Islamic Law and Progressive Politics

by Adil Haque

Back in March, Kevin posted and I commented on the prosecution of Abdul Rahman for apostasy in Afghanistan. Rahman was ultimately deemed mentally incompetent to stand trial, and the case was dropped. Kyai Haji Abdurrahman Wahid, the former president of Indonesia, published an editorial opposing the criminalization of apostasy in yesterday’s Washington Post. Wahid makes several arguments, based on text (“Such punishments run counter to the clear Koranic injunction ‘Let there be no compulsion in religion’ (2:256)”), history (“during the early history of Islam, the Agreement of Hudaibiyah between Muhammad and his rivals stipulated that any Muslim who converted out of Islam would be allowed to depart freely to join the non-Muslim community”), and general principles (“al-umuru bi maqashidiha (‘Every problem [should be addressed] in accordance with its purpose’)” and “al-hukm-u yadullu ma’a illatihi wujudan wa adaman (‘The law is formulated in accordance with circumstances’)”).

Wahid’s legal arguments are ultimately less interesting than his perspective on the relationship between Islamic law and politics. In Wahid’s view, religious extremists are merely “masquerading as traditional Muslims” but that “[t]heir objective is raw political power.” “Muslim theologians must revise their understanding of Islamic law” and we must all work to “ensure the triumph . . . of the ‘right’ understanding of Islam.” The desire to reclaim Islamic law from conservatives, fundamentalists, and extremists is increasingly widespread. So too is the adoption by progressives of the conservative narrative of purity and corruption, as well as of the conservative strategy of dismissing opposing interpretations as mere politics.

Reading Wahid’s editorial, I was reminded of this essay by Abdou Filali-Ansary, who worries that serious scholarly engagement with the legal arguments of extremists risks legitimizing their arguments as reasonable and sincerely held and portraying the extremists as acting in good faith. [For a somewhat related discussion see here] Like Wahid, Filali-Ansary worries that extremists’ legal arguments “allow[] them to camouflage their very worldly thirst for power.” But Filali-Ansary goes further, arguing that jurisprudential debates are at best a distraction and that progressive causes are not well-served by couching their aspirations in legal language:

The most essential questions that humans face today – those that engender the deepest conflicts – have nothing to do with theology. They concern disputes over territory, political power, definitions of rights, and distribution of wealth. The means of discussing these questions is known to all and is expressed in all religions and all languages. The evils most deeply resented – in all societies – are injustice, despotism, corruption, and poverty. We all understand what these mean, and how certain people must live with them on a daily basis.

Both Wahid and Filali-Ansary think the legal arguments of extremists are politically motivated, but while Wahid thinks the best response is better jurisprudence Filali-Ansary thinks the best response is better politics.

There is a middle ground. Wahid suggests that outside the four corners of the Qur’an Islamic law is highly indeterminate and largely reflects past or present political choices. Perhaps both authors would be satisfied with an interpretive approach that opened up space for political discourse by emphasizing ambiguity and narrowing the reach of Islamic law to its clearest applications. Such an approach would deny clear legal support to progressives and their opponents alike, leaving their disputes to settlement by direct moral argument. [For those following the parallels with debates in constitutional theory, the last position recalls James Bradley Thayer’s “clear mistake rule,” while Filali-Ansary plays the role of Jeremy Waldron.]

In any event, the proper relationship between Islamic law and political discourse remains unresolved. But Comments are open, so I’m sure that won’t last long.

http://opiniojuris.org/2006/05/24/islamic-law-and-progressive-politics/

15 Responses

  1. Hi, long time listner, first time caller.

    I have always wondered about the curious disconnect between law v. politics as applied to Islamic law and U.S. Foreign Policy. As to Islam, the common argument is that we should “free up” this otherwise rigid law to be shaped by political forces, on the assumption that such forces would produce better normative outcomes. As to U.S. Foreign Policy, the common argument is that the political forces of the United States must be tempered by the law. Thus, I don’t think this debate about Islamic Law has anything to do with law as opposed to political discourse, unless you think Islamic political discourse produces inherently normative outcomes in contrast to American discourse. I think you just have a list of goals, albeit admirable, that you want to see produced via Islamic Law or U.S. Foreign Policy and who cares the means!!!

  2. Hi Jared. Interesting comment. Could you clarify whether in the U.S. context the law you refer to is U.S. law or international law? It would affect my response. Thanks.

