A Jewish Voice

Home » Posts tagged 'law'

Tag Archives: law

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.

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.

Long time no… posts…

BS”D

 

The summer is over, but it hasn’t been spent on vacation – on the contrary, I have been busy with exams and new job, which is why I haven’t written anything for quite a long time now. I’m sorry, but I haven’t had many free moments, and the few I’ve had – besides those spent with my wife and the kids – have been spent on struggling with stupid administrational and economical things caused by confusion and misunderstandings. It is amazing how much mess such things can create.

Anyway, I originally had five tests, four of them written assignments on around ten pages each, and one seminar paper on around 30 pages. I had to cut one of them of, since I simply couldn’t manage it. I hate it, but I have to accept my limits at times.

Anyway, those subjects I did write about was spread over subjects such as questions related to the medieval Jewish exegesis (which I already got a result from, an A, yeah!), an assignment on Augustine and his reaction to Pelagius on the concept of Original Sin (I’m not expecting much from that one), on the Quranic conception of the Biblical Scriptures (following a rather fresh approach by Gabriel Said Reynolds), and finally the seminar paper on a comparative study on stoning in Judaism and Islam, in order to find any possible influences (close to none).

I will probably write more about them in the coming, but not in this post.

I was also asked to write an essay on Amutat Wagner Israel for HaAretz, something I got really excited about, but I’ve never got a reply on it, so I take it that it wasn’t of interest anyway, unfortunately. That essay I might also post in the coming, I need to find out what happened.

As said there hasn’t really been any vacation, so I haven’t experienced any crazy interesting things, so all I would have to tell you about is my studies, and that’s more or less as it use to be I guess. But a few words of what will come. In the coming semester my focus will be more contemporary. I’m going to follow courses in how to understand the current trends in the study of religion, which basically covers all subjects within this theme, as well as a course in the history of Islam research (two different curses, but connected in theme). There will also be a course in religion and politics in a comparative perspective, which will focus on the interrelationship between religion and politics, as it is understood and perceived from the view points of religions, as well as a course in the structure and changes of the modern Middle East, also somewhat connected in theme but not related to each other besides that. That means that I will be focusing on more modern themes and subjects, as well as taking a step a little outside the religion. Where I earlier focused on what any given religion said, I will now be more focused on how we study what any given religion says. It will be rather refreshing I think.

So, that’s it, I think. More or less for now at least. In the coming I will be sharing a little from my assignments and studies, particular the stoning will be mentioned, since I spent quite a lot of time on that one.

Take care all!

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.

Why Law and Religion – The Attempt to Define Identity

BS”D

I have earlier talked a little about why I chose to study religion, but the other day I was asked why I chose to focus on law in religion. What is it about law, which triggers me, makes me aware, makes me want to understand the finesses and theories, which by others would be considered way too boring or abstract to even begin considering it? Well, it’s a little complicated to explain, but I will give a try anyway. But first I need to correct something I wrote in the before mentioned post on why I chose to study Comparative Religion. There I wrote that I would be focusing on the role of the woman in Israel, something which has changed. Or actually, I returned to my first focus though I at the time wasn’t so sure that that was my focus. What I want to say is that my focus is going to be on the mutual attitudes between Jews and Muslims, especially in the context of religion in Israel.

But there’s more to it than that. During my under-graduate studies I took my minor in cultural studies, where identity and the thought on identity preoccupied my quite a lot. It still does. The whole question of how we identify ourselves and what influences this really talks to me, I find it fascinating. Not only that, how do we relate to each other based on that, is also something which, I think, is of crucial importance.

Law and religion is two very strong identity markers, each in its own way. Religion as deciding on identity is obvious, people normally identify themselves according to what they believe, in some cases according to what they think they believe, as well as relating themselves to those who share their beliefs. Law is different; law is more of a deciding factor in how you are identified by those deciding the law. Law doesn’t care much about feelings, only facts (true, those deciding the laws might pay attention to feelings, but they will still have to establish a structured defining system, otherwise making the law too vague to decide anything). But law can also be influenced by those following it or relating to it, by whether they accept it at all (or have to be forced to it) or choose to relate to another system of laws instead. And what will happen in that case?

I’ve downloaded the introduction to a book called “Law and Identity in Mandate Palestine,” written by Assaf Likhovski, which deals a lot with what I’m focusing on, though not so much from the perspective of religion. Likhovski writes about his book that it “is a book about the role of law in defining the self and the collective, in balancing tradition and modernity, Western and non-Western norms. Every non-Western culture confronts this problem, which also constitutes one of the main issues in the momentous conflict between Islam and the West that is now unfolding before our eyes. In this battle, law plays an important role. It serves as a banner under which combatants fight, a weapon for overcoming enemies, a middle ground for meeting them. Law also defines the nature of the participants in the conflict.

