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Comparing conceptions of religions

BS”D

 

It has been some time – as usual – and I am as always terrible sorry for it.

 

The war is on break for now, people are back to normal, or at least as close you can come to normal here.

The studies are going on as usual as well, stressing me and leaving me with a lot of pressure, as well as a son soon to be born, BE”H. But I am grateful, very grateful.

I have been thinking about the comparative study, and how we teach about religions. One thing that has struck me is that we often teach about the religions for themselves, that is, instead of comparing some interrelated fields, we study them unrelated to each other. Take for example philosophy in religion (or religious philosophy). When we study Jewish philosophy, most often it is only rarely related to Islamic or Christian philosophy, but in order to get a good understanding of Jewish philosophy we need to relate it to other players in the field. Maimonides, for example, is influenced by a number of Islamic philosophers (as well as Greek), and has himself influenced both Christian and Muslim philosophers.

Another example is the role of central figures and how to understand them. Often we are told that Muhammad is to Islam what Moses is to Judaism, but is that really so? I have more and more thought about this issue, that we need to have the comparative element integrated into the general study and teaching of religions, in order both to understand the religions in and of themselves, as well as in their relation to other religions. I will try to give a small example on how this can be done in the following:

 

Judaism, Christianity, and Islam are all three religions based on one or more central figures. In all of them one person stands out of centrality compared to other central figures. In Judaism Moses is of great central importance, in Christianity Jesus has the same centrality, and in Islam it is Muhammad. What is interesting in this respect, is not so much how these characters are viewed and understand in the other respective religions – though that certainly also is of importance – but how they are central in comparison of other central figures in the respective religions, as well as how they are understood in comparison to how the central characters are understood in the other religions.

Moses, for example, is far from the only central character in Judaism, we can easily mention both Abraham, Isaac, Jacob, Isaiah, David, and Salomon as examples on other very central characters. And that is just in the Bible itself, would we expand our focus to other Jewish materials, then we would find Hillel and Shamai, Yehudah haNasi, Maimonides, and so on. And furthermore, though I believe that Moses is the most central character in Judaism (except God Himself, of course), I am not sure of how strong his centrality is compared to the centrality of the other characters. For example, where Moses is very central and of crucial importance when it comes to the implementation of law in Judaism, he doesn’t hold the same level of importance when it comes to the establishment of Israel as a people. There Abraham might be of greater centrality. Or Moses compared to David in the establishment of the kingdom of Israel. And so on. Yet, I still believe that Moses overall is of greater central importance than other characters are.

We see the same with Christianity, where Jesus is far from the only central figure. Take characters like Paul, Peter, and John. Or the various church fathers. Or even Luther. In both these cases, though there would be no Judaism without Moses, and no Christianity without Jesus, their central importance is to some degree matched by other characters, though the two religions might have existed in some form or another without them.

It seems to me that Muhammad enjoys a much greater centrality and importance when it comes to Islam. Though references are abundant to other characters in the Qur’ân, Muhammad is still the receiver of the Qur’ân, and in the early times he was the leading figure when spreading Islam, at least till his death. In this context we don’t see Moses or Jesus spreading their respective religions, which can be part of the reason that Muhammad is more central in Islam than the two in their respective religions. Of course there are other important characters, the four righteous caliphs, the founders of the legal schools, the philosophers, and so on, but put notice on how Muhammad is in focus, both when it comes to the role as the receiver of the Qur’ân as well as when it comes to the Hadith-literature. In comparison, the Mishnah is not ascribed to Moses, and the letters in the New Testament is not ascribed to Jesus. Where Moses mostly is of crucial central importance to the written Torah in Judaism, and Jesus plays somewhat the same role in Christianity, neither of them are ascribed to the “oral tradition” (the Mishnah/Tosefta in Judaism, and the letters in Christianity), while this is the case for Muhammad in Islam.

 

This is one aspect. Another aspect is how we view them, how we describe them. This can teach us a lot about how the followers of the respective religions understand their religion and their role as followers of the religion in question. I am not going to too much into how followers are relating to them, just use the most used examples.

Moses is – by Jews – described as “teacher”, Moshe Rabenu. This is very crucial for the Jewish conception. He teaches us and we learn from him. He has a role not unlike the rabbis, as the chief rabbi, and this – I believe – has left its mark on Jews, who generally have been very occupied by the focus on study.

Jesus, on the other hand, is described as savior. This is something we often see in how Christians describe themselves, as being saved.

Again we see Islam somewhat differ here. Muslims see themselves as submitted to God, not so much describing Muhammad as God’s submitter, but rather in describing themselves as such. Where Jews today are named after a tribe, Yehudah – earlier named as a people, Israel – Christians are named as followers of Jesus, the Christ, and Muslims are named after their relation to God, as people submitted to God. But Muslims are neither taking their name after a role perceived in relation to Muhammad, nor after a role described him. Nevertheless, in one incident we do see Muslim self-perceiving based on Muhammad, namely as the final group of believers. Muhammad is the final prophet, therefore those who are following him are the right group of believers. In Judaism as such Moses wasn’t the last prophet to come, and it wasn’t unperceivable that other religions would form, though they wouldn’t have importance for Israel as such, and in Christianity we also see the spokesman, the holy spirit, would come after Jesus.

 

All this more or less describes an idea I’m working on, which could be interesting to follow in the future. I don’t know if anything will come of this or what it will end with, but if any of you out there have any suggestions, then please share with me, I would be very interested in hearing about what you have on mind.

I also know that there are many conceptions and thoughts, which could have been explained better, for example when I talk about strength of centrality and the like, but again, this is mostly sharing thoughts.

 

Looking forward to hear from you.

 

All the best and Hanukkah Sameah!

Israel, Hamas, and the futileness of discussions

BS”D

 

Most of you probably already know, Israel and Hamas (and helpers) have again engaged in a round of escalated violence. Yet again the escalated attempts at killing each other of will begin, and yet again the discussions about who is to blame, with direct reporting from here and there, and experts sitting in the studio (who often aren’t experts) will tell us all how wrong the one side is, and how much the other side suffers.

I still remember January 2009 and its aftermath. Too many people were killed, and all over Europe there was an outcry for justice, which apparently for some involved the killing of all Jews. It will come again, in the same level, this time though – at least for the aware person – in the background of the killing of more than 30,000 civilians in Syria, without any greater demonstrations taking place.

Yet again we will here blame directed at the Palestinians or at Israel, attempting to portray either of them as terrorists and murderers. Yet again people will be blind to the faults of their own side, only seeing the faults of the other side. I’ve already witnessed it to great extant in less than 24 hours.

 

Last time I took active part in the discussions, this time I most likely won’t. People are dying on both sides, mostly innocent civilians, children. This morning three Israeli civilians died as well as the baby child of a Palestinian journalist. Being a soon-to-be-father I can imagine the pain, just the thought of seeing my own unborn son, has v’halilah, makes me cry. This won’t bring any good with it, just as last time we won’t see this lead to the end of fightings and the killing of people. On the contrary this will expose a lot of hypocrisies, particularly the double standards being exposed in way of criticism.

