Variation in forms of democracy

Although it is common to discuss democracy as if it is problematic only in the Muslim world, in reality democracies all over the world have to deal with a number of controversial issues about the diverse forms of government, varieties of representation, the types of freedom citizens require or demand, the unlegislated distribution of political power, uneven separation of powers, and the breach of the system of rule by the accumulated powers. (Diamond, 2008: 17-24, 30-33)

Gulen’s intellectual contribution to the global discussion of democracy, which is determined by his adherence to Islamic values, is not limited to an analysis of democracy’s value and meaning for individuals and societies. In addition, he examines how democracy is affected by the crises which people and systems undergo, as well as the complexities of life in modern industrialized societies, and the contraction in the space available for individual and collective expression of cultural, moral and spiritual values. (Cetin, 2008: 226-30)

According to Gulen the understanding of democracy and human rights within the theoretical heritage of Islam is not dogmatic but it centers around values such as compromise, stability, the protection of the life, honor and dignity of the human being, justice, equity, dialogue, and consultation. Islamic political theory is flexible and does not bind Muslims by any rigid limits in the choice of concrete forms of government and political system. The main principle in Islamic political theory is the implementation of three fundamental values: equality, justice and consultation. The forms and means of enactment of these are vested in the hands of the community. Thus, the actual realization of the three pillars can and must take into account the conditions of Muslims’ lives, their traditions, cultural preferences, and other factors. Gulen argues that the social, cultural, political and historical aspects of societies, should be taken into account in the development of democracy in the entire world.

Observers discussing the compatibility between Western and Muslim perspectives on democracy and human rights sometimes make the error of attacking “Islam” and demanding its reform, instead of commenting on the approaches or methods of particular activists, regimes or countries and reforming those. Some observers even claim Islamic principles and institutions directly contradict democratic values in their modern meaning, and so any step by Muslim societies towards the establishment of democracy must be accompanied by rejecting Islamic political and legal traditions. At the other extreme, ideologically motivated Muslims claim to have the only correct understanding of Islam, and that Islamic fundamentals of power, politics and believers’ rights have nothing in common with Western democratic institutions. These extremists often argue that “the power of the people” is alien to Islam, which puts forward the principle of the supremacy of Islamic law instead. (Sykiainen, 2007: 122-3)

In fact, the concepts advanced in this type of argumentation are taken out of the whole context of Islamic thought and its socio-political heritage and are addressed to less well-educated Muslims (and others) in order to justify political extremism. Nevertheless, within both traditional and modern Islamic political and legal thought, there are several different perspectives on government which are more genuinely representative of the Islamic legal tradition and which do not justify extremism. (Gulen, 2004:220; also <http://en.fgulen.com/a.page/press/interview/ a1203.html>).

Islamic jurisprudence embodies the divine revelation, the art of lawyers, local and global cultures, and global relationships. Islamic law and the legal system, its common principles and the majority of its concrete norms are similar to the fundamental ideas and particular provisions of other legal systems. Islamic legal culture has always cooperated closely with and been receptive to other legal cultures. In this sense, Islamic law is of benefit not only to Muslims but to the whole of humanity. Over many centuries a great variety of views on the fundamentals of the executive and the legislature have developed within Islamic culture, and diverse notions of the relations between the state and the individual have been elaborated. (Sykiainen, 2007: 119-132)

One of the key features of the Islamic understanding of democracy is the concept of shura (collective and community consultation). Without any qualification or limitation, all members of a community are eligible to give or request consultation on any matter, except one covered by a clear-cut revelation from God. Consequently, all political matters concerning the selection of the ruler, the structure and shape of the government, the form of political system, the running of the government and of the various affairs of the state, and all other related matters are to be decided by consultation through the participation of all the members of the community. (Gulen, 2005: 43-58)

In public and government affairs collective consultation is concerned with two main issues: the selection of the head of state and running of the government together with reviewing the legality and propriety of governmental and presidential actions. On the selection of the head of state, collective consultation is flexible and adopts various forms. Elections, whether direct or indirect, are considered to be an Islamic method of selecting the head of state or members of the legislative body which satisfies the consultation process. With regard to the running of the government and control over the legality and propriety of the executive’s actions, Islamic law is also very flexible. The establishment of a representative body through direct or indirect elections is compatible with Islam and is a good application of community and collective consultation. In addition to their reviewing authorities, representative bodies may be empowered to legislate on different matters provided that such regulations do not violate any unambiguous and clear-cut principle or rule of Islamic injunctions. If democracy is the government of the people by the people for the people, shura is a process which guarantees that all affairs of the people are decided by the people and for their interests. So, the basics of democracy and the fundamentals of shura in the political field are not opposed. (Gulen, 2004:223; Sykiainen, 2007:110, Cetin 2008: 218; Gulen, 2005: 43-58)

This genuine Islamic idea is one of the most basic human rights and a means of protecting and preserving all other human rights under Islamic law, especially the right to equality, the freedom of thought, and the right to express oneself freely in order to correct or demand the correction of what is not right, even if it is something committed by the highest officials, including the head of state. State officials and authorities do not have political immunity while in office in Islam. (Gulen, 2006)

Law, order and, human rights

Gulen analyzes the different rights recognized in Islam, including freedom of religion and belief, thought and expression, to own property and the sanctity of one’s home, to marry and have children, to communicate and to travel, and the right to an unimpeded education. He underlines that the principles of Islamic jurisprudence are based on these and other rights, all of which have now been accepted by modern legal systems, such as the protection of life, religion, property, family life, and intellect, as well as the basic understanding of the equality of people, which is based on the fact that all people are human beings, and subsequently, the rejection of all racial, color, and linguistic discrimination. (Ünal and Williams, 2000:135-8)

Every single right must be respected in Islam. In particular, the right of an individual cannot be violated for the interest of the community. This idea is central to the concept of human rights in Islam and the interpretation of Islamic tradition with regard to this issue. Gulen recalls that if there are nine criminals and only one innocent person on a ship, in order to punish the criminals, Islam does not permit the sinking of that ship because of the innocent person. Though this may sound utopian today considering the mass and “collateral” damage caused by modern nations at war, Gulen argues that the bar should be set at the highest possible level for democracy and every effort to reach that level should be attempted. (Gulen, 2006; also personal correspondence, 08.11.2008).

Gulen underlines that people everywhere always demand freedom of choice within their beliefs, that is, in the way they run their affairs and in their expression of spiritual and religious values. He stresses the separation of the eternal and the evolving judgments (ijtihad) of Islamic jurisprudence. Specifically, political affairs in general and democratic institutions and human rights in particular are covered by Islamic legislative provisions which can relate and respond to the needs of changing circumstances and times. Gulen points out that democracy will continue to evolve and refine itself in the future. Islamic principles of equality, tolerance, and justice can help in this regard, provided that the injunctions of the Qur’an and the Sunna as well as any definite judgments of Islamic law are re-examined and restored in the light of advancing knowledge and changes in societies. (Sykiainen, 2007: 129-30)

It is possible to envisage a kind of democracy with a spiritual dimension. It is a democracy which contains respect for and observance of human rights and freedoms, including freedom of speech, expression and religion, a democracy which prepares the necessary conditions for people to live and practice as they believe, which renders people able to fulfill their wish and need for eternity, and which takes or deals with human beings as a whole with regard to their all material and immaterial needs. For, human life does not start and end with life in this world; the world is only a temporal, transit station, and people are ceaselessly moving toward their eternal abode. The system that governs them must not ignore or neglect this crucial matter. We therefore have to seek ways to sophisticate and humanize democracy. No such stage or democracy has been attained yet, in east or west, north or south, but we can aspire to and work for such an aim. (Gulen, 2006; Gulen in Saritoprak and Ünal, 2005: 452)

Democratic culture

In Gulen’s view, therefore it is vital to encourage the building of a strong civil society in order to have and retain a ‘culture’ of democracy, and this can only be done through sound education. In a democracy, where people are entitled to freedom of speech, expression, religion, and the right to sell their labor, and other such rights, every individual should know what kinds of rights they have and what authority, weight and say they have in state and government affairs. (Gulen, 2006; Cetin, 2008: 216-20)

In all societies on some occasions, or even for extended periods, some interests will not be happy about all individuals being aware of their rights; they may see such education as an obstacle to their gaining political or economic power or even arbitrary rule. Consequently, they may attempt to limit citizens’ access to information and institutions and try to guide them in directions which do not serve citizens’ own true interests. (Gulen, 2006)

However, it is impossible to enjoy and practice democracy in a society where people are unaware of their rights and freedom, where people do not know how to seek and pursue their rights, where, in short, they do not have a developed democratic culture. In such societies occasional openings or temporary freedoms might be enjoyed, but it is always possible for special interests to come up with further impositions and undemocratic interventions. In many parts of the world we see tyrannical, authoritarian and dictatorial leaders who exploit or manipulate, for example, the electoral process, the legal system or the constitution not in the name of the progress or development of the country but for the continuance of their own power or in pursuit of self-interest or the interest of a select group around them. (Gulen, 2006)

To counteract the activities of vested interests, while individuals are being asked to fulfill their rights and duties in democratic system, in addition to knowledge they also need to have the self-confidence and the civic courage to own and defend their rights (Gulen, 2006). Here Gulen’s contribution to the development of democracy around the globe lies not only in his intellectual contribution to debate, but also in his ability to inspire action; this practical ability has led to the development of schools, universities, intercultural and interfaith dialogue groups and other institutions throughout the world.

