21
Torture and Islamic Law
Sadiq Reza
∗
One day in the seventh century CE, Muslim sources tell us, some residents
of Kila, a region in what is today southern Lebanon, came to suspect a group of
weavers of theft. They took the weavers to one of the Prophet Muhammad’s
“Companions”—a select and authoritative group of the Prophet’s
contemporaries—for adjudication and punishment. The Companion detained
the weavers for investigation but released them after a few days, presumably
because they denied the charge and there was insufficient evidence of their guilt.
The accusers promptly protested the Companion’s freeing the suspected thieves
“without flogging or interrogating” them. The Companion’s reply, the sources
tell us, was this: “What did you want? Had I flogged them and your goods
turned up [from their confession], that would have been fine. But if not, I would
have had to take [as much skin] off of your backs as I took off theirs.” “This is
your ruling?” the accusers asked. “It is the ruling of God and His Messenger
[that is, the prophet Muhammad],” replied the Companion.
1
This story and others like it are regularly cited to support the assertion that
torture is forbidden in Islamic law. But there are just as many reports in the
same sources—the Traditions (sunna), which record the statements and actions
of Muhammad and his Companions and are the most authoritative source of
Islamic law after the Qur’an—that suggest that flogging or otherwise “beating”
∗
Professor, New York Law School. This Article draws in part on a talk the author gave at the Fifth
International Conference on Islamic Legal Studies: “Lawful and Unlawful Violence in Islamic
Law and History,” at Harvard University in September 2006. Research on the topic began at the
Islamic Legal Studies Program at Harvard Law School, where the author was a Visiting
Researcher in 2004–05. The author thanks Asifa Quraishi and Frank Vogel for comments, and
Madiha Zuberi for research assistance.
1
6 Mukhtasar Sunan Abi Dawud 218 (Beirut: Dar al-Ma‘rifah 1980) (author translation). For other
English translations, see Mohammad Hashim Kamali, The Right to Personal Safety (Haqq al-Amn) and
the Principle of Legality in Islamic Sharī‘a, in Muhammad Abdel Haleem, Adel Omar Sherif, and Kate
Daniels, eds, Criminal Justice in Islam: Judicial Procedure in the Sharī‘a 57, 80 (IB Tauris 2003); III Sunan
Abu Dawud 1221–22 (Ashraf 1984) (Ahmad Hassan, trans).
Chicago Journal of International Law
(daraba) suspected wrongdoers to extract confessions is permissible.
2
(There is
nothing directly on point in the Qur’an.) Conflicting views on the matter also
appear in the vast corpus of jurisprudence derived from the Qur’an and the
Traditions by Islam’s legal scholars, or jurists, over the fourteen hundred years
of Islam. Meanwhile, there is no doubt that flogging and other official practices
that would constitute torture under contemporary definitions of the term, or
that would at least amount to cruel, inhumane, or degrading treatment, have
been employed over the lands and centuries of Islam.
3
And today, while the
countries of the modern Muslim world forbid torture in their constitutions and
criminal codes and have signed international covenants that ban it, many of
these states regularly appear on the list of states where government officials
reportedly employ torture with impunity, and among these states are several that
declare Islamic law to be the very source of their law.
4
The short answer, then, to
the question of whether Islamic law forbids torture is the same as the answer to
so many ultimate questions of Islamic law (and of “American” law too for that
matter): it depends on whom you ask.
It also depends on the definition of “Islamic law.” Possible definitions will
be considered both implicitly and explicitly in this Article. First, let me clarify
that I address torture as an investigative method—physical or mental coercion
by state officers to obtain confessions or other information from individuals in
their custody—rather than torture as a punishment upon conviction of a crime.
The religious legality of the fixed Qur’anic criminal punishments (hudud; sing,
hadd), which are few in number but notoriously harsh in nature, is not seriously
questioned; nor is there doubt that most if not all of these punishments are
irreconcilable with contemporary norms of human rights.
5
Acts of formal
2
See Kamali, The Right to Personal Safety at 84–89 (cited in note 1).
3
See Part II; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984), art 1, 85 UN Treaty Ser 1465, available online at <http://www.ohchr.org/
english/law/pdf/cat.pdf> (visited Apr 21, 2007) (hereinafter “Convention against Torture”):
“[T]orture” means any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession . . . when such pain or
suffering is inflicted by . . . a public official or other person acting in an official
capacity.
See also John T. Parry, Escalation and Necessity: Defining Torture at Home and Abroad, in Sanford
Levinson, ed, Torture: A Collection 145, 147–48 (Oxford 2004) (reviewing pertinent jurisprudence
under the Convention Against Torture and finding that “severe beatings that do not break bones
or cause lesions but cause intense pain and swelling are ‘classic’ forms of torture,” whereas
“[p]erhaps beatings that are not severe or sustained . . . would be inhuman treatment but not
torture”).
4
See Part II.
5
Scholars count between four and seven such crimes and accompanying punishments. The
majority view is that there are six—theft, brigandage, adultery, false accusation of adultery, wine-
22 Vol. 8 No. 1
Torture and Islamic Law Reza
punishment, however barbarous, are also typically excluded from contemporary
legal definitions of torture.
6
Also excluded from consideration here are acts of
violence, mutilation, and other physical degradation of political enemies and
opponents for non-investigative purposes. These horrors too have most
certainly occurred in Islamic history, as they have in non-Islamic history, and
regrettably they have apparently not entirely disappeared from the Muslim
world.
7
While the religious legality of some of these acts may be asserted,
8
there
can be little doubt that they too violate contemporary human rights norms. But
investigative torture is a more complicated matter in Islamic law and practice,
just as it has been throughout human history and appears to remain today.
9
It is
also a matter that richly illustrates what modern scholars increasingly identify as
an essential dynamic of Islamic law: the interplay between the jurists of Islam,
whose doctrines and discourses over fourteen hundred years form the corpus of
formal Islamic jurisprudence, and Islam’s political authorities, whose rules and
actions both depend on the jurists’ doctrines for legal legitimacy and constitute a
complementary source and measure of Islamic law.
Perhaps better questions than whether Islamic law forbids torture, then,
are these: What roles do the jurisprudential norms of Islam’s jurists, on the one
hand, and the practice of state officials in Muslim lands, on the other hand, play
in answering the question of the legality of investigative torture in Islamic law?
What role, if any, does the status of torture in Islamic law play in the willingness
of Muslim countries to prohibit torture within their borders and to join
international covenants that ban it? And what does all of this tell us about
Islamic law itself? This Article addresses these questions. In doing so, I hope it
drinking, and apostasy—and the punishments for them include flogging, amputation, and death
by crucifixion or stoning. See generally Mohamed S. El-Awa, Punishment in Islamic Law (Am Trust
1982).
6
John Langbein, for instance, defines judicial torture as “the use of physical coercion by officers of
the state in order to gather evidence for judicial proceedings” and insists that “[n]o punishment,
however gruesome, should be called torture.” John H. Langbein, Torture and the Law of Proof:
Europe and England in the Ancient Régime 3 (Chicago 2006). See also Convention against Torture, art
1 (cited in note 3).
7
For reports from early Islamic history as well as modern-day Saudi Arabia, see generally Khaled
Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge 2001).
