then that person's oath to their innocence carries the day. Then you can take them to an equity court and see if you can get justice there. I won’t take too much longer so I’ll just.

[00:48:00]

You know what I think I’m going to skip to this; it’s an interesting topic. I’m sorry to be harping on analogies to American society legal system but I think it's actually very useful. Very useful. One of the ways it's very useful is that what Sharia means to me, means to Muslims. People like to, you know people like Bill Maher or you know Sam Harris or people who are Islamophobes in the US love to tell people what Muslims believe. What the Sharia is. But you get a very different idea when you ask Muslims what the Sharia means to them. And it's very similar to the Constitution of the United States. How many people here have actually read the entire Constitution.

[00:48:50]

Wow. How many people here actually remember everything that's in the Constitution? How many people here think that the Constitution is good? Wow, that's pathetic. You guys are, I hope no one's videotaping this. So let's not imagine you call or you know you all are not patriots but anyway. Let's go to a normal patriotic group of Americans. How many of them are going to say they love the Constitution? All of them are going to say they love the Constitution even though they haven't read it or they don't know what it's in. And actually they might be people who really dislike the widespread ownership of guns in this country. They might be have a big problem with Second Amendment but they're still gonna say they like the Constitution. They're still gonna say the Constitution's good. Because people don't have to necessarily think about all the details of what a document or what a system mean when they tell you what they think it means to them.

[00:49:51]

So if you look Gallup did some very interesting polling, I think it was in 2010-2011, of in three countries—in Egypt, Turkey and Iran—majority Muslim countries. Now one of the questions they asked is do you think that the Sharia should be 'a' source of law in your country? A source of law. 41% people of Turkey said yes, should be a source of law. In Iran 63% said it should be a source of law. In Egypt, the number of people who said it should be ‘a’ source of law was very small, but 64% said it should be the only source of law. So Egypt doesn’t really match up with the others. Of these people, by the way Gallup did another polling in 2006 in the United States: what percentage of Americans said that they thought the Bible should be 'a' source of legislation in America? Can anyone have a guess? 55%; 55%. So, right smack in the middle of where the Muslims are on the question of Sharia.

[00:50:59]

So, this this group of people, people who believe Sharia should be a source of law were then asked what they associate the Sharia with? 97% Egyptians, 76% of Iranis, 69% of Turks associated the Sharia with justice for women. Now 80% of the people of Iran, of those people who answered positively to the Sharia as a source of law, 96% of the people in Egypt, 63% of the people in Turkey, also identified the Sharia with something promotes a fair justice system. 77% people in Iran, 70% of the people in Turkey associate Sharia with reducing corruption.

[00:51:36]

So, if you are to ask a random American or get 10 Americans off the street, and you said just do a word association—Sharia—they say 'camel'. Sharia—'hand getting chopped off'. Sharia—stoning. Sharia—ISIS. Sharia—bad. Right? This is the exact opposite for the Muslims who were asked in these three countries.

[00:52:00]

And remember, it doesn't really, we can have a big dispute of what the Sharia actually is, in details, just like you can have a long discussion about what the Constitution actually says, what American law actually says, but none of that has anything to do with what it means to the people who identify with it, and their their identification, their feelings are important; their cannot be neglected. Just like Americans' views on the Constitution cannot be neglected. We would not accept someone coming in, another force coming into this country and saying that out government needs to be changed because they don't like the meaning of the Constitution.

[00:52:39]

The, if you see Bill Maher or Ayaan Hirsi Ali really talk about or Sam Harris really talk about Muslims, one of the thing issues that's come up lately is a story about Bill Maher and another person in the community is the idea that ISIS is awful, yeah I don't think we're going to dispute that, okay? But that actually ISIS is not that different from regular Muslims because if you look at what Muslims really believe, it's pretty close to ISIS. That's the claim made by Bill Maher and others. For those of you who are interested in this, first I'd recommend a book by my colleague John Esposito and Dalia Mogahed called "Who Speaks For Islam?: What a Billion Muslims Really Think". Very very useful book.