  3. International law. Specifically, the way the United States acts vis-a-vis other states, international bodies etc.

  4. Ah, that’s what I thought. Here is what I think someone of Filali-Ansary’s outlook would say: A political process should take into account the views of affected parties. When crafting domestic policy, the most relevant views are those of citizens and other residents. When crafting foreign policy — when deciding to go to war, or to develop WMD, or to release pollutants into the air — the views of other countries should be taken into account. International law is one repository of such views, and is itself the outcome of a political process. So the problem with unilateralism in foreign affairs is not so much that it privileges politics over law, but rather that all relevant interests are not adequately represented in the political process. In this sense, international law is a representation-reinforcing mechanism. Anupam Chander makes a similar argument here.

  5. ‘The most essential questions that humans face today – those that engender the deepest conflicts – have nothing to do with theology.’—This seems to beg the question, does it not? Muslims qua Muslims, like Christians qua Christians, or Buddhists qua Buddhists (in which case we might speak of ‘Buddhology’) will often put these ‘essential questions’ in a religious idiom that is part of their worldview (through choice or inheritance), it’s simply the way they make sense of the world around them. And of course most ‘believers’ do not speak the language of theology, however much such discourse may spill-over or trickle down to religious idioms ‘on the ground.’ This hardly means religious discourse, be it theological or jurisprudential, has ready-made answers to disputes over political power, the substance of rights, or questions of distributive justice. As noted here, values and principles that cut across most religions are pitched at a rather high level of generality and are in large measure indeterminate. Indeed, that is why a sensitive historical and phenomenological investigation into religions will reveal an impressive display of difference and plurality, of the articulation of variegated relative, perspectival truths that nonetheless aim to be ever-more-True (in Christian terms, to become more Christ-like, to be perfect as the Father in Heaven is perfect, the Kingdom of to realize God is within, etc.): perfectionist or perfectibilist religious ethics. We’ll set aside here that species of religious doctrine and practice that makes claims to infallibility and exclusivity with respect to its putative possession of absolute Truth, for such claims, be they Christian or Islamic, are patently idolatrous (or shirk in Islam) (rather, everyone has a right to be wrong). And as has been pointed out of late, the bulk of the battle against religious extremists must be undertaken by their counterparts within the traditions that have engendered them. At the very least, this entails some sort of engagement with their claims. I thinks it’s rather silly to worry about ‘legitimating’ their discourse, for it already has de facto legitimacy in the circles that count: young, educated, un- or under-employed, urban, alienated Muslims. Wahid is right to that extent, and this is a task for Muslims (perhaps abetted by non-Muslim academics!), not for those unable to speak an Islamic idiom (I’m not here addressing interreligious dialogue).

    Khaled Abou El Fadl is one with Wahid here although M.A. Muqtedar Khan, in a discussion with Abou El Fadl at Boston Review (New Democracy Forum on Islam and the Challenge of Democracy) argued that ‘there will be no Islamic democracy unless jurists permit the democratization of interpretation. Let every citizen be a jurist and let her interpret Islam and Shari‘ah when she votes. In a democracy the vote/opinion/fatwa of every individual must be considered equal since ontologically all humans are equals. Insisting on the centrality of a fixed Shari‘ah is a recipe for authoritarianism. Abou El Fadl is interpretively more liberal than his traditional colleagues and his vision of the Shari‘ah is more inclusive, but as long as the commanding authority of jurists remains in place, and the jurists retain a monopoly on interpretation (Ijtihad), there can be no Islamic democracy.’ I think to some extent Khan has misunderstood Abou El Fadl, nonetheless, Khan is right to argue that there is sufficient theological and legal warrant within Islam for Muslims to sincerely commit to fundamental democratic principles and practices (see Noah Feldman on this too, although he’s annoyingly vague or silent on some of the more contentious issues). Furthermore, individuals are accorded a theological and moral freedom in deciding whether or not to accept the legal determinations of jurists, which nonetheless implies (contra Khan) an ongoing role for Muslim jurists in articulating a textually- (i.e. ‘revelatory’) based intrepretation of God’s Will or Divine Law.