8
One of the hudud is crucifixion or cross-amputation for those who “wage war against God and
His Messenger and strive to cause corruption in the land.” See The Meaning of the Holy Qur’an §
5:33 (
Amana 11th ed 2004) (A. Yusuf Ali, trans). While the vast majority of Muslim jurists
eventually came to read this verse as applying only to armed robbery (“brigandage” or “highway
robbery” are common English renderings), a crime that was especially problematic in the early
years of Islam, at least a few early Muslim rulers invoked the verse in support of their similar
treatment of political opponents. See El Fadl, Rebellion and Violence in Islamic Law at 47–60 (cited in
note 7).
9
See, for example, Karen J. Greenberg, ed, The Torture Debate in America (Cambridge 2006).
Summer 2007 23
Chicago Journal of International Law
24 Vol. 8 No. 1
not only elucidates some of the rules and practices of investigative torture in
pre-modern and modern Muslim times but also shines fresh light on the much-
debated question of the definition of “Islamic law.” My answer to that question
for the purposes of this Article is that Islamic law consists of the doctrines of
Muslim jurists and practices of Muslim rulers and other state actors that are
ostensibly sanctioned by those doctrines. But even this definition leaves ample
room for debate over the questions posed here—the narrower questions of the
legality of investigative torture in Islamic law and the relevance of that answer to
Muslim adherence to pertinent international norms, and the broader question of
what is, or should be, considered Islamic law.
Part I of this Article summarizes the range of pre-modern Muslim juristic
doctrines on investigative torture and discusses the relationship between these
doctrines and the practices of Muslim state officials in defining and determining
“Islamic law.” Part II notes evidence of the practice of investigative torture in
pre-modern Muslim times and then focuses on modern practice, considering
data on torture in today’s Muslim countries in light of the degree of commitment
to Islamic law these countries have professed. Part III considers whether Islamic
law influences the decision of a Muslim country to join or abstain from
international covenants against torture. Part IV suggests how, in light of this
study, to view torture through the lens of Islamic law, and Islamic law through
the lens of torture.
I. TORTURE IN ISLAMIC JURISPRUDENCE
At least three different views on the legality of beating suspected criminals
to obtain confessions can be identified in pre-modern Sunni Muslim juristic
discourses. The first view, and the one that apparently prevailed in the early
centuries of Islam, is that such beatings are never permissible. Proponents of
this view included the eminent jurists Ibn Hazm (d 1064), of the Zahiri school
of law, and al-Ghazzali (d 1111), of the Shafi‘i school.
10
The second view is that
a suspect who is known for relevant prior wrongdoing—for example, a
suspected thief who is already known to be a thief—can be beaten to extract a
confession; the suspect’s reputation provides sufficient circumstantial evidence
of guilt of the new accusation to justify the beating. The influential Hanbali jurist
Ibn Taymiyya (d 1328) suggested this view, and his disciple Ibn Qayyim (d 1351)
adopted and expanded on it; Ibn Qayyim’s formulation was in turn copied by
the Maliki jurist Ibn Farhun (d 1396) and the Hanafi jurist al-Tarabulusi
10
See Kamali, The Right to Personal Safety at 81, 83 (cited in note 1); Baber Johansen, Signs as Evidence:
The Doctrine of Ibn Taymiyya (1263-1328) and Ibn Qayyim Al-Jawziyah (D. 1351) on Proof, 9 Islamic L &
Society 168, 192 (2002) (noting “the clear interdiction of judicial torture that characterizes classical
Islamic law from the eighth to the twelfth centuries”).
Torture and Islamic Law Reza
(d 1440).
11
The third view is that investigative beatings are forbidden to qadis—
judges in courts of Islamic law—but permitted to rulers and other executive
authorities. The foremost proponent of this view was the Shafi‘i jurist al-
Mawardi (d 1058), perhaps Islam’s most influential political theorist, who said
rulers and their agents were authorized to flog suspects to obtain confessions
“according to the strength of the accusation” (ma‘a quwwat al-tuhmah).
12
The first of these views needs little immediate scrutiny; it is consistent with
international human rights norms and, in the end, it has not proven controlling.
The second view should sound familiar to students of judicial torture in
medieval Europe, where the rules allowed torture upon “half proof” of a
suspect’s guilt—that is, either a specified quantum of circumstantial evidence or
the testimony of one of the two eyewitnesses typically required for conviction.
13
The third view echoes this theme, but adds a uniquely Islamic twist in drawing a
line of demarcation between the powers of qadis, on the one hand, and rulers
and their agents on the other. It is this view, as I will argue below, that best
reflects the actual practice of torture in Islamic history.
But to understand the import and effect of any of these views, we must
first understand the role of jurists in determining and articulating Islamic law.
Simply put, from the early centuries of Islamic history, jurists have possessed
and wielded nearly exclusive authority to articulate rules and norms of Islamic
law—God’s law; the Shari`ah—on the basis of the divine texts (the Qur’an and
the Traditions). Although they could be appointed as qadis (and many were),
these legal scholars have not typically held state office. Instead, their authority
has derived from popular recognition of their proficiency and integrity in
interpreting—or, more accurately, deriving or discerning—God’s law through
recognized methods of textual analysis and reasoning. Jurists’ views on points of
Islamic law have varied across different periods and places in the Muslim world,
and even within the same periods and places, much as judicial decisions in
American law vary from state to state and even courtroom to courtroom. But
unlike an American judicial decision, a Muslim jurist’s view—which typically
appears either in a fatwa (legal opinion) the jurist issues in response to a question
11
Ibn Taymiyya, 34 Majmu‘ Fatawa Shaykh al-Islam Ahmad Ibn Taymiyya 236–37 (Riyadh: Saudi
Arabian Govt 1961) (Abd al-Rahman ibn Muhammad ibn Qasim al-Asimi al-Najdi al-Hanbali,
ed); Ibn Qayyim al-Jawziyah, al-Turuq al-Hukmiyah fi al-Siyasah al-Shar‘iyyah
89–92 (Cairo: Dar al-
Hadith 2002); Ibn Farhun, 2 Tabsirah al-Hukkam
128–29 (Beirut: Dar al-Kutub al-‘Ilmiyah 1995);
Mohammad Fadel, Adjudication in the Maliki Madhhab
26, 190–92 (1995) (unpublished PhD
dissertation, U of Chicago) (on file with the University of Chicago Library).
12
Author’s translation. For another translation, see Abu al-Hasan al-Mawardi, The Ordinances of
Government
239 (Garnet 1996) (Wafaa H. Wahba, trans) (“in view of the seriousness of the
charge”).
13
See Langbein, Torture and the Law of Proof at 4–5 (cited in note 6).
Summer 2007 25
Chicago Journal of International Law
26 Vol. 8 No. 1
presented to him by a qadi or a party in a specific case, or in a treatise that
collects the jurist’s views on all subjects—is not binding or directly enforceable.
Rather, only when the view is adopted by a qadi in an actual court case or
implemented via a rule or decision of an executive authority does it become
binding and enforceable in the way an American judicial decision is. Until
then—and even once it is binding, for that matter—a given view is no more
than a particular jurist’s best effort to discern God’s law—the Shari`ah—from
the sacred texts.