 

At work I have two colleagues being personally involved in this round of fightings. Well, all of us living here are, all of us have friends or family being within range of fire. But these two have close family in Gaza and Beer Sheva, the one being a Palestinian the other a Jew. When they meet today at work they can talk about the safety of their loved ones, or rather, the chances that they won’t see them again. Who is to blame? Forget about that, just let them be able to meet after this is over and be able to say, Alhamdulillah, my family is in good health.

 

So who is to blame? Let’s just have a couple of words or three about that. And who will benefit from this? The Israeli right wing and the extremist religious fanatics among the Palestinians, they will benefit from this. Some people have expressed thoughts on how curious it is, that this always happens before Israeli elections. I don’t know about “always”, but it does happens, and yes, it is curious. These people present it as a plan from the Israeli right wing, a scheme in order to make them seem strong and protective in the eyes of the Israeli public. Is this true? Yes and no. The Israeli right wing cannot just start a war, just because they want to. It is true that Likud and other right wing parties are gaining much more from this, politically, than the left wing, and that this certainly is a good time (if any) for the escalation of violence. But what these critical people fail to acknowledge (of some reason or another) is that this doesn’t happen in a vacuum. Israel doesn’t just begin to bomb, just to do it. These people are totally ignoring the rockets being shot into Israel for a longer period or trying to excuse it. I’m sorry to say, I don’t accept any excuses for the conscious and deliberate targeting of civilians, no matter what. These critics – who blame Israel for breaking the ceasefire – also ignore the four rockets fired into Israel earlier yesterday before Israel targeted Ahmad Ja’abari, one of the top leaders in Hamas. This is ignoring facts, in order to make your understanding of what is going on fit into your bigger picture of things. And it is dishonest.

But here’s the deal. Even if Israel – per se – is only defending herself after the recent attacks on her civilians – and yes, I do believe that Israel has an obligation to do that, as any government in the world has, rather than killing them – the Israeli government, or Israel at large, does hold responsibility itself. Not necessarily for this particular escalation of violence, but for the overall situation we’re having. For making a mockery of the Palestinian side, though the Palestinian leaders also do that well. For not really wanting to give the Palestinian leadership something to bring their people, some acknowledgement of sort. Mahmoud Abbas lately stated in an interview, that he refused to hold the return of Palestinian refugees to Israel as a holy principle, acknowledging that it wouldn’t happen and Palestinians shouldn’t expect it to happen. For that he received a great deal of criticism among his own, while some Israeli politicians and opinion makers ridiculed him, refusing to take him serious. The same, of sorts, happened to Salem Fayyed when he tried to be productive, both among his own, but also among Israeli leaders. Fayyed is one person among the Palestinian leaders, which Israel really could trust, who was struggling (and still is) for honest and open relations, as well as attempting to fight corruption. He is today a shadow of what he was, after attempts to crush him both from Israelis and Palestinian leaders.

 

But also ordinary people are to blame. When we relate to each other as pure trash or bugs, then no wonder there is hatred and will for war, rather than attempts to create a future coexistence of some sort. Already now I have read statements like “make Gaza into a parking lot”, “bomb the fucking Arabs”, “a good Arab is a dead Arab”, “I won’t cry a single tear for any dead Palestinian, civilian or terrorist, since they all are terrorists”, as well as “Hitler lived for a purpose”, “I long to crush the Jew under my foot”, “a good Jew is a dead Jew”, and so on.

As related to earlier, also the one sided, black and white criticism is a cause for this. Just as critics of Israel is ignoring the faults of Hamas and other extremist groups, so do critics of the Palestinians ignore the faults of Israel, as already mention, but particularly the needs and suffering of the other side. Just as it should be acknowledged that Israeli children have to be near shelters at all times, also in schools, and that they didn’t choose this for themselves, neither did their parents, so it should be acknowledged that the Palestinians in Gaza didn’t accept this existence for themselves. Forget the “they voted for Hamas”. That is just ignorant. They didn’t vote for Hamas, they voted against Fatah and the corruption, and they really didn’t have an alternative.

 

There is a lot to be said, and many things probably will be said. The world will go crazy and fight about who is the sinner here, but the truth is that most of us are, and that the world are only helping to keep this conflict going with the ideologist or material interest there might be here, while refusing to relate pragmatically to what is going on.

In the meantime innocent will suffer and be killed, on both sides. Israelis and Palestinians are not two sides fighting each other, we are one side suffering from the same source. And we will continue to suffer until we realize this and relate to our situation pragmatically.

 

Happy New Year to all my Muslim brothers. I hope this latest escalation may be the last, inshallah, and that this new year will be a more peaceful one for all the children in ash-Sham, as well as in the rest of the world, inshallah.

Studying Shari’a and Shari’a Courts in light of Legal Pluralism

BS”D

 

Time for a new article. This time I’m relating to Ido Shahar’s “Legal Pluralism and the Study of Shari’a Courts”, brought in Islamic Law and Society, 15, 2008. But before that I feel the need to define what is meant by “Legal Pluralism”, as this might seem as an unfamiliar term for many.

In general a state is supposed to be run by legal monism, that is, one single law. A state alone should be able to decide on and govern laws and rules, in order that the state might “be able to penetrate society, regulate social relationships, extract resources and appropriate or use these resources in determined ways”.[1] This is rarely the case though, even in states which we believe to be governed by one law alone. Often various legal practices, custom, or other legal bodies, influence and decides, and this is legal pluralism, that is, when law in a state is decided by more than one legal body or principle.

As is clear, Israel is one such case. We don’t only have one law, the secular Israeli law (whether influenced by Jewish religious law or not, that is, Mishpat Ivrit, Hebrew law), but several bodies of law, Israeli law, Jewish religious law, Islamic law, and so on. So when I am talking about legal pluralism, I am talking about a plurality of laws within one state.

So far so good.

Mainly the scope in the use of Legal Pluralism as a theoretical tool, has been from the legal institution, that is, we relate to how the legal bodies, various courts and so on, relate to each other and litigants, but Shahar chooses to approach it from the litigant rather than the legal bodies. That is, he attempts to relate to what makes the litigants choose one court instead of another, what their needs and motives are, in order to discover the relations between the legal bodies.

In his article, “Legal Pluralism and the Study of Shari’a Courts”, he attempts to point out these relations by focusing on how Shari’a courts relate to other non-state courts under Islamic rule, the mazalim courts, and other legal functionaries, the hajibs, as well as civil courts. Besides that he also describes the relations between qadis of the various four Sunni schools of law (madhahib).

Let us look on the three examples:

The Mazalim courts existed from the time of the later Umayyad until the Ottoman abolished them, and covered many of the same cases as the Shari’a courts, which and to what extent depending on the changing power balance between the two courts, having the proponents of the mazalim courts fully aware that they encroached on cases covered by the Shari’a courts, even going so far as to establish that in cases of “Rights of Man” (criminal cases, huquq adami) litigants were allowed to attend Shari’a courts, but in cases involving violations of “the Rights of God” (huquq Allah) only mazalim courts were allowed. We even hear about examples where people stopped using the Shari’a court totally, as related by al-Kindi in Egypt, and only attended the mazalim courts.

