Hate Speech from the Traditional Islamic Perspective Saeed Mohammed Alzahrani Submitted to the faculty of Robert H. McKinney School of Law, Indiana University in partial fulfillment of the requirements for the degree The Doctor of Juridical Science (S.J.D.) Fall – 2017 Disclaimer This dissertation is a result of human being and it has been built on credible Arabic and western sources. The author is responsible for errors and mistakes in the contents of this dissertation. This doctoral dissertation is exclusively the result of my own autonomous work based on my research and published literature, which can be seen in the notes and bibliography used. Wherever the contributions of others are involved, every effort is made to indicate this clearly, with due reference to the literature, and acknowledgement of collaborative research and discussions. Indianapolis, March 21, 2017 Saeed Mohammed Alzahrani II Acknowledgements Foremost, I praise God, the almighty, for providing me with this opportunity and granting me the ability to proceed successfully. Then, this dissertation could not have been completed without the great support that I have received from so many people over the years. I would therefore like to offer my sincere thanks to all of them. To my family First of all, my deepest gratitude goes to my parents, Jameelah and Mohammed, for their support and encouragement not only throughout my writing this dissertation, but throughout my entire life. The support they have provided me over the years is the greatest gift anyone has ever given me. In addition, I would especially like to thank my wonderful wife Fayza and our beautiful daughter Razan. Their support, encouragement, patience, and unwavering love were undeniably the bedrock upon which the past three years of my life have been built. Their tolerance of my occasional fickle moods is a testament in itself of their unyielding devotion and love. Moreover, I would like to thank the rest of my family: Sarah, Saleha, Hussain, Fatimah, Hassan, Moroj, Anas, Yusra, and Abdullah Misfir for giving me strength and supporting me spiritually throughout my life. Finally, with great sadness, I would like to express appreciation for my cousin Hassan, who died last year. His moral support to me is irreplaceable. In short, without such a family behind me, I doubt that I would be where I am today. To my academic family I would like to express my gratitude to Prof. Dr. Frank Emmert for his supervision, his valuable and constructive suggestions during the planning and development of this research work, and his patience, motivation, enthusiasm, and immense knowledge. I also thank him for the trust he has shown by giving me freedom for the democratic style of functioning, which helped me to work to the best of my ability. Without his guidance and persistent help this dissertation would not have been possible. I would also like to thank my committee members for generously offering their time, support, guidance and good will throughout the preparation and review of this dissertation that have been absolutely invaluable. My sincere thanks also goes to Professor Andrew Klein, Dean of the Indiana III University Robert H. McKinney School of Law, and the very qualified and helpful staff at IUPUI for providing an ideal environment for research throughout my studies at the School of Law. To my friends Last but not least, I would like to thank my friends, Dr. Rakan Alharbi, Lecturer at King Fahd University of Petroleum and Minerals; Dr. Nasser Azyaby, Judge at the Administrative Court in Jeddah; Ibrahim Azzyabi, Industrial Skills Trainer at Saudi Aramco; Amer Balkhader; and Faisal Alharbi, employee at Technical Support Center at King Abdullah Medical City, for their advice, thoughts, well-wishes/prayers, phone calls, e-mails, texts, visits, editing advice, friendship, and support through this entire process. IV Abstract Hate speech under the traditional Islamic perspective (Sharia) is ambiguous and that in turn increases hate speech under the justification of protection of freedom of expression. At the same time, the ambiguity in the definition for the concept of hate speech in Islam has been leading many countries to suppress peaceful political opposition under the justification of the fight against hate speech. Therefore, there is a need to study the interaction between the freedoms and restrictions to infer the dividing line between freedom of speech and hate speech. Consequently, it is possible to conclude a precise concept of hate speech from a traditional Islamic perspective. To address this issue, this study begins with reviewing provisions on Freedom of Expression and Hate Speech in the perspective of international and regional instruments, some Islamic national laws and some Islamic