The views of Muslim jurists are thus truly opinions rather than judgments;
they are approximations or understandings of God’s law rather than definitive
statements of it. And because every jurist’s opinion is by definition a product of
human agency, each opinion is considered both (1) a probable rather than a
conclusive articulation of the Shari`ah and (2) no more authoritative than the
opinions of other jurists, no matter how much these views might differ from
each other. In other words, no jurist can (or typically does) claim greater
authority in the Shari`ah than another. The views of Muslim jurists are thus no
more than persuasive authorities—ideals, aspirations, and normative statements
of God’s law derived from the sacred texts through analysis and reasoning. In
the early centuries of Islam, jurists’ views and doctrines coalesced into distinct
“schools” of law, four of which survive today in Sunni Islam; Shi‘i Islam has
three more. These views and doctrines, compiled in hundreds of written
volumes that have been maintained over the centuries, constitute the corpus of
Islamic jurisprudence (fiqh).
The imperatives of daily governance have of course demanded more
powerful legal actors and practical institutions than jurists and their schools of
thought. These have been provided in Islamic history, and recognized by
Muslim jurists, in a second realm of law, siyasa (“administration” or
“governance”). In the siyasa realm, rulers and their agents perform the daily
duties of executive authorities—building roads, raising armies and waging war,
collecting taxes, keeping the peace, and so forth—under a divine mandate to
maintain order and promote public welfare. In theory, siyasa is at least partly
constrained by the fiqh: rulers and their acts should not contravene rules or
norms scholars articulated in the fiqh. The reality has always been more
complicated, for reasons that include the wide variety of opinions that are
available in the fiqh, the absence of mechanisms in the fiqh for checking ruler
excess, the elaboration of fiqh doctrines that counseled obeying even an unjust
ruler, and, perhaps most importantly, the lack of enforcement powers in the
hands of jurists. Further complicating matters was a doctrine jurists eventually
developed that established a presumption that a ruler’s actions in the siyasa realm
were consistent with the Shari`ah as long as the actions advanced the public
welfare and did not violate clear commands of the sacred texts. Perhaps this
doctrine—siyasa shar‘iyya, or “governance in accordance with the shari`ah”—was
Torture and Islamic Law Reza
the jurists’ final concession to the realities of state power; perhaps it was their
attempt to assert some authority over that power; perhaps it was both of these
and more.
14
The practical effect of the doctrine was, however, to bestow
religious legitimacy on the broad powers rulers already exercised to promulgate
statutes, issue decrees, and perform the duties of everyday governance and law
enforcement without specific reference to, or grounding in, the sacred texts.
15
The rulers’ siyasa, then, can represent “Islamic law” as much as fiqh does;
fiqh and siyasa are complementary halves of Islamic law—its yin and yang, if you
will. It is in this context that the third of the juristic views on torture presented
above can be understood. In stating that qadis were forbidden to torture but
rulers and their agents were not, al-Mawardi was distinguishing between the two
realms of Islamic law. Torture could be forbidden in the fiqh, the realm of jurists
and their ideals, as it was until and beyond the time al-Mawardi wrote. Qadis
were representatives and guardians of the fiqh (and might even have been actual
jurists, as noted above), even though they were appointed by rulers; torture was
therefore properly forbidden to them.
16
But it was equally proper, in al-
Mawardi’s formulation, to permit the ruler and his agents to torture, since the
ruler operated in the realm of siyasa—that is, actual governance and law-
enforcement—and the exigencies of that realm demanded powers beyond those
that jurists might be comfortable locating or formally endorsing in their own
realm. Al-Mawardi’s formulation, like the doctrine of siyasa shar‘iyya, thus allows
Islamic law to have it both ways when it comes to torture. The fiqh contains a
theoretical prohibition, consistent with what one would expect in normative
statements of a law of divine provenance, but siyasa provides a license for
practical purposes, allowing torture by those whose temporal duties outweigh—
or rather, define—their religious obligations.
It bears noting that Ibn Taymiyya, who suggested the second of the three
juristic views listed above (permitting suspects of known bad character to be
beaten), rejected the fiqh/siyasa distinction in this context; in his view, all state
actors were equally responsible for determining and implementing God’s law,
14
These possibilities are presented and considered in Frank E. Vogel, Islamic Law and Legal System:
Studies of Saudi Arabia 197–207, 216–19 (Brill 2000).
15
For more on this conceptual framework, see Asifa Quraishi, Interpreting the Qur’an and the
Constitution: Similarities in the Use of Text, Tradition, and Reason in Islamic and American Jurisprudence, 28
Cardozo L Rev 67, 71–75 (2006) (describing the fiqh/siyasa divide); Clark B. Lombardi, State Law
as Islamic Law in Modern Egypt: The Incorporation of the Sharī‘a into Egyptian Constitutional Law 49–54
(Brill 2006) (discussing the theory of siyasa shar‘iyya); Vogel, Islamic Law and Legal System at 197–
207, 216–19 (cited in note 14).
16
See also Johansen, Signs as Evidence at 171 (cited in note 10) (“[T]he dominant doctrine of classical
Muslim law regards judicial torture as the sinful and criminal destruction of the trustworthiness of
utterances, an act that deprives the qadi, the judge who applies fiqh norms, of the most important
element on which he may base his judgment.”).
Summer 2007 27
Chicago Journal of International Law
and qadis and rulers were thus equally allowed to torture.
17
Why each jurist might
have reached his particular view is a matter we will return to in Part IV. For
now, what is important is that al-Mawardi’s view perhaps best reflects the reality
of torture, indeed the reality of criminal law-enforcement generally, in Islamic
history. From the earliest days of Islam and well into the nineteenth century,
criminal matters in the Arab-Ottoman world were reportedly handled more
often by executive authorities than by qadis. Executive authorities operated in
“administrative” courts and quasi-courts alongside, though overlapping with, the
courts of qadis.
18
These authorities and their courts operated largely free of the
constraints of fiqh norms, long before jurists formally bestowed legitimacy on
that freedom in the doctrine of siyasa shar‘iyya.
19
The doctrine of siyasa shar‘iyya
thus did little more, in the criminal arena, than to ratify the status quo: the
everyday practices of rulers and their agents in criminal law enforcement had
long diverged from the norms and doctrines of jurists.
That torture has been among these practices, as the next section shows,
especially after it was expressly authorized by al-Mawardi, Ibn Taymiyya, and
others, should therefore not be surprising.
II. TORTURE IN MUSLIM PRACTICE
Historical evidence indicates that investigative torture was practiced to
some degree or another in various periods and places of the pre-modern Muslim
world. Among the Traditions, which are believed to reflect episodes from the
earliest decades of Islam, there are at least three reports that a Companion of
Muhammad employed force or threats of force to obtain a confession or
information from a suspected wrongdoer or witness.
20
Moving forward a few
hundred years, a tenth-century Baghdad judge reported that flogging suspects
was a method of criminal investigation there.
21
Investigative torture was also
reported to be practiced throughout the Ottoman Empire between the
fourteenth and twentieth centuries. In fact it was an institutionalized part of
criminal procedure in the early Ottoman centuries, expressly authorized by a
sixteenth-century criminal code and carried out by siyasa authorities with the full
17
Id at 185.
