>> From the Library of Congress in Washington, DC. ^M00:00:03 ^M00:00:23 >> Roberta I. Shaffer: And today we are pleased to be cosponsoring this event with our sister unit, the African Hebraic and Middle Eastern Division of library services and you will meet the esteemed head of that unit a little bit later in the program. I just wanted to take a few minutes to sort of set us up for Human Rights Day and its origins. Most people in the audience I don't think looking out will recall that it was started as a universal declaration of human rights in the United Nations in 1948 it was in Paris however. And it emanated from the four freedoms that President Franklin Delano Roosevelt had articulated in his 1941 State of the Union address to Congress. And those four freedoms which were very, very well known by everyone at the time were, of course, freedom of religion, freedom of speech, freedom from want and freedom from fear. Franklin Delano Roosevelt then appointed the first lady Eleanor to spearhead an effort through the United Nations to develop a universal declaration of human rights. And I think what's worth recalling at this time is the composition of the delegation. So the delegation represented many, many countries, Lebanon, Canada, the UK, Chile of course, the United States, China, the then Soviet Union. But what I think is even more striking to think about in terms of our discussions about human rights today and then of course, our esteem colleagues and panelists that we will hear from shortly, is the fact that the initial drafters were not just lawyers and jurists. Among the drafters were playwrights, art collectors, of course, educators, diplomats, trade unionists, a former army official from World War One, and a theologian. So I'm always struck when I think about human rights how very interesting it was that that initial group that first recognized that indeed there are universal rights and that there, therefore, must be universal protections and universal ways to assure that protections both financial, as well as diplomatic and perhaps even the use of force. That it was not just the law that set that milestone. So I hope you will think about that today when you are listening to our panelists. The more mundane thing I need to ask you is to please silence your electronic devices. To please note that you do have a question sheet in your program, so if you would like to ask a question to please write it down and submit it to one of the law library staff members around the room. There is a program survey and it is now my pleasure to just briefly tell you about our wonderful moderator and convener for today. Jane McAuliffe is our colleague, she is inaugural head of the National and International Outreach Service Unit at the Library of Congress, a newly created unit. She comes to this position with an enormous resume. Former president of Bryn Mawr College, former Dean of arts and sciences at Georgetown University. But most important, I think for today's discussion a very, very well respected and prolific writer in the areas of Islam and religious studies. She has her doctorate in religious studies from the University of Toronto. And the final thing I will do before turning the podium over to Jane is to ask you to please make sure that anything you brought in today is neatly tucked in the seat in front of you and that your minds are in the open and upright position. Jane, please take the podium. Thank you so much for joining us today. ^M00:05:05 [ Applause ] ^M00:05:12 >> Jane McAuliffe: Thank you Roberta. Good morning. Can you hear me, great? It's my pleasure to introduce the speakers who will tackle this fascinating and ever so important topic this morning and then to moderate the panel of discussion that will follow after their individual presentations. We have for distinguished speakers this morning and I will do very brief introductions of each of them and then call them forward. The first is our own Issam Saliba who is a specialist in Islamic law for the Law Library of Congress and has been so since 2003. He's written broadly and he's written some very important things on such matters as the Saddam Hussein trial, on international tribunals, national crimes in the Hariri assassination, on Lebanon its presidential election, and the conflicting constitutional interpretations. He's also written on a place of Sharia among the legal systems of the world, which would probably be the very prelude for today's discussion. Issam Saliba also testifies before Congress on matters relevant to his field of Islamic law on such matters as the Iraqi Constitution and the laws on oil and gas production in those areas. So a broad range of expertise is represented in his testimony. Prior to coming to the Library of Congress he practiced law as a member of the Beirut bar and he's also an associate member of the District of Columbia bar. Our next speaker will be Dr. Kristen Stilt who's a professor of law and co-director of the Islamic Legal Studies program at Harvard Law School. Before that she was at Northwestern as a professor of international law at the Northwestern Law School and is a professor of history in the university itself. Her JD is from the University of Texas at Austin and her PhD in Middle Eastern studies and history is from Harvard. She has had research support from some of the country's most prestigious foundations, including the Carnegie Foundation and the Guggenheim Foundation and has published material which is particularly important for our conversation. Her book with Oxford University Press in 2011 was Islamic Law in Action, a journal published this year in the International Journal of Constitutional Law is entitled Contextualizing Constitutional Islam. Her colleague at Harvard is Dr. Intisar Rabb who is also professor of law at Harvard Law School and co-director of its Islamic legal studies program. Doctor Rabb is also a professor of history at Harvard and a professor at the Radcliffe Institute for Advanced Studies. Before coming to Harvard she taught at New York University in their Middle Eastern Islamic studies department and at NYU Law School. She's been a visiting associate professor in the Islamic legal studies program at Harvard and a member of the faculty at the Boston College Law School. Her bachelor's degree is from Georgetown University, her JD from Yale and bot her MA and PhDs are from Princeton. Dr. Rabb was a law clerk for Judge Thomas Ambro of the United States Court of Appeals for the Third Circuit. She too has been supported by major foundations in this country, including the Carnegie Foundation and the Beckman Center for Internet and Society at Harvard. Her most recent publications include an edited volume that she did with Michael Cook and others in 2013, entitled Law and Tradition in Classic Islam, as well as her own monograph Doubt in Islamic Law that was published this year by Cambridge University Press. And finally we have Dr. Sherman Jackson who is the King Faisal Chair of Islamic thought and culture and has been so since 2011. This is the first and the oldest endowed chair in Islamic studies in the United States, it's at the University of Southern California. ^M00:10:00 Sherman is in Southern California now, but he has been in many other places including University of Texas at Austin, Indiana University, Wayne State and the University of Michigan. His PhD, however, is from the University of Pennsylvania, so he has East Coast roots. His publication list is too long for me to read every single one of them, but they come in an amazing range of material. Most recent book is entitled Initiative to Stop the Violence, Sadat's Assassins and the Renunciation of Political Violence that Yale published last year. He has written on Sufism, he's written on Islam in the black American and Islam and the problem of black suffering and several other books on Islamic law. He's currently working on a book called Beyond Good and Evil Sharia and the challenge of the Islamic Secular. Each of our speakers has 15 minutes. We will keep the four presentations to an hour. I will do kind of diplomatic timing, but will also rely on my colleagues to be good citizens. So with that I welcome Issam Saliba to the podium. ^M00:11:17 [ Applause ] ^M00:11:27 >> Issam M. Saliba: Thank you Jane, good morning. Islamic law is a legal system of special characteristics described by the late Joseph Schacht Introduction to Islamic Law. At the epitome of Islamic thought the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself. Unlike its counterparts in the west Islamic law regulates acts of worship and religious rituals [inaudible]. And acts of regular transactions or [inaudible]. The purpose of this presentation is to inquire whether the reformation of the law of Muamalat and not the law of any particular state is possible from within the Islamic legal theory. The Islamic legal theory is based on immoral concept of right and wrong or good and bad under which the law mandates the performance of what is good and forbids the performance of what is bad of the human acts. Back in the 1950's, the late US Supreme Court Justice Robert Jackson captured the essence of this theory by pointing out that under American law in contrast to Islamic law one may at the same time be a law-abiding citizen and a totally shabby character. The majority of Muslim scholars who organizing to schools of Islamic legal thought or [inaudible] argued that a human reason cannot on its own gain knowledge of the law because it's determination of the goodness and badness of human acts is relative and with the changing identity of the person making the determination. To illustrate this point Abu ?amid Mu?ammad Al Ghazali, the 12 century Muslim scholar gives in his book. ^M00:13:39 [ Foreign Language Being Spoken ] ^M00:13:41 The example of killing a king. He states that the act of killing is considered a good act by the King's enemies and a bad act by his supporters. Muslims believe the sharia consisting of the divine commands of God regulates all aspects of the human conduct, including in the field of legal relations. What God describes is necessarily good. What God forbids or proscribes is necessarily bad. The Quran, the holy book of Islam, and the traditions or the prophet Mohammed contain the divine commands and are the primary source of the law. The Sunnah was transmitted through order reports or [inaudible] before being collected into what is known as Books of Hadith. God's prescriptions and proscriptions are rarely if at all readily identifiable as legal rules. For example, verse 590 of the Quran warns the believers against gambling and against wine. The meaning is relatively clear, gambling and wine are prohibited. But it is not clear one, whether these prohibitions entail worldly punishments. Two, whether the punishments are civil or criminal. And three, whether the two prohibitions have the same legal consequences. To deal with such questions the school has developed a specialized discipline of study known as [inaudible] or science of understanding. [Inaudible] gives a human reason, the prominent role of interpreting the divine commands to derive the legal rules using the utmost intellectual efforts in a process called Ijtihad. In [inaudible] Al Ghazali states that [inaudible] is among the most noble sciences why? Because it is the place where reason and revelation conjoin and opinion and divine commands coalesce. Through Ijtihad the schools interpreted verse 590 to derive two different rules. One making the consumption of wine or any other intoxicants a criminal act punishable by a number of lashes. The other making gambling a grave sin for which expiation is due. The totality of the interpretations produced by the schools during a formative period of about 300 years constitutes what we call today sharia law or Islamic law. Even though it has according to Justice Jackson an amazing record of accomplishments, Islamic law has been stagnant for a long time and some of its rules are incompatible with modern norms. A Muslim who abandons Islam is still subject to the death penalty notwithstanding his [inaudible] right to believe or not to believe. A Jew is still required to convert to Islam or pay the jizya notwithstanding the instructions of the prophet Mohammed that no Jew shall be enticed to leave Judaism. And the [inaudible] faith is still the confessed form of government notwithstanding the silence of the Quran on this subject. Three questions are relevant to our inquiry. First, is Islamic law immutable? The majority of Muslims appear to believe in the immutability of Islamic law by refusing to critically discuss past interpretation of sharia. In his book The Reconstruction of Religious Thought in Islam published in 1930 Muhammad Iqbal referring to millions of Muslims in India writes, unfortunately, the conservative Muslim public of this country is not yet quite ready for a critical discussion of [inaudible], which if undertaken is likely to displease most people and raise sectarian controversies. Attempts at legal reforms undertaken by self-proclaimed Muslim states have largely gone backward. In the 1990's Nasr Hamid Abu Zayd, an Egyptian professor was judicially declared [inaudible] because of his academic writings. And as a result his marriage to his Muslim wife was nullified. Going back to the Islamic legal theory, we find no basis for the belief in the immutability of the law as interpreted by the schools. None of the schools has ever claimed finality or exclusivity of its interpretations of sharia. Imam Abu Hanifa [inaudible] is reported to have said, our ruling is an opinion, the best we could attain. Whoever comes with a better option deserves our support. And the Islamic [inaudible] there is room for different interpretations to coexist and by extension for such interpretations to evolve or change. In one [inaudible] Prophet Muhammad is reported to have said, the disagreement of my community is a blessing. The Islamic legal theory itself recognizes the evolving nature of Islamic law by adopting the maxim that states there is denying that the changes in times lead to changes in law. ^M00:20:13 It incumbent upon the Muslim polity to realize that the law as formulated by the schools during the early centuries of Islam is not impervious to change. Second, can the sharia support the new