[00:53:22]

But if you actually the survey that Bill Maher and Ayaan Hirsi Ali love to quote is this 2013 Pew Form for what is it Religion and Thought, Pew Survey of Muslim world attitudes and I, I spent so, I don't actually have a huge mouth and the last thing I should ever do is open it, but I do but I've argued about this with people on Social Media for so long, it drives me crazy. I think, I think people have just forgotten how to read. So here's this, this is this, it's too small for you, I couldn't figure out how to make it any bigger but, this a question in the Pew Survey: percentage of Muslims who favor making Islamic law, Sharia law, the official law of their country. You can see in, it's actually pretty high in Sub-Saharan Africa, 86% people in Niger, in Iraq 91%, Morocco 83%, it's very high in South Asia. So, Afghanistan 99%, Pakistan 84%, Bangladesh 82%; it's very low in the Balkan Muslim areas.

[00:54:38]

So that's the first question. Do you, do you think Sharia should be the law of your land? Remember, that doesn't mean anything for what people really believe that would mean. When somebody says, ‘I love the Constitution, I want the Constitution to be the law of land’, that doesn't necessarily mean they don't think of the Constitution as something that allows slavery, that denies votes for women until 1920, right? That continues to allow, what I think is unacceptable percentage of gun ownership, enough of gun ownership in this country; they don't think about that. They think of what it means positively to them.

[00:55:18]

Now this is the, these are the statistics people like Bill Maher and Ayaan Hirsi Ali love to cite; what they say is look at the percentage of Muslims who believe, let's say if you leave Islam that there should be a death penalty. So 76% in Pakistan. I don't understand; I find this to be so medieval. What does it say under the top, the thing in bold, they don't read what's under that. So it's of the people who said yes to this question, the first one, of those people then these percentage of those people say that like 77% of people of people in Pakistan say that it should be death penalty offence. So if you look at Turkey, on the first question. Turkey only 12% of the people asked said the Sharia should be the law of the land. And then in terms of the punishment for apostasy, 17% of those people asked in Turkey said that it should be a death penalty offence. But if you take 70% of that 12%, it's only 2% of the original population surveyed. So this this I don't know I'm on my own little mission on this. You people in this room, hear me, hear the words I say. Don't listen to these stupid statistics. You might, you might still not like the percentage of people in Pakistan who say that apostasy should be death penalty offence. But it's not the same as the percentage cited by people like Bill Maher and Ayaan Hirsi Ali.

[00:56:56]

Finally, this is an interesting question from the few research centers which initially I thought is sort of, it contradicts the earlier question because it said, ‘Median % of Muslims in these regions who say religious freedom is a good thing'. 94% of Muslims in Sub-Saharan Africa, 93% in Southeast Asia, 95% in Southern and Southeastern Europe, 85% in Middle East and North Africa. 85% say religion is a good thing. But I I bring this up only because you have to be very very careful and you all are college students on your way to university, so you should be learning this. Be very careful when you're dealing with statistics because what is the question that was actually asked: ‘Muslims who say Non-Muslims in their country are very free to practice their religion and consider this a good thing'. So that is not the same as saying that there's free religion. So initially I thought, oh this contradicts the previous list but I don't think it does. This statistics is also being spun. So I leave you with this advice if I may. Treat Muslims as you treat any other group of people. Don't accept stupid generalizations about them. Treat Islam as you treat any other world religion. It's diverse, it's vast, and it's defined by those people who practice it. Not some tiny group of people that bothers you.

[00:58:33]

Finally, always beware about statistics used and how they're spun. That being said, I'm happy to answer questions if I can or hear objections if you have any or words of praise.

Q&A

Member of the audience (MA):

Question is the issue of witnesses. We spoke about adultery and prostitution and the issue of the confession and witnesses. In Islam for the issue of adultery, you have to have four witnesses that testify they saw the action. If fewer than 4 witnesses testify, and they go to the judge and they have fewer than 4 witnesses, then they have to be punished.

Dr. Brown:

Three people are punished or two or the one is punished for slander.

MA:

Exactly, yes.

