[Paleopsych] CHE: Who Owns Islamic Law?

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Who Owns Islamic Law?
The Chronicle of Higher Education, 5.2.25

    Some liberal scholars want to open the explication of sacred texts to
    all. Others say the path to democracy lies elsewhere.


    If all goes according to plan, Iraqi political leaders will gather
    this year to forge a new national constitution. It is easy to imagine
    many things that might shipwreck the process. Near the top of that
    list: Will Iraq's political forces manage to find a consensus about
    what role, exactly, Islam should play in the public sphere?

    That question has created deep tensions within Islamic reform
    movements for more than a century. Certain persistent strains of
    Muslim thought insist that an authentically Islamic nation must
    enforce Shariah -- traditional religious law -- in all spheres of
    life, from banking to inheritance to the performing arts. Muhammad
    Kamaruzzaman, the assistant secretary general of an Islamist party in
    Bangladesh, recently wrote an essay celebrating democracy, but adding
    that "Islam does not accept the idea of separation of state from
    religion." Other Muslim activists, citing the recent unhappy history
    of Afghanistan and Iran, insist that lines must be drawn between
    mosque and state -- even if those lines do not look exactly like
    Western secular pluralism.

    For outsiders, it is tempting to caricature this debate as a contest
    between Taliban-style radicals and Western-style liberals. (And there
    are indeed authentic representatives of both those camps in Iraq
    today.) But the terrain is actually far more complex than that. There
    are dozens of strains of traditionalist and liberal thought in the
    Muslim world, each looking toward different conceptions of Shariah and
    drawing on different elements of Islamic history and jurisprudence.

    Now a few prominent liberal scholars are aggressively promoting a
    concept that they believe can nurture democracy and allow an authentic
    Islam to thrive in the modern world. Islam can regenerate itself,
    these scholars say, if it returns to the principle of ijtihad.

    The Arabic term -- which literally means "strenuous effort" -- has
    historically referred to the practice of systematically interpreting
    Islamic religious texts in order to resolve difficult points of law.
    (In an oft-cited example, early Muslim jurists strove to interpret an
    ambiguously phrased Koranic verse about how long a divorced woman must
    wait before remarrying.) In the early centuries of Islam, ijtihad was
    confined to an elite set of scholars and jurists (mujtahidin) with
    rigorous training in the religion's texts and laws. Beginning around
    the 12th century, most Muslim communities restricted the practice even
    further: Some juridical schools declared outright that "the gates of
    ijtihad have been closed," while other regions limited the practice of
    ijtihad to questions of the family and everyday life.

    Today's proponents of ijtihad take a far more expansive view. "There
    will be no Islamic democracy unless jurists permit the democratization
    of interpretation," wrote M.A. Muqtedar Khan, a professor of political
    science at Adrian College, in a 2003 essay. In Mr. Khan's view,
    political elites in the Muslim world have for centuries restricted the
    development of democracy and political accountability by hiding behind
    religious principles that they proclaim to be fixed in stone. Mr. Khan
    argues, in effect, for an end run around the entire traditional
    apparatus of Muslim jurisprudence. Believers should instead, he
    suggests, look directly to the Koran and to the practices of Muhammad
    and his companions, and use their own efforts at interpretation to
    build ethical communities.

    Mr. Khan is not alone in this general approach. He and four other
    scholars gathered at a 2004 conference on ijtihad, sponsored by the
    United States Institute of Peace. "Is ijtihad part of the expanding
    democratic culture of the Muslim world?" asks Muneer Fareed, an
    associate professor of Islamic studies at Wayne State University, who
    also spoke at the conference. "Or will it remain the forte of an
    exclusive group of intellectuals? These are some of the fundamental
    questions that people are asking today."

    But other prominent scholars -- including some who share Mr. Khan and
    Mr. Fareed's urgent interest in pluralism and democracy -- have deep
    doubts about the ongoing conversations about ijtihad. Certain
    formulations of the ijtihad model, these skeptics say, are ahistorical
    and counterproductive. "Part of what hobbles their argument is that
    they're nonjurists," says R. Michael Feener, an assistant professor of
    religious studies at the University of California at Riverside.
    "They're nonlaw people talking about law."