interpretations? The universal principles and values of sharia, such as justice, equality, and the public interest not only support but call in my opinion for new interpretations of the divine commands. [Inaudible], a Muslim scholar who died around 1316 argues in one of his writings that the principle of public interest is the ultimate guide in deriving the legal rules of sharia and should be given precedence even over contrary statements of the divine text. In his collection of fataawas [inaudible] the renowned 14th century Muslim scholar quotes approvingly that God would support a just government of unbelievers, meaning unMuslims and would not support an unjust government of believers meaning Muslims. In 1925, Ali Abdel Raziq, a faculty member of Islamic University of Al-Azhar published a book titled, Islam and the Foundation of Governance in which he relies on divine sources to conclude that sharia gives the Muslim polity the right to adopt the form of government most suitable to its needs. If the Sunni Muslim polity ideas with [inaudible] and Ali Abdel Raziq there is no doubt that the political theory of the caliphate would undergo a dramatic reformation from within. And lead to the establishment of a modern government without the need for assistance from us here in the west. In the reconstruction of religious thought Muhammad Iqbal writes the republican form of government is not the only authority consistent with the spirit of Islam, but has also become a necessity in view of the new forces that are set free in the word of Islam. Because of his belief in the compatibility of Islam with modern government Sheikh Muhammad Abdu, the great reformer of the 19th century has allegedly said after visiting friends. In France I saw Islam I didn't see Muslims. In Egypt I see Muslims I don't see Islam. My colleagues on this panel may have more to say about how specific interpretations of sharia would support through reformation. Third, who has the authority to reform Islamic law? To answer this question we need to go back to the formative period and find out how the work of the various schools was legitimized into becoming a binding law. The schools did not have any authority in this regard. None of the schools had any official status, representative capacity or legislative mandate to decide on what the law is or isn't. They all came into existence on their own initiative and acted independently from and at times in confrontation with the state. The authority that legitimized the law as formulated by the schools was the authority of the Muslim people. Schools that did not garner the consent of the people disappeared and their interpretations of the divine commands never became law. Among the many schools that came into existence only the work of a few got the support needed to become binding law. The authority of the Muslim polity as the legitimizing factor of Islamic law has been enshrined in the doctrine of Ijma or consensus. And that this doctrine the consensus of the Muslim polity on a legal matter not only legitimizes that legal rule resulting therefrom, but constitutes an original source of the legal rules themselves. As a consequence, the Muslim polity not the Muslim scholars has the authority to reform Islamic law. In concluding, it is reasonable to wonder if the Islamic legal theory allows for the reformation of Islamic law from within. Why haven't such reformations materialized? The essence of the answer given by Muhammed Iqbal early in the last century is probably still valid today. The conservative Muslim public is still not yet quite ready for a critical discussion of the past interpretation of sharia. Thank you very much. ^M00:26:06 [ Applause ] ^M00:26:23 >> Kristen A. Stilt: Thank you to Dr. Saliba and to Kimberly Zellars and everyone here at the Library of Congress for this invitation to be here on or in honor of I should say Human Rights Day. We have a few more days until Human Rights Day itself. I am very pleased to be here with such distinguished colleagues. And today I'll be focusing on family law in this short presentation. So family law in Muslim majority countries has undergone tremendous change over the past century and this change continues today with intensity and controversy. And change can happen in many ways and can be led by many types of actors. But today I'm talking about when actors such as legislators or activists or monarchs want to change family law with the intention of improving the rights of women and children. And in general, this change has sought to adopt national laws that would modify the rules of Islamic law that had been applicable and predominant in that particular country. And these efforts and I'll call them reforms because that's the term the actors use themselves have focused on a number of areas in particular. So substantively, these efforts have aimed at placing restrictions on a husband's right to enter into a polygamous marriage, limiting a husband's right to unilaterally declare his wife divorced, extending a mother's right to custody of the children and be compensated for it by her ex-husband, raising the minimum marriage age, expanding a wife's ability to get a divorce at her own initiative and requiring a husband to compensate his wife if he arbitrarily divorces her. So in some Muslim majority countries and we'll take Turkey as the example of this, major modification of the family law have been made by essentially adopting secular codes. In doing so in Turkey for example, Turkey operated in the context of its form of secularism as enshrined in its constitution and did not attempt to justify any of its changes as compatible with Islamic law in any way. But in most Muslim majority countries, the rules of Islamic law are particularly relevant in the area of family law. And so the change process or the reform process takes place within this space and changes are presented as taking place internally to Islamic law rather than something external to it. So just to be clear what I mean by that. This may be in a country for which religious law is not part of other areas of the law like business law or criminal law or international law, but family law often remains a domain where there's a belief that it is Islamic law and that it should remain that way. That belief is somewhat problematic and we can talk about that later. So the reasons for this internal approach range from faith-based to pragmatic, including the personal beliefs of advocates and lawmakers and concerns over the lack of popular acceptance of a family law that appears to be western or secular in origin. And so my talk today will focus very briefly on two changes in Sunni family law and how those changes have been presented or justified to strategies. My focus in this project from which this short presentation is derived is focused mainly on the Arab Sunni world, but we can talk beyond that later if you would like. So one when more preliminary comment. I think we want to think and talk about what is gained and what is lost when family law in a country is seen as the exclusive domain of Islamic law. ^M00:30:04 It tends to mean that when an advocacy organization sees a social need for a change they have to carefully think about whether they can justify it in Islamic terms. But of course if they can the potential for acceptance of the change can be much higher. But, of course, many of these countries have signed international human rights treaties, such as the convention on the elimination of all forms of discrimination against women or CEDAW. Although, sometimes they have put reservations with those treaties. And advocacy groups might be very active in conversations about human rights treaties like CEDAW and see them as setting important benchmarks or goals. But is the fact that a country's laws are not compatible with CEDAW off for example, on its own enough to garner the initiative to change the law and that's the big question. And the answer is probably not for many places. An exhaustive study of Morocco and Jordan that a scholar has just completed she noted quote, despite women's groups questioning that family law should be or indeed is Islamic law publicly, they still have to recognize that family law is Islamic law, which limits the possible arguments that can be used to advance their claims. So with that background I just want to cover two areas of the law and show you what the change was and then how it was justified in Islamic terms. And the first one is polygamy and the strategy that's been used is essentially taking powers that were left in the hands of individuals and the husbands in particular and assigning that power to a judge. So few Muslim majority countries have abolished polygamy as a matter of national law, but most attempt to curtail the rights of a husband to enter into a polygamous marriage. And they place emphasis on the Quranic verse that requires equitable treatment among wives. Quote, then marry from among other women, such as are lawful to you, two, three or four, but if you have reason to fear that you might not be able to treat them with equal fairness that only one. And that verse seems to speak to a man and cautions him. Yet another verse says, no it's not possible to do that quote and it will not be within your power to treat your wives with equal fairness, however, you may desire it. And so do not allow yourselves to incline towards the exclusion to one exclusion of the other leaving her in a state of having and not having a husband. I just paraphrased there. So many countries have adopted laws that essentially require the husband to go to the judge and not leave that decision about equal treatment up to the individual. Morocco adopted this approach in 2004 in its family law code that many you might be familiar with. In the preamble the Moroccan king said he would not allow outlaw polygamy due to his belief that it is permissible. But he said that polygamous marriages would only be allowed under compelling circumstances and stringent restrictions with the judge's authorization. The judge must verify that the husband has the means and there must be an exceptional mode of justifying polygamy and this perspective second wife must know and must consent to the polygamist marriage. Most recently in Jordan the Jordanian Women's Union officially opposed polygamy, but they were afraid that they wouldn't achieve that in the 2010 law. And so they instead proposed judicial oversight along the same lines as what was done in Morocco. So notice how this strategy works, it does not attempt to declare polygamy impermissible or even illegal in the state, but instead uses those verses to say to the husband more or less we don't think you're the one that should decide and the judge will be the one to do it. But I should note that even that strategy has been seen as too controversial in some countries. So the next area, the second area quickly is the area of marriage contracts. And the strategy here is something I call encouraging the permissible. So this strategy recognizes that a gap exists between what's permissible as a matter of Islamic law and what reformers think they can actually require as state law. And so they try to approximate state law by encouraging people to take advantage of options they already have. And so on one level this is sort of like know your rights campaign, but the more you can encourage something the more it would be potentially taken up by individuals the more you can approximate something like national law. And so a good example of this comes from Jordan. So marriage contracts can contain additional stipulations as long as they don't undercut the essence of the contract itself. So the Jordanian laws of 1976 and 2010 specifically identify conditions or clauses in the contract that are considered acceptable and would be upheld by a Jordanian court. These include for example, requiring the husband not to take another wife, not to prevent the wife from working, not to require her to move to a place she doesn't want and giving her the right to divorce herself. And so the activists felt that they were not able to achieve that as a matter of national law for example, without anything else spoken about in the contract the husband do those things. But by mentioning these in the law there's an implicit statement, you can do this, you can put this into your contract and the state will uphold that. But in contrast, Egypt was not able to go down that same path. So while women may add stipulations in their contract and that's not a problem at all what activists had wanted was a way in which to make it known to women here's conditions you can put in. These the state will uphold and your contract will not be considered null and void as a result. And so a coalition drafted a marriage contract that not only included a blank space where these stipulations could be written in, but also listed a number of questions that the notary was supposed to ask the couple helping to perhaps prompt them to consider these conditions. And the questions included speaking to the husband, do you agree to abstain from marrying an additional wife and if you do so, do you agree that your wife will have the right to divorce herself. And so by posing questions like this to the husband in a yes or no way the idea was at that moment when the couple is filling out this marriage contract the woman would understand she could ask for this and the husband would have to essentially say no if he didn't want that to be included in the marriage contract. And so the Egyptian government actually supported this new marriage contract that would have these prompting questions and sought the opinions of religious scholars on it. One of the highest religious officials in Egypt, the Sheikh of al-Azhar actually rejected this proposed marriage contract and he said while it's lawful for the woman to achieve these conditions in her contract it should not be encouraged as a matter of state law. And he said it violated a concept of the husband's superiority or authority over the particular -- over the woman. And so the rejection of the standard contract is essentially a rejection of that strategy of encouraging the permissible, at least in that particular context. So the stipulation is permissible according to the religious leader who essentially who said he wouldn't support it. But