The hajibs were based on Mongol Yasa code of law, and though it was described in less positive terms than the mazalim, it still witness of a power struggle between two legal bodies. In case of the hajibs people were forcibly moved from Shari’a courts and taken to the hajibs, rather than going to the hajibs freely and of own initiative.

In case of the civil courts Shahar explains how the Ottomans gradually removed more and more jurisdictions, until only cases of personal status were left for them, showing a transition from tradition religious courts to modernity, not happening at once and thus leaving periods where the courts overlapped each other jurisdictions.

Based on this we see that religious authority was not always the deciding factor, leaving cases of legal pluralism encouraging to competition over prestige and litigants, both by being attentive to the needs of the litigants, as well as forcing them to choose the legal body of preference, which again forced the Shari’a courts to relate to this and thus forcing them to make certain changes in practice.

In case of the relation between the four Sunni schools of law, we see another interesting example, namely that of cooperation between the qadis, so that the leniency of one school would be followed rather than the stringency of another school, such as the annulment of marriages when the husband did not provide for his wife, which is not allowed according to the Shafi’i school, then directing the Shafi’i qadi to rule according to the Hanafi or Hanbali schools, which do allow this, such as was the example in 17th and 18th century Syria and Palestine.

 

I find this interesting, the relation between legal bodies and within legal bodies, and how this changes practices and conceptions. I don’t think it has changed much today, the needs of the litigants being the most important part, and in cases where one legal body is too inflexible, and alternative bodies can be found, litigants will find these alternatives, whether these bodies are acknowledged by the state or not.

Here I can relate to the practice of ṣulḥa in Israel (and other places), which is private settlements between two groups in conflict, brokered by a neutral third group chosen by the two groups for exactly this. This is a non-state body, which is used by Arabs in Israel to solve conflicts, but the interesting thing is that the Israeli criminal courts are relating to these agreements, either in their rulings or in consideration whether a person should be in custody or not. More about that later.


[1] Yüksel Sezgin, ”A Political Account for Legal Confrontation Between State and Society: The Case of Israeli Legal Pluralism”. Studies in Law, Politics, and Society, volume 32, p. 198, 2004.

The Israeli Millet System

BS”D

 

In an article, “The Israeli Millet System: Examining Legal Pluralism through Lenses of Nation-Building and Human Rights”,[1] Yüksel Sezgin puts a critical focus on the Israeli legal system, arguing for the problematic nature of legal pluralism in the state, and the consequences of it.

Besides the proposal of a conscious Israeli choice of the Ottoman Millet system, used in order to create a unified and single Jewish identity, and being able to make a clear differing between this Jewish identity and Israeli non-Jewish identities, Sezgin points out why legal pluralism can be a problem, at least in the case of Israel.

As mentioned in earlier posts, in Israel authority on matters of family and personal law has been granted religious courts, whether Jewish, Muslim, Christian or Druze.[2] This means that each religious group is only able to be married according to its religious laws, which again means that only those recognized as acceptable can be married. This differs from religion to religion, such as in case of Jews/Judaism is it only possible for Jews to marry Jews, while in case of Muslims/Islam is it possible for Muslim men to marry Jewish or Christian women, but not for Muslim women to marry Jewish or Christian men, and this is considered law of the state. In case of divorce this is also done according to the respective religion and its laws, which means that Jewish and Muslim women basically are placed in a worse situation than ditto men.

Should a Jewish man and Muslim woman fall in love and choose to marry, this is only possible outside Israel, but once married they would have to be divorced according to the laws of Israel, even if divorced outside Israel this divorce not necessarily being accepted by Israeli (religious) authorities.

The problematic nature of this is obvious, particularly considering that freedom of religion is secured in Israeli law, which might mean that one can choose any religion he/she wishes for, at least in theory (in practice it might be harder, depending on religion converting away from and which converting to). Basically what is meant, seen from practice, is that one has freedom of religion, but not freedom from religion. If you want to get married, it can only be through a religious court and according to your respective religion, rendering the choice of “no religion” void.

We are left with two problems already, when it comes to the nature of “freedom of religion”, since we see from the already mentioned that religion is not something you can choose to or from, it is forced on you, you can only choose which religion. And your choice of love is not free from you either, leaving anyone not accepted by your religion in the category of “no-go”.

This is a clear clash of Israeli family law and international human rights, but it doesn’t stop there. In case of divorce do we see the clash between the thought of equality, something Israel is claiming, and religious laws. In Judaism a man can give a declaration of divorce, with or without the acknowledgement of the woman, while the same is not the case does the woman want a divorce. There has been implemented ways of forcing the man to give the divorce, should he object, such as daily bills, loosing of drivers license and work license, and even imprisonment, but it is rarely enforced, since many rabbinical judges sees this as going contrary to Halachah, and such do not use this enforcement.

In case of Muslims a woman is ensured payment for a certain time, but it has been shown that Muslim women receive less than divorced Jewish and Christian women, which is another example of inequality.

This is of course problematic in a state, which calls itself Democratic, at least if we understand the “Democratic” as in securing equality and keeping human rights, rather just than “one man, one vote”.

As I pointed out in my last post, there are difference between the Jewish and the Muslim case, having examples overlapping between the two cases. For example does the Muslim man have more choices of spouse than the Jewish ditto.

Sezgin criticizes Israel’s embracing the Ottoman Millet system, both in terms of nation building, that is, as a tool used in order to create distinct groups, making it easier to control them, as well as in terms of human rights, criticizing the enforced religious rule on family and personal matters.

I see the problematic nature, at least in the latter case (I am not so sure we should be cynical about the choice of the Millet system, considering the challenging situation Israel found herself in at the establishment of the state, though Sezgin does refuse this excuse), but as shown from Hofri’s article in my last post, the religious are getting ground in Israel, and the consequence of the growing secularization of the Israeli legal system – which Sezgin doesn’t seem to acknowledge – does create the need, for the religious, for alternatives, which could end creating a split with the state, and the question is whether the state wants or can handle that challenge. And this is not only in case of Jews, but also the Muslims, where we see an Islamic Movement challenging the Shari’a Courts, something which most likely only will be strengthened, the more secular the state attempts to make law in Israel. We will later see that the Shari’a courts are attempting to remove any secular Israeli influence, in order to answer the challenge from the Islamic Movement, but should we get a pure secular family law in Israel, who will then take the religious marriages, and by that controlling part of the religious rituals?

I hope to be able to give some thoughts on the clash between human rights and religious courts later on, when I get more material covered. For now it will mostly be speculation and guesses, but again, I’m only sharing thoughts.

 

Take care out there.


[1] Brought in Israeli Law Review, Vol. 43, No. 3, pp. 631-654, 2010.

