Monday, July 26, 2004

Reforming Shari'a Law

A bit off-topic, but very interesting nonetheless. Dhimmi Watch pointed me towards an article by the hand of Daniel Pipes, over at FrontPage Magazine. What do you do when you are a celebrated criminal law professor, and the government of a developing nation asks your help in overhauling their criminal code, to address several injustices in the system? Do you offer help? First thoughts would be yes, right?

There's one catch though. As the nation in question is an Islamic state, the country's legal system is based on Islamic Law or Shari'a, so the new criminal code would have to be fitted within this legal framework.

That should make it more difficult. But not to Paul H. Robinson, who accepted the job right away, and thought it'd make a great seminar for his students too. So now U Penn law students are faced with a (three point) course titled “Islamic Criminal Law: Drafting a Criminal Code for the Maldives”. Come again?

The seminar will revolve around a single project: drafting a new criminal code for the Maldives. The work has been requested by the Maldivian government and is sponsored by the United Nations Development Program. Because the Maldives is by constitutional mandate an Islamic nation and, as a matter of law, all citizens are Muslim, the code will be the world’s first criminal code of modern format that is based upon the principles of Shari‘a.

After studying the existing Maldivian criminal law statutes and the criminal law principles contained in Shari’a, student teams will propose criminal code provisions and critique the proposals of others.
First thought upon reading: This is straight out of Judgement At Nuremberg.

There's a couple of issues here, and Pipes addresses some of them, namely Robinson's desire to have a shot at something completely different, as well as Robinson's (honest, I'm sure) desire to do good, and reform a code which currently apparently does more injustice than justice (unfortunately, no examples are given).Writes Pipes:
These are worthy objectives, to be sure, but Professor Robinson should stand back from this project and reassess it. This leading scholar, through his work in the Maldives, will render more acceptable Shar‘i provisions about killing apostates from Islam, subjugating women, keeping slaves, and repressing non-Muslims (in this light, note the matter-of-fact comment in the course description that “as a matter of law, all citizens [of the Maldives] are Muslim”).

Rather than cleanse and modernize the Shar‘i code, I appeal to Professor Robinson to reject the Maldive commission and take a totally different approach in his seminar, critiquing that code’s criminal provisions from a Western point of view. He and his seminar students would then show how this religiously-based legal system contradicts virtually every assumption an American makes, such as the separation of church and state, the abolition of forced servitude, the right not to suffer inhumane punishments, freedom of religion and expression, equality of the sexes, and on and on.
At the end of the article, Professor Robinson replies to Pipes' article. We learn that he does 'criminal law consulting' for a number of countries (I had no idea countries outsourced the leg work for their penal codes!), and counts China among his 'clients', which leads to a funny quote:
A few days ago, one client, China, beheaded a person for embezzlement. (Worse than anything the Maldivians have done.) Should I now refuse to advise them further on what I think a criminal code should look like? Your strategy of willful disengagement seems an odd way of bringing greater justice to the world.
"Professor Robinson?" "Yes?" "It's China on line two, sir, and he sounds a bit shaken." "Put him through, Nancy." "Hello, Professor Robinson?" "Ah Beijing, how are you?" "It happened again, doc."

Well, I guess if you consult China on criminal law, then taking on Shari'a doesn't seem that much out of this world. To the rest of us, Professor Robinson should try to re-connect with the world again. I have an example, some time ago I came across a presentation held at a conference for internet engineers, dealing with filtering of the internet in countries like China and the Gulf states. After dedicating half a slide to the pros and cons of the filtering itself (I recall from my head, with one line in the 'con' column, 'public opinion'), the presentation went on for some thirty slides on how to best do it. Just like that. And the engineer holding the presentation by the way was American too.

What I'm trying to say is, that some people are so into their work, they no longer feel the moral constraints you and I would, they're in some sort of moral 'Matrix' zone, just seeing actions, problems, solutions, improvements. Not asking about the why, the how, of the situation at hand, or the ultimate results of their own actions. And afterwards it would cost them to see. Like in the beforementioned movie, the German lawyer yelling out "It was the Law!!"

Think about this one, and I want to say up front that I'm no law scholar, if Shari'a Law states that (criminal) laws that flow from it, only can be applied to Muslims or those who freely subject themselves to being tried in an Islamic court, and you have a country which declares itself by law as 100% Muslim, then doesn't that suggest that revamping, modernizing, reforming, or any other change to a Shari'a penal code will not in any way help bring 'justice' to the system?

Professor Robinson, and his students who signed up for his seminar, stand a very good chance of being used to polish up, humanify if you will, part of a system which will use it to further strenghten itself, not as a basis for widespread reform.

Next year Nigeria?

Update: Thanks to Little Green Footballs, who originally posted on it, a link to an overview of some examples of Shari'a Law, courtesy of Boston Indymedia.