Specific Cases

Introduction

Despite the actual power relations and the rather pragmatic arrangements with them, Islamic law provides a wide range of different methods, institutions and principles of consideration, which can be applied to the making of justice.

Such functional, general considerations can already be found in the writings of the prominent Hanafi lawyer al-Sarakhsi4⁶ (d. 1090) on homicide. Al-Sarakhsi firstly emphasises the harmfulness of these actions with reference to the Qur’an and Muhammad. He also underlines the importance of punishment of the perpe­trators in this world: If the pressure (on possible perpetrators) was restricted to punishment in the hereafter, only a very small percentage of people might be stopped by it. For an effective deterrence, the regime of the worldly punishment (^,uqdba) and respective mechanisms of revenge (qisas) had been implemented. The legal exercise of order — securing human life by effective deterrence of per­petrators - is defined there.

Differing statement can even be found regarding topics related to both the application of the law in this world as well as religion and the hereafter, and the consequential question about equal or unequal legal treatment of the follow­ers of different religions. Al-Sarakhsi^[204] for instance, deals with different opinions on the question whether the same amount of money (blood money, Arabic. diya)^[205] is to be paid for Muslim and protected non-Muslim (e. g. Jews and Chris­tians, so-called dhimmis^[206]) victims of murder or bodily harm. Some scholars call for unequal treatment to the detriment of the non-Muslims (e. g. reduction of the amount to one half or a third of it).

Al-Sarakhsi counters these statements by quoting other verses of the Qur’an and other traditions, but also delivers a justification based on keeping worldly order: The parts of the Qur’an calling for unequal treatment, he states, only dealt with incidents related to the hereafter. The content of the protection con­tract with the dhimmis called for their equal treatment in this world. Further­more, dhimmis were legally capable, just like Muslims, to acquire property; hence the same should apply for their physical integrity (this is the meaning of ‘nafs’ in this context). Also, the purpose of diya was the protection of security (ihraz); and this was a matter related to life on earth (this is the meaning of ‘dar’ in the present context), not to religion (din), and relevant for Muslims and non­Muslims alike. This example shows, how misguided the prejudice of the insep­arableness of religion and law in Islam really is.

The implementation of the postulate of justice in actual cases is of course highly dependent on changing social and economic parameters and on cultural, religious or philosophically coined preconditions. This becomes clear when look­ing at the gender relations, as we will do below. However, in other important questions the conditio humana is often stronger than sole economic, social or religious and/or cultural factors (e. g. communal life in the family, aspects of pro­tection of minors, allocation of rights and property to persons and their protec­tion against intrusion, necessities of binding relationships in economies based on the distribution of labour). This demonstrates a broad range of problems and tasks to be tackled in all civilizations, which are solved through specific ju­ristic approaches.⁵⁰

There is, for example, a universal approach with respect to the legal capacity of minors regarding private contractual transactions.

On the other hand, some problems and many writings are incomprehensible to readers lacking legal education, even if they are fluent in the respective lan­guage. Some Islamicists who lack legal knowledge tend to overlook this fact, and hence practice an historicizing and essentialist view of Islamic law5⁶.

50 A current example, which is by no means meant to criticise the author, is the intellectually very appealing essay by Brinkley Messick, “Indexing the Self: Intent and Expression in Islamic Legal Acts”, Islamic Law and Society 8, no. 2 (2001), 151ff. For an anthropologist, it may be sur­prising that outside formal elements are comparatively strict considered, when it comes to legal­ly relevant actions in cooperation with others, while the inner will is weighted more heavily when it comes to unilaterally appearing legal actions. For lawyers, this is an insight from the very beginning of their career: The topic is the intensively discussed balance of the relationship between private autonomy and protection of traffic.

51 Cf. Wizarat al-awqaf wa al-shu’un al-islamiyya, al-Kuwayt, al-Mawsd'a alfiqhiyya, 7/154f. (Tz. 11)

52 What is meant is the ability to differentiate between advantages and disadvantages, cf. ibid., 14/32.

53 Ibid., 14/34f.

54 Ibid., 27/21 (Tz. 8) with further references

55 Cf. on different approaches ibid., 29/275 f.

56 A prominent example is the legally uneducated Islamic scholar Tilman Nagel, see Rohe, Is­lamic Law in Past and Present, 3; Mathias Rohe, “Der Islam im demokratischen Rechtsstaat”, Erlanger Universitdtsreden 80, no. 3 (2012), 31f. with further references, available at https://

All in all, Islamic law is by no means singularly and structurally different from other legal orders. This awareness is especially important when dealing with Islamic law in the West. Specific legal thinking can be found across differ­ent cultures and is in fact comparable, as long as similar issues have to be tack­led in both systems.