18
See generally Farhat J. Ziadeh, Criminal Law, in John L. Esposito, ed, 1 The Oxford Encyclopedia of
the Modern Islamic World 329, 330 (Oxford 1995); Uriel Heyd, Studies in Old Ottoman Criminal Law 1,
242–43, 259, 263–69, 274–78 (Oxford 1973); Joseph Schacht, An Introduction to Islamic Law 50, 54–
55, 76 (Oxford 1964); Noel Coulson, A History of Islamic Law 123–34 (Edinburgh 1964).
19
See, for example, Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the
Sixteenth to the Twenty-First Century 8–11 (Cambridge 2005).
20
See Kamali, The Right to Personal Safety at 84–85 (cited in note 1).
21
See Abboud al-Shalji, 2 Mawsu‘at al-‘Adhab 8 (Glebeweald 1980) (citing al-Tanukhi).
28 Vol. 8 No. 1
Torture and Islamic Law Reza
knowledge of qadis (and at times pursuant to their orders).
22
There is evidence of
its practice in the later Ottoman centuries as well.
23
In torturing suspected criminals, Muslims have hardly stood alone;
beatings, not to mention more imaginative methods of physical coercion such as
the thumbscrew and the rack, have been an official feature of criminal
investigation at some point or another in virtually every region of the world.
24
Nor was the practice entirely unchecked in the pre-modern Muslim context.
Judicial approval was reportedly required in some cases, qadis intervened to
prevent its use in others, and officials who tortured illegally could be subject to
punishment.
25
But the practice of investigative torture by siyasa authorities (with
the complicity of qadis) in pre-modern Muslim lands, coupled with the general
license the fiqh gave those authorities and the specific license some jurists gave
the practice itself, surely belies any assertion that Islamic law categorically
forbids it.
Evidence of modern Muslim practice strengthens this conclusion. In Saudi
Arabia, a declared and paradigmatic modern “Islamic state,” investigative
beatings were, until recently, expressly authorized in “major crimes,” including
murder, rape, theft, and drug crimes.
26
Reports that investigative torture is still
officially practiced and condoned there, despite domestic laws that forbid it,
issue regularly.
27
So too with Iran, another declared “Islamic state” that forbids
22
See generally Heyd, Studies in Old Ottoman Criminal Law (cited in note 18).
23
See Eyal Ginio, The Administration of Criminal Justice in Ottoman Selanik (Salonica) During the Eighteenth
Century, 30 Turcica 185, 203 (1998); Haim Gerber, State, Society, and Law in Islam: Ottoman Law in
Comparative Perspective 63–64, 111 (SUNY 1994) (discussing the practice in the seventeenth and
eighteenth centuries); Abraham Marcus, The Middle East on the Eve of Modernity: Aleppo in the
Eighteenth Century 118 (Columbia 1989); Ehud R. Toledano, Law, Practice, and Social Reality: A Theft
Case in Cairo, 1854, in Gabriel R. Warburg and Gad G. Gilbar, eds, Studies in Islamic Society:
Contributions in Memory of Gabriel Baer 153, 163 n 35 (Haifa 1984).
24
See, for example, Bernard Durand and Leah Otis-Cour, eds, La Torture Judiciaire: Approches
historiques et juridiques (Centre d’Histoire Judiciaire Éditeur 2002).
25
See Heyd, Studies in Old Ottoman Criminal Law at 253–54 (cited in note 18); Ginio, 30 Turcica at
199 (cited in note 23); Gerber, State, Society and Law in Islam at 111 (cited in note 23).
26
Vogel, Islamic Law and Legal System at 238–39 (cited in note 14). Ibn Taymiyya, Ibn Qayyim and al-
Mawardi were cited as authority for the practice. Id at 239. Today, the Saudi Arabian code of
criminal procedure, adopted in 2001, forbids “corporeal or moral harm” and “torture or indecent
treatment” of arrestees. Code of Crim. Proc, art 2 (unofficial translation on file with author).
27
See Human Rights Watch, Saudi Arabia: New Video Confirms Torture in Prison (Apr 27, 2007),
available online at <http://hrw.org/english/docs/2007/04/27/saudia15774.htm> (visited May
11, 2007); US State Department, Country Reports on Human Rights Practices-2006: Saudi Arabia,
available online at <http://www.state.gov/g/drl/rls/hrrpt/2006/78862.htm> (visited Apr 21,
2007); US State Department, Country Reports on Human Rights Practices-2005: Saudi Arabia, available
online at <http://www.state.gov/g/drl/rls/hrrpt/2005/61698.htm> (visited Apr 21, 2007); US
State Department, Country Reports on Human Rights Practices-2004: Saudi Arabia, available online at
<http://www.state.gov/g/drl/rls/hrrpt/2004/41731.htm> (visited Apr 21, 2007).
Summer 2007 29
Chicago Journal of International Law
torture in its constitution and statutes.
28
And these are not the only countries of
the modern world that declare fealty to the law or religion of Islam and
reportedly employ torture, as we will see in a moment.
Indeed, one measure of the Islamic legal position on torture today is
arguably the degree to which the absence or practice of it correlates with a state’s
professed commitment to Islam as the source and parameters of its law. This
measure can be attempted in the modern context by combining data from two
sources: a 2005 study of pertinent constitutional declarations in the world’s
forty-four Muslim-majority countries,
29
and the torture “ratings” assigned to
most of these countries by Oona Hathaway in a 2002 article on compliance with
human rights treaties.
30
The 2005 study divides Muslim-majority countries into
four categories on the basis of their constitutional declarations: so-called Islamic
states (which I will call “Category 1” states), states that declare Islam the state
religion (Category 2), states that make no constitutional declaration (Category 3),
and states that declare themselves to be secular (Category 4).
31
It also identifies
among these four categories those countries that declare Islamic law, principles,
or jurisprudence to be “the basis for,” “the principal source of,” “a principal
source of,” or “the source of” legislation in their respective constitutions.
32
For
the torture ratings, Hathaway, using the information about torture that appears
in the US State Department’s annual Country Reports on Human Rights, assigned
ratings on a scale of 1 (no allegations of torture) to 5 (torture is “prevalent,”
28
See Human Rights Watch, World Report 2007: Iran, available online at <http://hrw.org/
englishwr2k7/docs/2007/01/11/iran14703.htm> (visited May 11, 2007); Human Rights Watch,
Iran: Prosecute Torturers, Not Bloggers (Dec. 12, 2006), available online at
<http://hrw.org/english/docs/2006/12/12/iran14824.htm> (visited Apr 21, 2007); US State
Department, Country Reports on Human Rights Practices-2006: Iran, available online at
<http://www.state.gov/g/drl/rls/hrrpt/2006/78852.htm> (visited Apr 21, 2007); US State
Department, Country Reports on Human Rights Practices-2005: Iran, available online at
<http://www.state.gov/g/drl/rls/hrrpt/2005/61688.htm> (visited Apr 21, 2007); US State
Department, Country Reports on Human Rights Practices-2004: Iran, available online at
<http://www.state.gov/g/drl/rls/hrrpt/2004/41721.htm> (visited Apr 21, 2007).