[2] Israel is the only country to acknowledge the Druzes as a distinct group from the Muslim majority group, something Sezgin argues is part of a strategy of dividing groups, in order to control the easier.

Jewish Shari’a in Israel

BS”D

 

Or rather “the State of Halachic Courts in the Jewish State of Israel”.

As part of the curriculum for my studies in Shari’a in Israel, I read Adam Hofri’s “A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State”, which deals with the question of legal pluralism – i.e. the existence of more than one legal body in one state, as is the case in Israel (the secular legal body of the state, as well as the religious courts), and whether a modern state can “provide its citizens, residents and others subject to its power with a just and stable legal order by referring them to norms associated with their several religions and enforced by state courts”. He deals with the situation of Halachich Courts, i.e., Jewish religious courts, particular nonstate ones, which appear more and more. Basically, he argues by focusing on Israel as a case study, legal pluralism, where the state gives room for religious courts to cover at least some legal fields, most often matters of family and personal law, will only encourage the religious to struggle for more influence and authority.

 

In Israel we have seen the later years a growing rate of Halachic nonstate courts, which offers an alternative to the secular courts on matters of economical disputes, but not so much on matters of family law or personal law, which he explains as being because the latter is already covered by Rabbinical authorities, that is, the Rabbinate supervised by the Haredim (ultra-Orthodox), and as such holding recognition from the group behind the Halachic nonstate courts, the conservative element among the Religious Zionist, the HarDal (Haredim Dati-Leumi). He also explains why criminal cases is not covered, by relating to the most likely aggressive response by the state, should they choose to cover these cases.

 

It is no secret that the religious influence in Israel (as well as other places), have grown within the last decade (or even more). This – of course – also leaves its imprints on the legal system and the relation between the secular state and her religious citizens in regards of legal questions, particularly in context of the Judaic focus on law, so that there will be growing demands for religious alternatives and conflicts between religious and the state (as for example was the case in 2006, when the Supreme Court of Israel ruled, that the Rabbinical courts could not hear private and commercial cases as arbitrators, something the Rabbinical courts has since ignored, though the number of cases brought to them are descending since).

 

Still, it could wonder why Religious Zionists chose to establish nonstate courts, rather than put pressure or force the state to accept a growing religious influence in its courts (which I personally believe is happening), to which Hofri offers six reasons:

 

1: Identification of the State Legal System as a Standard-Bearer for Secularism.

2: Delegitimation of the State Rabbinical Courts’ Practice of Arbitrating Private Law and Commercial Cases.

3: An Increased Supply of Religious Zionist Halachic Experts.

4: The Religious Radicalization of Part of Religious Zionist Society.

5: The Impact of Israel’s 2005 “Disengagement” from the Gaza Strip and Northern Samaria.

6: Hopes that Non-Observant Use of Halachic Adjudication will Encourage the Adoption of Halacha as State Law.

 

That is, the Religious Zionist, or at least the more conservative element among them, see the growing secularism in Israel, or more at least in the Israeli legal system, where the Supreme Court in the recent years mostly have ruled against the Religious Zionists or what they hold as important, such as the settlement activity.

Furthermore they see that the Rabbinical authorities have lost influence and authority on matters, where the Religious Zionists otherwise would have turned to their courts, which leads them to create their own alternatives. It is not without reason that commercial matters is the most covered field in Halachic nonstate courts.

Also the growing number of Religious Zionists being educated in Halachah at Yeshivot, as well as Religious Zionists with a Rabbinical degree receiving even more advanced training in Halachical issue, as well as their feeling with “real life”, something the Haredim are lacking, is a reason for wanting to create more job opportunities.

We see the radicalization of the Religious Zionist right, where some groups even are calling to struggle against the (secular) state of Israel, as a protection of Jewish values and homeland, thinking in terms of wanting to establish a Jewish religious alternative to the secular courts. Where some Religious Zionists are becoming more “secular”, wearing their religion “lightly” and taking more part in the secular society, others are becoming more “haredized”, turning closer to the strict understanding of Halachic law and principles.

The disengagement from Gaza and some settlements in 2005 made the Religious Zionists feel let down by the state, even betrayed, which created a split between them and the state. They don’t trust the state now as they did before, and are more ready to confront and challenge the state on principles, which they hold as important, such as the implementation of Halachah.

And finally, some Religious Zionist halachic thinkers are hoping that by creating a cheaper and more effective legal alternative to the secular courts, they can make the less religious or even non-observant public realize the ethical principles of Halachah, and by that making it easier to implement Halachah into Israeli law.

 

This is of course mostly related to Jewish religious law in Israel, but I believe that we can see some of the same factors in the Muslim case. First and foremost, Israeli Palestinian Muslims have never felt close to the state of obvious reasons, so relating to a state institution might seem hard already. We also do experience a radicalization of Muslim youth, both in the territories and in Israel proper, where the Islamic Movement has gain ground within the last two decades and publicly is challenging the Shari’a courts and their qadis.

But where I see a big difference is in the attitude of religious judges in the Jewish courts to the nonstate courts, compared to the Muslim ditto to the Islamic Movement’s call on nonstate Shari’a courts. Where the former is positive, the latter is negative. How this is portrayed and why, is something I’m going to look into later on.

Shari’a in Israel

BS”D

First, let me send thoughts to all the victims from Sandy, whether in the States or elsewhere. If any of you readers felt the impact, then let me express my relief that you are able to read this post by now. I sincerely hope that you weren’t affected too much of the storm.

 

Back to the title.

Yes, you read correct.

Israel is – or at least claims to be – a secular Jewish democracy, but yet is religious law part of Israeli law. One might not be so surprised that Jewish religious law, Halachah, is influencial on Israeli secular law, Mishpat Ivrit, but some might wonder why and how Shari’a can be influential on Israeli law.

There’s a good explanation. Israeli law is to a certain extent based on the model of Ottoman law, which was taken over by the British during the mandate period, and now in Israeli law. To be more precisely, based on Ottoman law Israel recognize a number of religious groups, which are governing themselves according to their respective religious law, in matters related to family law and privacy law. It is clearest expressed in matters of marriage and divorce, but also guardianship is falling under the religious courts, but whereas Israeli secular law rarely relates to the two first, the latter is more a focus of controversy, as well as cases involving the question of equality (as is the case for most conflicts between Israeli secular law and religious law in Israel). More about that in another post.

Israel has eight regional Shari’a courts, in Bir al-Sabi’, Jerusalem, Yaffo, Taybe, Baqa al-Gharbiya, Hayfa, Nazareth, and Acco, as well as the Shari’a court of Appeals, sitting in Jerusalem, which works as the court of appeals (hence the name). The Shari’a Court of Appeals plays a crucial role in the development of Shari’ah in Israel, since it is this institution which takes the most confrontations with the Israeli legal system, as well as being able to overrule rulings from the regional courts. It is headed by Qadi Ahmad Natour, and besides him has Qadi Farouk Zoebi and Qadi Zachi Madlaj, all elected in 1994 on permanent status (first time that happened).