[00:59:58]

Dr. Brown:

But I wanna sa—and this is my, I think I'm the only who's come up with this idea, I don’t if it’s true or not and I'm very proud of it. So the Quran says you have to have 4 upstanding male witnesses, who witnessed the act of fornication, in order for the person to get convicted, if they don't confess. Muslim scholars understood that seeing the act would mean you'd actually have to see what the jurists describe the pen going into the ink-well, if you will. So you actually have to see that. That's very difficult to pull off. Now, but where is it not difficult? Come on American males—porn, right? But here's the thing. Okay first of all, videotapes can be doctored, so video tapes is 'shubha', it's a ambiguity, so you can't take that as the case. But, there's the people on the set. There's way more than four people working on the set, you know on a set. So they would all be witnesses. But in order to be accepted you have to be upstanding witness, and if you work on a porn set you're by definition not an upstanding witness. So you would not have, by definition, no witness could testify in that case and you couldn't prosecute, you couldn't convict the couple. There's my 'shubha'.

[01:01:36]

MA:

If you look at every other case than adultery or fornication, there's a maximum, a minimum of two witnesses.

Dr. Brown:

Most of the time it's two witnesses. For anything like theft or killing or injury, you'd have to have two witnesses.

MA:

But scholars will tell you that for fornication or adultery, if you have two people, at any time you need two witnesses per person; so that's where the four comes in.

Dr. Brown:

Okay. I've never heard that. But it's good.

Yes, thank you very much for that. And I got to showcase my explanation.

[01:02:43]

MA:

With regard to the Hudud, you mentioned that you didn't necessarily injure an individual person, but isn't it the case that jurists saw these kinds of crimes, as coming at a high social cost. So in other words like, if people freely fornicated and committed adultery, lines of lineage and family structure and children's rights would essentially be harmed by this. Or if you had a society where people could steal with relative impunity, again, wouldn't be a very secure kind of place. I mean isn't there a sense also, particularly in how the juries would have thought about this, that these were deeply harmful to society as a whole, even if not to a particular individual.

[01:03:38]

Dr. Brown:

That's a very good point. I didn't, and I think I should have been more clear about this, I'm not saying these things are not actually harmful. I think you're completely right. They didn't sit down and say; they thought that even if someone gets drunk in their basement, there's still a huge harm that comes from that. And no one is going to try to say. What I was trying to stress is that if we think about harm in terms of really going out and clearly and materially hurting another person, like hitting them or killing them, so that's a different, much more superficial or evident surface harm we can measure as opposed to like deeper social harm that might express themselves based over a long period of time in a lot of different ways. What I was trying to stress is that Hudud crimes, they are the most serious of crimes in God's eyes but they're not actually, that seriousness doesn't correspond one hundred percent with what a human society would consider, metaphysical and deep social things aside, harms and harms in the society. Especially in individualist society. Yes, good point.

[01:05:00]

MA:

If you look at the Hudud one more time, the punishment for those who fight Allah and his messenger and cause mischief and misnorm, that they be killed or exiled, so in the Hudud it’s because of the harm they’re causing the society, rather than just between men and God.

Dr. Brown:

Yeah. I mean I didn't mention all the Hudud crimes; I left out I think two because there are two crimes that are complicated to get into in a short period of time; that’s one of them. Highway robbery or causing corruption and justice in a land.

[01:05:46]

MA:

So you mentioned the two witnesses say in the case of like a Hudud theft; if you do have the two witnesses, then you don’t have to go with the full punishment?

Dr. Brown:

No, because the confession of the thief is required.

MA:

So without the confession, I mean, they say they didn’t do it but you have the two witnesses.

Dr. Brown:

It doesn’t matter. It’s not a, it doesn’t mean that the thief walks away with a new iPod or anything. No, it just means that the theft is not dealt with at the level of Hudud, it drops down to into the Ta’zir crimes.

[01:07:05]

MA:

So how do Muslim jurists deal with with this situation where something which is considered a sin and say when it becomes a crime?