Conclusions

Gulen’s approach is powerful proof of the democratic ideas propagated by Islam, as he is convinced that Islamic democracy and secular political liberalization are not two separate phenomena. He points out that the dominant Islamic culture in the Muslim world co-exists with democratic arrangements on the global level. So, the concept of modernization and democratization does not inevitably mean Westernization but can involve the possibility of adoption of many Western democratic achievements within the Islamic framework. Thus, political culture and democracy practiced among Muslims develop not by their isolation from or opposition to others but by giving of their own achievements and taking the best from others. Gulen proves that Islamic intellectual heritage and political culture must be revisited and respected and that Muslims’ progress depends on the development of knowledge in Islamic sciences (‘ilm) and contemporary technical education (fen). Finally, Gulen life’s work has shown that there is no inherent conflict between Islamic thought and tradition and modern democracy. He has contributed positively to the understanding of democracy, civil society and human rights. (Cetin 2008: 219; Hunt, 2007:8-9; Barton, 2005: 43; Eickelman, 2002:4.)

Muhammed Cetin is the Publications Co-ordinator of the Institute of Interfaith Dialog (IID) and also writes weekly as a columnist in the international daily Today’s Zaman. He has a PhD in sociology.

References

• Barton, G. (2005) “Progressive Islamic thought, civil society and the Gulen movement in the national context: parallels with Indonesia.” Presented at the conference “Islam in the Contemporary World: The Fethullah Gulen Movement in Thought and Practice,” Rice University Conference, Houston, Texas, November 12-13, 2005, pp.51.
• Çetin, M. (2008) “Reductionist Approaches to the Rise and Aims of the Gulen Movement,” at the conference “Islam in the Age of Global Challenges: Alternative Perspectives of the Gulen Movement,” November 14-15, 2008, Georgetown University, Washington, D.C., pp. 204-40.
• Diamond, L. (2008) The Spirit of Democracy: The Struggle to Build Free Societies Throughout the World. Times Books.
• Eickelman, D. F. (2002) “The Arab “Street” and the Middle East’s Democracy deficit.” Naval War College Review, LV(4), p.10. Available from: <http:// nwc.navy.mil/press/Review/2002/autumn/pdfs/art3-a02.pdf> [October 9, 2006].
• Gulen, M. F. (2004) Toward a Global Civilization of Love and Tolerance. Somerset, New Jersey, The Light Inc.
• Gulen, M. F. (2005) The Statue of Our Souls: Revival in Islamic Thought and Activism. Somerset, New Jersey, The Light Inc.
• Gulen, M. F. (2006) “Demokrasi Yokusu”, 02.01.2006 [Herkül online] http://www.herkul.org/kiriktesti/index.php?view=article&article_id=2846
• Hunt, R. (2007) “Challenges in Understanding the Muslim Citizens of the Globalized World.” In: Hunt, R. A. & Aslandogan, Y. A. eds. (2007), 1-10.
• Hunt, R. A. & Aslandogan, Y. A. eds. (2007) Muslim Citizens of the Globalized World: Contributions of the Gulen Movement. Somerset, New Jersey, IID Press & The Light Inc.
• Saritoprak, Z. & Ünal, A. (2005) An interview with Fethullah Gulen. The Muslim World Special Issue, Islam in Contemporary Turkey: the Contributions of Gulen 95(3), 447-67.
• Sykiainen, L. (2007) “Democracy and the Dialogue between Western and Islamic Legal Cultures: The Gulen Case.” In: Hunt, R. A. & Aslandogan, Y. A. eds. (2007), 121-32.
• Ünal, A. & Williams, A. (2000) Fethullah Gulen: Advocate of Dialogue. Fairfax, VA, The Fountain.

I began my research by reading all the Turkish material I could find on the subject. Most of the works I found were Turkish translations of European travelers’ reports about Ottoman life. Of course, it was necessary to separate fact from fiction, because many travelers, males in particular, described aspects of Ottoman life they had never personally seen-the inside of the harem, for example. But in spite of this, I was able to glean a fairly accurate description of Ottoman women and the harem from a number of different travelers (mostly women) who can be considered as eye witnesses to harem life. The portrait of Ottoman women that emerged reflected a very feminine appearance and demeanor, refined manners and decorum, and a pious and chaste character. Their domestic roles of wife and mother further reinforced this strongly feminine image.

The portrait of Ottoman women I found from my reading was a far cry from the Orientalists’ exotic stereotype. I learned that only approximately ten percent of the young slave girls in the imperial harem were actually royal concubines, and this number included concubines to the princes as well as to the sultan. The rest were groomed and trained for service to the royal family by means of the administrative hierarchy in the imperial harem. Even the belly dance, which is always associated with slave girls in the harem, apparently did not even exist in the imperial harem. That is what we are told by Leyla Saz Hanýmefendi who grew up in the palace from the age of four and who was closely associated with the royal family during the reign of six different sultans during the nineteenth and twentieth centuries. Armed with the information and knowledge I had gained from many travelers’ reports and secondary sources, I felt ready to challenge the sensationalist myth of the harem. Little did I know at the time, however, that an even greater discovery regarding Ottoman women awaited me in future research.

By a quirk of fate, I found myself spending a year with my daughter who was studying for a master’s degree in Islamic studies at a leading North American university. One of the courses she took was related to the Muslim qadi or judge and Ottoman court records. Much to my amazement I learned that throughout the duration of the Ottoman state (six centuries) women had many significant legal rights, more perhaps during that time than any other women in the world. This was a point that had been somehow overlooked in the many sensationalist books on the harem! Investigating this point further, I learned that Ottoman women had legal agency or, in other words, they could sue and be sued in court independent of their husbands. They could enter into legal contracts like marriage contracts with their husbands, or into business contracts with others. They had the right to own property and to inherit it. They had the right to initiate divorce. They had full control over their own income and property and could do with it as they wished. Ottoman women also had the right to be guardian of their children in case of the death of or divorce from their husband. European women, on the other hand, gained these rights much later, and today in some parts of the world women are still struggling to obtain them. British women, for example, did not have these rights until 1882. Previous to that time they had to turn over any property, inheritance or income to their husband upon marriage. Women did not have legal agency nor were they able to make legal contracts independently. Also they were unable to defend themselves in divorce cases and they could not get legal guardianship of their own children.

Furthermore, I learned that not only did Ottoman women have these legal rights, but that they actively pursued their rights as well. There are thousands of court records that attest to this. By no means were legal rights enjoyed just by a privileged few. They were accorded to Ottoman women of all social and economic strata. For example, one of my favorite cases was taken from early seventeenth-century Kayseri court records. It involves a woman named Teslime who was working on her land when her neighbor’s donkey strayed onto her property. When she seized the animal, her neighbor, who was a man, cursed her. Teslime immediately filed a complaint with the local qadi. Two witnesses were found to support her complaint and she won her case. While reading her case, I could not help but wonder how many women today would take a man to court for cursing them; and if they did so, how many would be taken seriously? There are countless recorded cases of Ottoman women who turned to the courts to get redress for injustices perpetrated against them. Upon review of such cases a different image of the Ottoman woman in the legal arena emerged: a strong and courageous woman who put Haqq (Truth and Justice) above everything else.

It was the discovery of this side of Ottoman women that really clenched my respect and admiration for them, because it enlightened me in regard to how Muslim women should be. They were not only very feminine and refined, but they were also strong defenders of Haqq. Their feminine and masculine natures were amazingly well balanced. As a Muslim convert, I have found the female model I was looking for. Whenever I get into trouble, I first ask myself, “What would an Ottoman woman do?”

Furthermore, I discovered that the spiritual nature of women was honored in Ottoman society.