The Shari’a Court of Appeal is challenged from three sides; the Israeli Supreme Court of Justice, on matters where Israeli secular law and the rulings of the Shari’ah Court of Appeals conflict, from the Islamic Movement(s), which questions and challenges the authority of the Court, and from feminist groups, challenging the lack of sensibility to the status of women and human rights.

 

There are a number of scholars dealing with the subject, mostly Israelis (Jewish and Palestinians), but three of them stand out in particular, Aharon Layish, who have written indepth on a number of subject connected to Islamic jurisprudence (fiqh) within Israel (both in case of the Shari’a courts and conflicts between the courts and the litigants) and historically. Moussa Abu Ramadan, who has written very indepth on the rulings and practices of the Shari’ah courts, particularly the Shari’ah Court of Appeals. And Alisa Rubin Peled, who has written about the debates and attitudes to the Shari’ah courts.

It is these three that I will base most of my study of Israeli Shari’ah upon, but still relate to others as well.

 

This post is a little introduction to my study of Shari’ah in Israel, and I hope there will come many more posts. From what I have read so far it really seems like an interesting subject, not only because it’s about Isreal and Shari’ah (in context of each other), but also because it raises some interesting thoughts on the relation between religion and a/the secular society it exists within. What is the role of religion in a modern society? Where should the borders go, if there should be any at all? Is it possible to implement religious law into secular law? And so on.

 

Enough for this time. Take care out there.

Stoning in Judaism and Islam and what the comparison of the two can tell us

BS”D

First off I want to relate you to an amazing and informative post by Jessica on askanislamicist, where she writes about Schacht and Hallaq, two Islamicists, who are important to know and understand in order to get the discussion at hand, and in the academic study of Islamic law in general. So please take a little time reading her post before reading the following.

Did you read it? Good, let’s get to it.

As you without a doubt read in my two last posts, I am telling a little about my assignments, having the last post being about my assignment on the Quranic view on Biblical texts. In this post I will deal with my seminar paper on the comparative study of stoning in Judaism and Islam. But first, why stoning? What is it that makes a sane guy (as far as I am sane, I’m doubting that sometimes, and I know my wife wasn’t too sure after having witnessed me going in depth with the issue) focus on stoning, maybe one of the most cruel capital punishments the human mind can think of? Well, let me tell you this; as part of this study I also read about other capital punishments, and there are methods of killing out there WAY worse than stoning. As a matter of fact, if I should choose between all the methods of being killed (and no, please don’t take this as an encouragement, I do like to live), stoning definitely comes on my top5 list. Just think about the Chinese way of cutting of pieces of the body, flesh first, then limbs, until you die. Or the Persian method of – well- feeding you with milk and honey until you – as a consequence – have certain natural urges, but then trap you in a hollow tree or two boats put together, place you in the desert, and let bugs be your only company, until you die from one of several causes. Detailed enough I think, and I do apologize. But this study was a lot about details, and how they did not fit together.

When one says “stoning,” many might think of “Muslim barbarians” stoning innocent women in Africa or wherever you find these kinds of guys. Well,  breaking illusions, as it is portrayed these cases of stoning is actually going against Islamic law, and is more telling about people basing their judgment on lack of knowledge, than actually relating to Islamic law. Of course, the women being stoned (because it is interestingly enough mostly women, though Islam also prescribes stoning for men) probably don’t care much, but when we relate to Islam and the matter of stoning, this is of extreme importance. The equitant being that some Americans groups killed people randomly with gas, and then establish that this was telling of the States in general, since gassing is one of the ways of killing criminals convicted to death (and any innocent who ends up there, based on a error of judgment).

That aside, Islam is not the only religion having stoning as a death sentence, as well as stoning is not the only way of killing. There is also crucifixion and beheading, depending on what the crime is. Stoning in Islam is given for adultery, but not all people committing adultery are judged to stoning. One has to be “muhsan,” that is, married, free, Muslim, adult, and of sane mind. A slave, for example, cannot be judged to stoning, but “only” lashes, and only half of what the free non-muhsan Muslim would receive. So the punishment is to a lesser degree dependent on what is done, as to who has done it, except in case of sodomy, which also leads to stoning, no matter the status of the person doing the crime.

In Judaism it is a little different. Here it is not so much the status of the person who did the crime that matters, as the crime being done. For example, if you have sex with a married woman you would receive a different punishment than if you had sex with a betrothed woman, who was a virgin, or if you had sex with your daughter in law or your father’s wife. Also, in Judaism stoning is not only related to adultery, but also to certain rebellious attitudes, for example he who curses his parents, as well as idolatry.

Another difference, which I put particular interest in, is the concept of stoning, that is, how it is done. In the Bible, the Torah, we find stoning mentioned with two terms, s’qilah (סקילה), and regimah (רגימה). It is not clear what the difference between the two is, when reading the Torah itself, but relating to various dictionaries, such as Gesenius’, we can learn that the term s’qilah is related to something heavy, probably being related to the Arab word shaql (شقل), while the term regimah is related to the sense of something being thrown as a missile, piling up. This is interesting, since the Arabic word for stoning is rajm (), which is basically the Arab form of the Hebrew regimah, consisting of the same root (resh/ra, gimel/gjim, mem/mim), and they both carry the same basic meaning.
What is even more interesting is that when we read the Mishnah on stoning, in Seder Neziqin, Massechet Sanhedrin, we see that stoning is described in relation to s’qilah, namely via a heavy stone thrown on the sentenced in order to crush him (after having been pushed down from a height of two men – maybe an influence from Roman law, though not of interest here). If he does not die from this, a second heavy stone is thrown at him by the witnesses, and then – if he should survive that as well, he is to be pelted by “Israel,” that is, the people witnessing the stoning. The word used in order of the heavy stones is s’qilah, while the term used for the people pelting him is regimah. Here we clearly see the difference between the two terms, the one relating to crushing with a heavy stone, where as the other is relating to stones thrown/pelted at somebody. For the Hebrew speakers it might be interesting to read the verses in the Torah with that knowledge in mind, and see what meaning the verses give you now – and please write in a comment what you got out of it, could be interesting to hear.

Stoning in Islam is solely described with the term rajm, that is, the Arabic version of regimah. The understanding is the same, pointing at a shared Semitic origin. Also, if we read ancient Semitic laws, such as Hammurabi and the Eshnunna, we will see that the term regimah/rajm is also used, so there is a pre-Judaic/Islamic origin of the regimah/rajm.

Considering these details, and many more which I also describe, it is hard to reach the conclusion that the stoning of Islam is influenced or even borrowed from the Jewish ditto. Rather it seems like they share a common origin, but Judaism developed the concept of stoning, maybe influenced by some non-Semitic sources. It seems more that the Islamic concept of stoning is of a pre-Islamic Arabic and maybe even Semitic origin, going back to early Aramaic-Arabic relations, long before Islam.

