PAGE 5

Rmi Brague (Paris I / LMU)

Vienna, May, 2010

Christianity, Islam and the Law

First of all, thank you most heartily for inviting me to contribute my mite. Not a very mighty mite, since I have only a twenty minutes time-slot. In what follows, I will first bring back to our memory the historical origin of the idea of a divine law, drawing on a book that I published some years ago. Then, I will venture two theses on the nature of the problem posed by Islam.

The idea of divine law: a historical sketch

The idea of a divine law does not originate in any of the so-called three monotheistic religions. It is to be found, if not earlier, but parallel to them, in Greek philosophy and in its Roman heirs, say, in Plato, the Stoics, Cicero and the Roman lawyers. Nevertheless, the idea took a particular inflexion in the context of those religions. The distinctive feature is the idea of revelation. In Greek philosophy, law was divine precisely because it needed no revelation; in the religions, it was divine because it had been revealed by the Deity.

In my title, the most ancient of the three is not mentioned. I mean the religion which the Bible bears witness to. I prefer to stick to the habit of the historians, who distinguish the religion of ancient Israel and Judaism, such as it crystallized in the first Century of the Christian era. What is interesting for my purpose is that it constituted itself as a religion of the law.1) Judaism

Judaism was the first religion to do that. Let me sketch how this happened. I will distinguish two main steps. First, as in every people, there were sets of rules that regulated the behaviour of the inhabitants of the Land of Judah. Their place of origin varied. Some rules of purity were observed by the clergy in the Jerusalem sanctuary, some regulations of private law came from the kingly court, some broad principles of moral decency had been preached by various prophets, some were simply hardly conscious habits and customs of the people. All this was ascribed to Moses. When the Persians took hold of the country, they pursued the same policy of indirect rule as the Britons in India. They made the rules of Moses the guide-lines according to which people had to be judged in the law-courts. When the Hellenistic kingdoms replaced the Persians, they had Moses Teaching (Hebrew: Torah) translated into Greek, for the same practical purposes. They called this Teaching by the name of Nomos, i.e. Law.

The Jewish people was successively stripped of what constitutes the tokens of identity of any people, i.e. its country, its language, its political and religious institutions, i.e. its State, which meant, at this period of time, its king, and its sanctuaries. The people had been estranged from its native country for peaceful reasons: demographic excedent had driven many of its children to make a living abroad, on the shores of the Mediterranean; they had assimilated the languages of the local nations, in particular Greek that was the lingua franca of Mediterranean trade, and forgotten the Hebrew of their forefathers. The loss of the state and the destruction of the Temple that had centralized and even monopolized religious activity in Palestine was the result of far more unpleasant events in the time of the Romans. Their domination triggered revolts that were ruthlessly suppressed in blood, etc.

The only principle of identity that remained was Moses Law. Former citizens of Palestine and former liegemen to the King had to abide by the rules that obtained in the land around Jerusalem, to behave as lawful denizens of Judah, in other words: they had to ioudaizein, to observe judaism.2) Christianity

When Christianity entered the scene of world history, Jewish Law, such as we know the present day halakhah, did not exist yet. It was slowly emerging from the painstaking and subtle discussions of the lawyers. It acquired its full-fledged form first in the Mishnah, around 200 after Christ, then in the Jerusalem and in the Babylonian Talmuds, around 400 for the former, 500 for the latter. Jesus did not preach a new moral code. He simply took already existing and in fact everlasting rules more seriously than they understood themselves, brought them back to their source in human moral intention. His disciples related them to his overall attitude of obedience towards the Father and of self-sacrifice on behalf of his friends. When s. Paul decided not to foist upon new converts the most unpleasant dispositions of Moses law like circumcision, he did not dispense them of observing the basic rules of decency, which noble pagans who had never heard of Moses law did. In order to explain the origin of this code, Paul borrowed two concepts from Greek philosophy: nature (phusis) and conscience (suneidsis). This code was supposed to hold good for each and every man, regardless of his or her social status and ethnic background.