encouraging it through the national marriage registration process was not according to him. So just to sum up this strategy of encouraging the permissible it is distinct from a national law that would require that result on every individual. It would leave it to the individuals to adopt it or not to adopt it, but the extent of encouragement could come close to approximating a national law if indeed everyone adopted it. But it's easier, it's more palatable because it doesn't raise the same level of opposition as perhaps a national law that would prevent polygamy for example, to go back to the example I started with. So in being mindful of my precise time limits I've given you here just two areas of law, polygamous marriages and then marriage contracts and marital relations more generally, along with a strategy that went along with each particular area. Encouraging the permissible and delegating authority to a judge or other official. This comes from a larger work I have in which I discuss nine strategies across a wide array of substantive areas of family law and can certainly talk about that later or send anyone the paper if this is a concern of yours. But given that our context today is Human Rights Day I want an echo an issue I mentioned at the outset. So one of the goals of this project of identifying strategies is to contribute to a larger conversation about the benefits and disadvantages of using strategies rooted in Islamic law in comparison with other ways that could be used to achieve improvements in this case for women and children in the context of family law. ^M00:40:11 And of course, a prominent other source of law or change comes from the convention on the rights of women as I mentioned at the outset. So I just leave us with four questions that I hope we can talk about. So the first is what is gained and what is lost when family law in a particular country is seen as the exclusive domain of Islamic law. And what is gained and what is lost and from who's perspective. Secondly, what is gained and what is lost when Islamic arguments on family law are particularly relevant in a society and what if they're the only relevant argument in a society. The third one is how can international human rights based arguments become persuasive in a context where they have not been very persuasive right. What about a country or a society or a component of a society where the international human rights arguments have not been considered persuasive or even important. And then the last one is how can international human rights norms and Islamic law work together and I do think they can. Can they be mutually reinforcing? So let me leave with those open-ended questions that we can come back to. Thank you. ^M00:41:26 [ Applause ] ^M00:41:46 >> Intisar A. Rabb: He was handing me a pointer, I thought about doing a PowerPoint presentation, but I've heard that power corrupts and PowerPoint corrupts to a point so I thought I'd avoid that for right now that comes later. I'd like to thank Issam Saliba, Kimberly Zellars, Cliff Brown and all the other librarians who are here and have invited us to inform this session which I'm honored to join. I'll be talking about Islamic criminal law through internal critique or as related to internal critique. And this is the talk in a nutshell, so I'll try and say this in 30 seconds and then you can you ignore the rest or you can stay tuned for the details. So basically I'll be talking -- I want to discuss the doctrine of doubt in Islamic law as a significant feature of Islamic criminal law and make the argument that this concept of doubt and dynamic interpretation that goes along with it are key to what I'm calling a process of internal critique that pervades Islamic law on a meta-level and that could lead to positive change in criminal law. So that's the talk in a nutshell. So as to the details let me start by saying a word about why we should be interested in the idea of internal critique, which as I'm using it is a process through which an illegal arena that I'm concerned with Muslim jurists critically assess the rulings and applications of Islamic law. So they critically assess Islamic law. And this process tends to happen at particular historic moments, both medieval and modern. And such moments might occur when the entire system of Islamic law and governance does not exemplify the values it purports to espouse or it does not serve the purpose of ensuring law and order with respect to a greater moral system or it functions in a context in which those preserving or seeking to preserve the moral order lack the political or legal authority to do so, to provide the type of individual and institutional guidance or governance required for a just society. So in short, internal critique often follows moments of crisis, such as the fall of Baghdad in 1258 or the fall of Baghdad in 2003. So this moment is arguably one such moment. Today we might expect to see internal critique where there is a widespread lack of authority, ongoing questions about who speaks for Islam, such questions as Issam Saliba raised. The tragic rise of extremist groups like ISIS who use violence in the form of war and egregious harsh criminal punishments and that's something I'll focus on in particular as a means of social control of gaining territory, instilling terror all the while claiming that their actions are based on early Islamic law. So nothing could be more false. And then the rest of the talk I have aimed to explain what I mean by that, not by refuting what are simply outrageous discussions that question whether sex, slavery or wanton killing are sanctioned by Islamic law they're not. But by giving a sense of the type of reasonable decision-making that Islamic law does historically sanction in areas of law and policy in the criminal arena. And then I want to talk about the type of dynamic rules that Muslim thinkers, judges, jurists, other scholars produced historically with respect to what I call a doctrine of doubt in Islamic criminal law. And then I'll end with a look at some modern experiments in Islamic criminal law that seek to use or that through internal critique seek to change or update their Islamic criminal law codes. And just one word about -- one more word about the term Islamic critique or internal critique. I prefer to use this term over reform, although our title for the talk is called perspectives on Islamic law reform because this is a sort of critique that is a means of updating Islamic law through using Islamic legal arguments. And this relates to what Kristen Stilt was saying about the resonance or salience of international human rights norms as opposed to Islamic legal arguments and perhaps the end is the same of universal or shared values, but the articulation of them may resonate more in one context. And I think internal critique captures that better than human rights reform. So let's start with what do I mean by doubt. I want to start with an episode from early Islamic life, it's something that's reported in both Sunni and Shia sources repeated across the board and throughout Islamic history as one of the iconic examples of -- an illustrative example of what should happen in criminal law context. So in this early episode there's a type of early police force in a small Arabian town out patrolling. And members of the patrol come across a man in the town ruins and he's holding a bloodstained knife and he's standing over another man who apparently has just been stabbed to death. So the patrol arrest the man with the knife and upon arrest that man confesses and says I killed him. And the suspect is brought before Ali, who is the beloved cousin and son-in-law of the prophet Muhammad who had died just a few decades before Ali in Islamic history is the fourth caliph according to Sunni accounts and the first imam, according to Shia accounts. So he's an authoritative early figure and he's presiding over criminal trials in his capacity as leader of the young Muslim community. And upon hearing the defendant's story Ali reportedly sentenced the man to death in accordance with the Islamic law of homicide which accommodates the death penalty, life for life, unless there's commutation at the request of the victim's family. So before the sentence was carried out another man rushed forward telling the executioners don't be so hasty, don't kill him I did it he announced. And Ali returned to the condemned man incredulously well, what made you confess to a murder that you did not commit. And the man explained that while he thought Ali would never take his word for it because all the signs had pointed to him as the perpetrator, but in reality he was a butcher who had just finished slaughtering a cow and immediately after the slaughter he needed to relieve himself. So he entered the area of the ruins, bloody knife still in hand and upon return he came across the dead man and he stood over him actually in concern and it was then that the patrol encountered him. And he figured that he couldn't plausibly avoid admitting to the crime and so he did so and decided to leave the matter in God's hands. And a second man, the actual perpetrator, purported actual perpetrator, he offered a corroborating story explaining that he was the one who had murdered the man for his money and then he fled upon hearing the sounds of the patrol approaching. And on his way out he passed this butcher entering the area and watched the events unfold just as the butcher had described them. And once the butcher had been content condemned to death that man didn't want the blood of two men on his hands. So this episode and we can refer to it as the case of the falsely accused butcher, we see that things are not exactly always how they seem. ^M00:50:01 And it really depicts and was used in the -- whether or not it's an actual case and this is a case or similar cases like it have been reported in the Jewish tradition, early Christian traditions, etcetera. So whether the case is historically accurate in all of its facts the point is that it was used by Muslim jurists over time to be a guide to how Islamic criminal law should be applied and critically so. So the case depicts the difficulties that the early and medieval Muslim judges faced when attempting to apply Islamic criminal law without the benefit of being able to discern the facts fully, the law fully or the morality fully of any particular case with any certainty. So as for the facts here confession or witness testimony typically suffices to establish guilt in Islamic criminal law, but here Ali was presented only with circumstantial evidence and contradictory evidence. So the facts didn't help and then there was some doubt about the facts. As for the law or the Islamic law of homicide the Quran and other foundational texts contain clear rules about intentional murder being the only area for which the life for life rule applies. But was this intentional, the facts didn't seem to quite point there and so the law, therefore, was not quite on point. There was some doubt about whether the law applied. And as for morality and, therefore, legitimacy of punishment given scriptural commands to punish but not do so when there was any doubt about the facts or the law Ali needed to stay his hand in the interpretation of the Muslim jurists discussing this case. The question is why and to what extent and the answer is shrouded by a tangled web if you look at the history that took Muslim jurists centuries to weave and, therefore, take some time to unravel. And don't worry I'm not going to take all that time to unravel it here. But I'll cut to the center that based on Islamic values of justice and fairness Muslims may doubt an avoidance of punishment on its basis a central pillar of Islamic criminal law and they expressed it in the form of a legal maxim what I call the doubt canon to avoid criminal punishments in cases of doubt, avoid criminal punishment in cases of doubt. This was repeated over and over again, avoid criminal punishments in cases of doubt. So [inaudible] episodes like this one, the case of the falsely accused butcher, they occur in early Islamic sources and Muslim jurists explain these cases with reference to doubt. And I want to say here for anyone familiar with American criminal law that the Arabic term for doubt should shubha was a term of art. It assumed a much more expansive meaning than the common conception that we have as American lawyers of reasonable doubt, which is largely a fact-based concept. So rather than representing a principle effect [inaudible] standard of proof the Islamic doctrine covered factual uncertainties, legal ambiguities, even extralegal considerations that I call moral doubt. And moreover, the Islamic doctrine of doubt corresponds to analogous American doctrines that are seemingly as disparate as the principle of legality, the presumption of innocence, legal ambiguity and the corresponding rule of lenity. The requirement of proof beyond a reasonable doubt and lesser standards of proof, mens rea requirements, mistake, ignorance, impossibility, and other potentially mitigating circumstances and even mercy. All of these are covered by this term shubha. And in addition to that there's another uniquely Islamic aspect or valence that also applies to the term that comes to the floor, something called contractual doubt or interpretive doubt and we can discuss those. I hear Sherman Jackson laughing because he knows what these refer to. But we can discuss those in the Q&A. So to be sure this notion of doubt pervading Islamic criminal law is contrary to conventional notions of Islamic criminal law into the conventional practice that we see reported about in the news. The conventional theory posits God as a divine lawgiver who asserts absolute supremacy over the law. The classical textbook version of Islamic legal theory posits this idea of divine legislative supremacy where God is the sole lawgiver who expresses himself in the form of a set of texts, the Quran Muslim Scripture and the Sunnah as reports from the prophet and the Imams in the Shia tradition. And there's no questioning or interpreting really what these texts say, that's a conventional sort of narrow version of Islamic law. And the most strictly textual version of this theory then looks to Islamic criminal law in ways that that you might read about. As you