Dr. Brown:

So what happens if you’re not permitted to do something you are required to do? And that it doesn’t involve another person so it’s not, you’re not required to pay back a loan or something. So here the issue is not necessarily sin versus crime but the issue is when, what the Muslims do in situations when they’re not allowed to practice their religion in the way they’re required to practice their religion? So when it comes to let’s say women covering their face, only one Sunni school of law categorically requires women to cover their faces; the other schools of law either have one opinion saying it’s required and another saying it’s not required. So it is required in Islamic law, by consensus of Muslims scholars, a tleast a class of Muslim scholars, that women cover their hair. So if I, you could say, if I’m not allowed to cover my face, I’m not allowed to meet the strict more stringent requirements of the religion, but I’m still within the realm of accepted disagreement. So in that case Muslims in France or Netherlands or in, are not allowed to cover their face, but they could still live with their, if they wanted, they’re not being prevented from practising their religion in things that are required for them to do.

If, however, you’re not allowed to cover your hair, then that’s something required and the majority of Muslim or even the scholars throughout history was that Muslims cannot live in a place where they prevented from practising their religion. So, it’s like, you know, I’m allowed to pray wherever I want, I’m allowed to take time to go to Friday prayer, women are allowed to cover their hair. We will see about this, we see, what’s that crazy store with the naked people on the pictures? Abercombie & Fitch. We see in this case what comes about whether this woman was just wronged in not being discriminated as in not being allowed to wear lingerie or fired because of that.

So United States is a country where it’s generally Muslims are always going to be allowed to live and be allowed to practice their religion. There was another opinion which was, the most famous person who gave it was a scholar named Ibn Rabi' in 1510-1511 of the common era, and it was a fatwa he gave to Muslims who at the time were living under Christian rule in the conquered areas of Iberia of Span which was conquered by Christians, and they were being forced eat pork, forced to drink alcohol, forced to attend church; the majority opinion and this was the majority of what became the fatwas that won the day they had to believe. And eventually in 1525 the Spanish king’s kingdom expelled force. We always talk about Jews being expelled; but in 1492 many many many many many many many times more, thousands of Muslims, were forced to, were expelled from Iberia or tortured till they converted, though that never gets brought up. I don’t know why it is the case.

But what Ibn Rabi’ said was no, it’s more important for you to stay there and preserve some presence of Islam there even if you are forced to consent. So in your heart you don’t intend for these things. But the problem is that it doesn’t work that way. People can’t keep, with a few exceptions in history, religious communities can’t not survive, cannot survive if they’re forced to dissimilate completely. Especially religions which have public and key modes of Islam and sure enough, Muslims didn’t survive in Iberia.

[01:11:40]

MA:

Foucault talks about the birth of the prison in the European context. Punishments transforming from vladinic punishments to punishments that disciplinary punishments in the prison. How do you classify the punishments of Islam? Do you see any transition throughout history or like vladinic punishments. You can’t keep people for so long in a confined space.

Dr. Brown:

Yeah. I mean it’s an interesting. We execute the third most people; we imprison large prison population. You don’t have tremendous state resources to spend or in our case to get to like fat prison businessmen. It’s really hard, it’s very very difficult thing to put people in prison and maintain them. It’s a lot of money, it’s a lot of resources, it’s a lot of attention. So yes, prison was not, by generally by any pre-modern society the favorite form of punishment. It was too difficult. Muslims did have prisons, even from the very early period; but they were generally used for political prisoners, basically sending people there. There’s an island in the Red Sea off the coast of Egypt actually, I think, which was an island—it still exists today; it’s a resort town today—that’s where prisoners were sent. Prison was more of a temporary thing you would do to people during a trial. If somebody, you know, is accused of stealing something and they’re going to make off with this thing unless you detain them until you can get the other people in court and have a trial; people are put in prison. They would be put into this little temporary prison, if the judge thinks they’re not telling the truth, especially in the equity court, the Mawala court, they’d be put in there until they cooled their gills and decided to tell the truth.