Furthermore, in the Roman Empire in which Christianity spread, there already was a law. Insofar as they wanted to be lawful subjects, the Christians had to abide by its regulations. After conquering Roman society, the Christians simply took over Roman law with some minor corrections. They never had to produce an original code of law. They did not even produce a new morality. Probably they did not even had to do that, or, if they had wanted, they could not have succeeded. For who has ever created a new value?3) Islam

When Islam appeared in the 7th Century, it was first the religion of an Arabic-speaking military caste that had taken hold of large parts of the Middle East. Christianity conquered the State apparatus that first persecuted it because it had first converted society. With Islam, it was the other way around: it converted society because it had first conquered the State apparatus. Islam was for the members of the ruling class the stronghold of their identity and the source of their legitimacy. It had to pervade the whole field to which its power stretched, i.e. the whole fabric of society. Hence, it had to become a system of law. Ideally, it was supposed to become an all-encompassing legal system. Furthermore, the rules had to be made to coincide with the ultimate ground of Islamic power, i.e. the Prophets relationship with God.The Coran did not contain much legal material. There was some penal law, some family law, some inheritance law, but not enough, anyway, for a complete code. It had to be supplemented by utterances of Muhammad himself, whom God has chosen and purified (mustafa) for him to be the beautiful example (XXXIII, 21). Hence the Hadith, collected or forged. Hence, still more, al-fis (d. 820) endeavour to hook up each and every custom, habit, etc. to the person of the Prophet himself, not to his companions, not to the custom that prevailed in Medina in the early epoch, andHeaven forfendnot to the earthly rulers (Caliphs) and their ungodly whims.This law remained a lawyers dream. It never was really enforced by the political authorities. The earthly rulers had to take into account real life and governed along the same lines as Persian Shahs, Turkish tribal leaders, or, for that matter, Byzantine emperors. Two theses on Islamic law

Let me now sketch two theses on the relationship between Islam and law and on the problems that it poses.

1) Practical rather than political

The problem is not political, but practical in nature, if we take this last adjective in its technical meaning. Classical Greek philosophers divided their discipline into two kinds: theoretical and practical. The first one simply looks at things (the meaning of the Greek verb theorein) and describes them. The second one asks what we should do (Greek prattein). It tries to furnish us with rules how to lead a decent life. The second kind, the practical one, encompasses three kinds of leading. Medieval thinkers spoke of governance, how to steer ones life. The person can govern him or herself: the rules brought to bear on individual action are the field of ethics. He/she can govern his/her family: the rules are the field of what classical philosophers called economy, i.e. governance of the household. Finally, he/she can take part in the life of the city (polis) at large: this is politics.Now, the Islamic claim does not limit itself to the realm of politics. It gives answers, and from time to time very precise answers, to quite concrete questions of everyday life. The Coran and the stories told about the Prophet, the so-called Hadith, contain precious little about the way in which God wants man to build a state and to select the rulers. It is an unfortunate fact that all Islamic states in the present day are not democratic. But this is not a direct consequence of the Coran. The sacred book only praises obedience to people endowed with authority (IV, 62/59), but it leaves in the dark what kind of people they are (kings, generals, magistrates, men of religion, etc.), still more how to choose them. Some well-meaning reformers even find in the Islamic sources whatever is necessary to justify the existence of a parliament, f.i. the duty of leaders to take advice from their flock (III, 159; XXVII, 32).On the other hand, the Coran and the Hadith contain a batch of indications about the way in which the individual has to behave towards him/herself and towards the members of his/her family. This extends from the loftiest and most sublime activities like prayer or pilgrimage to the humblest and most humdrum dimensions of everyday life: how one has to dress and to shave, to brush ones teeth, nay to wipe ones arse. Those rules of ethics and of economy define who is a good Muslim, a real member of the Nation.Hence, the main problem is not the form of the government, but the definition of the people. Government of the people, by the people, for the people, this is all very nice. But what kind of people do we mean? I would sketch a typology of democracies according to what people means. Let me distinguish four kinds of peoples. I will give three of them a Greek name, and one an Arabic one: demos (Latin populus), ethnos (Latin natio, Arabic ab), laos (Hebrew am), umma. Depending on the kind of people who wields power, let me name four kinds of regime. I apologize for the ugly neologisms that I had to coin in order to name the last three kinds.

A democracy is a club of adult males, who are free, i.e. not slaves, in some cases even slave-owners, and enjoy each an equal right of citizenship, i.e. they can become magistrates.

An ethnocracy is the regime in which a community defined by its racial origin, common language and history chooses the leader that belongs to it and is meant to be the ablest defender of its interests.