know someone steals cut off their hand. But in point of fact Islamic law historically favored a more pragmatic textualist account, meaning there's reliance on the text and interpreted -- the text is interpreted as lawyers do relevant to the context in front of them and the surrounding factors that go into the text. So I'll say that and I hope we can get a chance to talk about that more. But I want to move next to asking how all this is relevant today. Islamic law is as pervasive as our other speakers have pointed to. Since the 1970's, some 28 countries have introduced constitutions with clauses referring to or incorporating Islamic law sharia as a source or the source of laws. So these constitutions have sharia clauses. And in that same time, at least a dozen states have adopted Islamic penal codes or Islamic criminal law codes as well in countries ranging from Iran, Pakistan and Saudi Arabia to provinces in Malaysia, northern Nigeria and now Syria. And more recently in the wake of the tumultuous Arab uprisings that began in 2010, the ongoing crisis in Iraq because of groups like Isis, there's a lot of uncertainty about the status of Islamic law or the status of justice in these regions based on arguments that Islamic law is being applied in ways that make people suffer. And the emergence of these ideas of Islamic law has prompted more than anything fears of its punishments. In fact, those punishments have come to represent sharia itself often we leave it untranslated to highlight the exoticism and the danger that it can evoke. And on this view sharia is only a religious code that seeks to oppress women, amputate hands, execute apostates and indeed, reports of summary executions and other types of violence on the part of state and non-state actors in some of these countries. They fuel this perception, I mean there's something to that. So it's no wonder then that sharia inspires fear of its spread not only in the Muslim world, but across the globe. But what I want to say is that contrary to these ahistorical manifestations of Islamic criminal law, there is the history that I talked about of the pervasiveness of doubt and then I want to now briefly to try to keep within time look to a situation or situations now where there's some internal criticism amongst Muslims about the Islamic criminal laws that they see applied in ways that promote injustice rather than justice. Examples of the codes that are emerging out of this sort of internal critique have come up in Iran in 2013. And I should say none of these examples have actually been applied they're codes that have been drafted very, very recently. So this is a new cutting-edge phenomenon and it remains to be seen what the application will be. For the country Iran in 2013, Brunei in 2014 and the Maldives just earlier this year and for the sake of time I'll just focus on Iran. So in Iran after the 1979 revolution all pre-revolution criminal laws, which were based on the French code were abolished. And right after the revolution or some years after the revolution the criminal law was replaced with Islamic criminal law that was un-codified, it was finally codified in 1883, some four years after the revolution. ^M01:00:11 And in substance the code followed the same basic structure as classical Islamic criminal law where you had a set of fixed punishments for violations of a limited set of crimes called hudood laws. You had a set of non-fixed punishments for violations of lesser crimes called Ta'Zir laws or misdemeanors we might say, I'm really simplifying here. And then you had this law of retaliation, eye for an eye, tooth for a tooth. So in big picture terms the code generally followed that structure, but with the rise in political excess in executions in Iran many Muslim jurists began to debate the use of the death penalty and the application of this code itself. And so this is the -- and these debates raised over the course of 10, 15 years. Those complaints from the jurors culminated in a suspension or moratorium on the death penalty in 2002. And then finally the revision of the Islamic criminal law code in 2013. And one of the elements that I'll point to and again, this is all hypothetical we haven't seen any applications yet. But it's a significant element in that those critiquing the code said that there was not enough emphasis on procedure and in the idea that jurists or judges don't always know whether the facts, the law or the moral concerns that should go into an intelligent application of a criminal law system, especially an Islamic criminal system were there. And so they've incorporated the doubt doctrine that looks to ensure that the facts of the law and the moral or the legitimacy of the punishment is not in question. And they actually incorporated the doubt doctrine for the first time into the new code. This canon that says avoid criminal punishments in cases of doubt and exactly that formulation is now in the new code. It remains to be seen how it is applied. So I'm going to conclude. I've tried to address both problems and prospects for change or updating Islamic criminal law with respect to internal critique and highlighted some of the modern experimental examples. Judges tend to appeal to and I just want to end by saying that why the history of doubt in Islamic criminal law is important to these internal critiques and to looking forward to both the problems and prospects that I tried to highlight. So judges tend to appeal to conceptions of Islamic law drawn from its foundational text and understandings from the ever authoritative founding period we might say of Islamic law from the 7th to 11th centuries. And law is like that, it's tradition bound whether we're speaking about American or Islamic law or most other systems. Just as we American lawyers look to America's founding period for authority often Muslim jurists look to Islam's founding period. So the history ends up being very important. The local politicians and Islamists tend to be ignorant or illiterate of the history and I think that adding that to the larger conversation could be of help to the project of internal critique. So what happens when jurists and lawyers contemplate the history and operation with a wider expanse of sources and attention to Islam's overarching values and purposes? What happens if we pay more attention to both the problems and the prospects endemic to internal critique? These are the questions that I posit in my own work, I pose to others working on these issues and they are questions that I hope to discuss with you today. Thank you. ^M01:04:29 [ Applause ] ^M01:04:58 >> Sherman A. Jackson: Well good morning everyone. I want to begin by thanking of Jane and Issam and Kimberly and everybody who's responsible for affording me this opportunity to before you this morning. But I'm really worried about time so I'm just going to jump in. I would like to begin with the matter of nomenclature, particularly the term reform. Specifically, I would like to underscore an important distinction between reform as an attempt to correct, adjust, improve, update, edit or even add to the enterprise of Islamic law. A reform on the other hand as a gesture indebted to the Protestant Reformation. The latter reference implies that the problem rests fundamentally with the basic structure, institutionalized understandings and interpretive methods through which Islamic law traditionally negotiated social, political, economic and cultural reality. On this understanding meaningful reform requires a whole scale scrapping or at least marginalization of the classical tradition and its replacement with a brand-new set of modern methods, institutional structures and points of departure. To my mind, however, as attractive as this may seem to some, this is not the most useful approach to reforming Islamic law, certainly not in the long run. And let me take a moment here to give at least one major reason why I believe this to be the case. Key to any successful reform of Islamic law or any legal system for that matter is the concept and value of authority. By this I am not referring to any power of coercion, but more simply to the ability to enlist the community's assent by conveying to them a palpable sense that it is right for them to follow one. Of course, in the modern west we generally assume that reasonableness is or should be all the authority one needs to enlist a community's assent. In truth, however, there is not one but many forms of reason and this raises the need for an authority beyond reason itself to adjudicate all of our reason debates. In the United States speaking in talk constitutional terms at least, this is the U.S. Constitution. As Americans we often disagree and put forth all kinds of reasons for and against positions on abortion, affirmative action or free-speech and we may even see our opponents' views as unreasonable. In the end, however, we accept the Supreme Court's authority to terminate these disputes in the interest of preserving the civic order. In law then authority works a lot like trumps in the game of pinochle, I hope you know pinochle. And to borrow the expression of Thomas Hobbes where there is no agreed-upon authority clubs become trumps. The civil order in other words simply falls apart. Of course, one might argue in the case of Islam that something other than sharia, for example liberalism could assume the role of authority broker. But even beyond the substantive problems with such a proposition it would take literally centuries for such a substitution to take place. And in the meantime, massive, unpredictable instability and dislocation would be the order of the day. My approach to reform, therefore, proceeds on the understanding that reform is most effectively achieved by engaging rather than jettisoning the classical tradition. Of course, this too raises significant problems. To begin with there are literally dozens of present contemporary topics that the classical tradition never contemplated from stem cell research to copyright law to sex change operations. Beyond this many issues in which the classical tradition spoke definitively for example issues relating to women, religious minorities or the authority of the Muslim ruler cry out for reconsideration. Here the fear is that engaging the classical tradition will either blind us to contemporarility or entrap us in forms of thinking about an arranging society from which we desperately seek to escape. In the brief time I have remaining, therefore, I would like to point to just a few features of the classical tradition that might give some indication about how Islamic law might come to terms with these related challenges. The first feature is actually the easiest, namely the institution of Ijtihad or fresh unmediated interpretation of the sources. Obviously, where the issue at hand is historically unprecedented one cannot rely on the classical schools of law for solutions even through extensions by analogy. Ijtihad in this context becomes an obligation by default. ^M01:10:02 This is actually quite straightforward from the perspective of the classical tradition. Modern Muslims, however, often invents a certain diffidence or even hostility towards Ijtihad. This is less a question though of Ijtihad's status as a legitimate approach to sharia than it is a sort of resentment towards the sense that it is largely western modernity that is generating the need for Ijtihad to begin with. With time of course, such feelings can only dissipate. In fact, I would hazard that a good deal of Ijtihad is likely to emerge out of those Muslim communities from whom western reality is not imposed or sensed as being imposed, but is rather the only reality they have ever known. But what may be difficult to imagine in the present moment this points to the importance of western Muslim communities and the future or to the future of Islamic law. Now having said this much, Ijtihad remains limited in its utility. For many of the most problematic features of Islamic law are precisely those rules that the classical tradition has upheld for literally centuries. Of course, one could argue and many Muslims do that Ijtihad is also the solution here. We simply need to go back and reinterpret the sources in order to produce new rules. Ultimately, however, this takes us back to the problem of authority for like it or not the classical tradition will likely retain much more authority than any contemporary individual or movement could hope to muster. Nor are we guaranteed that new rules will necessarily be better rules as we see in the case of so-called extremist movements today. Nor will contemporary interpretations necessarily win the day by simply declaring themselves to be right and classical rules to be wrong. This recognition, however, of the basic authority wielded by the classical tradition need not bind us to the perspective or to the perspectives of the classical jurists themselves for there was an important distinction between their statements of law and their assessments of fact. On this distinction classical rules can be right in terms of their legal substance and it is not my contention that they're necessarily right, but they could be right. While at the same time being wrong when the attempt is to apply these rules to change the factual circumstances. Recognizing this feature renders any number of the rules on the books totally obsolete and inapplicable to a modern set of circumstances. Classical deliberations were not theoretical, but rather practical. They aim to address the concrete everyday realities of society. As such, almost all classical legal conclusions include an admixture of law that is the jurists' interpretations of the sources and fact of the practical circumstances the jurists were seeking to adjudicate. While the strictly legal dimension of these rulings might be assumed to entail an element of transcendence being presumably grounded in some interpretation of scripture the factual dimensions could not. To take one example, based on prophetic precedent contracts of sale generally entail an implied warranty with a specified amount of time to check the product's integrity. How much time, however, dependent on the jurists' factual assessment of what prevailing circumstances dictated as fair and reasonable. In that light the maximum time allowed for real estate was