[01:13:41]

But the most stable forms of punishment were corporal punishment. There are two things; either a stern talking to and public humiliation, which in a highly individualist society isn’t that bad, you know. If I go to Virginia traffic court and I get yelled at by the judge because I made a radical turn, lane change, which I apparently did once, then I get embarrassed by the judge—I don’t know any of these people. If I’m in my little town, and I’m getting you know raked over the coals by a judge, and all these other people I know are sitting around and listening, that’s a very serious type of punishment. So then you would go up the ladder to corporal punishment. The general type was lashes but especially Ottomans love ‘bastinado’—getting hit on the bottom of your feet with a reed. Funny story; last time I was here in George Mason I also told them this embarrassing family story that I’m telling you now. My mother, God rest her soul, she can’t be prosecuted for this, but. Now once we were looking through a closet, we found this really weird kind of back-scratching weed or something and Mom said ‘Oh this is just like a bastinado, the Ottomans loved to use.’ I said, I was about 10-11 years old, I said, ‘That doesn’t hurt. What is this thing?’ She said, ‘Okay, let me see your foot. I’ll give it a try.’ And she whacked the bottom of my foot a few times and it really hurt; it really hurt a lot. So, bastinado’s a effective form of punishment.

[01:15:05]

Or other things like, I mentioned, being forced to do manual labor. In Ottoman Istanbul, after the night prayer, which nowadays is around what 8pm, don’t know exactly what the change in the time change, after that there was curfew in the city. If you were caught out after that, you would get into trouble. You’d be forced to do labor like carry stuff, and carry firewood around until dawn. So, there’s always corporal punishment.

One thing that were not really used were fines. You could be forced to pay money owed for damages, but to be kind of a punitive fine, this didn’t really happen till the modern period. That’s when Muslims started to adopt punitive measures from the West.

[01:15:55]

MA:

So one of the I don’t understand is hearing in Islam how apostasy is Islam is a huge deal; they’ll kill you for leaving Islam, which originally made sense because what I found out from studying Prophet Muhammad is that there were individuals who, during the Mecca and Medina time period, accept Islam and then decide to leave Islam, and still live in peace. God says in the Quran that you know there’s no compulsion in religion and it’s also very clear that human beings we have free will, logical reason. For a lot of reasons, Muslims choose how to live their life. I’m basically seeking clarification from you in this matter is that apostasy in Islam that’s punishable by death is more or less related to those individuals who maybe falsely converted to Islam with the intention of, you know during the Islamic rule, stealing information from the Islamic caliphate the government, and then kinda little later leaving Islam, only to those, to the enemy, which in today’s society if you go and do it would be called treason and is still punishable by death.

[01:17:05]

I mean I think you’re on to something. Really good show that you asked this question; it will take me a while to answer. But the issue of apostasy is a very important issue. You look at ISIS group; what is it that allows the ISIS to kill Muslims in Iraq or Syria or wherever. But the fact that ISIS, unlike Sunni and Shiite Islam, ISIS declares people unbelievers or apostates for committing crimes and doing things they don't agree with.

Otherwise in Sunni and Shiite Islam, if you commit a crime or you commit a sin, you’re just a bad person; you’re still a Muslim.

So, it’s the death handing policy for apostasy that allows them to do this, that gives them the tools to justify leaving Islam will get you killed.

The issue, and you're completely correct, I mean look at the Quran, you see very clear statement that there’s no compulsion to religion. And the problem arrives when you look at the statements made by the Prophet, which are considered authentic by Muslim scholars, at least by Sunni scholars.

[01:18:18]

One statement mandate who changed religion kill them, and other one states the law that the Muslim has listened to share for three things, for someone who murders somebody and punished by execution, for an adulterer, married person who commits adultery, and a person who leaves their religion and forsakes the community, the Muslim community. These were taken by Muslim scholars almost in complete consensus; it’s very rare that Muslim scholars come to complete consensus on something. Almost complete consensus is that apostasy, leaving Islam, is a death penalty offence, based on those two statements of the Prophet, primarily.