29
Ted Stahnke and Robert C. Blitt, The Religion-State Relationship and the Right to Freedom of Religion or
Belief: A Comparative Textual Analysis of the Constitutions of the Predominantly Muslim Countries (USCRIF
2005), available online at <http://www.uscirf.gov/countries/global/comparative_constitutions/
03082005/Study0305.pdf> (visited Apr 21, 2007).
30
Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L J 1935, 1969–72
(2002).
31
Stahnke and Blitt, The Religion-State Relationship at 7 (cited in note 29). Note that Category 1 is
actually a subset of Category 2: states that call themselves Islamic states also declare Islam to be
the state religion.
32
Id at 9, 29–48.
30 Vol. 8 No. 1
Torture and Islamic Law Reza
“widespread,” “routine,” “frequent,” etc) for every country for which reliable
yearly data was available between 1985 and 1999.
33
The combined data, presented here in Table 1, considers the five most
recent years Hathaway coded, 1995 to 1999. This data does suggest some
correlation between the degree to which a Muslim-majority country professes a
commitment to Islam and the extent to which torture is practiced there.
Specifically, Muslim-majority countries that declare themselves to be Islamic
states appear to torture more than other Muslim-majority countries: those
countries, constituting Category 1, have the highest average torture rating (3.5).
But the correlation is not strong. The second-highest rating (3.4) goes to
Category 3 countries, which have no pertinent constitutional declaration. None
of the four countries that have the highest possible rating (5.0) are in Category 1;
rather, three of them are in Category 2 (Algeria, Bangladesh, Iraq) and the fourth
is in Category 3 (Syria). The twelve countries that have average torture ratings of
4.0 or higher are distributed evenly across the four categories, three per category.
The range of the average ratings for the four categories is relatively narrow, 3.1
to 3.5, and thus the percentage difference between the average ratings for the
lowest and highest categories is not great (13 percent). And the average rating
for the thirteen countries that declare Islamic law, principles, or jurisprudence to
be “the basis for,” “the principal source of,” “a principal source of,” or “the
source of” legislation (but do not limit that declaration to certain matters) falls in
the middle of the range at 3.3.
The correlation between a professed commitment to Islamic law and the
practice of torture in today’s Muslim-majority countries is thus either unclear or
somewhat positive, statistically speaking: Muslim-majority countries that
officially identify most strongly with Islam (by declaring themselves Islamic
states) appear to torture the most, while those that profess a specific
commitment to Islamic law fall in the middle of the range of Muslim-majority
countries in employing torture. This finding further undermines any assertion
that Islamic law forbids torture, at least insofar as the practice of states that
profess a commitment to that law is a measure of it.
33
Hathaway, 111 Yale L J at 1969–72, 2034–36 (cited in note 30). Note that Hathaway’s data
includes reports of physical or mental abuse of detainees that might not necessarily have been for
investigative purposes, but still excludes acts of formal punishment.
Summer 2007 31
Chicago Journal of International Law
Table 1: “Torture Ratings” of Muslim-Majority Countries (1995–99) and Party Status to 1984 Convention
against Torture
34
Category 1: Declared Islamic States
(and Declared Islam as State Religion)
Category 2: Declared Islam as a State Religion
Country Torture
Rating
Country Torture
Rating
Afghanistan 4.8 Algeria 5.0
Bahrain 4.0 Bangladesh 5.0
Brunei n/a Egypt 4.2
Iran
3.4
Iraq*
5.0
Maldives n/a Jordan* 3.0
Mauritania 2.6 Kuwait 2.0
Oman
2.0 Libya 3.0
Pakistan
4.8
Malaysia*
2.6
Saudi Arabia 3.0 Morocco 3.0
Yemen 3.4 Qatar 1.0
Tunisia 3.0
United Arab Emirates
1.8
Average Rating = 3.5 Average Rating = 3.2
Category 3: No Declaration Category 4: Declared Secular States
Country Torture
Rating
Country Torture
Rating
Albania 2.4 Azerbaijan 4.0
Comoros 2.0 Burkina Faso 2.4
Djibouti 3.2 Chad 3.2
Gambia* 2.6 Guinea 3.6
Indonesia 4.2 Krygyzstan 1.8
Lebanon 3.4 Mali 2.0
Sierra Leone 3.4 Niger 1.6
Somalia n/a Senegal 3.0
Sudan 4.4 Tajikistan 3.8
Syria 5.0 Turkey 4.8
Uzbekistan 3.8 Turkmenistan 4.0
Average Rating = 3.4 Average Rating = 3.1
34
Information compiled from Hathaway, 111 Yale L J 1935 (cited in note 30); Stahnke and Blitt, The
Religion-State Relationship (cited in note 29); and Convention against Torture (cited in note 3).
Countries for which torture ratings were not available are marked as “n/a.” All countries except
those in boldface are parties to the 1984 Convention against Torture. The average torture rating
of the non-party countries is 3.3.
Italics indicate countries that declare Islamic law,
principles, or jurisprudence to be “the basis for,” “the principal source of,” “a principal
source of,” or “the source of” legislation in their respective constitutions; an asterisk (*)
indicates that that declaration is limited to certain matters. (The 1925 Iraqi constitution,
which was in effect during the years under review here, contained such a limitation, but
the 2004 constitution does not.) The average torture rating of the countries that are
listed in italics without an asterisk is 3.3.
32 Vol. 8 No. 1
Torture and Islamic Law Reza
Another recent study suggests even less correlation between a commitment
to Islamic law and the practice or absence of torture. In a 2002 article, Daniel
Price presented his study of whether there was any correlation between the
protection or violation of human rights in a country and the degree of the
country’s “Islamic political culture.”
35
To conduct this study, Price first assigned
human rights scores on a scale of zero to six for twenty-three Muslim countries
and twenty-three non-Muslim countries using information from the 1980 and
1990 editions of the US State Department Country Reports and Amnesty
International’s annual reports. Torture ratings accounted for one-third (0–2
points) of each country’s score, while disappearances and political prisoners each
accounted for another third of the score.
36
To measure each Muslim country’s
“Islamic political culture,” which was defined as a combination of the
“comprehensiveness” and “authenticity” of Islamic political ideologies in a
country, Price totaled two separate scores: one for the degree to which Islamic
law governs in each of five distinct legal spheres in the country (criminal law,
commercial law, etc) (zero to fifteen points), and the other for the degree to
which ideas and technologies that originate outside of the Muslim world are
accepted by the society without reference to Islam (also zero to fifteen points).
The former score was determined by studying the constitution and laws of each
country and the latter score was derived from a variety of sources: official texts
and statements, media reports, consultations with embassies, and results from a
survey of members of the largest academic organization in the US that pertains
to the Muslim world, the Middle East Studies Association.
37
Price ran the
comparisons, using regression analysis to control for possible influences on
human rights practices in Muslim-majority countries other than “Islamic political
culture,” including the degree of democracy in each country, the presence of
ethnic cleavages or religious minorities, wealth and economic change, and the
level of modernization and development.