Ottoman women were honored in the harem, not imprisoned there. Unfortunately, this way of perceiving women has all but been lost today. Much of the time women are perceived mainly as physical beings and, in its lowest form, as sex objects. They are often valued to the degree that they can rival the accomplishments of men. Ottoman women, however, were honored and valued as women.

I wanted to share these discoveries with others. I began lecturing on the subject of Ottoman women in Turkey, and these lectures eventually led to a small book in Turkish entitled, “Osmanlý Toplumunda Kadýn ve Aile (Women and Family in Ottoman Society).” Later on I began thinking about writing a book on Ottoman women in English-not an academic work, but a book giving a general overview that would appeal to any Western reader interested in the subject of women. Again, I rolled up my sleeves and set to work. As the book took form, so did my concept of how the book should be illustrated. I wanted it to reflect the spirit of the Ottoman woman-the beauty and harmony and refinement of her life. Once Tughra Books (formerly The Light, Inc.) agreed to publish the book and the design concept was agreed upon, members of their graphics design department did an extraordinary job that eventually led to the book being a finalist for the 2008 PMA Benjamin Franklin Award in the category of cover design/large format.

My book was published under the title “Ottoman Women: Myth and Reality” at the end of 2007. In the spring of 2008 I went on a book promotion tour in some major US cities: Los Angeles, New York, Washington D.C., Atlanta, Pittsburg, Rochester and Newark. The people I met and spoke to-men and women, young and old, American and Turkish, Muslim and non-Muslim-all responded positively to the book. Many were surprised to learn about the high social status of Ottoman women, particularly about their legal rights. Some, young Turks in particular, were thankful that the myth of the harem was finally being challenged. Almost all commented on the beautiful design of the book. The highlight of the tour occurred on the evening of the annual PMA publishing awards dinner in Los Angeles. That night my long journey of discovery in regard to Ottoman women was crowned when my book won the PMA Benjamin Franklin publishing award in the category of history/politics.

As a final comment, I would like to mention the great contribution to the book of my now deceased son, Sahin Sancar. He was with me every step of the way, from the signing of the contract with my publisher to the final touches in the design. He was a beautiful person and he contributed greatly to the beauty of the book. May he live eternally in beauty and light.

Law and literature

The relationship between law and literature is ages old. If we go back to the origins of law, among the ancient Greeks it was aligned with rhetoric, speaking and writing. Rhetoric was originally intended to present arguments in court. As law became more professional, it was closed off from this. Thus, law and literature have taken different ways, literature being more and more concerned with the expression of human emotions and feelings, while law became increasingly concerned with the maintenance of social order.

Nexus between law and literature

Law and literature are closely interrelated. One of the sources of law is “legal fiction.” Legal fiction, that is, fictio juris means “any assumption which conceals or tends to conceal the fact that the rule of law [has] undergone any alteration, its letter remaining unchanged but its operation being modified” (Islam, 2002). By means of a legal fiction, a child can be adopted from one family into another. In the eye of the law a limited company is given a personality which is distinct from that of its members. Case law is based on a fiction that while enacting a particular rule of law, the legislature had a particular intention. Fiction also played an important role as a source of law in ancient times. There was a rule of procedure in Rome by which a non-Roman was allowed to make a false allegation that he was a Roman citizen and thereby a praetor urbanus was able to try his case. The fiction of citizenship was adopted merely for the purpose of extending the Roman law to the non-Romans. All were under the same “lex gentium.” In England the Court of Exchequer took jurisdiction over civil cases by means of a legal fiction that the plaintiff was the debtor of the king. These fictions were adopted by the courts as devices to add to the jurisdiction of the courts. The old Roman law was laid down in the Twelve Tables, and additions to it were made by Responsa Prudentium-the judgements of the men learned in law. The teachings of the most highly qualified of various nations are still considered as a source of international law.

Fictions stand in the way of the codification of law. A property may be in the actual possession of X, but at the same time may be in the constructive possession of Y, the owner. No trust may have been created, but law may presume the same. By fiction, a Hindu child in the womb becomes entitled to family property.

Legal fiction and legal presumption, however, are not the same. Legal fiction is a source of law while legal presumption is a rule of law. One fact is recognized by law as sufficient proof of another. A notification in the official gazette is presumed by law to have been duly signed by the person by whom it is purported to have been signed. These few examples are perhaps enough for us to understand that law can be regarded as literature.

In this context, we can very relevantly talk about the Holy Qur’an which gives the impression of a perfect piece of exposition on one hand and a storehouse of law on the other. The Qur’an may sound astonishingly literary in terms of content and style, and at the time of its revelation poetry and oratory skills were the most outstanding forms of art in Mecca. Having heard the Qur’an’s enchanting verses, the best poets of the time tore apart their poems for they thought they could not challenge it. But as the Qur’an is the word of God, ascribing literary characteristics to the Holy Scripture is to devalue it. Nevertheless, various powerful forms of expression are found in the Qur’an to convey the message of Islam. The chapters and verses of the Qur’an maintain phonetic and thematic structures so that people can recall the message of the text. The narrative style of the innumerable events, particularly their dramatic presentation, have continued to amaze the scholars throughout the centuries. Sells says, “The values presented in the very early Meccan revelations are repeated throughout the hymnic suras. There is a sense of directness, of intimacy, as if the hearer were being asked repeatedly a simple question: what will be of value at the end of a human life?” (Sells, 1999). But these very verses are basically the laws meant to be for the whole humanity. Coupled with the Prophet’s practice the Qur’an as a main body of Islamic religious law undoubtedly covers almost all the aspects of human life ranging from family, sexuality, hygiene, social issues, business, economics, to politics both national and international. Thus the ultimate law comes in the form of a perfect exposition.

The impact of literature on law is far reaching with regard to teaching, legal writing, statutory interpretations and duly submission of petitions before the bench. Many authors have tried to show the human condition and the law’s effect on it through their literary works from a neutral point of view. The fictional situations presented in literature, they assert, can tell a great deal about political and social situations, and the individuals that often find themselves before the court. Ronald Dworkin in his article, “Law as Interpretation” stated, “I propose that we can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge, particularly literature” (Dworkin, 1982).

Intermingling of law and literature as reflected in the works of some great authors

Some popular as well as critically acclaimed literary works by prominent writers like Shakespeare, Kafka, Dickens, Camus, have dealt with the theme of law. Almost every careful reader would know that these writers were influenced by the legal system of their own time and were aware of its impact both the personal and social level. It would be wrong to think that they took law as the subject matter of their novel or play just to tell an interesting story. In fact, through skilful plot development their views about the then legal system are expressed. What is most interesting here is that they were influenced by the law and have definitely influenced the law as well.

The Stranger or The Outsider is a novel by Albert Camus where the virtues of truth confront the deceits and corruptions of law. We also come to know about the justice system of the time and existing loopholes as the trial for the murder of an Arab proceeds. Furthermore, the novel addresses the issue of the inevitable conflict between defective legal proceedings and a man’s individual way of thinking.

Franz Kafka’s The Trial is another novel where the author exposes how law is abused and made to bring enormous suffering to a man’s life. The main character, Josef K., awakens one morning and, for reasons never revealed, is arrested and subjected to the judicial process for an unspecified crime. Some crucial questions of judicial proceedings like a backlog of cases, arresting on suspicion and detaining a person for an uncertain period, absence of proper investigation, and absence of the right to self-defence are brought to our attention.

Shakespeare’s works contain a remarkable quantity of law terms and they are used very accurately. The use of legal jargon in Hamlet is particularly impressive. But it is The Merchant of Venice, a controversial tale of a Jewish moneylender, that examines themes of justice and the bias of legal systems.

Dickens’ popular novel Bleak House is particularly known for the novelist’s blunt attack on the flaws of the British judiciary system. Dickens’ experience of working as a law clerk in London came in handy in unearthing and depicting the law’s flaws so vividly. The plot concerns a long-running legal battle that takes place between two parties claiming the inheritance of a large property, a battle which in the end costs both parties dearly. Many believe that Dickens’s harsh portrayal of the lengthy Chancery system made way for the reforms that took place in the 1870s.

