In the comments on last night’s post about the Konstanz discotheque incident, the venerable Mark Spahn asked me to justify my statement that “[n]othing a Muslim does to a non-Muslim is illegal under Islamic law.”
I’m glad he made the request. It gives me the opportunity to explain once again the legal justification under the Shariah for various deeds that would be considered crimes under Western law. We’ve picked up quite a few readers since the last time I covered this material, so newcomers may find the following references helpful.
As with so many examples from Islamic law, I’ll cite ’Umdat al-salik wa ’uddat al-nasik, or The reliance of the traveller and tools of the worshipper. It is commonly referred to as Reliance of the Traveller when cited in English.
The Revised Edition (published 1991, revised 1994) is “The Classic Manual of Islamic Sacred Law ’Umdat al-Salik by Ahmad ibn Naqib al-Misri (d. 769/1368) in Arabic with Facing English Text, Commentary, and Appendices”, edited and translated by Nuh Ha Mim Keller. The publisher is listed as amana publications in Beltsville, Maryland.
This is an authoritative source on Sunni Islamic law, because it is certified as such by Al-Azhar University in Cairo. There is no higher authority on Sunni Islamic doctrine than Al-Azhar; it is the closest equivalent to the Vatican that can be found in Islam.
Here are some samples of authoritative Shariah law, Book O, Justice, “Those Not Subject to Retaliation” (o1.2):
| The following are not subject to retaliation: | ||||||
| […] | ||||||
| (2) | a Muslim for killing a non-Muslim. |
|||||
From the same section of “Justice”, also not subject to retaliation are:
| (4) | a father or mother… for killing their offspring, or offspring’s offspring… |
Maj. Stephen Coughlin makes the following observation on clause (4):
This is honor killing. When someone says honor killing is not a part of Islam, all I say is, “Reliance of the Traveller, o1.2-(4).” If I can show you it is published in Islamic law, it is part of Islam.
So there you have it. You can find numerous other acts that are permissible (or mandatory) under Islamic law — for example, rape and slavery — that would be crimes in the West.
Conversely, there are hundreds or thousands of instances of behaviors that are forbidden under Islamic law, but not even mentioned in Western statute books.
For example, from Book E “Purification”:
| e4.4 | It is unlawful for men or women to dye their hair black, except when the intention is jihad (O: as a show of strength to unbelievers). Plucking out gray hair is offensive. It is sunna to dye the hair with yellow or red. (N: It is unlawful for a woman to cut her hair to disfigure herself (n: e.g. for mourning), though if done for the sake of beauty it is permissible.) It is sunna for a married woman to dye all of her hands and feet with henna (n: a red plant dye). but it is unlawful for men to do so unless it is needed (N: to protect from sunburn, for example). |
So go easy on the henna, boys.
“The following are not subject to retaliation: …a Muslim for killing a non-Muslim.”
My familiarity with legal hermeneutics is most extensive in relation to the Rabbinic-Talmudic tradition of which I, as a Jew, am most proud. The principle of deduction known as “kal va-chomer” (from simple to complex/weak to strong) also applies in the inverse.
It’s the same a fortiori principle that can be found in the various traditions that constitute the history of western civil law (including canon law, I presume), known as “a majori ad minus”.
Simply…
If a moslem can kill a kafir with impunity, then all lesser violations of the welfare of a kafir are permissible. If the taking of a life is the greatest conceivable violation, then all violations (we can not here call them “crimes”) are permissible.
Now, a nimble legal or ethical mind might argue that there are violations greater than that of taking a life. For example, one can argue that the actions of the Nazis (and their collaborators) in the death camps of torturing, raping, engaging in medical experiments on and in other ways dehumanizing their victims before murdering them was a greater crime than ‘mere’ murder. (Murdering children in front of their parent[s]; and only then, murdering the parent[s].) Likewise, the manner in which the remains of the murdered corpses are disposed of (or made us of) could and can be seen as a greater violation of human dignity than killing. Mass murder can be argued to be a greater crime than the murder of each individual constituting that aggregate. Etc.
Now, until I see some citation of Avicenna, Averroes or Avicenna making such arguments, I will assume that based on the above legal principles islamic law permits any and all violations of the welfare of non-moslems (under the perpetual aspirations of jihad). But, even thus, my position will not be modified: islam is the mortal enemy of Western Civilization.