Law is definitely defining for identity, especially in relation to who is among “us” and who isn’t. Everyone the law grants rights and citizenship is per definition one of “us,” everybody isn’t granted this is not. And law is used in this perspective as a weapon, everybody with just the faintest knowledge of the right of return here in Israel, should be aware about that.

Likhovski later relates to the status of the whole matter of identity in then Palestine, and how it was without any clear form:

“Another singular aspect of the country was the unstable identity of its inhabitants. Many twentieth-century societies witnessed a process of identity transformation— the rejection of traditional identities based on religious or tribal loyalty and their replacement by modern national identities. But in mandate Palestine, the process of identity transformation was especially evident. Here Muslim and Christian politicians were engaged in constructing a new Arab identity following the disintegration of the Ottoman Empire after World War I. Zionist Jews were busy creating a novel “Hebrew” self, purged of the marks of the Jewish exile. Even British rulers were occupied with reexamining the foundations of their imperialism in response to the challenges posed by the interwar era.”

I believe we still struggle with the problem down here even today. I can point to a couple of examples on the struggle between identities, for example Israeli vs. Jewish, Palestinian vs. Israeli, Arab vs. Palestinian, all being dealt with in extensive discussions. For example, according to the law on Right of Return every Jew, descendant of a Jew, or spouse of a Jew, has the right of return to Israel, becoming a “Oleh Hadash.” There are some exceptions and details influencing the final decision on whether one is allowed in or not, but all in all the law is rather clear. Or actually it isn’t. The problem is who is a “Jew,” a question which has been discussed for millennia (just see the Biblical account on the ‘Yehudim’ vs. the Samarians in the Book of Ezra and Nehamyah), and today is the cause of great fights between various Jewish groups, particular between the Reform movement in the States and Orthodox Rabbinate in Israel. Here a secular law is suddenly being caught up in the discussion of a religious law and how it should be deciding in favor to or against a defined group of participants. The problem is not so much on those descendants from Jews, being for sure Jews, but rather those who convert within the Reform movement and as such will not be recognized as Jews by the Orthodox Rabbinate.

Another example, to stay here in Israel, is the one of being Palestinian and/or Israeli. How are Palestinians defining themselves here in Israel? The vast majority of them do define themselves as Palestinian, though some refuse to define themselves this way, but rather prefer to describe themselves as Israeli Arabs. Some define themselves as Israeli Palestinians, but still, most define themselves as Palestinians with Israeli citizenship, or so it is my experience. But it doesn’t stop there, this is only a question of nationality and belonging to either or both nationalities (Palestinian and Israeli), another question appears when we deal with religion, having most Palestinians in Israel being Muslim, but a large majority being Christian, and the religious definition is important, and can be of crucial matter, also in comparison on whether one first define him or herself as Muslim or Palestinian. This is a matter which can cause conflict between the Islamic movements and the nationalist movements. Take an example as Hizb ut-Tahrir, which calls for a Caliphate, not a Palestinian state (since that would be a national state based on Western ideas and as such against Islam), and how their expectations would clash with the nationalist expectations of the more secular Palestinian movements (or maybe even other Islamist movements not sharing the same expectations).

In the meeting between religion and the secular society, especially in the question of law, insights and understandings of how identity is defined, as well as the flexibility and demands of the religion is extremely important. Does the religion demand total loyalty, denying any acceptance of other authorities besides its own authority? How does it allow to rule on behalf of it? How are we dealing with conflicting identities and definitions of identities? Those questions are among the questions I hope to deal with, because in a country like Israel these questions are important to answer, in order to understand the relations and mutual attitudes between Jews and Muslims of today. And that is why I’m focusing on law in the two religions. Among some other reason as well.

The Question of the Synagogue and the State

BS”D

First some commercial: If you’re on Facebook and you’re interested in interfaith discussions between Jews and Muslims, which are conducted with a good and respectful attitude, then I encourage you to visit the group “Jihadi Jew.” I can’t emphasize enough how important it is with a respectful dialogue between Jews and Muslims, and how rare it is to find a place offering it. Jihadi Jew does just that. It is created by a Jew, Lee Weissman, and moderated by two Muslims, Heshke (who occasionally comments here, even though I’m not so good at responding lately, sorry Heshke), and Marc.

