Islamic Law in the Lands of War

A new book - which focuses on Israel - explains the role played by Islamic law in countries where Muslims are in the minority.

Laws and Rules in the Land of War: Israel as Test Case, by Kfar Qassem native Ra’ad Abdullah Namar Badir, was published in Arabic in Cairo in 2015 (it is yet to be translated into other languages). It joins a number of books and articles dealing with fiqh al-aqliyyah – Islamic law for Muslims living in countries with a non-Muslim majority. This legal doctrine was created in the 1990s by two legal thinkers – Taha Jaber al-Alwani (1935-2016) and Yusuf al-Qaradawi (1926-2022). The aim of this doctrine is to provide a way for Muslims in non-Muslim countries to live according to Islamic law in a lenient and flexible way and without renouncing Islam.

From a religious perspective, the source of Islamic law is divine, and was given to human beings via the revelation delivered by the angel Gabriel to the Prophet Muhammed. As a result, religious sages have argued that there is no place for manmade legislation. According to this argument, they themselves can only identify God’s will rather than pass laws themselves. In reality though, since the rise of Islam, qualified jurists have always formulated laws in accordance with the needs of the time and the place.

The two most important textual sources in Islamic jurisprudence are the Koran and the Hadith (the oral tradition). The Koranic laws mostly touch on inheritance, women, marriage and divorce, murder, and commerce. The oral tradition, which mostly relies on the Hadith, complements, explains, and sharpens the Koranic laws. The Hadith are the records of the words, actions, and silent approval of the prophet. During the second half of the ninth century, these records (which underwent strict tests for authenticity) were gathered into collections, the most important of which are those of al-Bukhari (died in 870) and Muslim (died in 875). In the eight and ninth centuries, Islamic jurisprudence developed, leading to the formation of the four Sunni schools of law that are known to this day.

Islamic law covers all areas of life, including international relations. In this field, the aim is to temporarily regulate relations with non-Muslims living outside of Dar al-Islam (‘The Land of Peace’), otherwise known as the Islamic world. Similarly, the laws of jihad, which in a narrow sense refer to holy war to expand the borders of Islam, are temporary. If there is no other choice then one can take a break, agree to a ceasefire or sign an agreement. The idea of a permanent state of war between the territory of Islam (Dar al-Islam) and the territory of war (Dar al-Harb – the area controlled by infidels) is only theoretical. While Islam doesn’t officially recognize any political entities within Dar al-Harb, in practice Islamic states have formed alliances with non-Islamic states and maintained diplomatic relations with them.

In his book, Badir focuses on Islamic legal doctrine for Muslims living in countries with a non-Muslim majority. This doctrine is based on two main assumptions. First, that Dar al-Islam and Dar al-Harb are no longer relevant. The division of the world that took root with the Muslim conquests in the Middle Ages has lost importance in light of the prevailing understanding that non-Muslims are (mostly) no longer seen as infidels. Europe ceased to be considered by either radicals or mainstream Muslims as part of Dar al-Harb after WWI, and India after the 1980s (with the exception of Kashmir, which is still considered by some Muslims to be part of Dar al-Harb). Instead, relations between Islamic and non-Islamic countries are to be founded on peaceful and diplomatic relations in which neither side threatens the sovereignty of the other. The second assumption is that Muslim law does not forbid Muslims from living in a country where the majority is non-Muslim. This too is a modern change, since historically, Muslim minorities in non-Muslim countries were required to emigrate to the Muslim countries. A corollary of this is that Islamic law encourages the Muslim minority to integrate into the life of the foreign country and to take an active part in its civic, political, and social life.

