Introduction

According to Muslim belief, Sharia cannot be but just.^[4] God is just and so is His legislation; this statement is recurrent among Muslim scholars.^[5] Nevertheless, there are most probably many Muslims, who in some cases may consider themselves victims of unjust treatment by states that follow Sharia law.

This does not only apply to critical Muslims, who believe that certain regulations of a traditional version of Sharia are out of time and in need of reform, such as corporal punishment and discrimination against women in regard to inheritance law and to their role as witnesses. Also those Muslims, who unexceptionally approve of Sharia law in its traditional form, do in some cases feel that they or their fellow citizens are treated unfairly by the state. The perceived injustice of the Muslim ruler of the state, even if he subscribed to the same religious orientation, was often enough a cause for waging wars against fellow believers.^[6] The following anecdote illustrates the struggle of the human mind — despite or maybe because of the belief in the existence of an order of justice in creation and in a just God — in the face of human tragedy:

A story is told that a certain prophet used to worship God on a high mountain, beneath which was a spring of running water. By day he used to sit out of sight on the mountain top, reciting the Name of Almighty God, and he would look down at those who came to the spring. One day, while he was doing this, he saw a horseman ride up, dismount and drink, after which he rested. This man had put down a bag which had been fastened round his neck and which was full of dinars, but when he rode away he left it behind. Another man then came there and when he had drunk from the spring, he took the bag with the money in it and left safely. He was followed to the spring by a woodcutter, who was carrying a heavy load of firewood on his back.

He sat down to drink, and at this point the rider came back anxiously and asked him where the bag was that had been there. ‘I know nothing about a bag,’ said the woodcutter, at which the rider drew his sword and killed him with a blow. The rider then searched through his clothes but found nothing and went off, leaving the corpse there. The prophet said: ‘Lord, one man has taken a thousand dinars and another has been killed unjustly.’ God then sent him a revelation, telling him: ‘Concern yourself with your worship, for the ordering of the kingdom is no concern of yours. The father of this rider had forcibly plundered a thousand dinars from the father of the second man, and I allowed the son to recover his father’s money, while the woodcutter had killed the rider’s father, and I allowed the son to avenge his father.’ The prophet said: ‘There is no god but You, Glory be to You, Who are the knower of secrets.’⁴

In this anecdote, the tension between the order of creation, which is believed to be just, and the perceived injustice that occurred through divine intervention has been resolved; an exceptional case. In ordinary situations that happen to human beings/Muslims this tension persists, so the struggle endures to (re-)establish a just order. From this perspective, theological efforts, debates and processes within Islam may be perceived as a constant reflection of the current status (amongst others those of legal nature) and the search for alternative solutions that are more just. Hereby, justice is not considered a true possibility in actual history, but an ideal that is to be pursued but never fully attained; hence Sharia law is characterised by an ongoing dynamic. Justice, then, becomes what Jacques Derrida called ‘eternal’ justice,⁵ or, in the terminology of Rainer Forst, an inescapable desire and likewise unattainable ideal.⁶

A The Arabian Nights: Tales of 1001 Nights, trans. Malcolm C. Lyons with Ursula Lyons, introduced and annotated by Robert Irwin, 3 vols.

(London: Penguin Books, 2011), 2/353 (Night 478).

5 Derrida looks into the relation between law and justice and tries to carve out space for justice beyond law. He aims for a concept of justice that is of a general form and is not to be equated with law, but changes and expands it constantly by taking into account the specificities of the other (fellow human beings?). See Jacques Derrida, Gesetzeskraft: Der ‘mystische Grund der Au- toritdt' (Frankfurt am Main: Suhrkamp, 1991), 51.

6 Forst considers law-enforcement as the place in which justice remains attainable; he argues, however, that disruptions with the existing law are occurring constantly and thereby the law is expanded in the sense of a higher justice. See Rainer Forst, ‘Die Ungerechtigkeit der Gerechtig- keit: Normative Dialektik nach Ibsen, Cavell und Adorno’, in Kritik der Rechtfertigungsverhdlt-

The paradox that lies in affirming the existence of a just order and perceiving injustice within that same order triggered much discussion about the concept of justice in various Islamic disciplines.

By and large, within Islamic thought the concept of justice is discussed within three larger thematic areas: First, theology (e. g. freedom of will, divine justice); Secondly, theory of the state/social ethics (e. g. traits of the ruler, just internal order of the polity); Thirdly, law (e.g. traits of judges and witnesses, and since modern times also questions related to the economic system and equality between women and men, Muslim and non-Muslim citizens, etc.).

