Sadiq Reza of the New York Law School published a paper in 2007 titled, “Torture and Islamic Law.” It was published in the Chicago Journal of International Law, Vol. 8, No. 1. I just came across the paper and have not read it yet but will do so soon.
The abstract reads,
“This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today’s Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves “Islamic states.”
The status of investigative torture in Islamic law has long been unsettled: most early classical jurists forbade it, but some later classical jurists permitted it in at least certain circumstances. The permission some jurists gave the practice in Islamic jurisprudence (fiqh) was matched and augmented by a broader license jurists gave executive actors in the realm of governance or administration (siyasa), a realm seen as necessarily less constrained by jurisprudential limitations.
Historical evidence indicates that investigative torture was indeed practiced by executive actors at various periods and places of the pre-modern Muslim world. Nevertheless, statistical analysis indicates little or no correlation between the absence or practice of torture in today’s Muslim-majority countries and the degree of commitment these countries profess to Islamic law. Instead, this article concludes, the absence or practice of torture in a given Muslim-majority country today (and the willingness of Muslim-majority countries to join international covenants that ban torture) correlates with the same factor with which it correlates in a given non-Muslim-majority country: the presence or absence of democratic government.”
The article (at least based on the abstract) makes some interesting points. First, that the classical Muslim jurists (whose opinions are widely considered to be the foundation of Islamic law) forbade torture. Very interesting! Second, that the widely held notion that countries that govern based on Shari’ah are more willing to torture (it is commonly held that the practice of Shari’ah iteself entails torture), is a misconception. The presence or absence of torture in a Muslim country has to do with the presence or absence of democracy.
The flaw, however, is in overlooking the fact that while democratic nations are generally reluctant to torture their own citizens, they have no problem torturing the citizens of other countries. For proof of this, one merely has to review the actions of the French in Algeria and Vietnam, or the Americans in Afghanistan, Abu Ghraib and Guantanamo. Not to mention the infamous School of the Americas in Fort Benning, Georgia, that trained aspiring Latin American dictators and death squads in the most efficient forms of assassination, terrorism and torture. Then there are all those secret CIA torture camps whose existence is widely acknowledged but officially denied.
It would be nice to believe that democracy brings an end to torture. But it does not.
"...if anyone saves a life, it will be as if he had saved the life of all humankind." - Holy Quran

"...if anyone saves a life, it will be as if he had saved the life of all humankind." - Holy Quran

Sadiq Reza of the New York Law School published a paper in 2007 titled, “Torture and Islamic Law.” It was published in the Chicago Journal of International Law, Vol. 8, No. 1. I just came across the paper and have not read it yet but will do so soon.

The abstract reads,

“This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today’s Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves “Islamic states.”

The status of investigative torture in Islamic law has long been unsettled: most early classical jurists forbade it, but some later classical jurists permitted it in at least certain circumstances. The permission some jurists gave the practice in Islamic jurisprudence (fiqh) was matched and augmented by a broader license jurists gave executive actors in the realm of governance or administration (siyasa), a realm seen as necessarily less constrained by jurisprudential limitations.

Historical evidence indicates that investigative torture was indeed practiced by executive actors at various periods and places of the pre-modern Muslim world. Nevertheless, statistical analysis indicates little or no correlation between the absence or practice of torture in today’s Muslim-majority countries and the degree of commitment these countries profess to Islamic law. Instead, this article concludes, the absence or practice of torture in a given Muslim-majority country today (and the willingness of Muslim-majority countries to join international covenants that ban torture) correlates with the same factor with which it correlates in a given non-Muslim-majority country: the presence or absence of democratic government.”

The article (at least based on the abstract) makes some interesting points. First, that the classical Muslim jurists (whose opinions are widely considered to be the foundation of Islamic law) forbade torture. Very interesting! Second, that the widely held notion that countries that govern based on Shari’ah are more willing to torture (it is commonly held that the practice of Shari’ah iteself entails torture), is a misconception. The presence or absence of torture in a Muslim country has to do with the presence or absence of democracy.

The flaw, however, is in overlooking the fact that while democratic nations are generally reluctant to torture their own citizens, they have no problem torturing the citizens of other countries. For proof of this, one merely has to review the actions of the French in Algeria and Vietnam, or the Americans in Afghanistan, Abu Ghraib and Guantanamo. Not to mention the infamous School of the Americas in Fort Benning, Georgia, that trained aspiring Latin American dictators and death squads in the most efficient forms of assassination, terrorism and torture. Then there are all those secret CIA torture camps whose existence is widely acknowledged but officially denied.

It would be nice to believe that democracy brings an end to torture. But it does not.

I don’t mean to sound hopeless. The fact that 20th century democracies have largely ceased torturing their own citizens is quite inspiring. It tells us that governments are capable of stopping torture when they choose, and that what is required is a change of mentality. We must stop thinking of the citizens of other nations, or the members of other religions or ethnic groups, as “the other”. We have to extend our concept of citizenship to include all of humanity. We absolutely have to recognize the brotherhood and sisterhood of all humanity.

I know that may sound like an impossible task – after all, I’m talking about wiping out racism and nationalism, two of the most doggedly pervasive sicknesses in all human history – but if you look at it another way, it is one of the few challenges we face that is actually achievable. Why? Because it requires no resources to achieve, or at least none beyond education. We don’t have to spend trillions of dollars, we don’t have to find a new vaccine or figure out how to distribute a vanishing resource. All we have to do is change the way people think.

Simple, huh?