Shari’ah and the Intent of the Law: The Cases of Strauss-Kahn and Schwarzenegger
Dr. Robert D. CranePosted May 26, 2011 •Permalink • Printer-Friendly Version
Shari’ah and the Intent of the Law: The Cases of Strauss-Kahn and Schwarzenegger
by Dr. Robert D. Crane
The sex crime of Dominique Strauss-Kahn, powerful head of the International Monetary Fund, and the sex scandal of Arnold Schwarzenegger, who was Governor of California, would make great cases for a law school course on comparative criminal law.
Some Islamophobes have warned against the “shari’atization” of America and claim that the Islamic shari’ah would let Strauss-Kahn go scott-free because his victim cannot provide four witnesses to prove that he forced the chamber-maid in his hotel room to perform oral sex. News articles claim that forced sex is a growing threat to chambermaids in America.
Others warn against the cultural invasion of America from France, where President Clinton was lionized as “a real man” for doing what has almost become routine. The defense of consensual sex is invoked even in situations where the man has power over his victim, for example when she is his subordinate employee or otherwise socially so inferior that she has no right to object. If the international community had not turned Strauss-Kahn’s affair into a global news item, he might have been elected to the presidency of France as his royal prerogative, a real king among men exercising his powerful male entitlement.
Still others, including 57 percent of France’s population, according to a May 17th poll, believe that Strauss-Kahn was framed and was the victim of a set-up by the financial leaders of the world following directions from the CIA. Most such conspiracy theorists, however, point to the way the case was handled not whether he was guilty as charged.
The Islamophobic conspiracy theorists are concerned only with the theoretical issue whether the Islamic shari’ah would declare Strauss-Kahn innocent of a crime because of evidentiary requirements that, in fact, do not apply to this case at all.
In their drive to condemn the shari’ah as a threat to the American legal system, such Islamophobic conspiracy theorists warn further that marital rape is not only routine among Muslims but is strongly defended by shari’ah law. Such claims and counterclaims are discussed in some of my more than four hundred weekly articles in the ezine, http://www.theamericanmuslim.org, ranging from the article “Homosexuality, Adultery, and Marital Rape: Which is Worst” June 27, 2006, which claims that the latter is the worst, and the more general “Human Rights and Tolerance within Islam: Legal, Political, and Spiritual Perspectives”, February 7, 2007, to the article published on March 3, 2009, entitled, “The Ultimate Sexism: Gender Specific Metaphysics”.
The thought that the Islamic shari’ah would countenance brute force or any kind of intimidation in relations between men and women, whether within or outside of marriage, is bizarre.
The key consideration in Islamic jurisprudence, which provides the universal and essential purposes and principles for applying the fiqh or rules and regulations, is intent. The intent of the law is supposed to govern in both classical Islamic and classical American law, because both derive authority from the divine intent of the Creator of the universe and of human beings whose nature predisposes them to both knowledge and commitment to compassionate justice.
The reason for the requirement of four witnesses in the fiqh is to protect the victim accused of adultery, not the perpetrator of a sexual crime. This is the intent of the maqsad, known as haqq al karama, which is the duty to respect human dignity, especially of women (gender equity), and is one of the most important elements of the maqasid al shari’ah or Islamic jurisprudence.
For an adulterer, even if the adultery is consensual, as Strauss-Kahn contends, the sources hold that if the victim swears that she was raped or otherwise forced, this is sufficient evidence to acquit her, since swearing on the Qur’an falsely might be equivalent to apostasy. The benefit of the doubt therefore is strongly in favor of the victim. In case of marital rape as a cause for separation or divorce, her mere word is not questioned and is definitive.
Unfortunately, centuries of patriarchal perversions of the Qur’an and the shari’ah have created a cultural Islam that reverses the clear intent of Islamic jurisprudence. Such ignorance has created absurd laws in some backward regions, which some men have used to defend themselves and punish women for objecting to being raped. The dishonor in some tribes applies to the men in such cases, and the man or men involved are banished from the community, which in some cultures is equivalent to a death penalty. In Islamic law false accusations are equivalent to the crime itself.
The Qur’an sets a limit of no more than a hundred lashes for adultery, and thereby rules out stoning to death, which is an ancient Jewish custom with only a single spurious hadith as its sole support in Islamic law. Some scholars, such as Shahrur, whose teachings have been explicated by Andreas Christman in the book, The Qur’an, Morality, and Critical Reason: The Essential Muhammad Shahrur, Brill, 2009, 586 pages, hold that the hudud or criminal penalties are only maxima and not wajib or required, because the intent is deterrence as much as punishment. This book is Volume 106 of Social, Economic, and Political Studies of the Middle East and Asia.
The absolutely crucial doctrine of intent in Islamic law (both the primary purposes or jurisprudential maqasid and the particular legal rules in the fiqh for implementation) is treated in a whole library of books, some of them recently either translated from Arabic or originally composed in English.
My 2,000-book library has an entire shelf of books that answer the question of whether the four-witnesses requirement applies to the perpetrator of a sex crime. The best are Ahmad al Raysuni’s, Imam al Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law, IIIT, 2005, 441 pages, and the superb masterwork by Jasser Auda, Maqasid al Shariah as Philosophy of Islamic Law: A Systems Approach, IIIT, 2008, 347 pages, which has informed my two books on the subject.
The literature includes Paul R. Powers’ expanded dissertation at the University of Chicago, Intent in Islamic Law: Motive and Meaning in Medieval Sunni Fiqh, Brill, 2006, 236 pages, which is Volume 25 in Studies in Islamic Law and Society. Ironically the publisher must have given the title referring to Medieval Fiqh, which is an Orientalist term proper only to Europe, because Powers cites Johansen for his periodization of Islamic history into pre-classical in the first three centuries, classical in the fourth through sixth Islamic centuries (10th to 12th centuries in the Gregorian calendar), and the last seven centuries as post-classical.
The 14th Islamic century or even the entire third millennium after Christ may mark the beginning of an Islamic renaissance, after six centuries of intellectual death in most of the Sunni world. The Shi’a scholars, though not necessarily the ruling powers, never abandoned their enlightened jurisprudence, because tawhid and ‘adl or justice are the first two of the five elements in the Shi’a creed.
Unfortunately, the Salafist and other radical movements in the Muslim world use the term classical to refer to the first three centuries and totally ignore the great work of Muslim scholars who worked for three centuries to develop the Islamic heritage even at the cost of their own lives. Khalid Abou el Fadl devotes an entire chapter of his book, The Conference of the Books, to document the fact that almost all of the greatest Islamic scholars were imprisoned for years and even unto death for daring to be independent of the hired guns, whom we nowadays might call merely mullahs or state-funded clerics.
The case of Governor Arnold Schwarzenegger is quite different from the case of Dominique Strauss-Kahn, because Schwarzenegger committed adultery with a woman he loved and sired a “love-child”. As Juliet A. Williams put it in her Washington Post article on May 22, 2011, we should not “confuse consensual if illicit sex with violence against women”. The moral issues in Schwarzenegger’s case are both violation of the marriage bond and deception.
Williams concludes her analysis, “When a powerful politician has an extramarital affair, it’s a scandal. When a powerful politician sexually assaults another person, it’s a crime”. In traditional societies both violations of another person’s basic dignity have always been considered to be crimes. Adultery is no longer a crime in America, but if and when sexual assault becomes justified as routine, this would spell the end of civilization.