GIULIO SORAVIA

Professor of Arab Languages and Literature at the University of Bologna

ABSTRACT: An analysis of Islamism. The law (fiqh) is based on a legislation (shari'a) which draws on three sources: the Koran, the sunna (tradition) and the consent (ijma) of the community (umma). The State must be perfect in order to reflect the will of God. But such a State does not exist since the time of the well-guided Califs (al-Khulafa' ar-Rashidum), and so the Koranic law cannot be applied since then. In the ideal and perfect Islamic state, certain situations are inconceivable, for instance "a thief cannot exist except as a sort of aberration of nature". More serious even that theft is "that a society forces people to steal in order to survive. Why should there be thieves in a perfect state?"

("HANDS OFF CAIN", 1 February 1994)

Only an Islamic State - i.e. a State that perfectly reflects the will of God - can apply the shari'a legally. But a state of this kind hasn't existed since the time of the well-guided Califs, and thus the Koranic law has not been applied since.

The law (fiqh) in Islamic societies is based on a legislation (shari'a) that is basically founded on three sources:

1) the Koran, revealed text and word of God;

2) the sunna, or the tradition according to the Prophet Muhammad, as it is found in the collections of says and deeds (ahadith) recognized as valid;

3) the consent (ijma) of the community (umma).

The Islamic law bears no relation to the Roman-Christian juridical tradition, and its validity is based on the conception of a theocratic state, where no division between din and dwala, or spiritual and temporal power, is recognized, and where the perfection of the divine plan assures social, economic and moral harmony as well as complete justice.

In this ideal vision, we need to realize a series of facts in order to judge the application and the applicability of the rules of the shari'a. As far as the Koran is concerned, it appears to be a clear text, but not necessarily for men, because clarity belongs to God.

He is the one who revealed the Book to you, and it contains both solid verses, which are the Mother of the Book, and allegoric verses. But men with a corrupted heart follow the allegories, eager as they are to bring about a schism and to interpret imaginatively, whereas only God knows the real interpretation of those passages (Koran, 3:7).

Moreover, the rules of the Koran appear to be placed in the context of historical events that brought about the revelation: from this point of view, Islam has a variety of interpretations according to the various schools, which range from the literal application of the hanbaliti to the greater space for free quest of the hanafiti.

In actual fact, most of the rules are based on the consent of the community. On the basis of the free individual search (ijtima') and of the application of the analogical rules (qiyas), specific sentences (fatawa) can be issued, which integrate centuries of legislation, often varying in relation to the changed historical, socio-political and geographic conditions.

It is in this context, which is necessarily oversimplified, that the possibility of interpreting any legal rule must be understood. Above all, it is necessary to remember that only the Islamic state can legally apply the shari'a: i.e. a perfect state that perfectly reflects the will of God. Such State has not existed since the time of the well-guided Califs (al-Khulafa' ar-Rashidum) and therefore the law of the Koran has not been applied since.

Moreover, it is currently inapplicable because only a State where full justice is achieved is authorized to issue sentences. In a state of injustice each defendant can appeal to a principle of necessity and can be for this reason acquitted at least of the heaviest charges.

The ideal Islamic state reflects a perfect model where certain situations are inconceivable. In a well-guided society according to the Koranic law a thief can exist only as a sort of aberration of the nature. Theft is considered serious, and the ideal gravity of it is underlined by the severity of the proposed penalty, but it is even more serious that a society forces to steal to survive. Why on earth should a thief exist in a perfect state?

This applies to every other rule: the chief responsibility of a crime is therefore ascribed to the political and social forces, which do not carry out their task of justice towards the subject, who is not the subject of the sovereign or of the president in office, but a subject of God.

The death penalty in the legislation of the shari'a is applied to the most serious cases of attempt against the divine order: in relations between men and women, it is applied to the adulterers who damage the family order, in cases of treason against the State, in cases of homicide, except an agreement with the damaged parties has been reached. The ideal gravity of the penalty does not allow the application of the penalty: the conditions are such not only to make it inapplicable, but underline a sort of injustice in applying it. Only God has justice and understanding to the point of knowing the facts in their integrity and the means to punish the culprit.

One example: adultery is punished with the stoning of the culprit. Marriage is such as serious matter, and relations between men and women are so delicate as to require the social sanction of the marriage contract. It is not unlikely for a divorce to occur in the event of an unmotivated rescission, but any light-hearted behaviour is considered deplorable. In this context, any affair outside marriage or against it is punished with severe penalties: four eye witnesses are needed and a series of conditions whereby it becomes impossible to prove the fact. Thus, it is a moral sentence against the person who has committed adultery, not a repressive measure. Even less a measure that has any deterrent value.

It is a context in which an Islamic discussion of the problem of capital punishment appears to be possible.