Already in the Quran we find the terms ‘adl and qist. They are not used in a terminological, but in a rather unspecific way in the sense of justice: ‘He is maintaining [creation] in justice’ (Q. 3:18); ‘Indeed, Allah commands you [...] that when you judge between people to judge with justice’ (Q. 4:58); ‘Indeed, Allah loves those who act justly’ (Q. 49:9). Altogether, the Quran takes a definite stance in favour of justice, but does not elaborate on what this means in practice.⁷ It is precisely this clear stance on justice, however, that has shaped the discussions on the concept of justice up until our days and has led to general agreement on the importance of maintaining justice — despite differences as to how this should be achieved.

The following may serve as a short introduction to the larger thematic areas, in which the term justice is discussed:

A) Theology: Regarding the issue of qadar (i.e. the question whether human acts are subject to God’s determination or based on free choice), the proponents of free will advocated their position by referring to the fact that God is just (‘adl, ‘adil). They found it unimaginable that a just God would punishes men for acts they are predetermined to do.⁸

nisse: Perspektiven einer kritischen Theorie der Politik, ed. Rainer Forst (Berlin: Suhrkamp, 2011), 193.

7 On the issue of justice in the Quran see Daud Rahbar, God of Justice: A Study in Ethical Doctrine of the Qur’an (Leiden: Brill, 1960); Nasr Hamid Abu Zayd, ‘Der Begriff “Gerechtigkeit” nach dem Koran’, accessed August 1, 2017, https://them.polylog.org/3/fan-de.htm; Abdoldjavad Fala- turi, ‘Gerechtigkeit im Islam’, accessed August 1, 2017, http://www.ahlebeyt.ch/de/index.php/ bibliothek/122-gerechtigkeit-im-islam.

8 See van Ess, Theologie und Gesellschaft im 2. und 3. Jahrhundert Hidschra, 1/199 - 200 and 2/ 250.

Nowhere does the Quran use the term ‘adl nor the term qist or any of their possible variations as a designation of God. The Quranic advocacy of justice is, however, is so strong that the predicate muqsit and the noun ‘adl in the sense of ‘the Just’ are included into the post-Quranic list of the 99 most beautiful names of God.

A further aspect of theological reflection on the concept of justice concerned the issue of theodicy, i. e. the question why a just God allows evil and suffering to exist in the world. Muslim scholars have proposed various answers, of which that of the Ash'arites is the most common. According to them, natural events and the depth of God’s wisdom are fathomless.^{^[7]}

B) Theory of state and social ethics: Beside the theological questions, which were unarguably interconnected with political issues, it was most often the socio-political dimension of justice that the people were preoccupied with.