Price found the relationship between human rights protection or violation
and “Islamic political culture” in the Muslim countries he studied to be
statistically insignificant. In fact, the relationship between the two scores was
curvilinear: the worst human rights records were generally found in countries
35
Daniel Price, Islam and Human Rights: A Case of Deceptive First Appearances, 41 J Sci Study Religion
213 (2002).
36
Note that in these scores, zero represents the least human rights protection, or the highest torture
rating, whereas in Hathaway’s it represented the lowest torture rating. Note too that Price’s data
also apparently includes physical abuse other than merely investigative torture, and punishment is
not expressly excluded. This means that Price’s torture ratings are likely higher than Hathaway’s,
particularly for Muslim countries that apply hudud punishments.
37
Price, 41 J Sci Study Religion at 215–17 (cited in note 35).
Summer 2007 33
Chicago Journal of International Law
with either the highest scores of Islamic political culture, for instance Saudi
Arabia and Iran (the most “Islamic” countries), or the lowest scores of Islamic
political culture, for instance Syria and Libya (the most “secular” Muslim-
majority countries in Price’s study).
38
Going on to compare the human rights
scores of Muslim-majority countries with those of the control group of non-
Muslim developing countries, Price again found Islamic political culture a
statistically insignificant factor with respect to human rights practices. The data,
Price concludes, “provide[s] strong evidence that government rooted in Islam
does not facilitate the abuse of human rights.”
39
This may be so. But the data provides equally strong evidence that
government rooted in Islam does not prevent the abuse of human rights. In other
words, “Islamic political culture” would not appear to prevent human rights
violations any more than the absence of that culture does. And since half the
measure of Islamic political culture in Price’s study was a country’s formal
commitment to Islamic law, the conclusion that Islamic law does not forbid
torture in practice—siyasa—any more than it does in theory—fiqh—appears
inescapable. True, Price did not isolate torture from the other human rights
violations (disappearances and political prisoners) in his analysis, so what his
data says about the relationship between torture itself and Islamic political
culture cannot be stated precisely. But there is certainly nothing in his study, or
anything else in the information we have seen about investigative torture in
modern Muslim practice, that suggests that a commitment to Islamic law is
associated with less torture (or vice versa).
Does such a commitment play a role in the decision of a Muslim country
to participate in or abstain from international covenants on torture? This is
considered next.
III. ISLAMIC LAW AND INTERNATIONAL
COVENANTS ON TORTURE
All but seven of the forty-four Muslim-majority countries are parties to the
1984 Convention against Torture.
40
That convention not only forbids torture
38
Id at 219.
39
Id at 222.
40
The seven non-parties, as Table 1 shows, are Brunei, Iran, Iraq, Malaysia, Oman, Pakistan, and
the United Arab Emirates. See Convention against Torture, Ratifications and Reservations (Mar
13, 2007), available online at <http://www.ohchr.org/english/countries/ratification/9.htm>
(visited Apr 21, 2007); Convention against Torture, art 1 (cited in note 3). All but seven, though a
slightly different list of seven, (Brunei, Comoros, Malaysia, Oman, Pakistan, Saudi Arabia, and the
United Arab Emirates) are also parties to the International Covenant on Civil and Political Rights
(1966), 6 ILM 368 (1967), one article of which includes a prohibition of torture. For a list of
ratifying countries, see International Covenant on Civil and Political Rights, Ratifications and Reservations
34 Vol. 8 No. 1
Torture and Islamic Law Reza
absolutely,
41
but it also requires party states to enact laws to prevent and
criminalize it,
42
to train law-enforcement personnel to comply with and enforce
the prohibition,
43
to review rules and practices of interrogation and detention in
the interest of maintaining the prohibition,
44
to provide reliable and safe means
of complaint and redress for alleged victims of torture,
45
and to investigate
credible allegations of it promptly and impartially.
46
No Muslim-majority country
that is a party to the convention has lodged a reservation with respect to these
provisions. Only one of these countries has, moreover, formally suggested that
anything about the Convention might be inconsistent with Islamic law (or vice
versa). That country is Qatar, a small constitutional monarchy on the Arabian
Peninsula, which is not a declared “Islamic state” but has declared Islam the
state religion and Islamic law “the main source” of legislation.
47
Upon its
accession to the treaty in January 2000, Qatar declared a reservation with respect
to “[a]ny interpretation of the provisions of the Convention that is incompatible
with the precepts of Islamic law and the Islamic religion.”
48
But what interpretations of the Convention might constitute or give rise to
such incompatibility? As we have seen, prohibiting investigative torture is
supported in the fiqh. Observing and enforcing the convention’s provisions is
therefore no more incompatible with Islamic law than it is compelled by it.
Neither the existence of competing positions in the fiqh nor the historical
practice of investigative torture in Muslim lands changes this. True, all seven of
the Muslim-majority countries that are not parties to the Convention have, like
Qatar, declared Islam to be the state religion, as Table 1 illustrates, and four of
them have taken the additional step of declaring themselves Islamic states
(Brunei, Iran, Oman, and Pakistan). But there are more declared Islamic states
(Mar 13, 2007), available online at <http://www.ohchr.org/english/countries/
ratification/4.htm> (visited Apr 21, 2007). See International Covenant on Civil and Political
Rights, art 7 (“[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment”).
41
Convention against Torture, art 2 (cited in note 3).
42
Id, arts 2, 4.
43
Id, art 10.
44
Id, art 11.
45
Id, arts 13, 14.
46
Id, arts 12, 13.
47
Stahnke and Blitt, The Religion-State Relationship at 35 (cited in note 29).
48
Convention against Torture, Ratifications and Reservations (cited in note 40). It bears noting
though that most Muslim-country parties to the treaty have, like the US and many others,
declined to make the additional declarations needed under Articles 21 and 22 of the Convention
to recognize the competence of the United Nations Committee on Torture to hear complaints
against them lodged by individuals or other party states, and a few have expressly disavowed that
recognition. Id.
Summer 2007 35
Chicago Journal of International Law
that are parties to the Convention (Afghanistan, Bahrain, Maldives, Mauritania,
Saudi Arabia, and Yemen) than those that are not, and these are among the two-
thirds of states that have declared Islam as their state religion that are parties
(fifteen of twenty-two). Six of the seven abstaining countries declare Islamic law
to be the basis or source of legislation in some or all matters, but ten Muslim
countries that make the same declaration without limitation (as well as the
remaining two that limit it to certain matters) are parties to the Convention. In
other words, notwithstanding Qatar’s Islamic-law reservation, there is no
obvious correlation between a commitment to the law or religion of Islam and
the decision of a Muslim country to join or abstain from the 1984 Convention
against Torture.
49
The endorsement of other international covenants by Muslim countries
does, however, suggest a contemporary view that banning torture is consistent
with Islamic law, if not compelled by it. This view is apparent in human rights
schemes that have originated in the modern Muslim world, most prominently
the 1981 Universal Islamic Declaration of Human Rights (“1981 Universal
Declaration”),
50
the 1990 Cairo Declaration on Human Rights in Islam (“1990
Cairo Declaration”),
51
and a 1994 Arab Charter on Human Rights that was
revised in 2004.