    Abou El Fadl’s book, Speaking in God’s Name: Islamic Law, Authority and Women (2001), is absolutely essential here: ‘The issue at this point, is how did the juristic tradition reconcile itself with the notion of individual responsiblity and accountability? There is a pronounced tension between the notion of a legal system that is not subject to the vagaries of undisciplined subjectivities, and the idea of accountability before God and the idea of accessibility of God’s law. Assuming that God made His Way discoverable only through a complex matrix of indicators [the Qur’anic term here is ayah, ‘sign,’ but far richer in connotation: indeed, it’s a notion well-known to the Psalmist–P.], how does one understand the idea of individual responsibility and accountability? The jurists are expected to live a life absorbed in the search and understanding of the Divine indicators, but where does this leave the laity that may not have the time or capacity to personally pursue or analyze the indicators?’ As Abou El Fadl later explains: ‘As to the normative role of the jurists, their task is summarized by the Qur’anic verse, “Remind them [the people] for you are nothing but a reminder [to the people]. You do not control them.”‘ As to the responsibility of the laity: ‘[it] is to imitate the jurists (perform taqlid), but not blindly. Rather the laity is reponsible for diligently investigating which of the jurists and juridical schools to follow [notice how this presumes a considerable level of education–P.]. To simplify somewhat, the responsibility of the jurists is to diligently investigate the law, and the responsibility of the laity is to diligently investigate the jurists [yet one more reason for describing this legal system as ‘personalist’ rather than ‘corporatist’–P.]. The laity must ascertain the qualifications of the jurist they are consulting and choose the jurist, not on the basis of whim (hawa), but on the basis of rational thought and conviction. [this may have the air of Meno’s paradox about it, but I think it’s easily met in the Islamic context with the concept of fitra–P.] There’s much more to explain here, but the interested reader will have to seek out Abou El Fadl’s book. In short, I believe we’re provided the lineaments of a plausible theoretical resolution of ‘the proper relationship between Islamic law and political discourse’ that retains a role for legal argument/opinions/rulings hand-in-hand with the recognition of a considerable scope in civil society for the exercise of fundamental political liberties of democratic provenance. But this hardly means that, practically speaking, ‘the proper relationship between Islamic law and political discourse’ has been resolved.

    One can only do so much in a blog comment, and as I have to finish my grading and some other tasks I can’t go into any more detail at the moment. But I’m delighted Adil has raised this topic for discussion: it’s of course quite timely if not urgent owing to its extreme importance. I’m willing to share three of my entries from a glossary guide I use for my students: on adl (justice), fiqh (law) and Shari’ah (Divine Law), by way of a small contribution to conceptual clarity on this subject. Just e-mail me and I’ll send them along (I’d send the entire glossary, but as it’s part of a dictionary I’m working on, you’ll have to wait until the book gets published).

    Let me end by reiterating some things I said before in comments to one of Roger’s earlier posts in the ‘clash of civilizations’ key: we should refrain from resorting to grandiose generalizations and pronouncements about anything ‘Islamic’ until or unless we’ve begun to seriously study the history of Islamic traditions and civilizations, as well the worldviews of contemporary Muslims found living in diverse geo-political and cultural climates and conditions. And we might consider the following from my late and beloved mentor, Ninian Smart:

    ‘Do we, when it comes to the crunch, really have a systematic worldview? We have an amalgam of beliefs, which we may publicly characterize in a certain way. I may say that I am an Episcopalian, but how much of my real worldview corresponds to the more or less official view of the Episcopal Church? [one can imagine how messy this question becomes in a religion like Islam, which has no ‘official church’ or authoritative hierarchy] How much is in any case left out by an ‘official worldview’ which tells me nothing directly about cricket, being Scottish, having a certain scepticism about nationalism, that there is life on other worlds, shelving the problem of evil or other matters. Our values and beliefs are more like a collage than a Canaletto. They do not even have consistency of perspective.’ And with respect to the study of religions:

    ‘it is not Christianity, but Catholicism we need to look at; not Catholicism but Spanish; not Spanish but in North Eastern Spain; not North Eastern but a particular county; not a county but a village. Such studies help to multiply our sense of the pluralism of Christianity itself. They also help to reinforce the thought that there is no pure instantiation of a faith: such essences as may be propounded turn out to be very rough approximations, but more likely they are normative expressions of how the speaker feels how the faith ought to be.’ In short, cultural mediation cannot be divorced from religions. Although I don’t agree with everything he says (and Brian Barry’s critique nothwithstanding), I recommend Bhikhu Parekh’s Rethinking Multiculturalism: Cultural Diversity and Poltical Theory (2000), by way of further exorcising some troublesome recalictrant Eurocentric biases that may afflict our endeavor to address the questions Adil raises here.