[01:19:10]

But what’s interesting is that if you look at the second statement, you get insight into what you’re saying, which is it’s not someone who leaves a religion, a Muslim, it’s someone who leaves a religion and forsakes the Muslim community. And the key here, and the reason also why Muslim scholars show so conclusively and as a body came to this conclusion about the death penalty offence for apostasy is because of the nature of their community; the nature of how they understood identity. This is not just the case for Muslims, this is the case for Christians and Jews in the pre-nation city period. Before people’s primary identity and primary loyalty was defined by a nation state, a territory area filled with people who were all French or Dutch or whatever, before that became our primary way of identifying ourselves and also the primary state unit which considered are or being not loyalties to be required, before that it was loyalty to your religious community. Whether it’s Latin Christendom, or whether it’s the Ummad and the Muslim community in the case of Islamic civilization, so that was, that was your community, that was your nation. And to leave it was to upset the order, that of the world these scholars understood. And it was understood by their, by the rules and people in their society. They didn't care about people’s personal conscience. If somebody didn’t believe in Islam, if somebody sat and drank alcohol, and a lot of Muslim rules drank and caroused and murdered people with impunity. They didn't care what people believed on the inside. What they cared was their outward opinions this overall confessional order.

[01:20:50]

So, what happens in the really the late 19th century, it really starts gaining momentum in the early 20th century, is Muslims scholars, who see themselves now in a world of nation states, starts to rethink the crime of apostasy and the issue of apostasy. Because it doesn’t make sense if it’s no longer being Muslim that’s important but being Egyptian; why does it really matter of you’re an Egyptian Muslim or an Egyptian Christian? I mean it really doesn't matter anymore. It doesn't have, there’s no clear formal political problem there. So what they do exactly what you said; they say look, this is not about religion, this apostasy is about chaining religion as a matter of personal conscience, about someone going out and really upsetting the political order of their time. So scholars like Yusuf al-Qaradawi, an Egyptian mufti, who lives in Qatar, he devised, and this is representative of a whole big trend in the Muslim scholars, devised apostasy what is called …… and …… The first one is public transgressory. Apostasy that is publicly transgressive and apostasy that is not publicly transgressive.

[01:22:15]

If you just properly happened to convert to Christianity and you just go about your life as a Christian, no one cares. But if you go out and, say, have a big sign saying, ‘All Muslims need to ban their religion. Islam is a bad religion; it’s a horrible religion,’ etcetera etcetera, then he would consider this to be precisely that apostasy that does require serious punishment.

[01:22:49]

MA:

I wanted to ask about ‘madhabs’—School of Law—and is it necessary to pick one to follow or can you get to go in like majority and then it’s like scholars and generally from different schools?

Dr. Brown:

So the question is to what extent the Muslim follow one specific school of law. The answer to the question is that there are several answers. But one approach, you can see this one answer tends to be found in the hanifis in the Ottoman Empire, in Ottoman heartland in South Asia, which is you follow one madhab, and now that we’ve got you to follow the main principle opinion of that madhad, unless necessity forces you to leave that madhab for another madhab. And really really bad necessity, you tell anyone this and you can go to another school of law, but they don’t like to talk about that.

The opposite of the spectrum is kind of like look, these are all legitimate options in Islamic tradition, intention is what’s important. God is going to punish you based on your intentions. So if you wanna go up and put together like a Mr. Potato Head made up of all the easy rulings, that’s fine, these are all allowed. But you know, God’s gonna judge you, and these aren’t things that are happening in front of a court so you’re not wronging other people; this is your own life you’re ruining.

[01:24:47]

The middle answer or middle ground is that you should stick with one madhab unless either you believe there is evidence in another school of law that’s stronger, or there’s some need in your life for justifying for that you take another rule. So for example, in the three of the four Sunni schools of law, if a dog comes up and drools on you, and licks you and grabs your hand like my neighbor’s dog does all the frigging time, I have to clean my pants, I have to wash my pants several times, I have to wash my hand several times, okay that’s what they say. In the Maliki school of law, one of the Sunni schools, dogs are ritually clean. So if a dog comes and drools on my pants, drools on my hand, it’s not a big deal.

[01:25:08]

In this case, in the context of the American suburban life, or even urban life, we have dogs everywhere and Muslims don’t want to go on their morning run with the dogs chasing them all the time. Then it would make sense to take the analogy in this case.