Please check out the group (You can find it here: https://www.facebook.com/groups/jihadijew/)

I’m not making commercial for it without reason though. There is an ongoing discussion in there on the question of state and “church” (church more being synagogue or mosque in this discussion), and one of the participants asked me for my opinion. I promised an answer earlier, but I have to admit that I’ve simply been pondering on it for some days now, not feeling that I could formulate an answer clearly, which would express my thoughts, without it getting way too long for the thread in there.

So I’ll try to formulate an answer here, BE”H, since it might also interest some of you out there.

First off, my premise for dealing with the world and other human beings is based on two ethical teachings, both being expressed by the Jewish rabbi, Hillel, Z”L, though at least one of them (known in differing forms, by the name of “the Golden Rule”) has been expressed by other spiritual teachers as well.

The first is found in the Babylonian Talmud, Shabbat 31a, being presented as an answer to a man partly wanting to mock him by requesting him to recite the whole Torah while standing on one leg: “What is hateful to you, don’t do to others!” The whole sentence includes “this is the Torah, the rest is commentary, now go and study!”

My approach in context of my expectation to others and my behavior in the meeting with my fellow being is based on this, not to act in a way or demand things, which I in return wouldn’t appreciate from the other person. And this is indeed Torah, as Hillel states, but it is also a very basic wisdom of life, which I believe that all should accept and strive for. True, I’m not perfect and I at times act in a way, which I wouldn’t appreciate very much myself, but not being perfect doesn’t mean that one shouldn’t strive to get better.

The second sentence is found in Pirqei Avot (1:14): “If I am not for myself, who will be for me? And if I am only for myself, what am I? And if not now, when?” He teaches us to take responsibility for ourselves, for if we don’t do it ourselves, then who will? We need to be focused on our own needs, to attempt to improve our lives and our manners. But if we only focus on ourselves, then what are we? We can’t stop with the self, we also have a responsibility to relate to our fellow human beings (don’t do to others what is hateful to you, don’t ignore the needs of others, when you yourselves would hate to have your needs ignored. We are not alone in this world, human is a social being). And we need to act now, in this moment. We don’t know what the next moment will bring.

These are the basic teachings in my relation to the world. I keep them as guiding principles, attempting to follow them in each choice I take. Another teaching of his I also attempt to follow, but which isn’t so crucial for the understanding of my approach to the question of synagogue and state, is “Be among the disciples of Aharon, loving peace and pursuing peace, loving people and drawing them close to Torah!” (Pirqei Avot 1:12).

When I consider the question of synagogue and state, then a number of opportunities come to mind. By now I have lived in two countries who both have official religions, Denmark and Israel, the one Christian (Lutheran) and the other Jewish. The extent of the religious influence is way bigger in Israel than in Denmark, where religion at times are shunned by the population, and where the population are deciding for the religion, more than the religion is deciding for the population, whereas it is the opposite in Israel.

I wonder how it is to live in a country, where the church and the state is totally separated? I don’t know. In Denmark it seems like the religious are beginning to ask for this, at least some of them (when I say “religious,” I’m thinking about the practicing Christian part of the population), though that definitely isn’t consensus yet. The motive behind this wish for separation is a wish to keep the state out of church matters, something that I fully understand, since the state is basically trying to define theological questions. And it isn’t without a sense of irony that it has to be pointed out that the minister for the ministry of the church is a Hindu, who is trying to force the church to accept homosexual marriages. Whether I’m for or against this is not the issue here, personally I don’t care much for church matters, but the motive behind this attempt is clear. The church is a popular church, a church for the people, and since the people isn’t only consisting of practicing Christian heterosexuals, then it should not only be for them. That is the motive, it is not necessarily my thought.

In Israel it’s the opposite. Since Israel is a Jewish state (whatever that means) then it is in the belief of the ministers of religious affairs, that Judaism (rabbinical Judaism) should be the defining norm, relating a range of questions to the matter of Jewish religious law (Halachah). And since the Jews in Israel are citizens in a Jewish state, then they are also (more or less) forced to accept this law. Whereas the church of the people in Denmark is defined (to a certain extent) by the people, then the synagogue of the people in Israel is defining the people.

It has to be said here that non-Jewish citizens are under the authority of whoever is accepted/elected as their representatives. In that matter Muslims are not married according to Jewish religious law, but rather according to Islamic law and practices. The same goes for Christians and so on.