  6. ‘to realize the Kingdom of God is within’

  7. Oh well, just pardon all the typos….

  8. Adil, I think the argument works better as applied to the U.S., but not so well when applied to Islamic law. Put another way, do we really think that Islamic law needs a political opening to prop up a sense of representation-reinforcing? Is the problem that Islam is not representing the will of those whom it is supposed to govern. I don’t know the answers to all these questions, but I do think the most salient critique of Islam is that it does not incorporate human rights, which, if true, is really againt the representation-reinforcing thesis. This seems like a legal, not political, failure.

  9. Adil,

    Regarding your summary of Filali-Ansary’s perspective:

    Don’t you think the line between domestic and foreign policy is rather more permeable than this? In other words, and for example, decisions to subsidize agricultural producers has ramifications for foreign trade, or domestic commitment to high growth rates has environmental consequences that cross borders (the global search for energy sources, increased pollution that doesn’t respect geo-political boundaries, etc.). Or consider the following scenario by Sanjay Reddy:

    ‘It is widely agreed that one of the main reasons for the emergence of the debt crisis was the sharp rise in world real interest rates that occurred in that period primarily as a result of the simultaneous tightening of U.S. monetary policy, itself a response to the domestic inflationary circumstances of the late 1970s, and expansion in U.S. government expenditures as a response to the domestic recession of the early 1980s. Since the major funds for loanable markets are closely linked, the rise in U.S. real interest rates influenced the cost of borrowing in the world as a whole. This rise in world real interest rates made it difficult for many countries with large debt stocks to maintain solvency.’

    Even if one concedes that this was an unintended consequence of U.S. monetary policy, any domestic decisions made today as regards monetary policy (money supply, exchange rates, etc.) have to be made in light of lucid awareness of possible international ramifications. In Reddy’s words, ‘markets for money and credit have an international as well as a national dimension….’ Recent fluctuations in emerging markets have been directly tied to rising interest rates in the more powerful economic nations. In short, international externalities are indissolubly linked to national monetary decisions, thus when crafting domestic policies, it hardly seems sufficient to rely on the views of domestic constituents (e.g. and if they show little concern for global warming? should that perspective trump decision-making in domestic energy policy that might otherwise rely on the preponderance of scientific evidence demonstrating same?).

    More might be said (in other arenas, with other examples), but I trust you get the point. What do you think? It seems rather that we can’t neatly divide the affected parties into two discreet groups, domestic and international, that globalization processes truly do mean that even apparently domestic political policy making processes are constrained by considerations that take into account those affected across borders; as part of the slogan says, ‘think globally’….

  10. Jared,

    As to your comment that ‘I do think the most salient critique of Islam is that it does not incorporate human rights,’ no religion incorporates human rights. The pressing question is whether or not the tradition has the resources to reason towards, provide justification for, to sanction, human rights. For now I’ll cite one source (there are more than a few others) that persuasively argues that Islamic traditions do indeed possess the ethical principles and rational resources suffficient to recognixe human rights: Mashood A. Baderin’s International Human Rights and Islamic Law (New York: Oxford University Press, 2003).

    How did you come to the conclusion that Islamic law fails to recognize human rights? If you’re citing existing legal systems in the Islamic world, such systems no where provide exemplification of Islamic law simpliciter, and they widely diverge in their understanding, interpretationa and application of Islamic law. The failure of nominally or allegedly Islamic states to recognize the full panoply of human rights is not indicative of the intellectual resources in Islamic jurisprudence and other intellectual traditions which can find ample warrant for the granting of human rights.

  11. Jared,

    Did you read my first comment above? [perhaps you’re free to ignore it because I’m not one of your professional colleagues] If so, how could you even ask a question like ‘Is the problem that Islam is not representing the will of those whom it is supposed to govern?’ This question makes no sense. Are you asking about regimes that claim allegiance to Islam? Which regimes?: Saudi Arabia? Libya? Indonesia? Egypt? Or members of The Organization of the Islamic Conference? Afghanistan? Albania? Algeria? Azerbaijan? Bahrain? Bangladesh? Benin? Gabon? Gambia? Guinea? Iran? Iraq?Jordan? Kazakhstan? Kuwait? Lebanon? Morocco? Niger? Oman? Tunisia? Turkey? Uganda? United Arab Emirates? Uzbekistan? (there’s more: 57 total). What counts as ‘Islamic law’ widely differs in the above list. What is more, a case could easily be made that none of these countries shows anything close to adherence to priniciples and practices of classical Islamic jurisprudence…. Again, there’s nothing in theory or principle that precludes Islamic jurisprudence granting the importance of democratic will formation, the representation of the interests of the governed, etc. If you suspect otherwise, I’ll gladly read the evidence. I’ll pass along sources in addition to Baderin if you’d like….