There is one exception  to this new order: Israel. Both radical and mainstream scholars agree that Israel belongs to Dar al-Harb, due to its conquest of what have historically been viewed as Islamic Palestinian lands. This idea, which relies on al-Qaradawi ruling that Israel is an enemy of Islam and the Muslim nation (against which a jihad must be fought), serves as a guiding principle in the book. As a result, the laws of the Muslim minority in Israel and the wider Palestinian people attracts great attention among both religious and legal figures and scholars.  The book, divided into three parts, examines Islamic law generally and then its application in both Dar a-Islam and Dar al-Harb, with a focus on Israel.

The first two sections of the book deal with medical issues. How does Islamic law address new innovations in the medical arena like artificial insemination, in vitro fertilization, fertility treatment, and organ donations (all of which are common in the West)? The book offers a review of the medical stages involved in artificial insemination; a presentation of the legal disagreements over this issue; an analysis of the main texts pertaining to the issue in Islamic law; legal rulings on artificial insemination inside and outside the body; and an explanation of several methods of artificial insemination that were forbidden according to Islamic law. Key questions covered include: Can a woman give her egg to someone else? What’s the ruling for seminal fluid that is emitted because of masturbation and is designated for artificial insemination? What’s the law concerning nudity in the presence of a Muslim doctor and a non-Muslim doctor? What is the legal status of a “test-tube baby”?

With regard to artificial insemination, examined in the first section, the book explores the legal and social implications for Islamic society. The Arabs of the Jahiliyyah (the pre-Islamic period) solved the problem of male infertility by allowing the woman to sleep with a man who was not her husband. This didn’t create any legal problems, since her husband had given his permission. With the rise of Islam, though, the four Sunni legal schools have had to examine this issue in light of the success of artificial insemination in modern times. For Muslims, the goal of artificial insemination in humans is different from that of animals and plants. With animals and plants, the goal is to improve the breed or to improve the yield. However, regarding humans, the goal of fertility treatment is limited to ensuring descendants for the childless couple. Therefore, the Muslim legal schools accept artificial insemination if the sperm is delivered without physical contact, since physical contact between two strangers is in this case considered adultery and is forbidden by Islam. Despite this acceptance, many legal scholars still view artificial insemination as an obscene crime and a serious transgression. Without a doubt, the issue creates many legal, ethical, and social questions. For example is sperm that is yet to be planted in the womb considered a living organ or not? Or, what is the ruling regarding the woman’s pregnancy or the legal status of the donor, if the husband regretted the donation and even demanded a divorce?

After the general discussion, Badir examines the application of these laws in Israel. He examines at length the artificial insemination of Palestinian women whose husbands are in Israeli security prisons. These couples don’t suffer from infertility, but the Israeli authorities prevent them from being together. In 2013, four Palestinian women succeeded in smuggling their husbands’ sperm into a hospital in Nablus where they underwent successful artificial insemination. These were young Palestinian women who sought to fulfil their natural right to become mothers without waiting for their husbands to be released from prison (many of the security prisoners received several life sentences). Others in the Palestinian arena see artificial insemination as another way to fight Israel. In any case, jurists and doctors ask the women who seek artificial insemination to get permission from their husbands and families to avoid future problems. It is interesting to note that Badir does not mention that theoretically all medical treatment is forbidden in Dar al-Harb. Nor does he explain that in practice, Islamic scholars are actually more lenient with artificial insemination for Palestinians because of the prerogative to continue Muslim life in Palestine.

The second section in the book deals with organ donation. Its chapters offer a wide-ranging review of legal opinions and judgements of religious sages relating to organ donation in Islam (and especially in Dar al-Harb) in a number of common cases: donation from the body of a dead Muslim and a live Muslim; the question of legal permission in the case that a legal custodian or descendant/s seeks to donate organs after the death of a family member; the donation of non-Muslim organs; the sale of organs for transplantation, and the giving of sperm from a non-Muslim infidel to a Muslim couple.