The thing is, killing a person is far from the worst crime envisioned by Islam. I assume the worst of all is kufr (unbelief), although ridda (apostasy) may be worse.
Clearly, the killing of a non-believer is not a crime at all. I would imagine that apostasy would rank as among the greatest crimes—although, certain forms of blasphemy may be worse.
What I didn’t make clear enough above, is the possibility that (even) in Islamic law certain acts committed against the non-believer might be considered more extreme than killing and, thus, conceivably subject to punishment. But, I’m not holding my breath.
I remain, with unsheathed mind, a soul for Zion and a warrior of Anat-Athena.
(Avicenna, Averroes or Al Farabi–but, no matter. We won’t impose the law of abrogation here. 🙂 )
Hello Baron, Thanks for your remarks. A few comments…
Your recitation from ‘Umdat al-Salik establishes that this work states that a Muslim shall go unpunished for killing a kafir, and according to the Talmudic principle of kal va-chomer (thanks, Neighborhood Bully (Steven)), any lesser acts by a Muslim against a kafir must likewise go unpunished. Such lesser violations would include, for example, insider trading, food adulteration, shortchanging, arson, and check-kiting.
But the primary sources of Islamic doctrine are only three: (1) the Quran, (2) the hadiths (anecdotes about Muhammad), and (3) the sira (Muhammad’s biography). ‘Umdat al-Salik is not among them. So any assertion in ‘Umdat al-Salik must be justified by a citation from (1), (2), or (3). Does ‘Umdat al-Salik list such citations? In particular, what citations justify o1.2-(4), which allows honor killing and abortion (but only by a parent or grandparent)? What prohibits a Muslim from killing with impunity his or her nephew, niece, sibling, parent, grandparent, cousin, or non-relative Muslim?
Yes, Reliance cites the Koran and hadith to justify its codification. But sometimes it cites the authoritative scholars from back before the gate of ijtihad was closed (I think that was about 1000 AD). Those scholars were writing back when it was allowed to interpret the holy quran and the prophet pbuh, and they drew up the early forms of what became the shariah. “The consensus of the scholars” is what defines the law.
Mark – Check out section o1.0 on p.582 here:
https://archive.org/stream/RelianceOfTheTraveller1/Reliance%20of%20the%20traveller1#page/n600/mode/1up
It does quote Koranic verses and hadiths justifying who is subject to retaliation so presumably it’s just tough for groups that Mo didn’t mention.
According to Joseph Schacht Islamic Law derived from four sources: the Koran, the Sunna (Hadiths and Sira), the consensus of Muslim scholars (ijma) and analogical reasoning (qiyas). I believe it was Schacht who said that the gates of ijtihad closed at some point but others coming after him dispute that. I believe he also said that Islam is so legalistically inclined that Islamic Law is the place to look for the real distillation of Islam. Shafi’i et al spent a great deal of time and effort systematising Islamic Law so I’m not too concerned about what came before their various manuals, which apparently only disagree on inessentials (for instance the Shafi’i school say female circumcision is mandatory whereas the Hanafi school says it is “a mere courtesy to the husband”).
What bothers me is what legal status these manuals had when they were written and since then. I believe that even before European colonisation they were only one input into the legal codes of Muslim countries (laws set up by individual rulers were another). Even after the end of colonisation the majority of Muslim countries didn’t throw out the French or British based law. It is the exception, like Brunei reportedly, that revert to the full horrors of hand chopping etc.
These links show just how seriously some modern day Muslims take their madhabs (schools of Islamic jurisprudence). One is by the translater of the Reliance and the other is by Timothy Winter, convert and prominent Islamic scholar at Cambridge:
http://masud.co.uk/why-muslims-follow-madhhabs/
http://masud.co.uk/understanding-the-four-madhhabs-the-problem-with-anti-madhhabism/
On the other hand some Muslims say the Reliance is just a mediaeval text book with no current relevance. Others point to a book called the Study Quran which they say shows how Islamic jurisprudence has emerged from the middle ages. I’ve heard from other sources though that it is full of the kind of weaselly evasions that are standard dawa fare and I don’t feel inclined to fork out 30 quid to find out.
If anyone knows about the status of the Reliance and similar manuals in modern Islam I would be glad to learn.