Benefits of intermingling of law and literature

The intermingling of law and literature produces certain benefits for both the subjects. First, literature is exceptionally capable of probing human psychology and conditions through text. This capacity can be combined with the legal framework which regulates human actions in real life and truly pave the way for a democratic judiciary which is a prerequisite for establishing a just and moral society. Second, literature is considered to be a carrier of human will and freedom of expression. This characteristic can be positively incorporated into the judicial system to facilitate more humane legal decisions. Third, literature helps us understand the text’s role in defining human experience as used in legal rhetoric. Fourth, by applying literary methods in legal writing, laws can be more readily interpreted and legal decisions can be conveyed more effectively. Fifth, reading and writing literature helps improve clarity of expression which is a must for everybody involved in the legal profession. Moreover, every citizen of a society should also acquire this clarity to enable them to defend themselves in the legal arena. Next, special cases can be accommodated through the application of literary standards to legal documents and thus despotism can be reduced to a great extent. In this regard some proponents of the admixture of law and literature argue that this looks back to and restores the image of the lawyer as a person of letters possessing a broad liberal education and being well versed in languages, rhetoric and literature, who views law as an aspect of the humanities and the public life, not a science or a business. Lastly, one of the skills literature teaches lawyers is the power of the imagination so that lawyers learn to place themselves in the shoes of the client, the opponent, the witnesses, the judge, and the jury in order to anticipate reactions to their pleadings, presentation of evidence, arguments, and settlement proposals.

However, one need not think that only law will benefit from this intermingling; rather, it is advantageous for literature as well. The law has immensely enlarged the area and scope for literature already. The law enriches itself every day and this ever widening sphere of law can be a great source for literature. Until now most literature in which law plays a major role has concerned criminal law, ignoring the many disputes over inheritance, contracts, divorce and real property. These very issues can be presented with more legal focus in literature if the writers are interested in knowing a bit more about law and the legal system. In this context we do very well remember the nineteenth-century British novels which are rich sources of thinking about law and lawyers and offer insight into the legal heritage, mainly because the novelists Charles Dickens, George Eliot, Anthony Trollope and others participated in the debate about the best way to implement legal reform. In this regard more scope will be created to consider human feelings, emotions, and the environment where a person is raised. Then theories of punishment-as there are different theories available, like reformative, punitive, deterrent, expiation, preventive, and so on-should be analysed thoroughly. This is where literature can open up windows of thought for the reformers.

In fact, law is not at all a stagnant subject, rather it has undergone huge changes over the ages and literature can very well claim to be the greatest contributor. Different writers in different ages have made the lawmakers think about the loopholes of the prevailing laws through their writings. This is how new interpretations of different laws have come about, and thus the loopholes have been exposed. Similarly, writers have provided us with new ideas about how to define crime and punishment under different circumstances and helped clarify law. Likewise, the discretionary power of the judges and its effects on the justice system can be viewed in a broader literary perspective. In this context the effort of Lord Denning, the greatest law-making judge of the century is worth mentioning. Lord Denning showed his willingness to override precedent to do what he saw as justice and foreshadowed the move towards moulding the law to suit changing times and circumstances.

The definition of an offence can be scrutinised even more critically if it is seen through literature. Taking lessons from literature, life can be improved, which can substantially help the law-enforcement agencies to maintain order in society with ease and comfort. Social and communal conflicts are commonplace in every country and they are well-depicted in literature; law can borrow these materials to deal with them. Literature also helps to find ways of dealing with psychological problems which are quite common in human life and have certain effects on the whole of society. Again literature tells us how to look at these sensitive issues and therefore may help the law manage them in a more delicate way. As edification is one of the objectives of literature, the blending of law and literature ultimately helps the moral development of anybody concerned with the law. Since literature critiques lawyers and the overall legal system, this intermingling will certainly widen the scope for criticising the different shortcomings of the legal system, such as delays in trial proceedings, imprisonment without trial, torture on remand or interrogation, lack of sincerity in investigation, corruption, and so on, and will no doubt help to find ways to curb them.

Recently, in the global perspective, law has expanded its sphere and in the process problems like eviction, mass killing, war crimes, arbitrary power, and illegal occupation by foreign armies have come to the fore. All these issues are the themes of many literary works by different writers, which can assist legal experts to find ways to think about and deal with them. Literature also helps in building a better society by illustrating the consequences of committing crimes and the dreadful conditions of a criminal life.

To conclude, the intermingling of literature and law can give us hope of having a legal system touched by humanity. It may help writers to produce literature with more experience of life and society. At the same time, we need not forget that law is a part of our culture, not a mere technical study and it has a lot to offer to literature as well. As literature is a storehouse of alternative visions of law and society, the more literature comes into the thoughts of a lawyer or a law student, the better is the chance of law in a society paying due regard to human values and emotions, a quality which many people believe law seriously lacks. Likewise, literature should be more concerned with the everyday problems of life and a true reflection of society in the broad view. The times demand that writers do not just project a series of imaginary pictures playing in their minds, and law can truly help literature meet this demand.

Ahamuduzzaman is a Senior Lecturer at the Department of Law, ASA University, Bangladesh. Sharif Rakib Hasan is a Lecturer at the Department of English at the same university.

References

• Brooks, Peter and Gewirtz, Paul. Law’s Stories: Narrative and Rhetoric in the Law, London: Yale University Press, 1996.
• Campbell, John. Shakespeare’s Legal Acquirements, London: Kissinger, 2001.
• Camus, Albert. The Stranger, USA: Tandem Library, 1999.
• Dickens, Charles. Bleak House, London: Yale University Press, 2000.
• Dien, Mawil, Izzi. Islamic Law: From Historical Foundations to Contemporary Practice, Notre Dame: University of Notre Dame Press, 2004
• Dworkin, Ronald, M. “Law as Interpretation,” Critical Inquiry, 1982, Vol. 9, No. 1. p. 179.
• Islam, Mahmudul. Constitutional Law of Bangladesh, Dhaka: Mullick Brothers. Second edition, 2002, pp. 58–60.
• Minda, Gary. “Law and Literature at Century’s End,” Cardozo Studies in Law and Literature, 1997, Vol. 9 No.2, pp. 245–258.
• Kafka, Franz. The Trial, Munich: Kurt Wolff Verlag, 1925
• Sells, Michael. Approaching the Qur’an, USA: White Cloud Press, 1999.
• Shakespeare, William. Hamlet. USA: Dover Publications, 1992
• –. The Merchant of Venice, USA: Penguin Group, 1998. 

It is important to state from the outset that despite the plurality of reasoning and judicial formulations based on independent research and interpretation of normative legal sources in Islamic tradition, there is a consensus of juridical-ethical opinions among Muslim religious experts on human cloning. The majority of Muslims in North America are Sunnis. Sunni Muslims follow one of the four officially recognized Sunni legal rites.3 The Shi’ites form a minority in North America.4 And even though scholars differ in their method of reasoning, they are in agreement with their Sunni colleagues in flashing the red light on human cloning.

In the wake of the latest success in animal cloning, prominent scholars representing Sunni centers of religious learning in the Middle East, have expressed a collective opinion on cloning. The official Sunni position in this country5 states that the Arabic term used for this technology in the legal as well as journalistic literature is istinsakh, ‘copying’. This interpretation is not very different from the fictional cloning portrayed In His Image: The Cloning of Man by David Rorvik in the late 1970s, when cloning by nuclear transplantation was the topic of the day in North America. The popular perception that human copies can be produced at will led the leading Mufti of Egypt, Dr Nasr Farid Wasil in Cairo, to emphatically declare his position on the subject. Dr. Wasil declared that possible human or ‘copying’ is both an act of disbelief and immoral. Hence, cloning should be regulated by the government.6 However, this position is disputed by another leading Egyptian legist Yusuf al-Qaradawi who, when asked if cloning was interference in the creation of God, or a challenge to God’s will, replied in no uncertain terms:

Oh no, no one can challenge or oppose God’s will. Hence, if the matter is achieved then it is certainly under the will of God. Nothing can be created without God’s will creating it. As long as people continue to do so, it is the will of God. Actually, we do not search for the question whether it is in accord with the will of God. Our search is whether the matter is licit or not.7

Although the issue of cloning technology has not been given much serious consideration in Muslim discussions of cellular nuclear transplantation, there is much concern with the anticipated biological and social effects of cloning on the underlying Islamic ethical framework and social fabric. For instance, al-Qaradawi raises a fundamental question about the impact of this technology on human life:

Would such a process create disorder in human life when human beings with their subjective opinions and caprices interfere in God’s created nature on which He has created people and has founded their life on it? It is only then that we can assess the human being, that is, to copy numerous faces of a person as if they were carbon copies of each other.8

The fundamental ethical question, as al-Qaradawi indicates, is whether this procedure interferes with growing up in a family that is founded upon the institutions of fatherhood and motherhood. It is in a family that the child is nurtured to become a person. In addition, al- Qaradawi says, since God has placed in each man and woman an instinct to produce this individual in the family, would there be a need for marriage if an individual could be created by cloning? Such a procedure may even lead to a male in no need of a female. Although al- Qaradawi does not state this, biologically speaking, the male may become superfluous (but not the female, since both her egg and womb will be needed).