52
Each of these documents prohibits torture, and each indicates
not only that the prohibition is compatible with Islamic law but that it is in fact
grounded in it. The 1981 Universal Declaration states in its preamble that God is
“the source of all Law”
53
and that one of its goals is to ensure security, dignity,
and liberty for individuals “in terms set out and by methods approved and
49
That Qatar has the lowest possible torture rating (1.0) and is the only Muslim-majority country
with that rating (see Table 1) makes its solo reservation all the more cryptic.
50
Universal Islamic Declaration of Human Rights (Sept 19, 1981), available online at
<http://www.alhewar.com/ISLAMDECL.html> (visited Apr 21, 2007) (hereinafter “1981
Universal Declaration”).
51
Cairo Declaration on Human Rights in Islam (Aug 5, 1990) (trans unknown), available online at
<http://www1.umn.edu/humanrts/instree/cairodeclaration.html> (visited Apr 21, 2007).
52
Arab Charter on Human Rights (May 23, 2004), art 8(a), available online at
<http://www1.umn.edu/humanrts/instree/arabcharter2.html> (visited Apr 21, 2007). The 1981
and 1990 declarations were endorsed by the foreign ministers of the countries of the Organization
of the Islamic Conference (“OIC”), which currently has fifty-seven member states: the forty-four
Muslim-majority countries and thirteen others. See Organization of the Islamic Conference,
available online at <http://www.oic-oci.org/> (visited Apr 21, 2007). The 1994 charter was
promulgated and adopted by the League of Arab States, whose members are the world’s sixteen
Arab-majority countries—
Algeria, Bahrain, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya,
Morocco, Oman, Qatar, Saudi Arabia, Syria, Tunisia, the United Arab Emirates, and Yemen—
plus “Palestine” and five countries in which Arabs constitute a minority of the population:
Comoros, Djibouti, Mauritania, Somalia, and Sudan. All of these countries (including Palestine)
have Muslim-majority populations.
53
1981 Universal Declaration, Preamble ¶ (a) (cited in note 50).
36 Vol. 8 No. 1
Torture and Islamic Law Reza
within the limits set by the Law”
54
; it then goes on to define “Law” as “the
Shari‘ah, ie, the totality of ordinances derived from the Qur’an and the Sunnah
[Traditions] and any other laws that are deduced from these two sources by
methods considered valid in Islamic jurisprudence.”
55
It also contains an
appendix that lists citations to the Qur’an and Traditions in support of each
provision, and among the citations for the provision that bans torture is a
reference that appears to be to the Tradition recounted at the beginning of this
Article. The 1990 Cairo Declaration is more explicit, stating flatly in its final
article that the Shari`ah is “the only source of reference for the explanation of
clarification” of its terms.
56
And the Arab Charter, though less emphatic (and
more ecumenical) than its predecessors, grounds itself in “the eternal principles
of fraternity, equality and tolerance among human beings imparted by the noble
Islamic religion and by the other divine religions.”
True, there are suggestions that Islamic law might serve not only as a
source of the guarantees in these documents but also as a limitation on them; the
1990 Cairo Declaration, for instance, states that the rights and freedoms it
contains “are subject to the Islamic Shari‘ah”,
57
as though Islamic law might
somehow qualify its protections. But this language, along with the abstention of
the seven Muslim-majority countries from the 1984 Torture Convention, might
be better explained by Muslim politics than by Islamic law. Muslim ambivalence
about contemporary regimes of international human rights, if not hostility
toward them, is no secret. Among the reasons for this ambivalence are the
Western origin of these regimes, the commensurate association of them with
colonial enterprises, and the perceived inconsistency with which Western powers
themselves act in accordance with them.
58
Seen in this light, a Muslim country’s
abstention from an international covenant against torture, or any human rights
scheme for that matter, or its insistence on explicitly conditioning participation
in such a scheme on compliance with the Shari`ah, says little about Islamic law
and everything about that country’s political perspective and calculations, both
international and domestic.
59
Iran, to choose just one of the Muslim countries
54
Id ¶ (g)(xiv)(b).
55
Id at Explanatory note 1(b).
56
Cairo Declaration on Human Rights in Islam, art 25 (cited in note 51).
57
Id, art 24.
58
See generally Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics 56–75 (Westview
4th ed 2007).
59
See also Khaled Abou El Fadl, A Distinctly Islamic View of Human Rights: Does It Exist and Is It
Compatible with the Universal Declaration of Human Rights?, in Shireen T. Hunter and Huma Malik,
eds, Islam and Human Rights: Advancing a U.S.-Muslim Dialogue 27, 29–30 (Ctr for Strategic and Intl
Studies 2005) (characterizing the engagement of Muslim countries in the international process as a
product of “realpolitik and national interests” rather than a definition of “real Islam”).
Summer 2007 37
Chicago Journal of International Law
that has abstained from the 1984 Torture Convention, bars torture in its
constitution;
60
and more than a decade before that constitution was adopted an
influential Iranian religious leader had stated that the torture prohibition in
Article 5 of the 1948 Universal Declaration of Human Rights “conform[s] fully
to Islamic law.”
61
Islamic law, in other words, likely has as little to do with the
participation or abstention of a given Muslim country in international covenants
against torture as it does with the participation or abstention of any non-Muslim
country.
IV. CONCLUSION: ISLAMIC LAW AND TORTURE TODAY
If Islamic law neither unequivocally bans investigative torture nor stands in
the way of such a ban, what bearing does it have on the practice of torture in
today’s Muslim world? The answer is as much a matter of politics as of law. As
we have seen, those who seek justification for investigative torture in the fiqh or
siyasa will find it there; so too will those who seek its prohibition. Competing
legal authority, both between fiqh and siyasa and within each realm itself, is the
essence of Islamic law. The result is that Islamic law—without a Pope to issue
decisive religious edicts, a legislature to enact religious rules, or a Supreme Court
to issue conclusive interpretations of such rules or edicts—ultimately means
what Muslims decide it means.
That decision is neither bound by previous interpretations or applications
of Islamic law nor limited to them.
62
Nor can the decision, as a product of
human agency, realistically be reached in isolation of the real-world
circumstances of those who make it. The three fiqh positions on torture listed
above arguably illustrate this. Al-Mawardi, who in the eleventh century departed
from the long-standing fiqh prohibition of investigative torture by deeming it
permissible to rulers (while maintaining the prohibition with respect to qadis),
was a practicing judge who was appointed by Sunni caliphs and uniquely enjoyed
their trust and patronage. He served at a time when caliphal rule was threatened,
60
Iran Cons, art 38.
61
Universal Declaration of Human Rights, UN Doc No A/810 at 71 (1948), available online at
<http://www.unhchr.ch/udhr/lang/eng.htm> (visited Apr 21, 2007); Sultanhussein Tabandeh,
A Muslim Commentary on the Universal Declaration of Human Rights 28 (FT Goulding 1970) (Abu’l Fazl
Hazeghi, trans).