organizations. The study, then, move on to discuss the main problem thesis; it addresses that concept of hate speech through the provisions of primary sources of Islamic law, which are the Quran and Sunnah, and secondary sources such as consensus, juristic reasoning, preference, and public interest, in order to define this concept in a precise way. Consecutively, the study will examine five elements: forms, promoters, contents, contexts, and effects of speech in order to develop a holistic and explanatory definition of hate speech from the traditional Islamic law. After providing a definition of hate speech, this study will analyze examples of speeches issued by followers of Sunni and Shiite doctrines; the two terrorist groups, Al-Qaeda and ISIS, who ascribe themselves to Islam; and disputing parties in the Arab Spring States. Moreover, the study discusses the issue of freedom to criticize religions, including Islamophobia, from traditional Islamic law and international law. Lastly, in order to reach the real position of traditional Islamic law toward hate speech issued by Islamophobic individuals or groups, the study analyzes examples of their speech based on the definition of hate speech from a traditional Islamic perspective. The inevitable result of the dissertation revealed that the concept of hate speech can be defined based on the provisions of traditional Islamic law. According to this definition, speech issued by Sunni and Shiite doctrines; the two terrorist groups, Al-Qaeda and ISIS, disputing parties in the Arab Spring States and Islamophobic individuals or groups, they all, as the dissertation reveals, are classified as hate speech under the traditional Islamic perspective. The conclusion of this dissertation argues that the legal efforts, including developing a precise definition of hate speech, are not sufficient. Therefore, the dissertation proposes a holistic approach V to limit hate speech through several measures, such as political, educational, social, and measures to regulate the media. VI Table of Contents Disclaimer …………………………………………………………………………………....………….... ii Acknowledgment …………………………………………………………………………………....…… iii Abstract…………………………………………………………………………………………….……… v Table of Contents ……………………………………………………………………………........….…... vii List of Appendices ……………………………………………………………………………..……..... xviii List of Figures and Tables …………………………………………………………………….................. xix List of Abbreviations …………………………………………………………………………..….…..…. xx Chapter 1: Introduction 1. 0. Brief Introduction…………………………………………………………………….…….................. 1 1.1. Scope and Limitation ……….……………………………………………………………..…………... 2 1.2. Research Questions ……………………………...……………………………………..…………...… 2 1.3. The Importance of Research ……………………………………………………………..………......... 3 1.4. Chapter layout …………………...…………………………………………………………....…...….. 5 1.5. Research methodology ……………………………………..………………………………....…...….. 7 Chapter 2: Islamic Law in General 2.0. Introduction …………………………………………………………………………………...…...… 10 2. 1. Islamic Law is Religious Law ………………………………………………………...………......…. 10 2. 1. 0. Meaning of Islam: Submission to God …………………………………………………...….....11 2. 1. 1. The Definition of Islamic Law: Sharia and Figh …………………………………………..…. 11 2. 2. Sources of Islamic Law ……………………………………………………........................................ 13 2. 2. 0. Primary Sources of Islamic Law …………………………………………………….................. 13 2. 2. 0. 0. The Quran ……………………………………………………............................................ 13 2. 2. 0. 1. The Sunnah …………………………………………………….......................................... 14 2. 2. 1. Secondary Sources of Islamic Law ………………………………………………...……............ 16 2. 2. 1. 0. Ijma (Scholarly Consensus) …………………………………………………….................. 17 VII 2. 2. 1. 1. Qiyas (Analogical Reasoning) …………………………………………………….............. 18 2. 2. 1. 2. Istihsan (Juristic Preference) ……………………………………………………................. 19 2. 2. 1. 3. Istishab (Presumption of Continuity) ……………………………………………….…..…. 20 2. 2. 1. 4. Urf (Custom) ……………………………………………………......................................... 20 2. 3. Objectives of Islamic Law ……………………………………………………................................... 21 2. 3. 0. Protection of Religion …………………………………………………….................................. 21 2. 3. 1. Protection of Life ……………………………………………………......................................... 21 2. 3. 2. Protection of Wealth and Property ……………………………………………………............... 22 2. 3. 3. Protection of Intellect ……………………………………….……………….............................. 22 2. 3. 4. Protection of Progeny ……………………………………………………................................... 22 2. 4. History of Islamic Law ……………………………………………………........................................ 23 2. 4. 0. Prophet Muhammad: The Founder of Islamic Law ………………………………....……...….