  12. Patrick, I read your comments with great interest, I just did not have anything to say in response. Please don’t take it as a sign of hierarchy, I am a low man on the international law totem-pole. My point is a lot “smaller” than your comments; I simply remain unconvinced that a political opening vis-a-vis Islamic law would cause a change in the law’s substantive outcomes. I.E. if Islamic law produced Y outcome, it will still produce Y outcome after a dose of representation-reinforcing.

  13. Jared: Remember that Filali-Ansary’s point is about the content of public discourse in Muslim societies, not its institutional structure; I invoked structural considerations on his behalf to answer your question about foreign policy and international law. He thinks that, even in a democracy without a clerical elite weilding state power, debating issues of basic justice by means of textual interpretation rather than substantive moral argument makes for impoverished politics. As I mentioned, he’s very much like Waldron in this respect.

    Patrick refers to Abou El Fadl’s ideal of a democracy in which Islamic jurists offer competing interpretations among which the public can choose to guide public policy. I think Filali-Ansary would still object to such a system, because Islamic law would remain the dominant

    language of normative guidance and other approaches (moral and political philosophy, economics, political science) would be marginalized.

    You mention human rights. Again, the debate which interests me is over whether it is better for a political culture to defend freedom of conscience, gender equality, and socio-economic rights through interpretation of authoritative texts (not hard to do, actually) or by

    discussing the contributions these and other freedoms make to individual and societal flourishing. It’s a fascinating question, to me anyway.

  14. Patrick: You’re quite right that events within one country’s borders can profoundly affect other nations. I mentioned pollution; you mention subsidies; and there are plenty of other examples.

  15. Jared,

    Sorry for the tone in my comment, I admit to getting a little defensive at times (it’s just that experience has taught me that my arguments are not always judged on their merits but at times tainted or ignored owing to their source). My response to your comment here is that an historical examination would suggest that Islamic jurists have in fact been responsive to wider social influences and political forces such that ‘Y outcome’ will be found in one place and time, while ‘X or even Z outcome’ will be found at a later time and another place. We view Islamic law today in the rather hazy and distorting light of modernizations processes and economic globalization: Islamic law thereby appears to have a ‘medieval’ or static quality or character (admittedly it has been employed in a ‘reactionary’ manner by those who, as Abou El Fadl demonstrates, possess a rather weak grasp of its essential forms and processes). I simply don’t think this is a necessary attribute of the system and that it therefore possesses potential for progressive change or evolution. I may be wrong (as my wife of over 25 years would chime in: indeed).

    And Adil raises an important point about other languages of and approaches to normative guidance. Here I would only say that it may behoove us to be sensitive to the culturally specific choices made in this regard, thus other cultures may prefer other languages and approaches and this plurality is something we might have to get used to. At the same time, Islamic jurisprudence was crafted in some measure by philosophers (notably Ibn Rushd) who were quite conversant in what we might call ‘moral and poltical philosophy’ and other sciences, indeed, the degree to which they ignored such discourses was indicative of the probability their jurisitic ruminations would likewise court irrelevance. Islam has myriad intellectual tradtions: ethical, philosophical, theological, mystical, ‘scientific’ and so forth: they have never been wholly separate from the development of Islamic law. This is something to keep in mind when expressing concern that ‘Islamic law would remain the dominant language of normative guidance.’

    I suspect that if there was a noticeable retreat in the wholesale (unnegotiable and unilateral) imposition of a neo-liberal economic agenda and a withdrawal of the cultural forces of neo-imperialism, the ‘reactionary’ employment of Islamic law would subside and we might witness the emergence of something of a different sort, something capable of making significant contributions to individual and societal flourishing–provided, that is, that our criteria for same are not culturally-crafted (e.g., ‘Eurocentric’) but possess a truly ‘universal’ character (I’m inclined to Nussbaum’s work here). In short, let’s take a ‘big picture’ perspective on Islamic jurisprudence: one informed by history on the one hand, and looking forward on the other, albeit while standing firmly in the present.

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