set at 36 days and this is the maximum warranty period that one will find in classical laws on classical manuals on Islamic law. But this 36 day allowance was clearly not a matter of permanent law even if the rule [inaudible] implied warranties was. And in modern context where commercial real estate is extremely complicated this period could easily be extended to allow years to test a building's integrity and such an adjustment would be perfectly legitimate as a standard feature of Islamic law. We see the importance and authenticity of this approach to Islamic law and in exchange recorded by an old friend of mine on whom I actually will my dissertation way back in the last century. The 13th century Egyptian jurist of the [inaudible] school, Shihab al-Din al-Qarafi and I'm translating here from the Arabic. Question, what is the correct view regarding those rulings upheld in the school of Maliki, Shafi'i and the rest which have been deducted on the basis of habits and customs prevailing at the time these jurists reached these conclusions. When these customs change and the practice comes to indicate the opposite of what it used to, are the rulings recorded in the manuals of the jurists rendered thereby defunct. It becoming incumbent to issue new rulings based on the new custom or is it to be said we are merely followers of the independent, authoritative jurists. It is thus not our place to innovate new rulings as we lack the qualifications to do so. Therefore, we issue rulings according to what we find in the books handed down on the authority of the independent authoritative jurists. Answer, holding to rulings that have been deduced on the basis of prevailing customs even after these customs have changed is a violation of unanimous consensus and an open display of ignorance of the religion, end of quote. Again, almost every area of Islamic law consists of rules that include an admixture of legal interpretations on the one hand and factual assessments on the other. This includes rules in areas ranging from family law to the status of non-Muslims, commercial law, jihad and even aspects of the criminal law for example, rules governing apostasy. In all of these areas where the rules of the books reflect the lived realities of pre-modern Muslim society these rules can be adjusted to modern facts without in any way violating the sanctity of Islamic law. Another major feature of the classical tradition is its recognition of the limits of Islamic law. This is a difficult point to make in a modern context where secular is assumed to take over where the religious leaves off. And secular is understood to be the antithesis of religious. My point, however, is simply that Islamic law recognized that the law itself was not intended to address all issues. And that beyond the scope of the source's jurisdiction other forms of deliberation, including those that rely on reason, science, practical experience, even perhaps spiritual epiphany could be legitimately invoked. To be sure this never amounted to what we in the modern west would identify as secular for Muslim jurists never acknowledged the propriety or proceeding as if God did not exist. They did recognize, however, that Islam as a religion is broader in scope than sharia. And that the limits of sharia do not, therefore, equal the limits of Islam. Thus, assuming that sharia did not address an issue concretely an approach to that issue that was grounded say in chemistry or actuarial science or plain old mathematics could be perfectly Islamic even if it was not based in sharia in the strict sense. This is the area for which I have coined the term the Islamic secular rather than opposing or even competing with sharia is simply complement sharia by recognizing that in many instances Muslims cannot rely on sharia for concrete answers. In fact, in any number of instances their reasoning will be generically indistinguishable from that of their non-Muslim compatriots. Take an issue for example, such as speed limits or licensing medical doctors, excuse me or licensing medical doctors. The most sharia could provide here would be the value of ensuring that such policies served the communal interests of safety, competence, and the like. What actually constitutes safety or competence, however, in concrete terms could not be determined on the basis of sharia for there simply is nothing in sharia that could identify 55 miles per hour as an appropriate speed limit or three or four or six years of rotation as a requirement for medical licensing. Rather, in deliberating these issues, Muslims would have to rely on the same kinds of considerations upon which non-Muslims rely physics, actuarial science, insurance adjusters, experience and the like. And this would extend to a virtually endless list of issues in the contemporary public domain from immigration policy to national healthcare, from FAA regulations to tenure and promotion procedures in our universities. All of this is extremely important for at least two reasons. First, precisely because things such as speed limits or building occupancy codes or national healthcare plans are not governed by sharia in the strict sense Muslims and non-Muslims can be brought into conversation and debate over these issues on a shared intellectual plane. ^M01:20:08 Sharia in other words, does not constitute a barrier between Muslims and non-Muslims when it comes to debating these issues. Second, because society is perhaps more affected on a daily basis by regulations in the non-sharia realm than it is by rules strictly dictated by sharia, even in a polity governed by sharia the area of presumed conflict between Muslims and non-Muslims might be much narrower than is commonly presumed. And the area of what John Rawls will refer to as public reason might be much broader than is commonly assumed. Attention to the Islamic secular is also important to the modern political order of Muslim states for part of the problem here is the tendency on the part of governments on the one hand and Islamist movements on the other to invoke the unassailable authority of sharia as a means of raising whatever rules or policies they propose beyond critique. Careful attention to the Islamic secular meanwhile could confer at least three distinct advantages. First, it could insulate Muslim governments from inflated charges of violating Islamic law every time they institute economic, educational or bureaucratic policies that are not explicitly dictated by sharia. Second, it could empower Muslim communities to hold their governments to greater degrees of accountability by denying these governments the ability to wrap their everyday policy in the unassailable authority of sharia. Finally, it could contribute to the domestication of power itself by forcing power to negotiate its right to coerce rather than assuming that Muslim rulers in governments have some uncontested right to coerce in the name of what a friend of mine would call God's pious dictator. I would like to end these incomplete ruminations on reform in Islamic law by referring to what remains in my mind an outstanding problem. And I'd like to take advantage of the intellectual [inaudible] room underscored. The problem of which I am speaking is quite simply history. More specifically, unlike modern states Islamic law never devised a mechanism for wiping the books clean of outmoded, discarded or discredited rules. Rather, juristic culture as a whole oversaw this process by constantly identifying and updating what each school identified as its going opinion. With the marginalization of this legacy in modern times, however, the entire record of every opinion ever reached lay at the disposal of the Muslim masses, including moderate Islamist movements, the majority of whom are untrained in the law. This means that they can go back and access rules that have been long discarded or discredited by the sharia establishment and treat these rules as if they were the going opinion. And this without the benefit of knowing the important distinction between law and fact. What renders this even more problematic, however, is the fact that this rich and variated [inaudible] of Muslim juristic opinion is extremely valuable in demonstrating both the pluralistic nature of Islamic law and the degree of intellectual boldness and sophistication that went into Muslim legal deliberations. Thus it would be remiss to try to block access to this very rich and inspiring legacy and yet this very access itself poses real problems and even potential dangers. Devising a solution to this problem in my mind will be key to preserving any gains that a successful attempt to reform Islamic law might achieve. Yet, I must admit that I remain stymied by this problem, I'm not sure how to handle it. In the end, however, whatever solution the Muslim community ultimately settles upon one can only hope that the cure does not turn out to be worse than the very disease. Thank you very much. >> Jane McAuliffe: Let me kick off with this question. As many of you know, Prime Minister Tony Blair was here last week to give the Kissinger lecture on international affairs and his remarks got a lot of press. In his remarks Prime Minister Blair said that defeating Isis what he insisted on calling [inaudible] was to quote, only a necessary beginning because again to quote, force alone will not prevail and the Islamist ideology has also to be confronted. So my question to the four of you is what does Islamic law reform or to use Intisar's words, internal critique, have to do with confronting Islamist ideology, something that's on a lot of people's minds right now? ^M01:25:31 ^M01:25:35 >> Issam M. Saliba: Who would like to, would you like? >> Jane McAuliffe: Deer in the headlights. Why don't you start Sherman? >> Sherman A. Jackson: Oh my God. >> Jane McAuliffe: Oh Lordy, Lordy, Lordy. >> Sherman A. Jackson: I was thinking that, you know, whoever plans to run for president should probably try and answer that question. I think that there are a couple of things. I think that with regard to Islamic law one of the things that I think would play an important role in all of this is a greater diffusion of religious literacy within society at large. Because it is in some sense the absence, the lack of religious literacy in Muslim society generally that enables these views to gain an audience and to get a multiplier effect. And, you know, I travel in the Muslim world more often than my wife would like, but one of the things that I -- an impression, just an impression I've not done any sort of study or anything like this. But one of the impressions that I get is that in a number of instances sort of official policy seems to be to sort of keep public religious discourse at a minimum as a means of sort of controlling religion in general. And I think that what that does is that sustains a reality, a very limited religious literacy and that opens up the way for those who want to make all kinds of other outlandish claims, particularly given the reality of the internet and things like that to be much more effective in that regard. So I think that one of the keys to turning this corner is a greater diffusion of religious literacy and I', going to be very clear about what I have in mind in that regard. I'm not talking about turning society into a society of clerics, that's not what I'm talking about at all. But there are a number of just sort of general literacy issues in Islamic law that could be very useful and stemming the kind of extremism and I'm going to give you just one small example so that you know that I'm speaking in concrete terms. If you have a command in the Quran or the [inaudible] the prophet do, do this. Classical Islamic theory universally recognizes the fact that that command can mean either must do, should do, may do and this is standard, this is standard gear. But for the uninitiated any command that they might encounter in the Quran or the Sunni will represent to them must do. And this can have far-reaching implications and effects. And this is why I think that greater diffusion of religious literacy is a key to turning the corner in this regard. >> Jane McAuliffe: Thank you. >> Intisar A. Rabb: I'm going to say something briefly. I mean I was sitting here trying to think of how even to approach that question with respect to context here. What would we -- that relate to extremists who commit acts of violence. What would we say about the person that blows up the planned parenthood office or facility and claims that they're doing so on the basis of their Christian values and aims to support life? And I think, I mean in addition to the sort of religious literacy which I think is on point I mean one would want for not just those who may be in communities that may encounter someone who is likely to blow up a planned parenthood office about what the religious -- that the religious requirements in Christianity do not support such a thing. And all of this by analogy to what's going on in some of the regions in the Islamic world. ^M01:30:03 But also that the greater community, policymakers, educators, and the like also have this sort of basic literacy in order not to by way of buying into the extremist claims sort of reify it and create this echo chamber that results in policies that are problematic. So it's a political problem I suppose more than one that's directly related to Islamic law, but Islamic law certainly relevant I think in the educational and policy sense. >> Jane McAuliffe: Thank you, Kristen. >> Kristen A. Stilt: I would just recently when you first asked the question it took me a minute to think about the connection between the two because in some ways the kind of Islamic law reform we're talking about a little bit here at least with the criminal and the family law context is sort of national laws and what nations do in terms of their own legal system. But ideology of course is boundaryless, it doesn't respect boundaries, it doesn't respect national states, it's a vast, vast question. And, you know, I think Sherman ended with something that's right on point if I could just echo it, which is that every opinion ever is at everyone's disposal and that is as you said, positive and negative. And that is not something that the current structures are necessarily set up to address. You can't change an internal law in a country and