Van Ess notices that the term ‘adl is found in early Islamic texts most often as a reference to justice in the sense of a this-worldly social order. When opposition groups like the Kharijites, the Shiites, and also the MuTazilites called for justice, they did so, according to van Ess, in order to express their disapproval of the political authorities. Even the concept of the mahdι, an eschatological figure who will fill the world with justice, is to be understood within this wider context.^[8] ^{^[9] Most publications of the modern era discuss the concept of justice in the sense of a this-worldly social postulate and only rarely as a divine attribute relevant to human salvation in the hereafter; as can be seen, for example, in the work of the famous theoretician of the Muslim Brotherhood Sayyid Qutb (1906-1966) entitled al-‘Adala al-ijtima‘iyya fι-l-Islam (social justice in Islam). We notice a strong engagement with the political and social aspects of the concept of justice especially in the works on the theory of the state and of social theory, which constitute a specific literary genre (adab)u within the Islamic tradition. One of the most prominent and widely-read authors until today is Abu al- Hasan al-Mawardι (972-1058). Beside his work on the theory of the state, entitled al-Ahkam al-sultaniyya (The rules of rulership), he also authored a book on social ethics, called Adab al-dunya wa al-dιn (Codes of conduct in this world and in religion). In both of these works he discusses the concept of justice but more especially in the latter one he develops a concept a ‘universal justice’ (al- ‘adl al-sha- mil), which will be discussed in one of the contributions to the volume at hand.
C) Legal doctrine: With regard to Islamic law, Birgit Krawietz states ‘that debates on justice became more frequent in the Islamic modernity than in the preceding centuries.’^{^[10]} ^{^[11] ^[12] ^[13] ^[14] ^[15]} She is correct when it comes to the question of where to localise the usage of the concept of justice within Islamic law.
Traditionally, the term justice in Islamic law appears in the context of the discussion of certain professions, such as jurists, judges, medical doctors and prayer-leaders, who are expected to adhere to high standards of justice. Witnesses, who carry out important and responsible duties at that time, are expecially commanded to act justly. In modern times, in contrast, the term justice appears in many different contexts, be they of a social, economic, or political nature as well as regarding criminal law and civil rights.^u In the case where one takes the discussion to be about the basic attitude, in the sense of a fundamentally justice-oriented law system, one will find instruments in legal theory that may support such an orientation. Among the most important of these instruments are, for example, the principle of public welfare (maslaha) and juristic preference (istihsan)! whereby the general public interest, customs and habits amounts to a point of reference in the law-making process. The famous Hanbali jurist Ibn Qayyim al- Jawziyya (1292 -1350) made it very clear that whoever ignores the habits and customs of the community while issuing legal judgements is misled and leads as- tray.i⁵ Legal instruments just as al-ta‘a bi-hasab al-taqa (performance of obligations being conditional upon capability / reasonability) and la-darar wa-la-dirar (no harm being inflicted or reciprocated) facilitate the adaption of Islamic law to changing needs and in a changing environment. In line with the former principle, the ill or infirm, for example, may be relieved from certain religious obligations?⁶ The latter principle serves, for example, to combat fraudulent activities in sales or rental agreements?⁷ It is this basic orientation of Sharia that 'Abdul- karim Surush (b. 1945) has in mind when he argues that Sharia law follows justice and not the other way round.^[16] Even before him, the jurist Murtada Mutah- hari (1919 -1979) considered justice as the touch-stone and reason for existence of Sharia.1^{^[17]} The mechanisms to establish a just order are inherent to Sharia law; a fact that Krawietz also points at while discussing procedural justice in Islam: ‘The properness of procedures prevail within the legal interpretation and application.’ Furthermore, she notices regarding the ‘written Islamic legal opinion, fatwa’ that it is not an expression of arbitrariness or vigilantism, but of legitimizing procedures suitable for everyday life.^[18] ^{^[19] Against this background, the reference to justice by many contemporary jurists is logically consistent. Being aware of this general orientation they try to react to new challenges by using some of the mechanisms that have been mentioned above. Taking the principle of justice as a point of departure, they are endeavouring to find answers that fit our times with regard to issues such as, for example, the application of corporal punishment, sex discrimination with respect to inheritance, or discrimination of citizens based on religious affiliation. Beyond that, issues of economics are also being rethought and reinterpreted in the same manner.21
III
The discussion about the relationship between Sharia and justice is also a discussion of how Islamic norms should be negotiated within Western secular states. To what extent might the state, which is obliged to respect its citizens and to interact with them justly, take Islamic norms into consideration? This general question is heatedly discussed within different thematic contexts, from polygamy, child marriage, education (shaking hands between sexes, swimming instruction for girls, etc.) up to the issue of halal meat (slaughter according to Islamic rites versus animal welfare legislation, and the availability of halal meat in school and staff canteens).
The issue of the veil is probably the most emblematic of all those issues debated within this context and the one which challenges the commandment of justice expressed in European constitutions. This is not the place to discuss the question of whether wearing a veil constitutes a religious obligation or not, even if many Muslim women believe this to be the case. This poses the valid question of treating veiled women differently from others within the working world, for example in the professional world of teaching, medicine or the nonprofessional world of train conductor or factory worker.
According to the latest legal ruling of the European Court of Justice (ECJ) dating to March 2017 — given as a joint judgment in the cases of two women in France and Belgium — a ban on staff wearing veils is legal on condition that it is part of the company’s general policy barring all religious symbols.^[20] ^{^[21] This ruling shows how difficult it is for the judges to keep the balance between justice as a universal principle and current legislation; therefore, it is worthwhile having a closer look at the two cases.}