This was the first part I dealt with in the paper. The second part is relating to the Schacht-Hallaq impasse (!!), and their claims. Schacht believes that stoning is a later Islamic concept, most likely borrowed from Judaism, and from Iraqi-Jewish sources (such as the Talmud and the early Geonim). Schacht sees the Iraqi Muslim scholars and jurist as the definers of Islamic law, particularly Shafi’î, who is considered one of the greatest and earliest Islamic legal minds, and the founding father of the four roots of Usul al-Fiqh (Quran, Sunnah, Ijma, and Qiyas). Hallaq on the other hand sees the Hijaz as the legal forming center, and refuses Schacht’s critical attitude to the hadiths. Hallaq sees a lot of pre-Islamic Arabic legal practice as the base for later Islamic law, or at least sees Islamic law as being founded in a shared Semitic origin, rather as mere borrowing from Jewish or Roman law (the latter is something Schacht believes strongly being the source of much of Islamic law).

But relating this to stoning. Since Schacht believes that stoning only entered Islamic law some centuries after Muhammad’s death, and that it is based on Jewish traditions, while Hallaq sees the opposite, what can my study say about this? I think it’s obvious. The Islamic concept of stoning does not seem to be much influenced by the Jewish concept. If indeed Islam “borrowed” the Jewish stoning as a punishment, and this is based on Iraqi Muslim scholars’ meeting with Jewish ditto, why then use the term rajm, and not for example shaql, based on the Hebrew s’qilah, or a derivation thereof? Why do we not see more similarities, or rather any similarities? Why is one judge enough to judge in Islam, when twenty-three (or more) is needed in Judaism? Why are four witnesses needed in Islam, when two is enough in Judaism? Why is Islam more focused on the status of the person, when Judaism is more focused on the crime being done? And so on. It seems a little weird to claim that the Jewish concept of stoning should be the base for the Islamic ditto, when so little is similar between. And Roman law is totally out of the question – as far as I know – since stoning is not used as a capital punishment.

I would rather believe that the roots of Islamic stoning is found in a Semitic environment not being too exposed to non-Semitic cultural encounters, and of all places I can think of the Arabian Peninsula is the only place that could be, which would mean that stoning in Islam most likely is based on pre-Islamic Arabic practices. And if that is the case, then this is definitely going in Hallaq’s favour.

Of course, stoning could be based on Sassanian law (pre-Islamic Persian dynasty), but my knowledge about Sassanian law is close to non-existent. So if anyone out there can enlighten me on that subject I would be grateful.

Some notes here in the end I probably need to share, which is obvious from the paper itself, but not from what I have written here: The Quran says nothing about stoning as a punishment. On the contrary, the Quran prescribes lashes as punishment for adultery. I related only to Sunni-Fiqh, not Shi’a, and I based the paper on the Maliki al-Muwatta, though many of the hadiths I related to also are found both in Sahih Bukhari and Sahih Muslim. I also only related to the Mishnah, not so much to the Gemarrah, since the Mishnah lays the foundation and the Gemarrah only relates to the broadening of details. Furthermore I spent some space in the paper on discussing the hadith about the two Jews being brought to Muhammad, and the problematic nature of ‘Abdullah ibn Salâm’s involvement, considering that he should have been a learned rabbi, in comparison to the details being presented in the hadith.

With that said I think it’s time to stop. Thanks for your time.

All the best.

The Quran and the Biblical Texts

BS”D

Warning: This post might be somewhat offending to some Muslims, since it deals in part with the Quran outside the Islamic traditional understanding of it and its message.

As I explained in my last post I did four assignments, and one of them was about how the Quran views and understands the Biblical scriptures. I am not going into detail or post the whole assignments here, that would be a little too much, but there were some aspects which I found rather interesting.

First off, I based the assignments on the findings of Gabriel Said Reynolds (which can be found in his “The Qur’ân and its Biblical Subtext”), who argues that the Quran, as far is it being studied by academics and on its own, should be studied in light of the Biblical texts, which – for him – gives more sense than reading it in light of tafsirs (Islamic commentaries), since that would mean that one would study the Quran through an afterthought, rather than relating to what might be the basis for the Quranic thought, which according to Reynolds are the Biblical texts, and I understand why he thinks so.

Though Reynolds’ book in itself is very interesting I won’t deal so much with its details here – though I might in another post – but more relate to his overall concept.

The second scholar I related to is Mondher Sfar and his “In Search of the Original Koran: The True Story of the Revealed Text” (translated by Emilia Lanier). This book is most likely to offend quite a lot of Muslim minds, since it basically attempts to challenge the Islamic traditional understanding of the Quran as revealed text and how it is revealed. Nevertheless I found it being somewhat in line with Reynolds’ book, and since I did want to challenge the normal understanding of how the Quran viewed the Biblical texts, I related to these two books.

Besides that I related to a etymological inquiry into certain terms, which normally are considered to be related to the Biblical texts, such as Tawrat (Torah, the Five Books of Moses), Zabur (the Psalms of David), and the Injil (the Gospel, relating more to the revelation Jesus got according to the Quran, rather than the four gospels and the New Testament as a whole). I also delved into the usage of suhuf, meaning scrolls or parchment, as well as kitab, meaning book. The two last terms seemed to be rather general, so I did not spend so much time on them. Here I related heavily on Jastrow’s dictionary, as well as the six translations of Pickthall, Yusuf Ali, Sahih International, Muhsin Khan, and Dr. Ghali (all as found at Quran.com – I can highly recommend the website).

What is interesting is not so much that the Quran views itself as being from the same source (God), or that carries the same significance – that it is sent in order to guide in the right direction, as a law from God. What is interesting is that it hints several places that the details of this divine law is not the same as it is presented in the Tawrat, Injil and in the Quran itself. It does hint at the Tawrat being specifically for the Jews, the Injil specifically for the Christians, and the Quran specifically for the Arabs/Muslims. We see it particularly in the fifth Surah (chapter), where Muhammad deals with the question of law and judgment.

What I was especially surprised about was the zabur, which traditionally has been interpreted and understood as being the Psalms of David. This is understandable, considering that David is connected with a revelation called “zabur,” but the term is also used in other contexts. In the following I will quote what I wrote in the assignment:

Zabûr (زَبُور )

Zabur, which root (ز ب ر ) appears 11 times in the Quran, in the forms zubar (زُبَر – 18:96), zubur (زُبُر – 3:184, 16:44, 23:53, 26:196, 35:25, 54:43, 54:52), and zabur (زَبُور – 4:163, 17:55, 21:105), is normally understood as the Psalms given to David, though it is not clear whether it is the collections of psalms as they appear in the Bible (תהילים ).

In Lane’s dictionary he relates to Ibn Barî saying that the ”zibur” (الزبر ) means ”the Book of the Law revealed to Moses and the Gospel and the Kur-an [together]” (Lane, ”Arabic-English Lexicon”, on زبر, pp. 1211). I do not see the sense in relating this root to any other than the one hinted at by Ibn Barî, though he does not mention David in this relation, which is related to the zabûr in the Quran.