But on conditions; you can’t make, we were talking about Mr. Potato Head, you can’t make it a Mr. Potato Head that segregates. So, you can’t take in Mr. Potato; no one would accept. So, let’s say in the Maliki school, a dog comes up and licks my hand, okay? So I’m taking the analogy ruling on that. Now I go into, then I go into Whelm Street and I step on cat poop; step in cat poop. Now other schools of law, we call this, this is ritually unclean. In the Hanbali school of law, however, it’s not ritually unclean. So, I’m taking a Handball ruling here. And then I go and I do my prayers and because I don’t want to, you know my hair’s looking good that day, I don’t want to do my ritual, I don’t want to wet my whole head like the Maliki school requires, I take the Shafi'i rule where I only have to wet part of my hair.

[01:26:27]

So now if I pray, I’m ritually pure according to the Maliki’s, I’m ritually pure like the Hanbali and other things, impure according to the Maliki’s, I wet my hair according to the Shafi'i school and I haven’t met the Maliki requirements for the head wet. So I have this Frankenstein monster that as a composite no one would accept. That you're not allowed to do. I would also say it’s east to pick a madhab just for issues of praying and fasting; it just gives you, you know what to do if you make a mistake in prayer; you just follow that method, that rule about what to do. Easier than trying to come up with your own rules.

[01:27:17]

MA:

Thank you very much. So you were giving an example earlier of how in the island people would eat food from the water beside fish, because of necessity living in the island. So my question is what helped Muslims and Muslims scholars to distinguish between those behavior that they can change due to necessity or global culture and the behaviors that they can’t?

Dr. Brown:

That’s actually super super good question. Where do you draw the line for things that, like drinking alcohol, not allowed to ever change, and things that you can change.

There are two factors, I think. This is my own analysis. Two factors. One is, to what extent are these things subject to disagreement? So if there’s a high degree of scholarly derivation, if the textual source is the Quran and the statements of the Prophet aren’t really clear, if there’s ambiguity or a lot of room for disagreement or people disagree on whether a certain statement of the Prophet is authentic or not, then you have had a room created to allow disagreement and within that disagreement you know you’re within the range, you’re within the pale of acceptable opinion. So I couldn't come and declare what you’re doing to be totally unacceptable in Islam, because it’s not actually, it’s just unacceptable for certain people. I could, of you made this Frankenstein monster that I’m talking about, then we would all reject that. But in individual ruling, they can’t judge it.

[01:28:57]

The second thing is it also depends on the kind of origin of that ruling. So, by the way, the rule about fish in the Hanbali school is based precisely on one kind of idiosyncratic interpretation of Quran and statements of Hududs others don’t really accept.

The second thing is to what extent. The Prophet in his rulings, he created sections for rules. So, some of these rules are actually exceptions to other rules. So in general you cannot, Muslims cannot, buy and sell things that don’t exist. Yeah. So this certainly applies on futures and derivatives and things like that, but it also applies to things like let’s say I want to sell you the fruit of this tree. When this fruit comes, this tree fruit becomes ripe, I’ll sell them to you. We don’t know if they’re gonna be, are they gonna be destroyed by some storm or it will be a bad year, there’s not going to be enough water, or just be a fluke—you can’t buy and sell things that don’t exist. However, you can buy and sell things that don’t exist if it’s necessary for the crop production. Let’s say I’m a farmer. I only have money when I have my crop; I need to pay people and buy things and feed my family the rest of the year. So the Prophet allows what’s called ‘salan’ where I basically go and I buy seed from you, and get a loan from you and get clothes from you and a donkey from you, and I will pay you that amount when my crop comes in. It’s basically a purchase on credit. Now I’ve sold something that doesn't really exist to you. But this is necessary. So that becomes then, that creates an exception for things like orders for factory goods or let’s say I say order a shirt from a shirt store, and they make that shirt custom for me, but they charge my credit card when I buy the thing. In theory, I’ve bought something that doesn’t exist yet but in the United States, we all know that if they send me a shirt that I don’t like or they don’t send me the shirt, I have means to recoup my money, very easily. And so this is accepted in the culture. That sort of thing is under this exception has already been created. So a lot of the things that are let’s say breaking the wave from a well-established rule, maybe some local custom, do so because there’s already n exception created by the Prophet, or early jurists.

[01:32:03]

MA:

When it comes to marriage, and when you go speak to her father, how necessary is it for him to request a dowry if he chooses to waive that right?

