The last two days I attended a conference on Forgiveness in Islam at the University of Washington. Prof. Arzoo Osanloo brought tremendous resources together and better yet introduced scholars who will esteem each others work for the coming decades, each improving the other.
For my part I got a brief chance to discuss my particular interest with Prof. Moumtaz, and that is loans, debt forgiveness and usury in Islam. I had some general discussions with Profs Turner and Barfield that were enlightening. The fireworks were saved for last with Profs. Lemons, et al and Nakissa going at it over "conceptualizing the habitus". Frankly, I am used to professors who get into it like that, and I welcome it.
I did form a question somewhat outside of my amateur study, and it relates to Prof. Osanloo's studies of the Iran experience. Prof Osanloo related a story of lad to be hanged under a regime more "radical (in the positive sense of "at the roots") in which the family offended decides whether the murderer is to be executed. Given what I heard from the other professors, let's have a case that is the Shariah version of "open and shut." Two adults playing chess (nothing disreputable as Prof. Barfield noted) in a cafe, lots of witnesses, Farhad beats Ehsan five games in a row, Ehsan is angry and begins to denigrate Farhad, Farhad is not having that and suggests Ehsan should learn to play chess if he wants to win, it becomes a shoving match, Ehsan loses the shoving match and screams "I'll kill you.." Screams it again on the way to the kitchen, screams it again coming out of the kitchen with the knife (three times) and then Ehsan kills Farhad. Mid-sized city, relations not too close and not too far, (as prof. Ben Hounet noted), a clear straight murder case.
Judge rules, clear case, Ehsan's life is forfeit. Ehsan makes an abject apology, blames himself for having pride in his chess-playing, when his skill was a gift from God and so not only did he murder Farhad, he is guilty of blasphemy and deserves to die, etc.
The family is sad at the murder of Farhad, sad at the whole case, moved by Ehsan's repentance, and decides to forgive for the love of God (let's ignore the problem of blood money for the sake of argument). And under the radical Shariah, Ehsan walks free. (And following Prof. El Fadl, this forgiveness is sad and beautiful.)
My observation: given all of the talk in the conference to the status of the forgiven in a regime of forgiveness, surely one can appreciate that even a forgiven Ehsan, free to walk, has had a profound sentence imposed upon him: he is a murderer. The Ehsan before the murder and the Ehsan after the murder are two different people. From inability to find a chess partner to compromised marriage prospects, a murder conviction is no small thing.
In the recent, western experiment someone who has "served his time" has been rehabilitated and the legal fiction is "justice served." It seems to me, in our system, this is an extremely expensive process that guarantees we arrive at nonsense.
Now, take the Ehsan case today, as I understood the new laws in Iran in the same case today Ehsan walks free out of the Shariah court, and into the state court where he faces an "Article 12" prison term of 3 to 10 years, under the recent, western european innovation that a murderer has offended the legal fiction of the state (my editorializing).
So my question is, in the "article 12" regime example today, just what does the state bring to the polity by imposing a jail sentence?
My thesis: mixing polities only makes things worse, but rent-seeking is an eternal human endeavor. The experience of Ehsan the forgiven ought to carry weight in the considerations of polity change. Prof. Kanafani-Zahar highlighted stability problems with these hybrid approaches.
Radical systems are proven by the test of time, but are subject to prejudice or woefully misunderstood. Under the Timurids Afghanistan was the world's California and Herat its San Francisco (my biases, but you take my point). It seems to me the problem is not a lack of innovation in mix-and-match NGO recommended systems, but a lack of restoring what works.
Now I am not proposing the world go Timurid, but in a place like Hong Kong where the state is near non-existent, Moslems practice Shariah, the Chinese see the deal broker, the Christians use mediating institutions, the Hindus have their system, and the Jews theirs. In spite of a reputation for probity, fairness, independence and accessibility, the courts are rather unattended. At the same time Hong Kong is a beacon of peace and prosperity.
What little reading I've done on the Prophet I recognize as a merchant his esteem of freedom. Instead of Weber's 1919 definition of the state as a monopoly on violence, settled in the West, perhaps Islam can organize states as "protectors of freedom", evident in the rationale of the prohibition on usury, a process which enslaves people. I am sure there are other examples of freedom esteemed.