"Annotating Islam," The American Lawyer Magazine, December 2001

by Douglas McCollam

One interesting aspect of Osama bin Laden's campaign against the United States is how he strives to couch his grievances in legal terms. His fatwas calling for jihad are bolstered with evidentiary points on the Great Satan's many violations of Islamic law.

How good is his brief? To find out, we talked with writer and Islamic legal scholar Khaled Abou el Fadl, who has written extensively on legal issues in the Muslim world and lectured at universities throughout the Middle East. He sometimes incurs the ire of conservative Muslims for his critiques of Islamic fundamentalism, the most recent of which is in his book "Rebellion & Violence in Islamic Law" (Cambridge University Press). He is currently the Omar and Azmeralda Alfi Distinguished Fellow in Islamic Law at the UCLA School of Law.

Senior reporter Douglas McCollam talked with Abou el Fadl about the current state of Islamic law, the rise of fundamentalism, and what kinds of security measures an intellectual critic of extremism must take. This is an edited transcript of the conversation.

Q: Osama bin Laden has declared jihad against the United States. Under Islamic law, who has the authority to declare a jihad and under what circumstances may it be done?

A: There are really no objective criteria. Islamic law is now highly decentralized. In pre-modern Islam there were institutions of legal authority, the equivalent of law professors or judges. But there is a vacuum of authoritativeness in contemporary Islam.

Q: How did it work in classical Islam?

A: As to jihad involving military action, the Caliph, who is supposed to be leader of the Islamic nation at large, would consult with qualified jurists and reach a consensus. Once he declared it everyone was expected to obey. But there hasn't been a Caliphate since at least the Ottoman Empire. Even long before, the authority of all Caliphs after the first four has been contested. So it has never been that simple. In the Gulf War you had Saddam putting "God is great" on the Iraqi flag and calling upon Muslims to go into jihad. On the other side you had Saudi Arabian jurists issuing fatwas saying, "every Muslim must fight Saddam!"

Q: It recalls Napoleon's comment that God is on the side of the strongest battalion. All sides claim divine sanction.

A: That's exactly right. Often people try to equate jihad with holy war and it doesn't translate that way. It's more nuanced. It's really a concept that says: "I believe I'm right and I'm calling upon other Muslims to come aid me."

Q: One of the key pieces of evidence bin Laden cited in issuing his jihad was the presence of American troops in Saudi Arabia. Does that violate Islamic law?

A: There is a very mechanical question of whether non-Muslims can exist in the vicinity of the holy sites of Mecca and Medina. Here we get into some dreary line-drawing like: How many kilometers is too close? Do we draw a line in the sand? Bin Laden has tried to expand the claim to say that no non-Muslims should be in Arabia. Also, bin Laden claims that the countries of the Gulf, and especially Saudi Arabia, are countries without sovereignty, that the Saudis are a puppet government and hence their decision to grant permission to American troops to be in Arabia is not an autonomous decision. Since it is this government that claims to protect the holy shrines, then it is really the United States that has custody of these holy shrines.

Q: So, if his allegations are taken at face value, the U.S. presence violates the Quran?

A: Clearly in Islamic law the holy shrines must be in the custody of the Muslims, but it is really a factual debate. Once you start breaking down his legal rationale into its constituent parts he is on far shakier ground. For example, while Islamic law mandates control of the holy shrines, that historically did not include this whole sweep of land that we call today Saudi Arabia. Why assume Arabia means the boundaries that were delineated by the British Empire? It's a blending of nationalistic ideology with Islamic law. If you wanted to be traditional Muslim you would not recognize any state boundaries so why look at what the boundaries of Saudi Arabia are? You'd look at the historical practice of Muslims and how they defined Medina and Mecca. On the issue of autonomy, Islamic law calls for Muslims to give permission to come into Mecca and Medina and to provide security for the sites. Even bin Laden would have to agree that the administration and security of the holy shrines are in the hands of Muslims. I don't think the United States cares one way or the other who comes into Mecca or Medina or whether you are going to build a building.

Q: What is the state of legal education in Islam? What is taught?

A: The curriculum has undergone a remarkable transformation. In the classical period Muslim jurists trained for about eight years of graduate study. And not just in positive law, but in jurisprudence, logic, mathematics, eloquence, grammar and, in some institutions, philosophy and so on. In the modern age the curriculum of these Islamic institutions has been become less interesting, particularly in countries like Saudi Arabia. Philosophy, logic, rhetoric, eloquence -- all this stuff is prohibited.

Q: Is that because of the influence of the conservative Islamic movement within Saudi Arabia?

A: Right. The influence of the Wahhabis and their highly puritan creed. Now the emphasis is what we might call vulgar positive law. Nuanced approaches to the law, moralistic or value-based approaches, have all gone by the wayside. It's very legalistic, very mechanical and technocratic, like a vocational school gone haywire. That is the nature of the jurisprudence bin Laden has been trained in.

Q: What was his training?

A: He took courses in Islamic law in the school in Medina, though he didn't complete training. He was instructed only in positive law. All the courses that deal with the purposes or objects of law, all the courses about equity in law, none of that is taught anymore. It's contrary to the fundamentalists' insistence on textual literalism. That is the standard. Anything not in the text is illegitimate. Of course, in a literalist paradigm all you end up doing is projecting your own prejudice on to the text.

Q: Kind of like when you read Scalia.

A: Exactly! (laughs) In fact, if you look at Scalia his jurisprudence is remarkably myopic. It's very much like the jurisprudence that comes out of this literalist Islamic school. I've been teaching Islamic law for a long time and have lectured in Egypt and Morocco and even Saudi Arabia, and in those places even to ask whether the reader can objectively approach a text was considered heretical. I was told specifically in Mecca that they don't engage in this type of sophistry there. I wasn't invited again. You start to see the roots of the morally oblivious approach of bin Laden.

