I've been reading Fundamental Rights of the Individual: An Analysis of Haqq (Right) in Islamic Law, by Mohammad Hashim Kamali. This is a long article that covers a lot of ground. Rather than attempting to discuss the entire article in this blog entry, I'd like to focus on one aspect today, inshallah.
One of the issues that often comes up in discussions of the Shari'a is whether an Islamic state should enforce religious observances such as hijab and prayer. I have consistently argued that it should not.
I first addressed the question in Hijab and Choice, part of a larger article on veiling that I wrote in October 2001 for non-Muslims. In this article, I wrote:
The right to freedom of speech is guaranteed in the First Amendment to the Constitution. Yet there are certain types of speech that are against the law. These are when the speech is slanderous or libelous, making false and damaging statements about another person. In short, our freedom of speech is not absolute, but rather there is a certain line, set by the law, beyond which the speech is deemed so injurious to others that it should not be allowed. Legal systems are always seeking such a balance, and Islamic law is no different. In particular, Islamic law distinguishes between a sin and a crime. A sin is a disobedience of God, and is punishable by Him. A crime is something that is punished by the state. A study of the sources of Islamic law will quickly show that although many things are mentioned as sins, only certain types of sins are designated as also being crimes, which the state is given the authority to punish. And the acts that are designated as crimes are those which harm others. For instance theft, slander, assault, murder.I returned to the issue again a couple of months ago in my blog entry Islam and Individual Freedom. I summed up my view as:
[E]ach person has a right to his or her religion, life, intellect, progeny, and property and the law's purpose is to protect these rights from being violated by others. Acts that harm others or violate their rights should be punished by the law. Acts that harm only the self are God's exclusive preserve and people should leave it to Him.The Kamali article presents a third argument supporting this same position:
Haqq (right) can be subdivided further in terms of enforceability: religious moral (dini) and juridical (qada'i). The former, although validated by the Shari'ah, cannot be proven or enforced by a court... Most of the rights of God [...] are in this category. As no one is expected or authorized to demand their enforcement, they are basically unjustifiable, despite the fact that the judge is vested with discretionary powers (ta'zir) to discipline those who seriously neglect them. Rights without a particular party as the right-bearer, such as a religious endowment (waqf) for the poor and the indigent, also fall into this category. Juridical rights, on the other hand, are susceptible to proof at the behest of the right-bearer, and a Shari'ah court has the power to adjudicate them. Some examples of this right are the creditor's right to demand repayment from a debtor and a wife's right to maintenance by her husband (Abu Sinnah 1971; al Mawsu'ah al Fiqhiyah 1987). Contrary to the assertion of western commentators that the Shari'ah recognizes no separation between law and religion, there is evidently such recognition as regards matters of haqq. Legal rights and duties are identified and separated from their purely religious counterparts... The Shari'ah is in unison with religion in matters of belief, 'ibadat (worship practices), and in commitment to basic values, yet it clearly recognizes a functional separation between law and religion on an extensive scale.There is a common thread running through all of this. Rights that belong to a specific person or group are considered in Islamic thought as juridical rights or legal rights. A violation of a juridical right will cause harm to someone. You can look at it that the government is only authorized to intervene when doing so will prevent harm. Or you can look at it that legal action will only commence when there is an injured party who seeks to enforce their right. Either way, the result is the same: violation of a juridical right leads to legal action. I referred to this violation as a crime. Rights that belong to God or that have no person that bears them are considered in Islamic thought as religious or moral rights. Violation of a religious right does not harm another person. You can look at it that the "injured party" is God, who will mete out justice in His own court, or you can look at it that no legal action can commence without a person who is seeking to enforce their rights. Either way, violation of religious rights does not lead to legal action. I referred to this violation as a sin. The distinction between crimes and sins is, I think, the most familiar and understandable to Western readers and that's why I made that distinction when I first wrote on the issue. When I wrote on the issue a second time, I focused on what I think is the reason that governments should limit themselves to prosecuting actions that harm others: to do otherwise is to attempt to usurp rights that God has reserved to Himself. Any devout Muslim should be very wary of such a usurpation. I also argued (not quoted here) that when the Prophet Muhammad (peace be upon him) implemented the Quran, he only sought to punish acts that harmed others. Devout Muslims should also be wary of departing from how the Prophet (pbuh) implemented the Quran. The Kamali essay puts the same argument in the language and terminology of the Islamic legal scholars, as set out above. It also shows that something that has been an intuition on my part, based on what I believe to be the fundamental moral principles of Islam, is in fact a recognized part of the Islamic discourse. Inshallah, in future posts I will share more of what I've learned from Kamali's article.