address this kind of problem they're connected, but perhaps by steps. But it's a much bigger question that spans places and times. >> Jane McAuliffe: Absolutely, yeah. >> Issam M. Saliba: My study of Islamic law even though I'm not a Muslim really made me very impressed with the legal theory that has been formulated centuries ago. I mean here you have the 7th, 8th, 9th, 10th century people who are talking about the importance of human reason, human reason not God, of human reason in understanding what God wants to say. Unfortunately, whatever happened and this has nothing to do with Islam has to do with history. There was some kind of a blockage, complete blockage. We have to accept the fact, we have to admit that what some of what ISIS is doing has a root in the traditions. Now this is not the whole tradition, but there is some roots and I think the Muslim community, especially the intellectual leaders have to come up and say that whatever they are relying on is a portion that does not represent the full Islamic tradition. And this I think would agree with Sherman teaching the public opinion, the public Muslim, the general people what Islam is, what religion is, true religion is I think will help. >> Jane McAuliffe: Let me raise the question of the Quran in relation to this conversation. You know, it's often said by scholars of the Quran that only a small proportion of the Quran contains explicitly legal content, yet obviously the Quran continues to loom very large among the sources of the law. So obviously, very large and any thinking about a reformulation or reform of Islamic law. In fact, I would ask in a more pointed way isn't the conversation about Islamic law reform fundamentally a conversation about the willingness to reconceptualize and reinterpret the Quran? Doesn't that go to the heart of what we're discussing, what we're trying to do? >> Intisar A. Rabb: Sure, one thing that I can say about that and I have to be careful because Jane McAuliffe she was my dean when I was in Georgetown as a scholar of the Quran. But yes, it's been said that something like 500 out of the some 6,000 plus verses of the Quran have explicitly legal content or write content. But by that scholars making these claims are looking at the explicit rules that might govern things like inheritance, laws of war, family law and the like. But I don't think they mean to suggest that the overarching values and lessons in parables that come out in the rest of the Quran are not relevant to Islamic law or sharia in its broader terms of the law of ethics, etcetera that are wrapped up in interpreting what Islamic law is. And so it's something that I think a short answer to your question is yes, is the conversation about Islamic legal change really a conversation about reconceptualizing understandings of the Quran in the modern world. I think yes, but I think it's not with respect to the limited set of rules but the standards as well and values that have always been a part of the Islamic law mix. >> Issam M. Saliba: I was thinking about this question very long time. That there in the Quran something that is unquestionable you cannot interpret one way or the other. And one of the things that usually people think about is the adultery and the adultery has a punishment that the Quran specify. How can we change that? Is there a way to change that through interpretation? And I was thinking very deeply about that until I got to read Al-Muwatta. Muwatta Imam Malik who wrote it and it is considered the first legal book in Islam. And what caught my attention is Hijaz that goes to prophet, a man who came to [inaudible] before he came [inaudible] and told him I committed adultery. What do you expect if the Quran is saying adultery has to be punished by death, what should he say? Well Abu-Bakr told him did you tell anybody, he said no. He said go and repent, God will accept your repentance. And he went and he wasn't satisfied. He went to [inaudible] he asked him the same question and [inaudible] answered him the same thing. Then he went to the prophet and what did the prophet say? He turned his face against from him for three times and then he continued, this man continued to want to clean himself. And then the prophet asked him to [inaudible] one of his family and he did. And he asked, the prophet asked him is he sick, is he mad, is there anything, they said no. And then the prophet was forced to condemn him to be stoned. Now this story, I mean this is coming Imam Malik and this is you cannot have more authentic source more than Al-Muwatta. And this tells you something that you can interpret from this story that even though is immoral condemnation, the adultery, it's not necessarily has to be a legal rule that you as a society or as a government should apply. So I think through the Islamic [inaudible] in existence there is a lot of room for improvement. And I'm not claiming that we should just wipe away everything and come back start anew, but there is a way for the deep thinkers of Islam to form Islamic law from within. Not rely on the declaration of the human rights or declare about what we say in the west, but in their own traditions there are a lot of things that have not been consulted. >> Intisar A. Rabb: I know I said something here, but could I just because this actually a case that features largely in this history about -- you're referring to the case of [inaudible]. >> Issam M. Saliba: Yes. >> Intisar A. Rabb: Who went to the prophet three times saying I've committed adultery. >> Issam M. Saliba: That's right. >> Intisar A. Rabb: And was sort of turned away. ^M01:39:58 And finally the prophet said fine you committed adultery, but he didn't say anything about punishment and the Quran doesn't say anything about stoning as a punishment for adultery that was a Middle Eastern tradition, perhaps it came from Jewish law in the Old Testament. But it was not in Islamic punishment it's not in the Quran. So the townspeople based on that local tradition ended up stoning him and in fact, when the prophet heard about that he said, if you would have just let him go. And then there was a huge discussion after that in the literature over the centuries and until this day. And I'm sure you know this story about whether the prophet was advising folks to let [inaudible] go in his prophetic capacity and that is the rule, the rule of doubt essentially that I talked about or was it his personal capacity and he was softhearted. I think, I mean and the general interpretation was that it was the prophetic capacity and this is actually the Islamic legal rule that undergirded this idea of avoid criminal punishments in cases of doubt. But I think your general point is right and I totally agree with that that there's a lot of room for internal review and lots of room for revising. >> Issam M. Saliba: This is my point, this my point. Why, for example, [inaudible] doesn't have somebody to come out and say, yes our tradition, our tradition allow for this type of changes. We are not in need to go to the United States law or to the French law, it's our tradition. And there is a wealth of great things in the sharia traditions that can not only reform Islamic law, but can make it even better in my opinion than other laws. And here I remember what Jackson, Jackson the Supreme Court, Robert Jackson about what he said. >> Sherman A. Jackson: Close. >> Issam M. Saliba: That's very, very, very impressive what he said and he said that the Islamic law has an amazing, I mean he used the word amazing record of accomplishment. But [inaudible] letting them be hidden because of our action today. >> Jane McAuliffe: Well you're really raising a question of authority here. Well you reference [inaudible], you know, within Sunni Islam is there a sufficiently overriding authority that legal reform could have any hope of implementation on a worldwide or a very large scale or the reform of Islamic legal thinking. Sherman, I may have cut you off. >> Sherman A. Jackson: Well, I mean I think that, you know, Muslim countries can, you know, institute whatever reforms basically fit the context of what the political situation in that particular country will accommodate. So terms of formal reforms, I mean that can take place. I guess the broader question is the degree of resonance that those reforms have among the population to the extent that they are accepted as being sort of legitimate reforms. And that's a more complicated question, I think that with regard to institutions such as [inaudible], I think one of the things that we have to be more aware of in the west is this is that on the one hand we want [inaudible] or any other sort of official sharia establishment, you know, to take the lead in instituting some of these reform measures. While at the same time not fully appreciating the extent to which Alzar's inability and I'm not picking on Alzar I'm just using him as an example, inability to address, you know, major sort of issues in society from wealth distribution to poverty to corruption to foreign policy. Their inability to address these issues undermines the authority with the masses and in so doing undermines their ability or certainly limits their ability, you know, to have the kind of authority that could enlist the assent of the population. And in that vacuum that's where many of, you know, the Islamist movements come in to fill the void. So I think that, you know, just looking at these institutions in isolation from the ongoing political realities of the Muslim world I think it's sort of naive and it's asking Alzar, I mean essentially to do the impossible. And I think that on the issue of reinterpretation of the Quran and I say this in the interest of trying to move us to a point where the kinds of conversation between Islam and the west can actually have a greater ability to actually lead somewhere. Look, in terms of let's say this thing on adultery, the evidentiary burden for adultery has been I mean almost impossible to. >> Issam M. Saliba: Absolutely. >> Sherman A. Jackson: To achieve from the beginning. >> Issam M. Saliba: Absolutely. >> Sherman A. Jackson: And so with regard to interpretation, there's not very much you need to interpret very much there, I mean it's almost impossible to prove. But what we have to recognize is this is that many Muslims feel that what they're being called upon to do is reconcile Islam with a sort of hegemonic liberalism that would basically argue that well there is no justification for having any rule on adultery period. And what they're being asked to do is reinterpret the Quran to the point that there is no regulation on something like adultery. And I think that those, I mean that kind of what I would consider extremism on the other side also preempts a possibility of meaning conversation. >> Issam M. Saliba: Sure [inaudible]. >> Sherman A. Jackson: But that's [inaudible]. >> Jane McAuliffe: Let's switch the conversation a little bit here because I think one of the other things that we really want to explore is what are the engines of change here. Some of what you had to say Kristen talked about particular forms of -- particular kinds of reform, who started them, where are things bubbling up, where we actually getting some action. Intisar you too when you talked about the code in Iran. How is it happening on the ground can you speak to that a little bit? >> Kristen A. Stilt: Yeah and I think just to pick up on the comment just about Alzar to be clear. I think it's very important to segment these conversations into substantive areas of the law. Alzar is very permissive on Islamic finance, but has not been a very strong supporter of changes that have been requested by women's groups to enhance the rights of women for example. So I think we want to segment out these kind of conversations and say, when it comes to inheritance law which is quite specific in the Quran, you see that really holding on even in a place like Tunisia where a lot of the family law has become move towards a much more egalitarian model with Islamic justifications. But the inheritance portion has remained pretty, pretty tight. Whereas, of course, in criminal law very few countries as Intisar said apply classical criminal law. So looking at different substantive areas of the laws gives us another lens on how things change, you know, Islamic law is not consistently applied the same way in every place. There's extreme variations depending on the country and even within countries in a place like Malaysia. But then to the point of where the change comes from, you know, I think the bottom up is a very important place and that's not always a good thing. But it's sometimes a very good thing when we look at, you know, activism around women's issues for example and other areas in which activists are driving and demanding change and finding ways to justify it and trying to get someone in authority to agree with them. >> Jane McAuliffe: Yeah, would you agree to that mechanism that was working in the? >> Intisar A. Rabb: I think bottom-up is a part of it and I think top-down and lateral are also parts of it, important parts, meaning that civil society groups, human rights groups and the like they may come with arguments seeking to identify economic disparities, gender injustices and the like. And then perhaps the jurists as in the criminal law case or the professors at the secular university who draw on both Islamic and state law, which is still generally based on European codes in the Muslim world tend to come up with arguments to push the envelope, push the laws to change much in the way it happens in this country. You look at the civil rights movement and we had, I mean it's a question about social change or legal change right. Where you have a confluence of the civil rights movement and people in the trenches, as well as a willingness on the part of the legislators and the government to listen perhaps together with economic -- with it falling into the economic interest. I think a lot of that is happening around critical justice reforms today. So I think it takes all sides, but I think what Sherman Jackson just pointed to about the necessity of bringing the conversation to a level of sophistication and constant engagement in identifying and continuing those conversations with those various sides is important. So I think it's both horizontal