21:105 vs. 54:52 – 21:105 speaks of it being told that the righteous will inherit the land, while 54:52 speaks about recording deeds of the criminals. It could be understood from this, that the Zabur is something holding records of people deeds (?). But is it all people, and if so, all in the same “zabur”, or is it only the criminals as it might appear from 54:52 (in this case relate to Pickthall’s translation of zubur to “books of dark prophecies”).

When we relate to the use of the term, we see that it is used with different though related meanings. From a number of verses do we learn that zabur is something sent to more messengers (Quran 3:184, 16:44, 26:196, 35:25 – all expressed in the plural). There does seem to be a contrast between zabur, used in singular, and other messages sent to prophets, where the messages in general is sent to a number of messengers, but the zabur, with the definite article, is related to David only (Quran 4:163, 17:55). These are two of the only times zabur in singular definite form is mentioned in the Quran, the third being in relation to a statement about the righteous and their destiny as being the inheritants of “the land” (Quran 21:105), a statement which reflects Isaiah 60:21 – a possible connection – which could tell of an understanding which covers more than only the Psalms of the Bible. This could hint at the real understanding subscribed to the term, zabûr, to cover those part of the Bible (the TaNaCh part), which includes the Prophetical books as well as the Scriptures (the “NaCh” part, if not all, then at least in the overall meaning). This would also seem to confirm Reynolds’ approach, confirming the link and connection to the Biblical texts. If we relate to the Jewish traditional organization of the Bible, the prophets are gathered under one, “Nevi’im”, and it would seem that this could be the relation between the zabûr and the Biblical texts, except though in the case of the linking of the zabûr to David. Why zabûr is connected, if at all, to the Psalms though these are not normally considered prophetical by the Jewish tradition, can be related to how the Christian tradition views them, indeed as being prophetical, and considering how often the Psalms are connected to being prophecies about Jesus, in some way or another, it is no wonder if the Quran would view the Psalms as being part of the Divine revelations.

Based on this I believe that it would be correct to only understand zabûr as the Book of Psalms in the two cases when it is prescribed to David, if we should understand it in this relation at all, while in any other case, when the Quran talks about az-zubur and az-zabûr (in 21:105) as covering the Bible, except the Torah. It would also seem weird that the Quran did not have any concept of the rest of the books in the Bible, if we only understand zabûr either in context of the Book of Psalms or as covering all Scriptures in general, an understanding I believe we rather should find in the usage of kitâb.”

And with that I will stop here. Please comment and ask if there should be any questions.

All the best

Studying Early Islamic Law

BS”D

 

So I have been busy finding material and sources for the coming assignments. Or at least for the seminar paper. As you might remember I’m going to focus on possible Jewish influences on Islamic legal thought, something which brings me back to the two first centuries AH (the 7th and 8th century), in order to see if we can find any hints of influences. It’s going to be problematic, for sure, but hopefully also very interesting and learning.

Of primary sources I have, so far, decided to focus on writings of madhhab al-Hanafi and maddhab al-Maliki, as well as ash-Shafi’i’s ar-Risâla (noticing that I’m using a phonetic transcription, eh;o). I already have gotten my hands in al-Muwatta, the “law-book” of Imam Maliki, as well as ar-Risâla, but I still need to find writings of the Hanafi law school, so if any of you out there know of any online resources of early Hanafi writings, then please let me know.

Secondary sources have been extensive, fortunately. Of major importance are books and articles by Goldziher, Schacht, and Hallaq. The first is a little outdated, but his observations are of major importance, and have played a huge role in the study of early Islam. Schacht, with his “Origins of Muhammadan Jurisprudence,” is (still) considered one of the giants when it comes to the study of Islamic jurisprudence, while Wael B. Hallaq is the scholar of Islamic law of our days, taking points with many of Schacht’s theories. Especially one of the points of discussion between Schacht and Hallaq is of importance for me, namely which geographical center played the greatest importance, Iraq or Hijaz (Mecca and Medinah in particular). Also on influences do they differ, Schacht pointing to many possible (and like) influences from Roman law, whereas Hallaq attempts to explain these influences as not being influences (for another scholar on this subject, see Muhammad M. al-A’zami). Another scholar, who doesn’t get much mentioning in the Western world, is Ahmad Hasan, who also deals with these subjects on an introductory level in his “The Early Development of Islamic Jurisprudence.”

As far as the question of which of the centers that left the biggest impression, it will be of importance to me in terms of the possibility of relations between Jews and Muslims in the first centuries. Since there, as far as we know, were no great Jewish presence in the Hijaz after the death of Muhammad, it is unlikely that there was much contact between early Islamic scholars from that area and Jewish ditto. That would be much more likely concerning Iraq, where we have the greatest Jewish centers of law of the time. That Hijaz would be of greatest importance, does not rule out any Jewish influence though, especially not considering that Shafi’i attempted to assimilate the two traditions in one, and – apparently – succeeded in it. But also here do we see differences of opinion between Schacht and Wallaq, the former believing that Shafi’i was the concluding scholar of great importance, whereas the latter only believe that that importance came some centuries after Shafi’i’s death.

There are some threads I have to deal with in this subject, though I won’t be able to focus on all of them, only one or two. As stated earlier, it is an extensive subject, which also can be seen from the books written by mentioned scholars. Especially Hallaq has attempted to deal with this in depth and via more books, so I don’t believe myself being able to deal with the subject on a satisfactory level, unless I be very specific in my focus.

Time for Exams!

BS”D

The finals for this semester are closing in, and it provokes the inevitable question: What am I going to write about in my assignments?

This summer will present me for five finals, which all need a written assignment, one of them being a seminar paper, so there will be a lot of writing, which is fine, I do love to write, but it also takes a lot of extra reading. Nothing to do about that, besides to read.

What is nice about this semester, contrary to the last, is that I have more freedom to choose subjects, so the subjects will be more interesting for me. Anyway, as far as I have decided the subjects I am going to write about are:

The Use of Quranic Verses in Umayyad Architecture: In the course Archaeology and History of Muslim Jerusalem I have been wondering where to put my focus. Since the course mostly focused on the archaeology, and not so much in the history (well, it is part of it), I wondered how to combine it with my study of religion. My decision fell on the use of Quranic verses, which seems to be have very widespread during the Umayyad Caliphate, e.g. in the Dome of the Rock, so I thought that it could be interesting to see how the Quran was used as part of architecture and whether it was meant as some sort of educational tool, as was the case with other expressions of thought, e.g. in mosaics.

Christian Thought on Free Will: In the Early Christianity and Late Antiquity we have dealt most of this semester with studies on Augustine. In one of the classes we dealt with another Christian and contemporary of Augustine, Pelagius, who did provoke some controversy, among other thing on the question of free will and original sin. I found the thought interesting, especially from a theological point of view. Do we really have free will? If not, is God then Just? And if so, is God then All Powerful? It’s going to be interesting to see what these two thinkers thought of it.