62
See also Khaled Abou El Fadl, The Human Rights Commitment in Modern Islam, in Joseph Runzo,
Nancy M. Martin, and Arvind Sharma, eds, Human Rights and Responsibilities in the World Religions
301, 304 (Oxford 2003) (“One of the powerful attributes of doctrine—especially theological and
religious doctrine—is that it does not necessarily have to remain locked within a particular
sociopolitical-historical practice. Religious doctrine can be distilled from the aggregations and
accumulations of past historical practices, and reconstructed and reinvented in order to achieve
entirely new social and political ends.”).
38 Vol. 8 No. 1
Torture and Islamic Law Reza
indeed usurped, by a rival Shi‘a power (the Buyids). The work in which al-
Mawardi presented his position on torture may have been aimed at
strengthening the authority of the caliphs; it may even have been commissioned
by one.
63
Ibn Taymiyya, who two centuries later sanctioned the investigative
torture of suspects who were known for prior wrongdoing (without
distinguishing among different state officials), lived and wrote in the very
decades judicial torture was introduced in European criminal procedure.
64
That
he would allow torture as a routine investigative method—according to a rule
analogous to the “half proof” rule that came to permit it in Europe, no less—
seems more than coincidental.
65
Al-Ghazzali, who wrote before both Ibn
Taymiyya and al-Mawardi and deemed investigative torture flatly forbidden, was
less concerned with matters of state than either of them; instead he wrote with
the aim of integrating law with theology, ethics, and mysticism, and his work was
more about religious guidance and his own personal spiritual quest than it was
about matters of formal governance.
66
That al-Ghazzali should maintain the
existing fiqh prohibition against torture is therefore not surprising.
In other words, Islamic law—fiqh norms and siyasa applications—is neither
a consistent body of rules nor a static one, nor is it unaffected by historical
context and circumstances, political realities, and even personal predilections.
Instead it is the product of doctrinal interpretations and political applications,
both of which are categorically and necessarily human endeavors. That six of the
ten countries that consider themselves Islamic states and have declared Islam to
be the state religion, nine of the additional twelve countries that have declared
Islam to be the state religion, and every one of the remaining twenty-two
Muslim-majority countries in the world have joined the 1984 Torture
Convention without substantively qualifying that participation appears to be
strong evidence that the weight of opinion in the Muslim world today is that
banning torture is consistent with Islamic law, if not required by it.
67
The torture
63
See Wafaa H. Wahba, Introduction, in al-Mawardi, Ordinances of Government xiii–xv (cited in note 12).
64
See generally Langbein, Torture and the Law of Proof (cited in note 6).
65
See also Johansen, 9 Islamic L & Society at 193 (cited in note 10) (finding it “hard to believe that
jurists living in Europe and the Near East in the thirteenth century simultaneously
introduced . . . judicial torture without there having been any mutual influence or exchange”).
66
See Mustansin Mir, Ghazali, Abu Hamid al-, in John L. Esposito, ed, 2 The Oxford Encyclopedia of the
Modern Islamic World 61, 61–63 (Oxford 1995); Ghazali, Abu Hamid al-, in John L. Esposito, ed, The
Oxford Dictionary of Islam 94 (Oxford 2003), available online at
<http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t125.e714>
(visited Apr 21, 2007).
67
Recall that Qatar, the tenth of the 12 Category 2 states that have joined the treaty, added a
Shari`ah qualification, and many Muslim countries have declined to submit to the review
procedures of the convention.
Summer 2007 39
Chicago Journal of International Law
bans in the “Islamic” declarations of human rights add further evidence of this.
And prominent Muslim legal scholars in both the Muslim world and outside of it
have lent the anti-torture position the weight of their analysis and authority.
68
Thus, whatever Islamic law might have said—or rather, whatever someone
might have said Islamic law said—about investigative torture a millennium ago, a
century ago, or a month ago, and notwithstanding any conflicting position a
given Muslim country or jurist might advance today, Islamic law can be
interpreted to ban torture, and the weight of authority today appears to be that it
should be so interpreted.
So there may be sufficient authority to say that Islamic law forbids
torture—but that authority has clearly not proven sufficient to eradicate torture
in modern Muslim practice. In that respect, the relationship between Islamic law
and Muslim practice resembles the relationship between international law and
state practice generally: even a state’s commitment to an international norm as
unambiguous as a ban on torture does not necessarily reflect or result in state
compliance with that norm, as Oona Hathaway has demonstrated through her
torture ratings.
69
Islamic law in fact exhibits this divide between theory (norms)
and practice at two levels: internally, in the distinction between fiqh and siyasa,
and externally, in the distinction between fiqh and siyasa (combined) and the
practice of Muslim states, at least insofar as a state’s commitment to a ban on
torture internationally or domestically reflects a siyasa commitment. The divine
provenance of Islamic law does not, in other words, compel state actors in a
Muslim country to comply with the dictates of that law any more than the
humanitarian ideals of international law compel state actors in any country to
comply with that law.
What then governs the future of investigative torture in Muslim countries,
if Islamic law is not enough to decide that future? Domestic accountability in
Muslim countries, and thus democratic government, would appear to be the
answer. Hathaway sees “self-enforcement”—the existence of domestic
institutions and mechanisms that enable citizens to force state compliance with
68
See, for example, Kamali, The Right to Personal Safety at 88 (cited in note 1) (concluding that the
authority against investigative torture is “more persuasive, and . . . also in harmony with the basic
presumption of the Shari‘a, which maintains original non-liability (bara’a al-dhimma al-asliyya) to be
the normal state, unless proven otherwise”); El Fadl, The Human Rights Commitment in Modern Islam
at 357 n 84 (cited in note 62) (arguing that torture should be considered a categorical moral
wrong).
69
Oona A. Hathaway, The Promise and Limits of the International Law of Torture, in Sanford Levinson,
ed, Torture: A Collection 200, 201–04 (Oxford 2004) (finding inter alia that states with worse torture
ratings are slightly more likely to join the 1984 Torture Convention, states that have ratified
regional conventions against torture have worse practices on average than those that have not,
and states that have ratified the 1984 Convention engage in more torture than those that have
not).
40 Vol. 8 No. 1
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legal obligations—as a better means of ensuring treaty compliance than the
international legal system in which those treaties operate.
70
The existence and
effectiveness of such mechanisms—a robust and independent media, adequate
avenues to challenge government actions and hold state actors accountable, an
impartial and independent judiciary—are of course both a product and a
measure of democratic government. Democratic government is in fact what
Price found to be the key factor in his comparative study: its presence was
statistically associated with greater human rights protection, and its absence
statistically associated with worse protection, in both the Muslim countries and
the entire sample of countries Price studied.
71
The future of torture in the
Muslim world will thus not likely be determined by either Islamic law or
international law, but by democracy or its absence. The same may be true of any
question of law—Islamic, international, or other—in the Muslim world today.
And in answering the torture question, Muslims might do well to consider a
statement by the most authoritative human in Islam. The prophet Muhammad,
the Traditions tell us, said: “God will torture [in the Hereafter] those who torture
people in this world.”
72
70
Id at 206.
71
Price, 41 J Sci Study Religion at 220–21 (cited in note 35).
72
Ahmad Ibn Naqib al-Misri, Reliance of the Traveller 685 (Amana 1994) (citing Sahih Muslim (inna
Allaha yu‘adhdhib alladhina yu‘adhdhibuna fi al-dunya)).
Summer 2007 41