and vertical. >> Jane McAuliffe: What about the possibility of interference and I'll pose it this way. What right does a non-Muslim institution like the Library of Congress have to even raise these issues, I mean or to hold a conference like this? ^M01:50:07 That it really is a matter of do the efforts of, you know, western universities, think tanks, NGOs to foster discussion of Islamic law reform. Do they help or do they hinder efforts undertaken in the Muslim world? ^M01:50:24 ^M01:50:32 >> Intisar A. Rabb: I don't want to keep talking, but that's okay. I mean it's a great self-reflective question, you know, what are we doing, what are we talking about. I always tend to think that I mean to the extent that we can educate ourselves and other students or uses of the library or policymakers to the extent that we all interact in this world, which is shrinking and where we as I alluded to before I think need also to be educated. It's not just the Muslims who need to have some literacy about their religion and what it permits and doesn't permit and how it can be used as a positive force in society. But it's also those outside of the Muslim world, it's non-Muslims, it's lawyers, it's policymakers and to that extent, I think there's a very significant role. This is extremely important and I'm happy to be part of this conversation to help us better understand and grapple with and raise these questions that relate to Islamic law and legal change. >> Issam M. Saliba: What is wrong I think for us here in the west is we want to impose or think that our way of life or thinking [inaudible] has to prevail. We have to understand that in the Islamic tradition there is great possibility and great treasure that has to be used for any changes to happen. But the way it has been happening nowadays is we come to them and say, human rights, declaration of human rights rather than saying what is in your own tradition that would lead to the same result. Helping them thinking through their own traditions, their own heritage and there is a lot. >> Kristen A. Stilt: So I think this conversation is critical and I think not to have it is a mistake because it's basically saying, you have your conversation we'll have ours, we don't have anything in common with each other. >> Issam M. Saliba: No, no, no I'm saying. >> Kristen A. Stilt: No, I'm supporting you, I'm supporting you. This conversation is crucial, but also just to nuance that a little bit. Muslim majority countries have adopted many of the international human rights treaties and people in those countries believe that they are entitled to those rights as well. And so for us to be concerned about there being, it's good to be concerned about imposition, but it's also I think important to say you want that too. And we're part of a big conversation and maybe how you think about it or justify it or reach certain points you might go through a different thought process. But when people are standing up and saying, we want the same rights, you know, our country has signed this. Pushing their countries as women's groups have done to drop the reservations to CEDAW that say, no except for Islamic law then we don't have to adhere to these rights. I think we want to see that and recognize that and say that we're part of one big conversation and that it's important to have this here today. >> Jane McAuliffe: Your thoughts on that Sherman? >> Sherman A. Jackson: Yeah, I mean look I think it's important to keep talking. And I do think that and I mean that very seriously. And I do think that there is a certain danger of people sort of sitting around talking to themselves in a manner that those conversations are never open to a sort of critical gaze from another perspective. And I think that works on both sides of the conversation. I think at the same time, I mean these conversations can be hegemonic. They can start off from premises that sort of basically turn the conversation into have you stopped beating your wife yet. Whereby, the other side can only sort of continually apologize itself into more ever deeper holes. And I think that that kind of conversation has to be avoided. But there's a very important role for conversations like this because I think that -- I Kristen alluded to it a bit. Without conversation we don't even know those areas in which there is actual or possible agreement. And I think that with more and more conversation that's likely to be further flushed out. And I think that the real key is, you know, how do we have these conversations, how do we sustain these conversations, but how do we do so in a way that they don't turn hegemonic. >> Jane McAuliffe: We've got 15 minutes left and I have promised the panelists that I would ask them to ask each other any questions that have occurred to them as they listen to each other. And I also am going to point to a bit of a dilemma. I have questions from the audience, which unfortunately are illegible because they are blue ink against a blue background. So I'm really struggling to get them. I'm going to pass these questions to the panelists to see if their eyes are working any better than mine. But if they start to read a question and you recognize it as yours by all means, you know, you may stand up and give some clarification of the question. But we've got a little technical difficulty here. But as I pass these out are there questions that you have of each other. Go ahead. >> Kristen A. Stilt: I do. Something I want to add Professor Saliba and Professor Jackson. So Sherman, you said when customs and habits change and to me that raises the question of who decides when customs and habits change and you mentioned Nasr Hamid Abu Zayd and his views. And one of his views was that economics have changed and inheritance -- there should be an egalitarianism inheritance that was not widely accepted. So custom and habits changing that in itself of course is a test of fear who decides and I was wondering if you had a thought about that as you were talking about how [inaudible] updated? >> Sherman A. Jackson: Yeah, I think the custom is a double-edged sword in this sense. That on the one hand it clearly changes, but on the other hand in a sense there can be no single entity that can determine that change. Because part of what renders custom custom is the very fact that it's unowned. >> Kristen A. Stilt: Right. >> Sherman A. Jackson: So for example where I grew up in Philadelphia the custom was guys wear one earring in the left ear never in the right ear. Over a period of time the custom changes so that and only females wore two earrings and now there's a custom guys wear two earrings. Now who determined that, you know, that was okay against the old, nobody knows. But it's in a sense Kristen precisely the fact that nobody knows is what renders it a custom. >> Kristen A. Stilt: Right. >> Intisar A. Rabb: Yeah. >> Kristen A. Stilt: That there wasn't a law hinging on it? >> Sherman A. Jackson: No. >> Kristen A. Stilt: [Inaudible] difference right. >> Sherman A. Jackson: No, no and so I think that, I mean what you have are jurists who will make this claim on the basis of custom and that claim will either resonate or it won't. So for example, my own best friend Al-Kharafi talks about how the custom had changed in terms of the formulae used for divorce. And he was arguing against his Malaki fellow jurists saying that this stuff that you find in the books of Maliki is no longer applicable because the custom has changed. Now some of them agree, some of them don't end this kind of thing is argued out. But I don't think that there's any single entity that has sort of formal authority to say, this is now custom that is not. >> Jane McAuliffe: Okay.' >> Kristen A. Stilt: And someone like Nasr Hamid Abu Zayd says [inaudible] and then is rebuffed, that's the nature of customs. >> Issam M. Saliba: Yeah, I would say here there is two issues. Either there is a change that come like in the common law, then things have changing gradually and then the judges are articulating this change and become law. In the Islamic tradition it's not the judges who articulate but scholars, which unfortunately we didn't have since the 10th century. So this is one way. >> Sherman A. Jackson: But not even scholars. >> Issam M. Saliba: Well in the past years. >> Sherman A. Jackson: But the problem, I mean even Kharafi says this, scholars may hold something to be customary because it's in the books. And [inaudible] saying you have to go and see what's customary in society. >> Issam M. Saliba: But articulating that how in the common law the judges articulate that change. That the judges are not making the changes they are articulating the changes. So this is one way. The other way is through the people deciding and how the people deciding nowadays is through whatever form they want. ^M01:59:59 And this point for example specifically Muhammad Iqbal who is a great Muslim scholar and a great thinker and a great [inaudible] he mentioned that in his writing when they were thinking about creating books Pakistan. I don't think he had in mind at all Pakistan like the present Pakistan and he was a devout Muslim committed to his religion. So these are two ways. There is nothing wrong about the people deciding through elections or whatever, but this has to be articulated by someone who has some kind of credentials that Muslims believe in the public and I don't know where to find that. >> Jane McAuliffe: Well if we're going to keep the faith of this audio I think we've got to try and tackle the decipherment of a few of these question. >> Issam M. Saliba: Yeah. >> Kristen A. Stilt: Can you read yours? I can read mine. >> Jane McAuliffe: All right, why don't you take the start Kristen? >> Kristen A. Stilt: Do you want me to read it? >> Jane McAuliffe: Yeah. >> Kristen A. Stilt: What advice would you give to policymakers who are not Islamic scholars yet wish to be effective at reconciling religious and cultural traditions with governments, human rights obligations under international treaties, particularly on the rights of women such as CEDAW? >> Jane McAuliffe: Well go ahead. >> Kristen A. Stilt: It's a great question. I teach a class that tries to deal with this and in looking for materials I've found this fantastic report by a group called Massawa [phonetic], a group of women that started as sisters in Islam Malaysia and expanded. And as I mentioned before, a lot of countries will say to CEDAW we can't do this, we can't do that because of Islamic law. And Massawa has a report that basically takes apart every claim and says yes you can and let me show you why. Yes you can and they're speaking to the CEDAW commission and they say don't let these countries get away with this under the guise of Islamic law, it's really patriarchy and we'll show you how you can get there from here. And that's fascinating and following a group like that allows you then to work under the rubric or in conjunction with someone who's trying to operate internally. And yet at the same time be supportive of their endeavor. So I've put that out there as one example where that kind of conversation is taking place within in an internal community, but they're taking to task there are other countries that are trying to use these exceptions as really what they say is a guise for just your patriarchy. >> Intisar A. Rabb: I have a question that I think is directed at Sherman Jackson. It doesn't say it but. >> Sherman A. Jackson: [Inaudible] Intisar Rabb. >> Intisar A. Rabb: Is law reform inhibited by different degrees of passion analogous to gun control here where arguably the majority mildly in favor of controls is thwarted by a passionate anti-control minority? >> Sherman A. Jackson: Yeah, I mean I think that that's definitely the case, I mean whatever the sort of prevailing sensibilities, passions in society are will have an effect on the extent to which reform can actually take place. You know Muslim reformers are human beings in parts of society like everybody else and, you know, proposing this or that idea can be easier or harder depending on the circumstances that they're facing. I think the real question, however, is you know how much authority does the proposer of a particular reform, how much authority do they possess. And here I'll go back to a point that Kristen made earlier and say that we have to differentiate, I mean there are different kinds of authority. And let me just give you one example of what I'm talking about. Most of us in this room are probably old enough to remember the assassination of Anwar Sadat in 1981. In 1997, the group that assassinated Sadat basically came out and renounced political violence. Now there have been all kinds of meetings and back and forth between them and the government and government officials and [inaudible], etcetera all of them failed. It was when the leaders of this group, however, decided on their own that we're going to renounce political violence, then they were able to sell that to a much broader segment of society. So they had a form of authority that even, you know, jurists and clerics of [inaudible] might not have had in that particular context. So I think that there are lots of different players and we have to be sensitive to the type of authority that is possessed and the type of authority that is needed to address specific groups. What type of authority is needed let's say to address ISIS right now? Is it [inaudible] or is it the [inaudible]? >> Jane McAuliffe: Intisar do you have? >> Intisar A. Rabb: Another question here is how to tell when, how do you tell when consensus on legal change is pervasive enough to be authoritative? And it seems -- this question seems linked to this question of authority, but also to that earlier question about, you know, just how does legal change happen. And I will only say this that I think that every -- we have to be careful to not speak in excessive generality even though Islamic law is something that in some ways can be amorphous and cross-border transnational. But I mean there are states and different manifestations of Islamic law and I think one element of authority is state authority to control and monopolize violence and other forms of law. And that's one easy way of telling when a method of change is authoritative you've convinced your legislators through all of these different