Monday, September 03, 2007

Lord McCluskey on the 'differences' between democracy (of sorts) and Islam ...

The Scotsman are carrying an interesting article from Lord McCluskey on his thoughts about Islam & democracy.

Speaking of reviews, isn't it tome to review the way the judiciary go about their business in Scotland ? .. oh erm .. no we can;t do that, or there will be another rack of open letters from his lordship in the Scotsman warning against meddling in judicial matters .... democracy is in the eye of the beholder perhaps ?

Now, and to avoid any religious controversy, we go straight to the Scotsman report :

God-given law under review?


THE Scotsman article by Mohammad Habash, a member of the Syrian parliament ("Old and new cultures need not clash", 21 August), which argued that Islam and democracy are entirely compatible, was encouraging but puzzling.

His claim rested upon a description and an analysis - with which, alas, not all Muslims would agree - of the life, actions and words of the prophet, all as inspired or even precisely articulated and formulated by Allah himself. Muslims believe the Angel Gabriel directly and repeatedly transmitted those divine instructions and frequent guidance to the prophet. In due course, those instructions and that guidance, coupled with the "rightly guided" judgements of the prophet delivered in real-life disputes and matters of law, came to be embodied in the Sharia, the essential code of Islamic law, though the accepted version of the law was not formulated until long after the prophet's death.

As a lawyer interested in the history of the Sharia and the growth of the Islamic schools of jurisprudence, I have some difficulty in understanding exactly how this shared acceptance of the origins and essential nature of Sharia law fits with our notion of democracy in the 21st century.

All Muslims believe Allah is the true source of Islamic law, whatever their differences in matters of interpretation. They believe some of the basic laws were expressly revealed to the prophet, in the same way as Moses is said to have received the Ten Commandments. So the precise laws and rules on many matters, including, for example, the sinful, illegal, and usually criminal, character of adultery, homosexual activity, apostasy and usury (lending money at interest), are regarded by Muslims as laws expressly laid down by Allah. They believe that, insofar as Allah has defined what the law is, and what penalties (including the death penalty) have to be applied, that law is permanent and unchangeable. Men cannot re-write the God-given law.

But western democracies constantly re-write the law, even on the most basic matters. We have effectively abandoned the primitive axiom that whatever religion defines as "sinful", society must treat as criminal. We reject the notion that crime is the other face of sin. We have come to regard "sin" (as specified by religious teachers) as a matter for individual conscience, not one for the state or the community, though clearly, as with homicide or theft, there may be a substantial overlap between sin and crime. However, for western democracies, declaring conduct to be criminal is essentially a matter of social regulation, whether or not some religions regard such conduct as sinful. Equally, jumping a red traffic light is in many countries a crime: few would describe it as a sin. Fornication between consenting adults is condemned as sinful by the Abrahamic religions; but western democracies do not treat it as a crime.

To give better-known examples: for centuries, Christianity regarded usury as sinful, indeed as a "mortal" sin. In The Divine Comedy, Dante places usurers in the seventh circle of hell, alongside blasphemers and sodomites. This condemnation mirrors that expressed in the Koran: "As for those who persist in usury, they incur Hell, wherein they abide forever." Christianity began to tolerate it with the growth of Lombard banking, and Henry VIII passed a statute permitting it. Nowadays, bankers and capitalists are widely viewed as vital pillars of our economy. They go not to Hell but to the House of Lords.

Similarly, adultery was once a crime in our society. So was apostasy: many an apostate/heretic was burned at the stake. Parliament removed the criminal character of adultery, and of apostasy (though it ludicrously preserves, on paper, the crime of blasphemy). Forty years ago we legalised private adult homosexual conduct. Fifty years ago, we abolished the death penalty. Other western democracies take different views of what should be treated as criminal. But we all decline to treat every instance of "sinful" conduct as criminal.

The point simply is that we have been able to make these fundamental departures from a religion-based law because of our belief in the essence of democracy as enunciated by Abraham Lincoln: "Government of the people, by the people, for the people." That means that, for democrats, sovereignty - and the right inherent in it to make and alter the law - resides in the people, expressing their will through their elected representatives. Just as we could decriminalise adultery, so we can legalise the killing of one human being by another, as in those jurisdictions that allow voluntary euthanasia, effected by doctors: there the religious edict, "Thou shall not kill", does not necessarily compel the creation of a crime

But because, for Muslims, Allah is the express author of some unalterable laws, it follows that what the Koran or the Hadith expressly ordain, including punishments like death by stoning, cannot be abandoned or amended. Neither the people nor their leaders can make or amend laws in ways that openly contradict the Koran, the Hadith or other inspired sources of the Sharia. It is impossible for an Islamic state to legalise homosexual conduct. The difference between the Muslim and non-Muslim understanding as to the source and character of sovereignty and law appears to me to be fundamental.

One other example may illustrate the problem: our law used to compel courts to attach little or no weight to the evidence of certain classes of witness: for example, prostitutes. We scrapped such rules and instead left it to judges and jurors to use their common sense, assessing each piece of evidence on its merits. But Islam appears to be stuck with a divinely prescribed rule that the evidence of one man outweighs that of one woman: it may take two or more women to outweigh one man. That is one reason why it is so difficult to prove that rape has been committed. And in much Sharia law, the position of women is irredeemably inferior. In some Muslim jurisdictions, the evidence of an observing Muslim must be preferred to that of an infidel. Such discrimination strikes at one of the pillars of democracy, the rule of law, that demands all are equal before the law.

Such differences are not just cultural. They derive from fundamentally different beliefs about where sovereignty lies. At one end of the spectrum lies democracy, however imperfect: at the other, theocracy, however benign.

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