But this mean that if a Jew and a Muslim is falling in love (a Jewish man and a Muslim woman) and want to get married, then they have no opportunity to get married in Israel, unless he converts to Islam or she converts to Judaism, no matter how secular and irreligious they might be. Whether they are spending their Shabbats in front of the television, the nights getting drunk, and they are eating pig for dinner, then they still have to be married either as Muslims or Jews. Of course, they can go to Cyprus and get married there, a marriage which then is accepted by the Jewish state (though not by the religious authorities). And you can forget being a homosexual wanting to be married here.

Let me point it out very clear for everyone: I am a practicing Jew who believes in the Torah. I accept the Oral Tradition and believe that it goes back to Moshe Rabenu, A”S, as well as I believe that we should follow Halachah (we being the Jews). But I also believe in the ethical teachings of R. Hillel, Z”L, and therefore I don’t want to do to others what is hateful for me. I don’t want to force rules or laws on people, which isn’t decided by the general population (there will always be those who disagree no matter the law or decision). Therefore I don’t believe that Halachah should be forced on people who don’t believe in its higher level of spirituality, compared to secular law and our own faulty decisions. Yes, I do believe Halachah to be Divine, and I do believe that the perfect society would be following Halachah, but it would do it from an understanding of the necessity of the Halachah, not because they are forced. And – to be honest – by establishing a Halachic society with Torah as the foundation, we would need a true righteous leader, one who would be the example for the others to follow. And he simply doesn’t exist, his time hasn’t come. And since that is the case, then I can’t support any state as being lead by Halachah, but rather want to encourage each Jew to accept it in his or her life for themselves. Only by acknowledging and accepting it themselves, would it be able to fulfill its Divine purpose in our lives.

That said then I do believe it needed for the societies to offer the opportunity for people of any faith, to live according to that faith, as far as they participate and accept the laws of the country. We have an expression in the Talmud, Dina Malchuta Dina, the law of the land is the law (Bava Kama 113a, Bava Batra 54b-55a et.al. The extent of the principle is discussed among the Rishonim (the medieval rabbis), some stating that it is only related to financial matters, where others state that it is in general where the law doesn’t go against the Torah), at least so far as it doesn’t force people to go against the Torah. For example, should ritual slaughter be prohibited in Denmark, it wouldn’t mean that the Jews in Denmark would have to eat unkosher meat, though it would make it hard for them to find and achieve kosher meat.

So, to conclude, I’m not for a state synagogue. I am for a secular society where there is room for the believers of each faith (or lack) to live and fulfill their religious beliefs.

Two recommendations

BS”D

 

Once in a while I try to find new interesting blogs, and sometimes I am lucky. Today I feel myself really lucky, having found two blogs, one called The Talmud Blog, publishing mainly articles on the study of the Talmud, and another called The Immanent Frame, publishing articles on the interdisciplinary perspectives on secularism, religion, and the public sphere. I highly recommend any with interest in the subjects to visit either or both, they are seriously goldmines.

Especially one writer, Lena Salaymah, who writes on The Immanent Frame, wrote an article for The Talmud Blog, where she explains her motives for and thoughts on studying and researching Near Eastern Legal Culture. For my readers it will come as no surprise that exactly that is my focus.

The article is interesting and well-written, explaining and putting words on many thoughts I have myself, but which I haven’t been able to express as well as Salaymah does it. Especially when she writes about “proto-Semitic” that “as a metaphor, “proto-Semitic” offers a useful heuristic for thinking through how we approach the study of Jewish and Islamic law.  If you imagine scholars of Jewish law articulating their ideas in Hebrew and Aramaic, while scholars of Islamic law articulate their ideas in Arabic, then my objective is to converse with both groups of scholars in a meta-language (proto-Semitic) that engages both legal traditions.  Just as “proto-Semitic” is the common ancestor of the Semitic language family, Near Eastern legal culture is the shared antecedent of Jewish and Islamic legal systems,” do I feel that she puts the finger precisely on my own thoughts.

After I wrote my assignment on Ibrahim as an early Monotheist (which I will publish later on), did I feel too that we are dealing with a common Middle Eastern – or maybe rather Near Eastern – expression, more than we are talking about a “Jewish” on the one hand and a “Muslim” on the other. Of course, I’m not attempting to say that the two religions are basically the same, though there are many similarities to be find, they are not only products of their original geographical homes, and even so there would have been differences, but they are also that, products of their original geographical homes, and therefore – of course – have many similar expressions and thoughts.

I am looking forward to see what results she must create from her coming works, and I hope that you also will find it interesting, at least some of you.

Anyway, take a look of the blogs, I can highly recommend it.