actors that might do the convincing. As we talked about before the horizontal and the vertical to create legal change. But I mean there of course is a social, religious aspect as well for those who follow Islamic law that is private and there may be elements of infusing or degrees to which you can infuse more of the values of Islamic law relevant to the context in which you live and that manifests itself in some changes in Islamic law. The extent of authority I think then depends on the extent to which these individuals follow an authoritative figure or school of thought. >> Jane McAuliffe: Probably have time for one last question, Issam. >> Issam M. Saliba: I think [inaudible]. >> Kristen A. Stilt: Ayan [phonetic] [inaudible]. >> Issam M. Saliba: Ayan in her recent book [inaudible] for reforming Islam, including Islamic laws focused on the afterlife as I don't know what -- as an obstacle to everyday secular life. Your comment. If this is what I understand. I personally from my reading and study of Islamic law and Islamic tradition, I think this is a great tradition. It has a great potential for correcting what we see wrong here from within. And I don't think that only can it be said to be for the afterlife it can be for this life as well because there is a tremendous principle and good traditions in the Islamic history that is not being even known to most Muslims. For example, when you read, you know, [inaudible] what he said about [inaudible] getting into the church of [inaudible] in Jerusalem and the time of the [inaudible] came the patriarch invited him to pray in the church and he refused. Why, he said probably some of my Muslim in the future will come and say this is where [inaudible] prayed and we want to convert that. He went outside and prayed in front of the. Now some Muslim, scholars even they say this is not a true story, but whether this is true story or not it represents a great part of the Islamic heritage. How can you [inaudible] with what ISIS is doing by destroying the churches in [inaudible]. And this is what I'm saying, I mean we have to go back to the Islamic traditions themselves and there is a tremendous, tremendous possibilities there to correct what I think is wrong today with the likes of ISIS. >> Jane McAuliffe: Well maybe we'll let that be the last word in terms of our open panel discussion, but I'm going to go to the podium and introduce our very final speaker of the morning. But before I do that may I ask you to join me in thanking our panel. ^M02:09:42 [ Applause ] ^M02:09:51 And now I would like to ask Dr. Mary Jane Deeb to come to the podium. She is chief of the African and Middle East Division here at the Library of Congress and she's going to wrap this all up in a few words. I mean it's an impossible task that we have asked Dr. Mary Jane Deeb to undertake, but I know you will enjoy her final remarks. Thank you. ^M02:10:14 ^M02:10:23 >> Mary Jane Deeb: Thank you Jane and thank you. I want first to thank the Law Library, its acting law librarian, Rebecca Schaffer, for hosting it and the law librarians who organized it and who invited me to this discussion, [inaudible], Kimberly Zellars and all the others. So thank you for being here. My division is cohosting this event and so I'm delighted to be here just to make a few closing remarks. There are a few and I'm not going to try to put everything together because it's been very exciting and I'm going to leave you with their ideas. I'm going to wrap up the program today, I will just make a few comments. The speakers have made fascinating and thought-provoking presentations and have challenged many of the stereotypes that people have in mind about sharia. So let me add my two cents to the discussion, not as a legal scholar which I'm not, but as a political scientist which I am. From that perspective that is of a social scientist, I approach all law whether western or Islamic as interpretation. It is the interpretation of religious text, ethical principles, philosophical thesis and/or cultural traditions. Islamic law as we have heard today or sharia is the interpretation of mainly three things. The Quran, which is a sacred religious text. The Hadith, which is verbally transmitted sayings of the prophet. And the Sunnah, which is a reported record of the prophecy reads and teachings. In addition, there is [inaudible], which are the customs and traditions of the many Muslim societies around the world. Again, as a social scientist I have to categorize, to classify things. So how to classify Islamic law in order to be able to analyze it. The issue I raise is an issue which is important in the Muslim world and that is whether Sharia can be classified as sacred law and so by definition unchanging. Example, you cannot really change the 10 Commandments or is it secular law, which is man-made and, therefore, can be changed. Professor Schacht maintains that because Islamic law is derived from the Quran, which is a sacred text and I'm quoting him, Islamic law is a particularly instructive example of a sacred law. He argues that the individuality and I think Professor Jackson referred to it, the individuality of legal subject matter and religious norm is additional to the [inaudible] variety of legal, ethical and ritual rules, which is typical of sacred law. But others, such as Nasr Hamid Abu Zayd whom we've been talking about, have argued that once the revelations reach human beings and were interpreted by them they were no longer in the sphere of the sacred, but rather in that of the mundane. He stated that Quranic interpretation I'm quoting him, was one of the tools used in intellectual, social, and political struggles. For him sharia cannot be considered sacred or consequently unchangeable. It is unarguably man-made having been created by jurists and Muslim scholars over the centuries. The history of Islamic law seems to lean towards Abu Zayd's view whom we have just discussed. The Sunnah existed in pre-Islamic times and meant then a body of customs, beliefs and traditions later in Islamic came to be associated as Muhammad's reported conducts and sayings. But as you have heard, there were competing views and reports in the prophet's sayings and doings and the Muslim jurists needed to interpret them in order to create a body of cohesive legal doctrines and practices. [Inaudible] the customs and traditions was also taken into consideration. They developed early on the four major schools of Islamic jurisprudence, the [inaudible] that we have talked about and with the founding of the Hanafi School with [inaudible] Abu Hanafi. And then there was [inaudible] who established the Malaki School of Jurisprudence. And Muhammad [inaudible] who established Shafi'i School. And finally came the fourth jurist Ahmed Ibn Hambal who established the Hanbali School and you must have heard a lot about the Hanbalis and the impact of that school of jurisprudence on Islamists, radical Islamists today. In other words, from the very early days of Islam there was debate as we have talked about regarding Islamic law, it was not static as sacred law would be. But instead, it was dynamic, changing and evolving. And at the end there was no consensus of the jurists on all aspects of law, hence the emergence of these four schools of jurisprudence. In addition, through the divergences between these four schools of sharia there exists another perhaps even more important that between the two major branches of Islam, the Sunni and the Shia, the approach of Shiism to [inaudible] is somewhat different from that of the Sunnis as they have their own school of jurisprudence. There's the Ja'fari school, the school was named after [inaudible] Ja'fari in the 8th century, the religious imam. By the way, since 1959 the Ja'fari School of Jurisprudence has been recognized as the fifth school of jurisprudence by the [inaudible] in Cairo. Among Shiites the door of Ijtihad seems to be slightly more open whilst the door of Ijtihad and we have, Professor Jackson has been talking about it. The door of Ijtihad among Sunnis seems to be somewhat closed, although you know not operationally closed, but not theoretically closed. This in terms of Shiism allows the [inaudible] to make judgments and to issue rulings on legal matters and to interpret the [inaudible] of religion and the principles of sharia. Shiites accept, again there's a difference between Shiites and Sunnis when we talk about reforming Islamic law we should be clearer on those things. The Shiites accept only the interpretation of law based on the Sunnah concerning the family of the prophet and his descendants, the successors and not necessarily the [inaudible], the people around the prophet. Furthermore, Shiites will accept the interpretation of law only if validated by the imam. And one of the pillars of Shiism is the imamate or the succession of the prophet, which is not really acceptable to Sunnis. And then you have other Muslims with varying approaches to Islamic law, such as the Ismaili whose legal system is based on the [inaudible] Islam, the pillars of Islam. But they hold that there are seven not five pillars of Islam that includes the [inaudible], the devotion to the imam Ja'fari [inaudible], again he's back. [Inaudible] ritual purity, which somehow [inaudible] the Sunnis because they're not comfortable with the concept of an imamate, [inaudible]. And then there is the [inaudible], one of the main branches of the Muslim [inaudible] who are to be found in Iman for example, as well as in North Africa, Libya, Algeria, Tunisia. We just had a group of [inaudible] from Algeria came and gave us their publications and told us about the work they're doing there, which I immediately said okay, you know, bring in your publications we need to see those as well. And [inaudible] also found in East Africa. They also have a concept of the imamate, but somewhat different from that of the Shiites. The imam is elected secretly by council of prominent laymen or by sheikhs and then proclaimed in public. Often the eligibility is limited to a single tribe or even a family. However, the concept of several imams in different regions is also allowed. That's interesting when we're talking about the state for example as we were referring to earlier. So one is a discussion such as the one we've had today, so important to political scientists. Well first, as it was pointed out by the speakers because Islamic law focuses on the organization of the state. As we have seen concepts of the caliphate and the imamate are critical to our understanding what Muslim rebels such as ISIS or the Qaeda are calling for. ^M02:20:09 They're calling for the caliphate, but not all of them. And Islamic law also focuses on the organization of society and we had Professor Stilt talk about it. And we have seen with the discussion on women and family law and again, the ISIS [inaudible] these groups are claiming that they know how society should be organized that they know. And somehow those who fail to follow the sharia according to ISIS should be punished and [inaudible] we've seen quite clearly on television. And thirdly, this discussion is important to social scientists because we are discussing change, reform, modernization as a way to address the challenge posed by these and other groups demanding change in Muslim society. So the problem with these three reasons I've given is that there is no single answer to any of these issues. And in fact, there may be many contradictions. So going back to the dichotomy of sacred versus secular low for instance, how can there be reform or modernization or even change of sacred law, sacred law should be, you know, by definition perfect, immutable if not, how can it be sacred. And this is certainly the position of the most conservative groups and of the radical Islamist groups such as ISIS. This is why they do not want change, it is sacred, it is untouchable you do not make changes. Second, when we talk about change and reform of sharia what exactly, what school of jurisprudence are we focusing on? That of the [inaudible], the Shiites, [inaudible] for instance introduce a number of changes in the concept of the state and the imamate and the role of the clergy and the state. Are we addressing the Ja'fira School of Jurisprudence for example or are we focusing primarily on Sunni Islam and if so, why? Thirdly, when we discuss the concept of the state as you've all been discussing today, there is really no clear agreement of what is the best form of the state. The imamate and the caliphate are not the same. Also the process historically of selecting Islamic leaders as you know has been a very bloody business and continues to be so. There is no agreement across the Muslim world on either process or representation and I'm saying this with qualifications, but should there be. And with regards to social organization, women, the family, as was pointed out with Professor Stilt, there is so much variation. In fact, over the past 1,400 years, since the beginning of Islam, there has not been uniformly applicable laws throughout the Muslim worlds regarding the family, women, social organizations, society. In fact, look at societies with predominantly Muslim populations. Indonesia for example, Nigeria is another example, Saudi Arabia have all very different patterns of social organization and family relations. It is tradition, it is customs, worldviews that seem to have had a greater impact in the final analysis than sharia law. Okay, I am sticking my neck out in all this, but I claim ignorance but I'm only a political scientist. Then again my question is what is it that we really are trying to change? Is it customary law, are we talking about human rights, what part of Islamic sharia, which groups are we trying to affect and to change? And as was raised, who is the we, I mean is it we here, is it we there, is it one particular group, is it one particular country, is it one particular authority. And I am not going to present any answer I'm just raising questions from one perspective and I'm leaving it at that. So thank you very much and thank you all for being here and this panel was wonderful and let us give them all a big clap because they've done a fantastic job. And thank you Jane for moderating it so well. ^M02:25:26 ^M02:37:07 This has been a presentation of the Library of Congress. Visit us at LOC.gov.