Abraham ibn ‘Ezra’s response to Muslim Polemical Arguments: In the Medieval Jewish Exegesis we have dealt with the commentaries and methodology of four great Jewish commentators from the medieval Western Europe, namely Rashi, his grandson Rashbam, Abraham ibn ‘Ezra, and RaMBaN. Since I am mostly focused in the meetings between Islam and Judaism, I have decided to focus on ibn ‘Ezra and possible answers against Muslim attacks on the Jewish faith. I have to admit that I’m not too sure whether he really did deal with it, so I might change focus to his answers to the Karaites instead, in order to keep my focus on the Muslim world.

The Jewish Convert’s Attack on Judaism, and the Jewish Thinker’s Responses: The Battle over the Bible has really been an interesting course, where I’ve learned a lot of new things concerning approaches to the Bible as text and as phenomenon, both concerning Jewish, Christian and Muslim attitudes. Especially one Muslim caught my attention, the 12th century Jewish convert, Samaw’el al-Maghrabi, who wrote a polemical work against the Jewish faith called Ifham al-Yahoud, Silencing the Jew. This work apparently did become rather known, since we see a lot of later responses to it. One who responded rather early is Maimonides, though not on all of the Ifham, and probably not directly on it either. In his Iggeret Teyman, Letter to Yemen, he responds on some of the claims which is being brought forth in the Ifham. It could be interesting to see how the two view the Bible, and how Samaw’el’s approach differ from earlier Muslim approaches to the Bible.

Jewish Influences on Early Islamic Jurisprudence: This is one I’m really looking forward to, and which I have spend a lot of time considering. In the Early Islamic Texts and the Formation of the Muslim Community I have chosen to write my first seminar paper. I did decide from the outset to focus on Islamic law, since I feel that there are a lot of similarities between law in Islam and in Judaism, both in rules but also in methodology and attitudes. It is going to be a challenging subject though, leaving me with four problems to choose between. The first is the obvious comparative study of Jewish and Islamic Jurisprudence, where I wondered about whether there are any Jewish influences in the way early Islamic scholars approached the deduction of laws. One reason why I think so is the contrast in method there existed between the two earliest schools of law in Islam, al-Maliki and al-Hanafi, the former being situated in Medina and Mecca, and traditionally focused on tradition, based on the logic that since the prophet lived there, then he would naturally correct people who did things incorrect as well as showing the people the correct ways, whereas the latter, situated in Iraq, was much more inclined to relate to logical reasoning, something they might have learned from the many great Jewish scholars which had their ancient dwelling there, namely in the old Babylon. It wouldn’t be totally weird for the early Muslims to have relations to the Jewish scholars of Iraq. This doesn’t mean that there was influences or that they were total in so far as there were. The problem is how to relate to the matter, do we choose to make an external or internal study, do we compare the apparent similarities or do we go in and focus on the approach and outlook.

The interest in this particular subject was raised by two articles, one by Judith Romney Wegner, “Islamic and Talmudic Jurisprudence: The Four Roots of Islamic Law and their Talmudic Counterparts,” and one by Joseph E. David, “Legal Comparability and Cultural Identity: The Case of Legal Reasoning in Jewish and Islamic Tradition.”

In Islamic Jurisprudence there are four sources traditionally, two revealed sources, Quran and the Sunnah of the prophet (as it is found in the Hadith-literature), as well as Ijma, which means consensus, as well as Qiyas, which means analogical reasoning. The two first sources are agreed upon a hundred percent by all four schools, where as the two latter sources are subject for discussions.

Wegner, in her article, argues that the four sources are influenced by Jewish sources in the Talmud, the Quran being the Islamic answer on the Written Torah, the Sunnah on Oral Torah (written down in what is called Mishnah, which root is close to the root of sunnah), the consensus of the Ulamah, the learned Islamic scholars, being the Islamic answer on the consensus of the Sages, and Qiyas, legal reasoning being the answer on the Talmudic reasoning, two forms of reasoning which seem pretty similar, at least from an external point of view. And it is here where David comes in with his article, where he deals with different approaches to the comparative study, attempting to present a new approach, “jurisprudential consciousness”, based on the conscious ideas, principles, concepts, beliefs and reasoning of the jurist, which contrary to Wegner’s approach is a much more internal approach, leaving a different impression than the first.

An example is in its place, taken from David’s article. In both the Talmudic reasoning as well as in Islamic reasoning there is an understanding of judicial error, that is, a judge who makes a faulty decision. There are two categories under this subject, those faults which are based on lack of knowledge or understanding of the revealed sources, and those which is caused by flawed legal reasoning. In both Judaism and Islam the former has to be corrected, whereas the latter is accepted. And in both religions the former is based on precisely the same criteria, going against the revealed sources (in Judaism the Written and the Oral Torah, and in Islam the Quran and the Sunnah), where is the criteria differs in the latter case. In the Talmud the flaw based on legal reasoning is based on the wrong choice of two differing opinions, which have never been dealt with. It can be the case of two Tannaim (Mishnaic Sages) or two Amoraim (later Sages from the Gemarrah) who have a disagreement which was never solved. A later judge might then base his decision on one of the two opinions, whereas the general practice follows the other opinion. It is a fault, since he should have followed the normal practice, but it is still accepted. In case of Islamic thought, at least according to Shafi’i, the fault is caused based on flawed legal reasoning based on the principle of qiyas, analogy, not on the judge deciding the wrong of two differing opinions. And here we see a contrast between Jewish and Islamic legal reasoning.

But this is only the first of the four possible problems I might choose among. That is, how much similarity or difference are there between Jewish and Islamic legal thought, and can this be a sign of Jewish influence on early Islamic legal thought? The next problem is to establish connections. Namely, are there any Jewish converts who had influence on early Islamic law? If not, can we then assume that early Muslim legal scholars met with Jewish scholars and discussed with them? That is also an interesting question, a question which demands a different approach, focusing on historic accounts on interfaith meetings between Jews and Muslims within the first centuries of Islamic time.

The third question deals with the reasoning and methods of the “ahl al-ra’y,” the people of reasoning, the early Islamic scholars in Iraq, an important step in understanding the way the resonated in their dealing with legal questions. The reason for the importance of this, is obvious. If Shafi’i, a third century AH Islamic scholar, can be said to be influenced by Jewish thought, whereas the earlier Islamic scholar in Iraq differ strongly, then the question is how much Jewish legal thought influenced Islamic legal thought, and if at all.

The fourth problem is the already mentioned difference in approach found in the Meccan-Medinan legal thought, as expressed by imam al-Maliki, and the Iraqi legal thought, expressed by imam abu Hanifa, and their disciples. There are differences and the root and cause of these differences can be hinting to some Jewish influences on the one of them, so far as we can point to any similarity in the legal thought of the two religions.

My problem is to choose only one of these for problems, not having room or time enough to deal seriously with all of them. And I am in doubt which one of them to focus on.

So, there you are. This is my program for next two months. I’m looking forward to share thoughts and progress with you.