The Talmud Blog

Thoughts on Near Eastern Legal Culture – Guest blog by Lena Salaymah on The Talmud Blog

The Immanent Frame

Comparative study on the law schools and overall structure of Islam and Judaism – Defining the Schisms

BS”D

 

Considering finding the comparison of the evolution of the Jewish maḍhab, I think there are some things that need to be in place, before we can begin the comparison. First off, one of the reasons the various maḍâhib appeared was the internal split as well as the geographical distance between the centers. People became more focused on their local center than on the overall center. When do we see the same in Judaism? Another thing which needs to be in place, is the acknowledgment of the same basic sources. When talking about Islam the split in the legal sources is the Sunnah and the Imams, where the Shi’as don’t acknowledge the Sunni compilations of Hadith, so the Sunnis don’t acknowledge the Shi’a ditto as well as the status of the Imams. Within the Sunni maḍâhib the basic sources where agreed upon, as they were, I believe, in the case of the Shi’a maḍâhib.

So we have two levels of comparison here. One is in the schism of disagreement on basic sources, that is, the sources considered holy and thus basic for further understanding of Allah’s will, the other the schisms within the major movements, where it is a question more about different principles in the interpretation of these sources, than the sources themselves.

When I think of examples on the first schism in Judaism, I find many and from various periods of time. During the Biblical times the obvious example is that of the Samarians and the Judeans. During the time of the Second Temple there are the schisms between the Pharisees and the Sadducees, the Essenes and the other Jewish groups (in regards to the status of the Temple as well as the priesthood of the Essenes), and later on between the Rabbinic Jews and the Karaites. Today we might even talk about the schism between the Orthodox on the one hand and the Reform on the other (with the Conservative movement somewhere in between). What is worthwhile to notice here is that we are talking about schisms, which emphasis the struggle on who are the right ones to define what “true Judaism” is, that is, where do we put the limits. That is also the case in the Islamic schism between the Sunnis and the Shi’as. Of course, which I dare say is obvious, it doesn’t mean that the two parts in each schism, whether Jewish or Muslim, denies the other side’s right to leave an imprint on the religion, as well as the case can be that sometimes the one part denies the other side’s right, while the other side acknowledge the right of the first side.

The schisms which I believe cannot be placed within this category of schisms, let’s call it the Schism of Who is Right, are those of the Ashkenazim and Sfaradim, and that of the Talmuds Yerushalmi and Bavli, simply because we have two sides, in both cases, agreeing on the basic sources.

This leaves me though with maybe even more work. First off, which groups should I focus on? It is clear that I need to decide on whether I focus on the Rabbinical Jews, the Sadducees, the Reform, the Sunni, or the Shi’as, for the sake of focus. Second off, I also need to establish whether we can find examples on the maḍâhib in all cases. Maybe I find it among the, let’s say, Karaites, but it doesn’t mean that it exists in the case of the Sadducees. I need to define my approach, my focus, and be able to explain why I chose that focus.

 

Some recommended reading:

 

“Studies in Usul al-Fiqh,” Iyad Hilal, can be found at www.islamic-truth.fsnet.co.uk

“Principles of Islamic Jurisprudence,” M. H. Kamali, can easily be found by search on Google.

“Hadith : Muhammad’s Legacy in the Medieval and Modern World,” Jonathan A. C. Brown. Oneworld Publication, 2009.

“The Most Learned of the Shi’a: The Institution of the Marja’ Taqlid,” edited by Linda S. Walbridge. Oxford University Press, 2001.

“Introduction to Islamic Theology and Law,” Ignaz Goldziher (translated by Andras and Ruth Hamori). Princeton University Press, 1981.

“Halakha in the Making: The Development of Jewish Law from Qumran to the Rabbis,” Aharon Shemesh. University of California Press, 2009.

“The Talmud: A Selection,” Edited by Norman Solomon. Penguin Books Ltd, 2009.

“Who Owns Judaism? Public Religion and Private Faith in America and Israel,” edited by Eli Lederhendler. Oxford University Press, 2001.

“For the Love of God and People: A Philosophy on Jewish Law,” Elliot N. Dorff. The Jewish Publication Society, 2007.

“An Introduction to the History and Sources of Jewish Law,” edited by N. S. Hecht, B. S. Jackson, S. M. Passamaneck, D. Piatelli, and A. M. Rabello. Oxford University Press, 1996.

“The Sages,” R. Ephraim Urbach. The Magnes Press, 1987.

“The Halakhah: Its Sources and Development,” R. Ephraim Urbach. Modan Ltd, 1996.