In the Belgian case, the judges decided in favour of the plaintiff, Samira Ach- bita. She had worked as a receptionist in a Belgian security company for three years. In April 2006, she informed her employer to intend to wear the veil not only in free-time but also at work. She was told that she could not do so because this violated the company’s rule requiring philosophical and religious neutrality in their employees’ attire. Achbita was dismissed and provided with severance pay; she however took the matter to the court.
The ECJ confirmed the general legality of the company’s internal policy. According to the judges, it does not constitute direct discrimination due to religion or ideology, which is prohibited by an EU Directive that aims at establishing a general framework for equal treatment in employment and occupation. The court stressed in its reasoning that ‘[a]n employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business [...] is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers.’2³ However, the rule must be applied systematically to all employees regardless of religion or world view.
Furthermore, the Belgian courts have to check, whether the employer could have assigned to Samira A. a post not involving any visual contact with customers rather than dismissing her. In both cases, it is now on the national courts to issue final rulings on the grounds of the decision of the ECJ.
The second case is somewhat different: Asma Bougnaoui worked as a design engineer for a French company from 2007. Less than a year later, she was dismissed. This happened due to her refusal of the company’s request for her to take off her veil, after a client from Toulouse complained about it. Bougnaoui then sued her employer for discrimination. The will to comply with the special wishes of customers does not provide sufficient ground for banning the veil. Such a ban has to be based on an internal policy that prohibits wearing any visible signs of one’s political, philosophical or religious beliefs. Whether this policy was in place is not clear. In case it was not, such a ban could only be dictated by the nature of the Bougnaoui’s work itself that requires it to be carried out by workers who do not wear the veil. The ECJ sent this question on to the French courts for further investigation.^[22]
The above-mentioned case regarding legal disputes on the issue of wearing the veil at work shows on the one hand that wearing the veil is considered to have a political connotation rather than being merely a religious act like praying or fasting. Even though the legal ruling of the ECJ does not address this political aspect explicitly, the political signal sent by the veil to the public is indeed part of the legal decision. On the other hand, the case illustrates how complex the embellishment of the relationship between justice and legal system may be in secular contexts.
IV
Any anthology including the one at hand has to limit its view on certain aspects of the ambivalent relationship between sharia and justice that have been outlined above. In the first article that has an introductory character, Mathias Rohe starts from the assumption that law in general constitutes an important, if not the most important instrument for maintaining justice, and that this is true also regarding the Islamic Culture. Rohe confirms that theoretical elaborations on the principle of justice are rare in Islamic thought; the study of case- by-case decisions does, however, reveal the general dynamic within Islamic Law for maintaining justice. By giving examples from the economic, political and social realm, Rohe shows how Islamic legal systems are subject to the contingencies of the times and their changing circumstances. He identifies this as the intrinsic potential of sharia to be adapted to the changing mandates of justice; and he illustrates this by elaborating on the relationship between the sexes. Rohe also addresses a further aspect of the debate, which is the question of the just treatment of Muslim citizens by secular states. With reference to some premodern and modern authors he states that in Islam justice is the decisive factor for legitimizing political rule. Hence, Rohe concludes: ‘On the basis of this maxim, Islam and a secular constitutional state can be convincingly reconciled in an overlapping search for justice.’
In his contribution ‘Ordinary Justice: A Theology of Islamic Law as a Social Contract’, Rumee Ahmad moves in the opposite direction by stating that there is a long history of jurists who held that Islamic law was not a just moral code at all, and that following it does not lead to salvation. Laws in this conception, are neither just nor unjust; rather, they are only relatively just and based on the spiritual state of the practitioner. Ahmad discusses in his paper one such group of scholars, the early Hanafi school of Islamic law, which promoted a notion of Islamic legal justice that is different from those to which we are used. For these Muslim jurists, Islamic law did not have a metaphysical component, and though early Hanafis thought laws to be important, they did not think them central to salvation. Importantly, while early Hanafis believed that individual laws might be more or less just depending on circumstances, they did not believe that justice itself was to be found in laws. Thus, neither following the laws slavishly nor adapting them to changing mores would result in justice in this world nor felicity in the life hereafter. Understanding how and why will require closer study, and will give us new insights into how broadly justice can be conceived with respect to Islamic law. For such Hanafis it does not make sense to ask whether Islamic law is inherently just or unjust, because justice is itself an unattainable and incomprehensible concept that can only be understood and enacted by God. Believers are not tasked with establishing justice on Earth, nor are they capable of doing so. The early Hanafis were abundantly clear about this, and their writings left little ambiguity on the subject. Yet, modern scholarship is slow to accept their claims at face value, most probably because they challenge popular, modern notions about ‘true’ Islam and Muslims, and about the uniquely spiritual nature of Islamic law. A reconsideration of early Hanafi legal thought seriously opens up the discussion around Islam and justice, and brings us closer to the simple notion that Islamic legal justice might mean different things to the many different Muslims around the world.