The other point raised by al-Qaradawi against cloning is based on the Qur’anic notion that variations among peoples are a sign from God who created human beings in different forms and colors, just as He created them distinct from other animals. This variety reflects the richness of life. Resemblance’s resulting from “copying” might lead to a situation where spouses were unable to recognize their partners. This “misunderstanding” would clearly have serious social and ethical consequences. From the point of view of health, one could also presume that people would then be affected by the same virus. However, al-Qaradawi maintains that the technology can be used to overcome certain hereditary diseases, such as infertility, as long as it does not lead to abuse in other areas.9

The Shi’I scholarly position, on the other hand, appears to treat the term ‘clone’ more in its broad scientific sense of making identical copies of molecules, cells, tissues, and even animals involving somatic cell nuclear transplant. In fact, besides the therapeutic use in the hospitals, the technology has been in use in the area of husbandry and agriculture throughout the Islamic world. Hence, Islamic tradition takes the position of endorsing the applications of the technology as long as it provides practical benefit in terms of improved human life. When it comes to cloning human beings, however, the Shari’a-Islamic Jurisprudence-requires that the best interest of prospective parents and their future children be taken into consideration.10

ISLAM AND TECHNOLOGICALLY ASSISTED REPRODUCTION Although since the 1970s, ethical issues associated with assisted reproductive technologies (such as in vitro fertilization) have been dealt with extensively by Muslim jurists, human cloning remains to be discussed in detail. The facts about it are still emerging. With the prospect of understanding cloning better while, understanding impact it could have on how Muslims conceive of human life and subsequently their destiny, it is reasonable to expect revision in the ethnical and legal assessment of these experiments among the scholars of Shari’a, the Scared Law of Islam. Given the success rate of embryo duplication in a number of animal species, reproductive specialists seem to be confident that the technique will improve the success rates of assisted reproductive technology in humans. Accordingly, the legality of human embryo duplication by splitting has been accepted by Muslim jurists as a replication of natural twinning through legitimate scientific means.

Let me proceed to summarize the theological-ethical-legal dimensions of the issues associated with cloning in Islam have been explored with due attention to the possible differences in the interpretation of the scriptural sources for these rulings among the Sunni and the Shi’I legists.

THE THEOLOGICAL DIMENSION OF THE ISSUE

I want to begin with the teachings of the Qur’an, and see if there is any room for human intervention in the workings of nature associated with reproduction. In Chapter 23, verse 12-14, we read:

We created (khalaqna) man of an extraction of clay, then we set him, a drop in a safe lodging, then We created of the drop a clot, then We created of the clot a tissue, then We created the tissue bones, then we covered the bones in flesh; thereafter We produced it as another creature. So blessed be God, the Best of creators (khaliqin)!

Muslim thinkers have gleaned some important conclusions from this and other passages that describe the development of an embryo to a full human person:

First, creation of a human being is an act of divine will. It is this absolute will that determines the embryonic journey to full human status.

Second, perceivable human life is possible only at the later stage in biological development of the embryo when God says: “Thereafter We produced him as another creature.”12

Third, as the last reference implies, the fetus should be accorded the status of a legal person only at the later stage of its development and not in the earlier stage when it lodges itself in the uterus.

Fourth, because of the silence of the Qur’an over exactly when implantation occurs in the fetus it is possible to make a distinction between a biological and moral person,13 placing the latter stage after, at least, the first trimester of pregnancy.

On the basis of some traditions ascribed to the Prophet Muhammad which describes the stages of embryonic development,14 the majority of Sunni and some Shi’I scholars draw a distinction between the two stages in pregnancy divided by the end of the fourth month (120 days). However, these traditions, admitted as documentation for such a distinction, are not universally adapted even by Sunni scholars. The majority of the Shi’I and some Sunni legists have exercised caution in making such a distinction because, as they argue, these traditions do not speak about the enrollment of the fetus at all. They simply mention the stage when an angel is sent to the fetus. Hence, they regard the embryo at all stages as alive, and its eradication as a sin.

The Qur’an and the traditions provide no universally accepted definition of the term ‘embryo’ with which we are concerned in our deliberations about cloning.15 Nor do these two foundational sources of the Shari’a lend themselves to distinctions among the detailed modern biological data about the beginning of life from the moment of impregnation. A tenable conclusion, derived by rationally inclined interpreters of the verse of the Qur’an cited above, suggest that as participants in the act of creating with God (God being the only one who can truly create). Human beings can actively engage in furthering the overall well being of humanity by intervening in the works of nature, including the early stages of embryonic development, to improve human health.16

Nevertheless, the Qur’an takes into account the problem of human arrogance which takes the form of rejecting God’s frequent reminders to humanity. The reminders state that God’s immutable laws are dominant in nature, and human beings cannot willfully create “unless God, the Lord of all Being, wills (8:29).” The will of God in the Qur’an has often been interpreted as the processes of nature uninterfered with by human action. Hence, in Islam human management of genes made possible by biotechnical intervention in the early stages of life is regarded as an act of faith in the ultimate will of God as the Giver of all life, as long as such an intervention is undertaken with the purpose of improving the health of the fetus or increasing the chances of fertility for a married couple.

THE ETHICAL DIMENSION OF THE ISSUE

At the center of the Islamic ethical debate about cloning, as pointed out by al-Qaradawi and other Muslim scholars, is the question of the ways in which cloning might affect familial relationships and responsibilities. In a plethora of concerns voiced by Paul Ramsey about the social role of parenting and nurturing interpersonal relations’17 Islam regards interpersonal relationships as fundamental to human religious life. The Prophet is reported to have said that religion is made up often parts, of which nine-tenths constitute interhuman relationships, whereas only one-tenth concerns man’s relationship to God. Since the fundamental institution to further these relationships is the family, and since human cloning interferes with the workings of male female relations, Muslim scholars have advised their governments to exercise extreme caution regarding this technology.

Since researchers at the George Washington University Medical Center succeeded in duplicating genetically defective human embryos by blastomere separation in 1993,18 some Muslim thinkers have raised questions about manipulating human embryos in IVF implantation in terms of its impact upon the fundamental relationship between man and woman, and the life giving aspects of spousal relations that culminate in parental love and concern for their offspring. Islam regards the spousal relationship in marriage to be the cornerstone of the prime social institution of the family for the creation of a divinely ordained order. Consequently, Muslim focus on the debate regarding where genetic replication is concerned with moral issues related to the possibility of technologically created incidental relationships that do not require spiritual and moral connection between a man and a woman. Can human intervention through biotechnology jeopardize the very foundation of human community, namely, a religiously and morally regulated spousal and parent child relationships under the laws of God? It is because of this reason that among Muslim scholars the more intricate issues associated with embryo preservation and experimentation have received less attention in these ethical deliberations. Certainly, since the therapeutic uses of cloning in IVF appear as an aid to fertility strictly within the bounds of marriage, both monogamous and polygamous as recognized in the Shari’a, Muslims have little problem with endorsing the technology. The opinions from Sunni and Shi’I scholars studied for this article indicate that there is a unanimity in Islamic rulings on therapeutic uses of cloning, as long as the lineage of the child remains religiously unblemished. In other words, to preserve the integrity of the lineage of a child reproduction must take place within the religiously specified boundaries of a spousal relation.19

Besides the significance attached to the spousal relationship for bearing and nurturing children, another issue in Muslim bioethics is the problem of determining the moral status of the technology itself. In a world dominated by multinational corporations, Muslims, like other people around the globe, do not treat technology as nonmoral. No human action is possible without intention and will. In light of the manipulation of genetic engineering for eugenics in recent history, it is reasonable for the Muslims, like Christians and Jews, to fear political abuse of the reproduction technology through cloning. With its emphasis on spiritual equality; Islam has refused to accord validity to any claims of superiority of one people over the other. The only valid claim to nobility in the Qur’an stems from being god-fearing. From an Islamic standpoint, it is morally and religiously wrong to employ cloning technology for purposes other than therapeutic.