Q: Is there any countercurrent in the Islamic legal world?

A: There is but it remains purely intellectual. The thing about Wahhabism is that it is backed up by oil money and able to disseminate itself far more effectively than any other approach. It's everywhere. It's constantly hammering you everywhere you go. For example, the Saudis funded a translation of the Quran that reflected the Wahhabi creed and they distributed it for free all over the Islamic world. Bin Laden took the literalism of the Wahhabi creed to its logical extreme. He says don't give me any intuitive, common sense, humanistic arguments. Unless you can show me in the Quran where it says, "don't bomb the World Trade Center," I'm not going to listen to you.

Q: Besides the Quran, what are the principal sources of Islamic law?

A: The Quran is about 10-15 percent legal. The rest are moral exhortations, which are largely ignored by the fundamentalists as too vague to be of any value. The second is the Sunna, the tradition of the Prophet and the companions. That is where the fundamentalist creed stops. They don't go beyond these texts. In other schools of thought, which have lost considerable ground in the modern age, you'd add many things like equity, local custom and public interest.

Q: There is in Islamic law the concept of "ijtihad," or using analogy or deduction to arrive at a conclusion.

A: This is a really good point. "Ijtihad" corresponds to a "de novo" determination of law. In the classical paradigm it meant you wouldn't rely solely on the text, but could use analytical methods, such as deductive reasoning. But for fundamentalists "ijtihad" consists only of consulting the Quran and Sunna, ignoring the interpretations of jurists through the ages. It is liberative because it negates all the accumulated interpretations, so you aren't anchored. You approach the text as if no one has ever read it before and don't bother with consulting authorities.

Q: That negates, for example, the process by which common law was developed in the West.

A: Absolutely. Because of the absence of hierarchy, Islamic law also developed by an incremental, cumulative, adjudicative process in which the following of precedent was a basic principle. It gave Islamic law a free flowing, work in process, character.

Q: In the West those legal developments might be reduced to a codification. Did that ever occur in Islam?

A: Yes. After a period of development jurists would reduce the black letter of the law to writing, sort of like hornbooks. These books were used in adjudication and mostly were written for law students and judges. Then the law would commence on this process of development again and then you'd need another hornbook. So we have periods of Islamic law where these books were composed. Fundamentalism has done away with all of that. It's just considered an aberration, a kind of sophistry. Rather, you look at the Quran and come out with the law of God, and that's it. This creed believes that on 95 percent of all issues there is a clear-cut and precise answer in the text. On the other 5 percent we can disagree as to what the evidence indicates. But on 95 percent of issues, the matter is quite clear and settled.

Q: Under that approach how would bin Laden get past the prohibitions in Islam against killing women, children and other innocents?

A: He goes back to the Quran and says I don't see a specific prohibition against taking hostages, against blowing up people. On killing civilians he has this tradition of the Prophet that says don't kill a woman or a child. Bin Laden will say we do have this tradition, but we also have a tradition that says necessity makes the forbidden allowed and this is a necessity. It's a literalist or functionalist approach. Bin Laden would be shocked to hear that in many ways he epitomizes American legal realism: You reach the result and work backward to find the justification in the text. So bin Laden would say that nowhere in the Quran does it say explicitly don't take hostages or don't blow up people. All it says is don't kill women and children and right now that is a necessity. Also he'd argue I don't intend to kill the children and women, and when the Prophet says don't kill women and children, he means don't intend to kill children and women. It's a wonderfully legalistic cop-out.

Q: Isn't he then interpreting the text?

A: If you ask bin Laden he'd say no, because he doesn't engage in interpretation. You and I would say nonsense, this is clearly interpretation. He claims he is just reading the text literally. He maintains that unless you are prejudiced or biased or have ulterior motives, you will see that he is correct; you will not reach a different conclusion. Well, you know, every literalist can make that argument.

Q: Islamic law makes a distinction between common criminal conduct and political actors who engage in otherwise criminal conduct. Which category would bin Laden fall into and what are the implications of that?

A: In the classical paradigm Islamic law did distinguish between criminal and politically motivated criminal conduct. But it was also quite hostile to indiscriminate attacks on those who cannot defend themselves or attacks with the purpose of spreading terror. Islamic law considered such aggressors the enemies of society and God and didn't care what the political motivation was. But because bin Laden has no use for cumulative interpretation, he waves this away. He doesn't care what these jurists have said. So what? He engages in a de novo literal reading of the text and doesn't see these illegal elements laid out in the text. They came about through cumulative practice and interpretations and so are irrelevant to him. He is completely dismissive of this whole field of discourse.

Q: Lawyers played a central role in developing the modern legal system in the West. Do you foresee a similar role for lawyers in Islam?

A: That's not going to happen unless the legal class becomes sufficiently powerful and independent so that it has more integrity. Right now you mainly have jurists who are paid by the government and so say whatever the state wants them to say. And, on the other end, you have those that argue that everything that comes out of jurists' mouths is irrelevant. Religious discourses have been reduced to the level of political symbolism. They are not expected to yield meaning. So my sense is that there is a complete lack of seriousness all over the Muslim world about Islamic juristic discourse. The past 200 years have killed any richness in Islamic law. Most of the people who have visibility and attention and legitimacy in the practice of Islamic law are those who don't have legal training. They are engineers and medical doctors. It has become the playfield of activists and state employees. In a situation like this you are not going to have discourse of any integrity.

Q: Do you have concerns about your personal safety speaking out on this issue?

A: I spend about $15,000 on added security at home and at the office, and my phones are tapped by the police for my own protection. I don't mind these guys knowing that.