The main thing is the certifications by the governments of Islamic countries, displayed at the front of the book. Saudi Arabia, Jordan, and Egypt, among others. And also the imprimatur of al-Azhar. If the governments plus al-Azhar consider Reliance authoritative, then that pretty well cinches it.
Interestingly enough, the jurisprudence administered by the Islamic State — which opposes the governments of all those countries as blasphemous usurpers — seems to hew very closely to the rules codified in Reliance. In their early videos, so full of executions and butchery, I was able to understand and follow what they were doing because their citations from the Koran and the hadith exactly paralleled what I had studied in Reliance of the Traveller.
Thanks, but I don’t think that bridges the gap between the Reliance and modern Muslim legal codes.
There are no governments involved in the endorsements.
They come from:
The imam of a mosque in Damascus
The mufti (presumably something like head chaplain?) of the Jordanian Armed Forces
The IIIT, which I believe is the Washington based think tank which came up with “Islamophobia”.
And the big one, al-Azhar which of course is currently at odds with Sisi over “modernising the faith” ie refusing to.
Yes, ISIS look like they operate by the Reliance and similar, and Saudi aren’t far behind, but most other governments apply only bits of Islamic Law very patchily.
Application of Sharia Law Map:
https://en.wikipedia.org/wiki/Application_of_Islamic_law_by_country#Map
Contrary to your opinion, there are 9 countries that essentially apply FULL sharia.
The first image in this WP article is a map showing the Percentage of Muslims that support Sharia as the law of the land by country:
https://www.washingtonpost.com/news/worldviews/wp/2013/05/02/what-the-muslim-world-believes-on-everything-from-alcohol-to-honor-killings-in-8-maps-and-4-charts/?utm_term=.1311679ce9de
I have seen your first link about countries with elements of Islamic law in their legal codes, in fact it was what I based my claim about its patchy application on.
Even the countries described as classical sharia states do not apply the full Reliance style rulings. Yes they have the hudud punishments but where is there no legal protection for non-Muslims (the starting point of this discussion)? If Muslims were legally allowed to kill non-Muslims with no comeback then no Westerner would ever visit Saudi and the Maldives would not have a thriving tourist industry.
Can you explain why all the other OIC states have such a pick and mix approach to sharia law, with 20 or so of them having no sharia content at all, and yet regarding themselves as Muslim countries? That is what I want to understand.
With your second link I note that the heading of the section about sharia says “Most want to implement sharia, disagree about what that means”. I share their confusion and can find no clarity whoever I ask about it.
Not trying to be an apologist here but from what I understand, there is some sort of re-compensation in the form of bloodmoney (Diya) even for dhimmis in Sharia, usually half or even less for Christians and Jews compared to Muslims.
I think Reliance is either talking about a harbi (in the house of war) or it refers to the fact that while “Equal physlical retaliation” (Qisas) is not possible, either by non-Muslims or the court, bloodmoney can still be rewarded to non-Muslims. There also seems to be some dispute between Hanafis and non-Hanafis.
See:
https://en.wikipedia.org/wiki/Qisas
https://en.wikipedia.org/wiki/Diya_(Islam)
Reliance doesn’t say there can be no consequences for killing a kafir, just that there can be no retaliation; i.e. lex talionis does not apply.
If a fellow Muslim owns a kafir as a slave, and you kill or damage that slave, then of course you are required to compensate the owner for his loss. But no criminal penalties apply.
“Killing a Kafir for any reason, you can say it, it is OK – even if there is no reason for it.”
Abu Hamza
(“Hook Hands”, in prison in USA)
“From the same section of “Justice”, also not subject to retaliation are:
(4) a father or mother… for killing their offspring, or offspring’s offspring…”
This would mean a middle-aged Muslim woman could honor-kill her adult son of say, 30 years of age. This can’t be true. Doesn’t a woman lose all rights over all her children quite early on? Maybe I’m wrong, but I can’t imagine a Muslim man having to watch his step with his mother?
Therefore, no questioning of the Sunna Doctrine is allowed as even the slightest question could be regarded as unbelief and the slightest challenge would be regarded as blasphemy. Islam is thus bound and chained by shackles of iron to a doctrine that is the interpretation of another against whom there is no recourse.
Prison now and hell later. No thanks, I will be content to remain a Christian kafiri.
Would be plagiarism to use all these “rules” against them, when the time comes?
No, you would simply be citing their own sources against them in the indictment of their criminal behavior, c.f. Leviticus 18.