Abbas Poya focuses in his article on the concept of justice in the classical period of Islam. Taking the example of Abu al-Hasan al-Mawardι (972 -1058), he tries to show how the Muslim scholars’ understanding of justice developed from being merely an attribute of God to being a social ethical concept. Al-Ma- wardι, a respected and acknowledged jurist, judge and diplomat considered justice to be a profane issue and argued for this in a rational or pragmatic manner. According to him, justice is necessary to the functioning of a society. In a first step, he distinguishes three axes of social relations: 1) the relationship between those who are ranked above to those who are below and 2) vice versa, and 3) and the relationship of those who are equally ranked. Interaction on all of these axes has to be just, otherwise all will be harmed regardless of their hierarchical position. Hence, al-Mawardι does not consider justice to be fully attainable, but to be an ongoing process.
In his article, which has already been published in German, Werner Ende discusses justice as a political organising principle in Islam. He bases his study on the ‘fact’ that there are notions of justice in Islam and that they played a crucial role from the very beginning within the thought of many Muslims. Ende dates the rise of debates on justice to not later than the death of the prophet Muhammad (d. 632), when different parties argued against each other about the conditions and, among other thing, the justice of the successor of the prophet. Even though many Muslims do not consider the further historical development as a triumphal procession of law and justice, their notions of rule and political order are nevertheless informed by their desire for just relationships. The claim that political leaders have to be just is not only to be found in legal works of religious scholars, but specific literary genres developed, in which the rights and obligations of rulers are laid down. After discussing some historical and legal examples, Ende confirms the assumption held by many Muslims that Islam strives for justice in actual fact and that Muslims have so far not or not fully been able to accomplish this goal. According to Ende, this assumption has led to antagonistic attitudes: one is pessimistic and passive, the other is politically rebellious and active.
The contribution ‘Justice and Equality and Muslim Family Laws: New Ideas, New Prospects’ is a reprint generously granted by its author Ziba Mir-Hosseini. In this article, she explores the question of how the idea of justice, which is indeed present in Islamic legal theory, goes against the gender inequality embedded in Islamic legal norms. Following up on this, she asks how the idea of justice may open up possibilities for reforming these Islamic legal norms. With reference to two statements of the great Hanbali scholar Ibn Qayyim al-Jawziyya (d. 1350) she shows that the avowal of a scholar to justice as a yardstick by which to measure Islamic norms, does not necessarily that he equates men and women in the modern sense. While Ibn Qayyim states at one point that ‘any rule that departs from justice to injustice [...] cannot be part of Sharia’, he nevertheless also states that ‘the wife is her husband’s prisoner, a prisoner being akin to a slave’.^[23] A modern understanding of justice helps contemporary authors to rethink legal norms to promote gender equality. She makes this change of views apparent on the basis of two treatises: ‘Women in the Shari'a and in Our Society’ (1930) by the Tunisian religious reform thinker Tahir Haddad (d. 1935), and the ‘The Status of Women in Islam: A Modernist Interpretation’ (1982) by the Pakistani reform thinker Fazlur Rahman (1919 -1988). The ‘two reform texts [...] negotiate and bridge the chasm, the dissonance, between contemporary notions of justice and gender rights and those informed by classical fiqh rulings and lay the groundwork for an egalitarian family law.’^{^[24]}
In his second article, entitled ‘Jihad and Just War Theory: A Conceptual Analysis’, Abbas Poya engages with the question whether, and if so to what extent, the Arabic Islamic concept of jihad might be understood in the sense of just war. On the one hand, the author identifies a conceptual contradiction between the act of war and just acts; as war, according to him, cannot be but unjust provided that justice is understood as a universal and cosmopolitan concept. On the other hand, the issue of ‘just wars’ has been part of legal, ethical and philosophical debates ever since the inception of Islam. The article provides a concise elaboration on the term jihad in Arabic and in classical and modern Islamic literature and arrives at the following conclusions: The concept of jihad as understood in Islamic law has a combative dimension. While often interpreted as defensive especially in modern times, there are many scholars who regarded jihad as offensive warfare. In view of the current international law, such an understanding is, however, irresponsible and untenable. Only if jihad is understood as a defensive act against aggression, will it be able to contribute — due to its rich theoretical tradition — to today’s heatedly debated issue of ‘just war’.
The final contribution to the anthology at hand takes a look at the question of how a secular state acts towards Islamic legal norms that are deemed to be acceptable. With reference to the discussions on the veil, Bernd Ladwig shows how complex the answer to this question is. In so doing, Ladwig addresses the normative solution to the problem of the veil especially within the German context. On the whole, Ladwig sums up three different answers that might be given to the question of whether a teacher should be allowed to wear the veil in school. One group holds the opinion that the principle of neutrality of the state would not preclude allowing a teacher to wear the veil, as it is just like the nun’s habit and the cross. However, as the wearing of the veil is incompatible with ‘Christian and occidental educational and cultural values’ it should nevertheless be banned and this response also argues for a general ban on all religious signs in schools except during religious classes. The third and final answer pleads for general permission for teachers to wear the veil during all classes. In the author’s view, justice as a normative basis subscribes to the third view and hence he argues that a teacher should be allowed to wear the veil in school.
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Source: Poya Abbas (ed.). Sharia and Justice. De Gruyter,2018. — 189 p.. 2018

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Introduction

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