    Instead, Mr. Feener suggests that Muslim reformers should embrace, not
    discard, the heritage of Islam's traditional schools of jurisprudence.
    Other skeptics point to a striking irony: The ultratraditional
    Salafist movements associated with Al Qaeda -- who are in some sense
    the polar opposite of the liberal enthusiasts of ijtihad -- use very
    similar language about scrapping the vast corpus of Islamic legal
    commentaries and returning to the original texts.

    Worlds Away From Wittenberg

    The reformist interest in ijtihad is not new. For more than a century,
    Muslim scholars and activists have cited the concept as they have
    tried to respond to the trauma of colonialism and its aftermath. In
    his 1934 book The Reconstruction of Religious Thought in Islam,
    Muhammad Iqbal, the poet known as the spiritual father of Pakistan,
    argued for transferring "the power of ijtihad from individual
    representatives of [legal] schools to a Muslim legislative assembly,"
    which would build toward "spiritual democracy which is the ultimate
    aim of Islam."

    The latest proponents celebrate a much more inclusive model of
    ijtihad. No jurist can single-handedly interpret Islam, Mr. Khan says.
    "My argument is that Shariah should be by shura," or consultation, he
    says. "We should all consult among ourselves and conclude what God is
    telling us. ... Interpretation of God's message is the quintessential
    quality of humanity. To take away from me my right to interpret Islam,
    you have to deprive me of my humanity."

    Even non-Muslims, Mr. Kahn says, should be permitted to participate in
    the process of ijtihad. "Islam belongs to all of us," he says. "It's
    not that Muslims own Islam, or that Muslim men own Islam, or that
    Muslim jurists own Islam."

    Mr. Fareed cautions against making any glib historical analogies
    between ijtihad and Protestantism. "It certainly doesn't help to look
    for a Luther in Islam," he says. While Christian debates have
    historically centered on questions of doctrine and faith, he points
    out, Islam (like Judaism) tends to be consumed with debates about
    practice and ritual.

    Among Muslim immigrants in the West, Mr. Fareed continues, debates
    about everyday practice -- such as whether it is permissible to pay
    interest -- have become very open and wide-ranging, thanks in part to
    the Internet. And as Western Muslims use ijtihad to debate such
    relatively quotidian questions, he says, they are also moving toward
    consideration of more fundamental questions about political structures
    and economic justice. Mr. Fareed hopes that these Western debates,
    couched within an Islamic vocabulary, will eventually provoke new
    kinds of conversations about democracy and political legitimacy in the
    heart of the Muslim world. (Last April Mr. Khan attended a scholarly
    conference in Saudi Arabia; when he returned, he wrote that he was,
    for the first time, cautiously optimistic that Saudi society was
    opening itself to "self-critical and reflective voices.")

    Not all Muslim liberals, however, find the ijtihad model attractive. A
    very different strategy for working toward democracy and pluralism is
    put forward by Khaled Abou El Fadl, a professor of law at the
    University of California at Los Angeles. In Mr. Abou El Fadl's view,
    liberal Muslim scholars should revive, not dismiss, some of the
    longstanding threads of Islamic jurisprudence, looking carefully at
    historical cases in which Muslims have successfully built pluralist
    and relatively democratic societies.

    Although Mr. Abou El Fadl's methodology is more elitist than Mr.
    Khan's vision of ijtihad for all, he also maintains that it will
    ultimately be more liberal. He wrote in a 2003 essay that basing
    government around consultation and shura, as Mr. Khan and his allies
    suggest, could lead to majoritarian tyranny. "Even if shura is
    transformed into an instrument of participatory representation," he
    wrote, "it must itself be limited by a scheme of private and
    individual rights that serve an overriding moral goal such as

    Mr. Abou El Fadl adds in an interview that he finds Mr. Khan's
    framework extremely ill-disciplined. "Instead of making the effort to
    study Arabic and study the texts," he says, "Muqtedar Khan is simply
    throwing around terms like ijtihad and mufti and fatwa. ... This kind
    of thing is why there's such a vacuum of authority. This is why we
    have people like bin Laden going around claiming to be Islamic."

    If, as Mr. Khan suggests, ijtihad is truly open to all -- even to
    non-Muslims -- then what criteria, Mr. Abou El Fadl asks, can be used
    to distinguish sound doctrine? "If everyone's ijtihad is as good as
    anyone else's," he says, "then bin Laden's ijtihad is as good as
    Muqtedar Khan's."

