Islam and the Rule of Justice: Image and Reality in Muslim Law and Culture

257 Pages·2018·2.75 MB·English

by  Lawrence Rosen

Islam and the Rule of Justice
Islam and the Rule of Justice
Image and Reality in Muslim Law and Culture
LAWRENCE ROSEN
THE UNIVERSITY OF CHICAGO PRESS
CHICAGO AND LONDON
The University of Chicago Press, Chicago 60637
The University of Chicago Press, Ltd., London © 2018 by The University of Chicago
All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without
written permission, except in the case of brief quotations in critical articles and reviews. For more
information, contact the University of Chicago Press, 1427 East 60th Street, Chicago, IL 60637.
Published 2018
Printed in the United States of America
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ISBN-13: 978-0-22651157-3 (cloth) ISBN-13: 978-0-22651160-3 (paper) ISBN-13: 978-0-22651174-0
(e-book) DOI: 10.7208/chicago/9780226511740.001.0001
Library of Congress Cataloging-in-Publication Data Names: Rosen, Lawrence, 1941– author.
Title: Islam and the rule of justice : image and reality in Muslim law and culture / Lawrence Rosen.
Description: Chicago ; London : The University of Chicago Press, 2018. | Includes bibliographical
references and index.
Identifiers: LCCN 2017037408 | ISBN 9780226511573 (cloth : alk. paper) | ISBN 9780226511603
(pbk. : alk. paper) | ISBN 9780226511740 (e-book) Subjects: LCSH: Islamic law—Interpretation and
construction. | Islam and justice. | Islamic law—Social aspects. | Law—Social aspects—Middle East.
Classification: LCC KBP440.32 .R67 2018 | DDC 340.5/901—dc23
LC record available at https://lccn.loc.gov/2017037408
This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).
FOR MARY AND TITA
Contents
List of Illustrations
Acknowledgments
Introduction: Approaching Islamic Law
PART 1. Following the Law
CHAPTER 1. Going to Court: Everyday Life in a Muslim Court
CHAPTER 2. Why Do Women Usually Win in Muslim Family Law Courts?
CHAPTER 3. Parallel Worlds: Shadow Law and Political Culture in Morocco
CHAPTER 4. Back to the Future? Muslim-Jewish Partnerships
PART 2. Justice in an Imperfect World
CHAPTER 5. The Culture of Corruption in the Arab World
CHAPTER 6. Justice and the “Arab Spring”: A Guide to the Arab Street
CHAPTER 7. Will the Middle Class Save the Middle East?
CHAPTER 8. Trying Terror: Zacarias Moussaoui and His Culture on Trial
EPILOGUE: The Rule of Law or the Rule of Justice?
Notes
Bibliography
Index
Illustrations
FIGURES
1.1. Anti-shari‘a protest sign, Idaho
4.1. Israeli-Palestine separation wall graffiti by Banksy
5.1. Payment of a bribe
6.1. “Woman in the Blue Bra” and related graffiti, Tahrir Square, Cairo,
December 2011
6.2. Sign held by young man in Tahrir Square: “Leave [Mubarak]—I Want to
Get Married”
6.3. Older men in Tahrir Square
6.4. Bouazizi visited in hospital by President Ben Ali (Tunisian government
handout)
6.5. Ordinary citizens sweeping Tahrir Square
8.1. Zacarias Moussaoui’s mother, Aicha el-Wafi, with a picture of her
imprisoned son, December 12, 2001
8.2. Moussaoui before Judge Brinkema
8.3. Moussaoui, graduating with a British business degree, under arrest, and as
a young man
Acknowledgments
Portions of this book were written while I was a fellow of the Stanford
University Center for Advanced Study in the Behavioral Sciences, and I am
most grateful to its director, Iris Litt, and staff. Particular chapters in this book
have profited from the helpful suggestions of scholars in the field and I am
pleased to be able to thank them in the notes, without, of course, holding them in
any way responsible for the final product. Lectures based on various chapters
have also benefited from comments by participants at Cardozo Law School,
University of California at Los Angeles, University of Victoria, University of
British Columbia, Simon Fraser University, the U.S. Naval Academy, and the
Central Illinois Mosque and Islamic Center of Champaign-Urbana, Illinois. To
all I am most indebted. Edmund Burke, III, and Abdellah Hammoudi, as always,
have listened critically to my arguments and are as blameless for the results as
they are blameworthy for stimulating my thinking.
Parts of several chapters appeared in earlier forms and are reprinted here by
agreement: “Studying the Muslim Courts of Morocco,” in Islam in Practice, ed.
Gabriele Marranci (London: Routledge, 2014): 21–33; “Understanding
Corruption,” American Interest 5, no. 4 (March/April 2010): 78–82; “A Guide to
the ‘Arab Street,’” Anthropology Now 3, no. 2 (September 2011): 41–47; “Will
the Middle Class Save the Middle East?,” Contemporary Islam 5, no. 2 (2011):
185–90; “Power vs. the People,” a review of Elizabeth F. Thompson, Justice
Interrupted: The Struggle for Constitutional Government in the Middle East,
Literary Review (London), October 2013, pp. 23–24.
This book is dedicated to Mary Schmidt and Teresita Tiansay Voelkner,
dearest of friends.
INTRODUCTION
Approaching Islamic Law
Some years ago I co-chaired a meeting of French and American scholars of
North Africa. To stimulate discussion I suggested that at our first, informal
session we share stereotypes about one another’s different approaches to the
region. The advantage, I suggested, was that we would all know that they are
just stereotypes—but (I quietly assumed) we would all, to some extent, really
believe that they are true. Through stereotypes we could, however, express
ourselves unreservedly and then hide behind the excuse that what we were
saying was, we knew, just an exaggerated likeness.
The exercise worked wonderfully well: the French told us that Americans
come into the area for a few years and then rush off to the next part of the world,
while they devoted their entire careers to one place; and my American
colleagues told the French that they were too wrapped up in structural schemes
to see the ambiguities in which we colonials delight. No one took offense, we all
felt better afterward, and we all appreciated that although stereotypes can be
unfair, and even if they contain a grain of truth, they may do far more harm than
good.
It is somewhat in this spirit that I begin by addressing a set of misperceptions
of Islamic law. Although the central focus of this book is to analyze rather than
debunk, it is desirable, at a time when the actions of the Taliban and ISIS would
seem to validate Western fears and misunderstanding, to address some of the
oversimplified views commonly held about Islamic law. A few precautionary
notes are, however, worth highlighting.
The predominant focus of this book is on the Arab world, even though it
represents only a fraction of the world’s Muslim population. Moreover, when I
speak of “the Arabs” it is necessarily in rather general terms, the phrase having
to encompass a very wide range of local and historical instances. But if one
approaches this diversity in the sense of embracing a range of variations on
shared themes, rather than as seeking some definitive essence, readers may wish
to ask themselves two interrelated questions: In what sense does what is being
described correspond to what has been learned about other parts of the Muslim
world, such that one is stimulated to think more carefully about each of those
situations? And in what ways do these variations affect one another and the non-
Muslim world, since none of the countries or situations described exists in