A laocracy is a community in which each and every person is supposed to have direct access to God. He/she thereby becomes a member of His chosen people. He/she is endowed by Him with conscience for him/her to do good and avoid evil, and freedom to choose, hence of an inalienable dignity.

An ummacracy is a regime in which people consider themselves as bound by a law divine in origin. Acknowledging the common duty to comply to its rulings makes them members of a common nation.Democracy properly speaking existed in some Greek cities, say, Athens. To some extent, it existed in the aristocratic merchant republics of medieval Italy. Ethnocracy is the main danger in the Third World, wherever countries were made from scratch out of a patchwork of ethnic groups: by applying the principle one man, one vote, one enables the most numerous ethnic group to crush minorities.Our own Western regimes, which we commonly call by the name of democracies, could be described more aptly as being a mixture of ethnocracy and more or less secularized laocracy, the blend giving unequal weight to the two components. F.i. the dimension of ethnos is more important in European countries, whereas the dimension of laos is more important in North America, for obvious historical reasons.

An Islamic democracy might be possible. The regime of present day Iran pretends to be just that. Whether its claim has a leg to stand on is another story. Anyway, granted an Islamic democracy be feasible, its ideal form would remain an ummacracy. This means that all its citizens, be they simple voters, M.Ps, or political leaders, would leave the bulk of the legislative power to Gods Book and Prophet, and content themselves with dispositions for which they did not provide.2) Legislation rather than law

The problem with Islam is not the ara. Let me take up a distinction made by Muslims and western students of Islam in their wake. Everybody has heard of the ara. For much people in the Westand in islamic countries, tooit is a bugbear of sorts, whereas, for some Muslims, it should be extolled and enforced again, since tampering with it led to decadence and colonisation, and other evils of that kind. Along to ara, nay more important in the early sources, we find another word, deriving from the same root, but with another shade of meaning. This is ar. A tentative rendering would be, for the latter word: legislation and for, the former: law, the activity of legislating on the one hand and, on the other hand, concrete law as a set of rules that obtain or should obtain in a given body politic.The ara is diverse according to which one formulated it among the four Sunni schools of lawif we leave the Shiites out of the picture. It is diverse according to whether it is enforced in a more or less strict way, which depends very much on the will of the political rulers. We get a wide range of concrete realisations, depending on time and place, on the climate, on the local mores, etc. Their precise description is food for historians and ethnologists. In any case, there never was such a thing as The ara as a unified reality. It exists only in the dreams of some Muslims, whom Westerners call islamists, and in the nightmares of their opponents. But pointing out that a unified ara is a fiction is not enough.For there exists an element that remains in any case and that plays a central part in Islamic piety. This is the very idea of a divine legislation, of a ar. This is the idea that Gods law is a positive law, i.e. that God laid down, at a certain point of time, a law that obtains for all men and all times. Therefore, each and every man is bound to abide by its rulings. Moreover, since God is above time and space, He must know what He wants human beings to do and to leave alone, and He must have expressed it with the utmost precision, especially in the Koran as the Clear Book (al-kitb al-mubn). Hence, the meaning of the word interpretation, a word that is too often left in an artful ambiguity, included by Muslims who contend that the Koran should be interpreted according to the need of our time. This interpretation cant possibly consist in climbing upwards from the letter to the spirit, to the intention that underlies the wording and that the latter refracts through the prism of time and space. This we can do when the author of a legal text is a human being, who could not possibly foresee the future circumstances. Western legal scholars have a word of art for this method of getting uphill to the intention of the lawgiver: equity (Greek epieikeia). But what, if the Lawgiver is supposed to be God, before whose eyes everything lies bare? Interpreting a divine positive law can only mean: looking for the precise meaning of the words, no more no less. But the question as to whether the law has to be applied wont even have to be asked. It must be anyway.As a conclusion, let me sum up: the problem is not political, but legal; it is to be looked for in the central claim that God is the only legitimate lawgiver and that His law is a positive one. See my The Law of God. The Philosophical History of an Idea, tr. L.Cochrane, Chicago, The University of Chicago Press, 2007.

See W. C. Smith, The Concept of Sharia among some Mutakallimun, in: G. Makdisi (ed.), Arabic and Islamic Studies in Honor of H. A. R. Gibb, Cambridge, Mass., Harvard University Press, 1965, p. 581-602.