THE LEGAL DIMENSION OF THE ISSUE IN VIEW OF THE PRINCIPLES OF ‘EQUITY’ AND ‘PUBLIC INTEREST

In Islam, although religious, ethical and legal dimensions are interrelated, it is important to underline the legal doctrines that bear upon the decisions made by Muslim legal scholars in endorsing or prohibiting cloning. Without adequate legal reasoning based upon careful interpretation of the Qur’an and the traditions, in addition to certain rationally derived principles and rules, no Muslin legist can issue judicial decisions on the subject. In connection with embryo cloning the legists invoked the two fundamental principles of ‘equity'(istihsan) and ‘public interest’ (maslaha) to furnish a religious basis for their legal decisions. These two principles function as complementary procedures to derive rules that can be applied to formulate new decisions outside the strict letter of law. Since the subject of technologically assisted reproduction has no precedent in the classical juridical tradition, Muslim legists depend heavily on the scientific information supplied by researchers to deduce their judicial decisions. In addition, there are three major subsidiary principles or rules applied to resolve ethical dilemmas and derive judgments related to all bioethical issues, including cloning: (1) ‘protection against distress and constriction’ (‘usrwa haraj); (2) ‘the necessity to refrain from causing harm to oneself and others’ (la darar wa la dirar), (3) ‘the rule that averting causes of corruption has precedence over bringing about benefit’ (dar’u al-mafasid muqaddam al jalb al-masalih). It is obvious that in light of the limited knowledge that we have about who would be harmed by cloning or whose rights would be violated, Muslim legal rulings are bound to reflect a cautious and even prohibitive attitude beyond treatment of infertility or assessment of genetic or other abnormalities in the embryo prior to implantation. Although the recent breakthrough in mammal cloning provides a unique opportunity to the scientists to fathom the secrets of God’s creation, it also carries with it grave and unprecedented risks. Nevertheless, since we do not will unless God wills, can this breakthrough in cloning be regarded as part of the divine will to afford human kind yet another opportunity for moral training and maturity? The Qur’an seems to suggest that embryo splitting is just that opportunity for our overall maturity as members of the global community under God.

CONCLUSION

The recent opinions expressed by the Grand Mufti of Egypt and other Muslim legists around the world confirm my assessment of the ethical issues associated with cloning. Unanimity has now emerged among Muslim scholars of different legal rites that whereas in Islamic tradition therapeutic uses of cloning and any research to further that goal will receive the endorsement of the major legal schools, the idea of human cloning has been viewed negatively and almost, to use the language of the Mufti of Egypt, “Satanic.” A further consensus among Muslims seems to discourage even research directed towards improvement of human health thorough genetic manipulation because of the rule of prioritization based on the principle of distributive justice. In view of limited resources in the Islamic world and the expensive technology that is needed for research related to cloning, Muslim legists have asked their governments to ban research on cloning at this time. Since technologically assisted reproduction in Islamic tradition is legitimized only within the lawful male female relationship to help alleviate infertility, somatic cell nuclear transplant cloning from adult cells for therapeutic purposes will have to abide by the general criterion set for this technology. In the case of cloning specifically for the purposes of relieving human disease, there is no ethical impediment to stop such research, whose probable benefit outweighs possible harm. I believe that research into human cloning from adult cells in the course of reproductive treatment should be allowed, with necessary regulatory clauses to restrict abuse under penalty. My opinion is based on the principle that ‘averting (and not interdicting) causes of corruption has precedence over bringing about that which has benefit. In our religiously and ethically pluralistic society where there is a search for a universal ethical language that can speak to the adherents of different religious and cultural traditions, Islamic tradition, with its experience in dealing with matters central to human interpersonal relations in diverse cultural settings, can be become an important source for our ethical deliberations dealing with the ideals and realities of human existence. I am deeply concerned, for instance, about the way we shy away from considering the subjective dimensions pertaining to human spiritual and moral awareness in setting our goals for research with human embryos. Our policies on the matter of cloning should be seriously informed from the perspective of corrective as well as distributive justice. From the standpoint of our moral commitment to the principle of distributive justice, it will be hard to justify a heavy investment in embryonic research related to human cloning without addressing some immediate and serious problems of poverty in our own backyard. Moreover, as the leader of the world community, the U.S. has a responsibility to share its material as well as scientific resources with underprivileged nations whose immediate needs do not go beyond treating common diseases like malaria and tuberculosis.

ENDNOTES

1 This chapter is an extended version of the testimony presented before the National Bioethics Advisory Commission in March 1997. At the global level Sunni Muslims from the majority of the Muslim community, almost 80%; whereas Shi’I Muslims form the minority (20%). The two communities are divided on the question of religious authority to which obedience in matters of religious and moral law is required. The Sunni Muslims recognize the learned jurists at the Azhar University in Cairo, Egypt and Shi’I Muslims depend upon their scholars in Iran and Iraq for moral and spiritual guidance. The fundamental difference between the two communities in matters of ethical-legal decisions is marked by the use of intuitive human reason in deriving ethical-legal judgement pertaining to modern biomedical technology. Whereas the Sunni legists tend to assign a significant role to the Tradition informed by concern for ‘public interest’ (maslaha) and ‘equity’ (istihsan), the Shi’I jurist-consults (mujahid) assign intuitive reason a substantial role in finding solutions to the problems raised by technological advancements today. In the North American context also the Sunnis form a majority, whereas the Shi’ites form a minority. However, the actual figures are open to dispute because the number of Iranian Shi’ites who are assimilated in the North American culture remains unaccounted in the census among Muslim communities. The four Sunni legal rites (madhabib) are: Maliki, Hanafi, Shafi’I and Hanbali. Most of the Sunnis belong to the Hanafi madhhab in their religious practice. The Shi’ites form their own madhhab known as the Ja’fari legal rite.

SEE ABOVE, NOTE 2. For various Muslim opinions collected from around the world see: “Religious Perspectives on Human Cloning” by Courtney Campbell Ph.D., Oregon State University, paper commissioned by the National Bioethics Advisory Commission. In addition, for specifically Sunni opinions expressed by their leading religious authorities, see: Al-Majalla: The International News Magazine of the Arabs (No.894, 30 March-5 April 1997) and Sayyidati (No 843, 3- 9 May, 1997, pp.62-64). See Al-Ma jalla, No.894, 30 March-5 April, 1997, p.

6 Sayyidat, No.843, p.64 Ibid. p.63 Ibid, p.62-63 The opinions regarding cloning coming out of Lebanon and iron indicate more openness in accepting the technology even adult somatic cell transplant. See Ayatollah Khamenehi, Pizishki dar a’ineh ijtihad (medicine through the Process of Independent Reasoning) (Qumm, 1375/1996); pp.111-112 deal with technologically assisted reproduction. For the Qur’anic exegesis dealing with legal implications, see al-Qurtubi, al-Jami li-ahkam al-Qur’an (Beirut: Dar Ihya’ al-Turoth al-Arobi, 1966), vol.12, pp. 6-7. Qurtubi, Jumi, ol. XII, p.6; al-Razi, Fakhr al-Din al-Tafsir al-kabir, al-Muhammed Muhyi al-Din, 32 vols. (Cairo, 1352/1933) vol. XXIII, p.85; al-Tabarsi, Abu Ali al-Fadl b. Hasan (d. 548/1154), Majma al-bayan fi tafsir al-qur’an, 10 vols. (Tehran, 1379-82), vol. VII p.101); al-Tabataba’I, Muhammad Husayn, al-Mizan fi tafsir al-qur’an, 20 vols. (Beirut, 1393- 4/1973-74), vol. XV pp. 20-24. Ayatollah Muhammad H. Bihishti, ‘Rules of Abortion and Sterilization in Islamic Law,” in Islam and Family Planning. The international Planned Parenthood Federation Middle East and North Africa Region (Beirut, 1974), vol. II pp. 416-17, indicates the possibility of such a distinction in the context of considering when abortion can be regarded as murder.

14 These traditions ore recorded in the Sahih al-Bukhari and Sahih al-Muslim among the Sunni compilations; and Wasa’il al-shi’a, the Shi’ite compendium of traditions. For valuable insights into these traditions I have depended on the commentaries: Fath al-Bari bi sharh Sahih al-Bukhari (Cairo: Al-Matba’a al-Bahiyya al-Misriyya, 1347/1928), vol 11, pp.404-5; Sahih Muslim bi sharh al-Nawawi (Cairo: Al-Matba’a al-Misriyya bil-Azhar, 1349/1930), vol. 16, pp. 190-215.

15 Muammad Na’im Yasin, Abhath fiqhiyya fi qadaya tibbiva mu’asira (Amman: Dar al-Nafa’is, 1416/1996), pp. 9-25, has done extensive research in the Sunni juridical sources to demonstrate the plurality of opinions in determining the beginning of life, and has concluded with mush evidence that the majority of the Muslim scholars do not support the view that moral-legal life begins with conception. For Shi’I views on the subject see: Pasukh bi-su’alha-yi shuma dar barah-I ahkum dar marakiz bihdasht wa darmani (Tehran: Chapkhanah-I Danishgah-I Danishgo-I Ulum-I Pizishki, n.d.); and, Fiqh al-tabib. Compiled by Drs. Mustafa Najafi, Mas’ud Salihi and Mas’ud Firdasi (Tehran: Ministry of Health, n.d.)