Dr. Brown:

So see, I’m not a mufti, so I can’t answer your question but I will analyze your question. Which is, this is an interesting—in Muslim marriage basically, I've mentioned this before, but the groom gives dower or money to the bride. Now, since the really the 1000s of the common era, but it really becomes common in 1800s, sometime late in the 1800s, what Muslims would do, and it’s actually the same thing Jews living in Islamic civilization, is you pay an upfront dower and then a backend dower. So the backend dower you only pay if you divorce your wife without cause. So, let’s say you say one day, ‘I’m sick of you’; then you have to pay the backend dower. And what happens is that backend dower becomes, starts becoming quite nasty. Because it allows the family of the girl and the girl to request a very high price; put a high value on her. And this has a lot to do with social standing. And yet the husband doesn’t bankrupt himself when he’s getting married, and it’s also a guarantee that he’s not going to just divorce her willy-nilly, right?

So, but here’s the problem; there’s a problem. A lot of times when people talk about Islamic law, Islamic divorce law is unfair to women, I actually think one could make a better argument it’s unfair to the man; I’ll tell you why. A wife has lots of options out of the marriage; the most common way marriages end, based on the court records of the medieval period, is the woman would do a ‘Khul’a’. She would basically either negotiate her way out of the marriage with her husband; she’d say, ‘I relinquish my right to the dower; you don’t have to pay my maintenance, I’m out of here.’ Or if the husband is the one who wants it, she goes to the judge and says I want a divorce. She can also go to the judge and say ‘My husband’s mistreating me; my husband’s cruel to me; my husband’s not doing this, not doing that, not fulfilling his obligations, he’s hurting me.’ And then the judge can do what is called a judicial separation. He can actually just terminate the marriage. She gets her dowry money, she gets her maintenance payments and she leaves.

[01:35:04]

The husband, if he divorces the wife unilaterally, which is called the ‘talaq’; it’s the thing that people always talk about, bad Muslim divorces. He can do that without any, he can do it unilaterally, he can do it in 5 seconds. But he has to pay the backend dower which is going to be, like for me, if my backend dower I’d go bankrupt. I don’t have that much money.

Okay? So, I’m actually kind of stuck in the situation. My wife is hitting me on the head, kicking me, and you know, making fun of me all the time, and things like that and I say, ‘I can’t get out of this. I have to pay them back. I’m not going to lose all my money over this,’ etcetera etcetera. What’s the husband’s option? He can also go to the judge and ask for a judicial separation based on the face that my wife is hitting me, and kicking me and things like that. So in the end the two end up with the same option, the best option in both their interest. The reason I’m bringing this up is because my advice to you, to fellow person, is if somebody makes an outrageous demand, even financially for the front end dowry, then let me tell you this: it’s very important that you are familiar with the laws. Very important. Very very important. Even if you don’t have a lot to do with it, if your wife’s not happy with her family, if her family isn’t happy with her, you’re gonna suffer, your marriage’s gonna suffer. So if someone’s putting that bar up to you, where they’re basically saying we don't want you, when I was younger I would have gotten all upset about it and say, ‘This isn’t right,’ things like that. But as an older person I think I would say, ‘Okay.’ I’m not going to put myself in a situation.

If they set a very high backend dower, that’s pretty standard and that doesn’t mean they don’t like you; it’s just them valuing their daughter and if the daughter values herself, then you have to ask yourself what happens if you, thing is, if you’re living in like a Muslim country, then it’s usually, you have to pay them back the dower.

But if you’re living in the United States, then you could try to say that, when you go to divorce court, family law court, that you’re not this, it’s not a religious thing you’re bound by. There’s lots of cases in the United States where the issue of dowry payment, backend dowry, comes up in divorce settlements. You see what happens is sometimes American courts will make the guy pay or sometimes they won’t since it’s a religious thing and not a legal contract, but you see then the partied end up, if the Islamic argument is in their interest, they use it. If the Islamic argument is against their interest, they try to get out of it. So people are kind of creatures of interest wherever they are.

Thanks a lot everybody, Enjoy the food.