Badir shows that Islamic law permits organ donation from a dead body to save a life. It is also legally indisputable that the donation is permitted if a person gave permission to donate his organs upon death. Islamic law views the desire to donate an organ as a great act that God will reward, since the person who donated his organs saved someone’s life. It is possible to find a reference to this in the Koran in the surat (chapter) Al-Ma’idah 5:32 (“It will be as if they killed all of humanity; And whoever saves a life, it will be as if they saved all of humanity. Although our messengers already came to them with clear proofs, many of them still transgressed afterwards through the land” (P101-103).  Badir also demonstrates that Islamic law permits the transfer of an organ between living bodies, such as a kidney transplant. The parties involved in this transfer must ensure that there are no negative repercussions for the donor and that the surgery is free of visible risks to the life of the transplantee. Organs are donated with the goal of saving someone else’s live from sickness or death. This process has no direct impact on the family of the transplanter, in contrast to a baby who was born as the result of artificial insemination. After the success of transplant surgeries in the West, starting at the end of the 1980s, a number of institutional and semi-institutional legal bodies (including the Muslim World League and even leading sages in Saudi Arabia) permitted the transfer of an organ or part of the body of a living or dead person, Muslim or non-Muslim, if this is necessary and there is no danger involved in the transfer. Additionally Badir notes that Islam forbids organ transplant for financial or another kind of compensation. This legal prohibition derives from the fact that Islam sought to depart from different norms that had taken root among Arabs in the Saudi peninsula during the Jahaliyyah (the period before Islam in the Arabian Peninsula). Islam states that generating financial or other profit from the skin, bones, hair, or teeth of another person is a transgression. This ruling is consistent with Western legislation on the subject.

The section ends with an examination of the application of these laws in Israel. Badir deals with Palestinian patients seeking medical treatment, including organ transplants, in Israeli hospitals. One example he presents is the hospitalization of the one-year-old Amal Bat Hashneh, the granddaughter of Hamas leader Ismail Haniyeh, in Schneider Children’s Medical Center in Petah Tikva. Amal was treated in hospital after she suffered from an infection in her digestive system which damaged her nervous system, and according to several rumors also underwent a transplant. Several Israeli media outlets only published partial details about the event. Other cases of Palestinian patients being treated in Israel were also leaked to the media, including the extended family of Abu Mazen, Ismail Haniyeh, and senior Hamas figure Mousa Abu Marzook. Badir shows here the pragmatic perspective of the jurists. Despite medical treatment being theoretically forbidden in Dar al-Harb, in practice not only was medical treatment in Israel permitted, but permission was given to donate organs and for cross-transplantation (a common case in which families “exchange” organs).

The third section discusses economical and financial issues in Islamic Law generally, as well as describing the attitude towards banks in Israel. Here Badir does mention that putting money in banks in Dar al-Harb is forbidden. The chapters deal first with the prohibition on taking interest in Islam and the reasons for this according to the four Sunni legal schools, and in the revised ruling (itjihad, in which a jurist gives an independent ruling on a legal judgement) regarding implementation of the laws of interest in modern banks and the laws of interest in Israeli banks. Badir then explains the economic system in Israel, which – like in other Western countries – is based on interest. Against this background Badir seeks to adjust the law on being a Muslim minority to life in the Israeli economic reality.  Here too pragmatism is the dominant approach: in practice there is no difference between approaches to banks in non-Muslim countries which are no longer in Dar al-Harb and Israel.

Laws and Rules in the Land of War: Israel as Test Case is mainly for jurists who want to learn about the laws of the Muslim minority in a non-Muslim country and especially in Israel. Despite this goal it is written in high language without any visual aids, which would have made it easier for the lay reader. And while its focus is on Israel as a test case, it does not provide a sufficiently clear picture of the life of the Muslim minority in Israel. Nor does it discuss Islamic law in the key area of religious authority and the state. Finally, it lacks an analysis of the interactions between those who make state law and Muslim jurists.  Despite these shortcomings, the book makes a significant contribution to research on the topic of the legal doctrine of the Muslim minority since it provides great information about legal rulings in the test case of Israel.

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