16 in particular views expressed by al-Qaradawi and Ayatollah Muhammad Husayn Fadl Allah of Lebanon in support of improving human health regard the advancements in biotechnology as an expression of Divine Will. See the report prepared by Courtney S. Campbell, “Examination of Views of Religious Traditions on Issues of the Cloning of Humans,” where he cites the Lebanese Shi’ite leader’s views.

17 Paul Ramsey, Fabricated Man: The Ethics of Genetic Control (New Haven, 1970).

18 For details of the experiment and related ethical issues in genetic manipulation, see Andrea L. Bonnicksen, “Ethical and Policy Issues in Human Embryo Twinning,” in Cambridge Quarterly of Healthcare Ethics 4 (1995), pp.268-84.

19 Among the Shi’ite jurists, Ayatollah Khamenehi, Pizishki dar a’ineh ijtihad, p. 117-122 seems to have sanctioned both surrogacy, and sperm and egg donation, without requiring the donor of the sperm and egg donation, without requiring the donor of the sperm to be the husband as required by senior jurists like the late Ayatollah Khomeini and others. This seems to be on error of judgement on Khamenehi’s part. See: Pasukhi bi-su’alha, pp.74-81.

While it is true that crimes committed against an individual usually affect society as well, in many cases it is the victims whose rights are directly violated (Udeh 1990, p.l94). Since they suffer directly from the crime, they should have a role in the process of ‘punishment’ or ‘pardoning’, a process which concerns them, both physically and emotionally, at least as much as it concerns society. In modern Western legal systems, consideration of victims’ rights is a separate procedure from the punishment process. But a legal system that aims to compensate victims needs to consider ‘emotional’ as well as ‘material’ suffering.

Involvement of the victims in the punishment process should not be regarded simply as a means of giving them access to retaliation or retribution; it is also a highly effective means of emotional release for victims. Whatever punishment is decreed by the court, if the victims are not consulted, they may feel ‘let down’ by the system. Involving them can help restore credibility to the legal system, as well as having, in certain cultures, an extra deterrent affect on potential criminals.

2. Offender and victim

The concept of victim involvement is well established in the Islamic system, but is relatively new in the West and has not yet been systematically worked out. Until the 1990s, Western legal systems were primarily concerned with the rights of suspects and offenders. Since then, attention has increasingly been drawn to direct involvement of victims. A revised and strengthened Victim’s Charter was published in 1996 along with Guidance to Services from the Association of Chief Officers of Probation (ACOP, 1996). It envisages consultation of the victims before decisions are made about release conditions of offenders serving long sentences (see Nettleton et al., 1976, p.3). Some argued that providing information to victims about release plans for offenders could open the latter to (possibly violent) reprisal, (Kosh and Williams 1995, p.15) and in any case, had the offender not been punished already? On the victims’ side, Nettleton et al. (1997a) noted that: ‘… it was not uncommon for victims of serious offences to move house, even moving to a completely new area, on hearing that an offender was likely to be allowed to resettle in their mutual home area.’ In such a case the law effectively allows an offender to once more offend against the same victim.

3. Crimes committed against individuals and society

Every crime which harms an individual may also harm the society. Depending on the level of injury to the individual or society, the punishment in the Islamic legal system is classified under three broad categories as hadd, ta’zir and qisas or diyya.

3. 1. Hadd, (‘limit’, ‘restrictive ordinance’) refers to the five offences of zina (‘fornication’ or ‘adultery’), ‘false accusation, ‘wine-drinking’, ‘theft’ and ‘highway robbery’ for which fixed penalties are laid down in the Shari‘a. Such acts are essentially regarded as crimes against God (Heyd, 1973, p.340). The punishment prescribed by the Law cannot be reduced or increased even in response to the promptings of compassion (Siddiqi 1979, p.8).

3. 2. Ta’zir is a discretionary punishment aimed at deterrence and, where that is appropriate, reform of the offender.

3. 3. Qisas is a divine ordinance restricting retribution to parity with the crime (life for life, injury for injury, etc.). Right of retribution may be waived in favour of blood-money or diyya (Heyd 1973, p.339); further, even this compensation may be waived by the victim in favour of outright forgiveness.. Yusuf Ali (1989, p.71) states that the translation ‘retaliation’ for qisas is incorrect. Retaliation carries the sense of returning evil for evil, which is what happened in the blood-feuds of the pre-Islamic period: the crime and its consequences were kept going by the feuds, not resolved and put an end to. Qisas means that one who has committed a particular crime may be lawfully punished in the same way and to the same degree as his crime, unless the victim (or representative of the victim) accepts compensation, or chooses outright forgiveness. Whether retribution or forgiveness is chosen, the aim is to close the circle on the crime, and not to let it persist.

4. The involvement of the victim in the punishment process

Of the three choices open to the victim, retribution, compensation, outright forgiveness, the Qur’an commends the Muslims to agree a settlement or to forgive the offender. The injured party (plaintiff or victim’s next of kin) is permitted to pardon the culprit altogether or to make a ‘settlement’ (sulh) with him (Heyd 1973, p.339), but retribution remains a legal right.

Western discussions of qisas translate it as retaliation, which connotes vindictiveness or revenge rather than redress of a wrong by equalizing the harm (Bassiouni 1982, p.203).

The Qur’an in this matter continues the tradition of the Judaeo-Christian teachings concerning law of eye for an eye, tooth for a tooth. As we noted, this law forbids the victim or victim’s family to demand more in punishment than was suffered. This practice proved its effectiveness in preserving social order in the early period of Islam when there was no organized system of criminal justice and penalties were carried out by the victim or victim’s family rather than by institutions and their official personnel (Bassiouni 1982, p.204).

One of the aims of qisas is to limit the consequences of certain categories of wrongdoing. Furthermore, some provisions in the Qur’an indicate that the retributive punishment must be inflicted in the manner least likely to aggravate the situation. The principle satisfies the general human need to have justice done on the perpetrator of crime while precluding unnecessary harm. That general human need can also be satisfied by the state or community acting for and on behalf of the victim, as most contemporary systems of criminal justice aspire to do.

The alternative penalty called diyya (or compensation) to be paid by the wrong-doer or his family to the victim or his/her family. Diyya is payable in certain cases of homicide and bodily harm upon a scale proportionate to the degree of incapacity or injury caused (Heyd, 1973: 338). The principle of diyya finds analogous expression in the contemporary science of victimology, whereby compensation emphasizes decriminalization of the act and compensation of the victim as an alternative to the traditional punishment of incarceration. As

between qisas and diyya, the Qur’an clearly commends the latter and forgiveness (2.178). The preference illustrates the bond of continuity between temporal law and religion since the forgiver will be rewarded in heaven, which, for a Muslim, is a much greater reward than any other. Thus, the combination of diyya and forgiveness produces a powerful material and spiritual inducement to forgo retribution (Bassiouni 1982, p.205). When the victim has the right and the choice to demand punishment or pardon the offender, in many cases, the victim chooses to forgive. One of the reasons behind this preference is that the victim believes that he will be rewarded by the God for his forgiveness.

Finally, critics of Islam wrongly imagine that punishments must be inflicted every day and on a mass scale. They also fancy that Islamic societies daily witness flogging, hand-cutting and stoning to death. The fact is that such deterrent punishments have been executed very rarely. For example, the punishment for theft was carried out only six times over a period of four hundred years-clear proof that such punishment was primarily meant to prevent crime (Siddiqi 1979, p.40).

5. The effects of the involvement of the victim

The systematic involvement of the victim in the punishment process is unique to Islam. It makes two important contributions in the criminal justice field. Firstly, involvement of the victim appeases the victim who otherwise feels shunned or ignored by the legal system. It is the victim who suffers from the crime first, and therefore must have a say in the punishment or pardoning of the offender.

Secondly, the involvement of the victim in the punishment process may also have a deterrent effect on likely offenders. Some offenders may be happy to commit certain acts and face the legal punishment which sometimes, for them, may be a very short imprisonment. But if they believe that their victim(s) might have a say in the punishment which they face, this may deter them. We may also add, here, the spiritual and moral force of forgiveness, if that option is chosen by the victim or victim’s party, in inwardly reforming the offender through practical demonstration of unselfishness.

6. Forgiveness as an option

There are many verses in the New Testament which urge, if not quite require, the victim to forgive the offender (Matthew 18. 21-35; Acts 13. 26- 39; Ephesians 4.32-32; Luke 6.27-31): ‘But I tell you who hear me: Love your enemies, do good to those who hate you, bless those who curse you, pray for those who ill-treat you. If someone strikes you on one cheek, turn him the other also. If someone takes your cloak, do not stop him taking your tunic’ (Luke 6. 27-29).

By contrast, the Qur’an commends but does not require the victim to forgive the aggressor: ‘O you who believe! The law of equality is prescribed to you in cases of murder; the free for the free, the slave for the slave, the women for the women, but if a remission is made by the brother of the slain, then grant any reasonable demand and compensate him with handsome gratitude. This is a concession and a mercy from your Lord. After this whoever exceeds the limits shall be in grave chastisement.’ (2.178)

The option to forgive is a right that belongs to the victim, not to the court. Most legal systems, if not all, do countenance, for particular reasons and in different ways, a reduction or even suspension of punishment. My argument, based upon the Qur’an, is that, just as victims may not demand a punishment greater than is prescribed by law, so too the court may not deny their right to either reduce the punishment prescribed or forgive the crime outright.

The New Testament, as we saw, requires Christians to forgive; no other option is sanctioned by the religion-not retribution, nor compensation-only forgiveness. In a famous text the ancient lex talionis is almost explicitly abrogated: ‘You have heard that it was said, “An eye for an eye and tooth for a tooth.” But now I tell you: do not take revenge on someone who wrongs you. If anyone slaps you on the right cheek, let him slap your left cheek too. And if someone takes you to court to sue for your shirt let him have your coat as well.’ (New Testament, 1976, p.14).

Is this a sustainable way for society to deal with crime, or to restore the moral and emotional order which crime violates? Legal punishment has its root in the natural impulse to revenge a wrong suffered. The impulse is gratified through retaliation by or on behalf of the victim. Later, this retaliation is taken on by the state on behalf of society in general and the victim in particular. Indeed, it has been argued that the state’s assumption of the function of revenge is what constituted the beginning of criminal law (Dakkak 1994:88).

Requiring the victim to forgive the aggressor outright without the option of a measured, legally defined, retribution, goes against human nature. It denies a vital need, individual and collective, for redress which has a deterrent function as well as a role in restoring a violated moral and emotional equilibrium. In sum, the human need for redress should not be left out any more than the human desire to forgive should be left out.

Conclusion

Modern Western legal systems are adapted to a philosophy that regards the individual’s life in this world as the be-all and end-all. Very often criminals are treated very leniently because, it is argued, they are victims of circumstances, psychological complexes, nervous disorders, beyond their control. This attitude is contrary to natural justice insofar as it denies to the victims of crime their need to forgive if they choose and are able, or to agree to a compensatory settlement, or to demand the prescribed punishment. Giving the victims a say in the punishment process, according to the Islamic pattern described above, returns to victims their rights and duties in a matter that directly concerns them, and concerns them most. It constitutes a major contribution to the field of victimology and is, characteristically of Islam, a supremely well-balanced approach. It is high time Western legal philosophy and procedures took note of it and learnt from it.

References

• A. John Simmons, Marshall Cohen, Joshua Cohen, Charles R. Beitz (eds) (1995) Punishment: A Philosophy and Public Affairs Reader, Princeton University Press, New Jersey.
• Abdul Qader Oudah Shaheed (1987) Criminal Law of Islam, vol.1, International Islamic Publishers, Karachi.
• Abdulkadir Qdeh (1990) Mukayeseli Islam Hukuku ve Beseri Hukuk, Rehber Yayinlari, Ankara.
• Abdullah Yusuf Ali (1989) The Holy Qur’an: Text, Translation and Commentary, Amana Corporation, Maryland.
• Association of Chief Officers of Probation (1996) Probation Services and Victims of Crime, ACOP, Wakefield.
• Hilary Nettleton, Sandra Walklate & Brian Williams (1997a) Probation Training with the
• Victim in Mind: Partnership, Values and Organizations, Keele University Press, Keele.
• Hilary Nettleton, Sandra Walklate & Brian Williams (1997b) ‘Three models of probation
• involvement with victims of crime’, paper presented to the British Criminology Conference, Queen’s University of Belfast, 15-18 July 1997.
• Kosh, M. and Wiliams, B. (1995) The Probation Service and Victims of Crime: A Pilot Study, Keele University Press, Keele.
• M. Chertif Bassiouni, (ed.) (1982) The Islamic Criminal Justice System, Oceana Publications, Inc., New York.
• M. Shakry El-Dakkak (1994) Repentance as a Defence: Comparative Study under Islamic
• Law, Common Law and Continental Law, A. S. Noordeen, Kuala Lumpur.
• New Testament (1976) Good News Edition, The Bible Society Collins/Fount, Swindon.
• Uriel Heyd (1979) Studies in Old Ottoman Criminal Law, (ed. by V. L. Menage), Clarendon Press, Oxford.

In Islam, asking questions is considered a legal obligation where knowledge of the obligatory duties is the issue; and it is, correspondingly, considered a virtue in the case of knowledge of the supererogatory observances. It is encouraged in the Qur’an which orders us to: Ask those who recite the Book before you (Yunus, O: 94), and Ask the people of remembrance if you do not know; with the clear signs and the Scriptures. (al-Nahl 16.43-44). The Messenger, upon him be peace, said: ‘A good question is half of knowledge’. The Companions of the Prophet and the generation that followed them encouraged those around them to ask as many questions as possible. The jurist and ascetic, Sufyan al-Thawri would leave any town where its people did not ask him questions. He would say, ‘This is a town where knowledge dies.’ Al-Shibli, the great scholar of Baghdad, if no question was put to him in his teaching circle would recite: And the word shall fall upon them because of their wrongdoing; they do not speak (al-Nahl, 27.85).

I was once fortunate enough to attend a teaching session where many questions were put to Fethullah Gulen. Lawyers asked him about certain legal practices in the light of Islam. Doctors asked him about foetal development as described in the Qur’an. Since that day, I have been waiting for the publication of this book. It has answered many questions put to me by Muslims who are keen to practise their religion hut still cannot address certain controversial issues. A good example of this is ‘Why did God not endow his servants equally? Why did he create some of them blind, disabled or afflicted in other ways?’

His answer begins with a statement of his own certainty. God is Sovereign. He is the Lord of earthly and spiritual dominions. He wills and creates whatever in them and however He pleases. After quoting the relevant verses, he does what very few scholars are able to do. He explains in simple terms our relationship with the Creator. ‘It is God who created every cell of every tissue of every thing and the whole of inanimate creation besides. It is God who bestows our human nature upon us. We have given nothing to God but He has given us everything without our deserving it. What claim or right have we therefore over anything’?’ With this approach, he makes the reader think. If we have given nothing to God, how can we impute injustice to Him. Injustice comes from not giving what is due. Is it right for the person who has been given a body with one arm to complain about not being given a second’? He makes the reader think about his or her own situation. There are creatures around us who are in some ways inferior or superior, yet we would not want to change places with them. He inspires gratefulness.

Fethullah Gulen looks, in this question and in many others, beyond the simple wording. He often sees a deeper disturbance in the questioner. He identifies, in this particular question, a misunderstanding of or unwillingness to accept the notion of Divine Providence. He explains:

God may deprive an individual of something he or she values, but grant that individual a manifold return for that loss in the Hereafter. By means of that loss, God makes you feel your need, your powerlessness, your poverty in relation to Him. In this way, He makes you turn to Him with a weightier sincerity, a fuller heart, and so makes you worthier of His Blessing and Favour. Thus, your apparent loss is in reality a gain. This is comparable to death in the way of God or martyrdom for which the return is heaven.

The martyr may he dismembered but that would not mean a loss in relation to what he has gained. This is the same for most people who suffer losses or disabilities. Most of them do not feel rejected and cast down. A few may stray from their faith, but many have their faith strengthened by these ‘misfortunes’. He warns those who may put such questions that ‘it is not correct to pretend to an exaggerated, indeed false, sympathy with the disabled as a pretext for disbelief. Far better is it, even essential, that an ardent yearning for eternal life be aroused in such people, for then they are worthy for an immense reward in eternity.’

Fethullah Gulen answers every question in such a reasoned, easy style. As a teacher, I have found this book both spiritually uplifting and practical in answering real questions put to me by enquiring minds. It is a great key to great knowledge.