    "In its pristine form, shura was consultation on a patriarchal or
    tribal basis," says Emran Qureshi, a fellow at Harvard University's
    Carr Center for Human Rights Policy, who is sympathetic to Mr. Abou El
    Fadl's position. "It's difficult to tie a notion of modern democratic
    practice to that notion."

    Mr. Khan, for his part, finds this position impossibly elitist. In a
    2004 article, he charged that Mr. Abou El Fadl's model of liberal
    jurisprudence "allows the intellectual colonialism of Islamic legalism
    -- its tendency to engulf and marginalize other fields of study -- to
    subvert his quest for an Islamic democracy."

    A middle ground of sorts is offered by Ingrid Mattson, a professor of
    Islamic studies at the Hartford Seminary. Ms. Mattson argues that
    there should be a wide scope for popular ijtihad, but adds that the
    process should be watched over by well-trained Islamic legal scholars.
    "The proper role of scholars and religious and legal specialists," she
    says, "is simply to point out when certain boundaries are being
    crossed. Not to dictate the process of ijtihad, but to monitor it in a
    way that is helpful and supportive of the development of society."

    Political Convergence

    All parties in this debate over ijtihad emphasize that their ultimate
    political visions are similar: They would like to see majority-Muslim
    countries develop democratic and accountable institutions, and to
    combine authentically Muslim cultural values with ample protection for
    individual rights and religious minorities.

    Yet the devil emerges in the details. If even scholars with such
    harmonious visions find themselves tangled in argument, how much more
    difficult will it be for Iraqi political leaders trying to forge a new

    Part of the difficulty, says Mr. Qureshi, is that "secularism" has
    been so thoroughly discredited in the Muslim world by Kemal Atatürk's
    ruthlessly anticlerical regime in Turkey and by the later
    secular-authoritarian governments in Algeria, Egypt, Syria, and Iraq.
    Only in Iran, which has suffered under a clerical tyranny for decades,
    do reformers now commonly talk about secular pluralism.

    The fundamental challenge for would-be democracy-builders in Iraq and
    elsewhere is the contested relationship between Islam and the public
    sphere, Ms. Mattson says. Where religious authorities and institutions
    once had breathing room from the state and their own spheres of
    influence, she says, colonial regimes brought everything under the
    heel of the government. (And their postcolonial successors have been
    happy to do likewise.)

    The opposite dilemma sometimes arose in the early centuries of Islam,
    Ms. Mattson suggests. In certain communities at that time, she says,
    Muslim jurists were in a sense too detached from the state. They
    protected their independent spheres by "trying to stay out, to some
    extent, of what they considered to be the proper jurisdiction of the
    government or the ruler. And they also really did believe that
    politics was corrupting. ... So the jurists were sometimes very good
    at looking at the rights of individual slaves, yet they never really
    addressed the issue of the slave trade and its overall political and
    economic considerations."

    This, then, is the dilemma for reformers today. Centrist Islamists and
    liberal reformers would like to develop a model in which Muslim
    institutions are independent from the government and vigorously inform
    public governance, but do not swallow all of society in a totalitarian
    project like the Taliban's.

    "A postcolonial context requires new institutions," says Mr. Fareed,
    of Wayne State. "So a debate has been stirred. Will we simply remake
    classical institutions, or will we take into consideration the changes
    that modernity and colonialism have wrought on Muslim society, and
    engage in a new form of ijtihad to establish new institutions based on
    these changes?"

    Eastern Winds

    Mr. Feener, of Riverside, believes that there are exciting and
    productive debates occurring along just those lines -- but they aren't
    happening in the Westernized context that is touted by the ijtihad
    enthusiasts. Instead, he says, the most intellectually exciting place
    in the Muslim world today is Indonesia, where students are reading
    translations of "works translated from Egyptian and Moroccan thinkers.
    You find works from Iranian thinkers. You find translations of people
    working in the States, like Khaled Abou El Fadl. I would argue that
    Indonesians are discussing these writers more than anyone else in the
    Muslim world. ... They're also reading Frankfurt School types, like
    Habermas. People know them. People know these debates about civil

    In Mr. Feener's eyes, however, there are important differences between
    these rich Indonesian debates and the ijtihad model put forward by Mr.
    Khan and his allies. In Indonesia, he says, "the basic approach that
    many of these folks take to Islamic law is by diving very, very deep
    into the historical tradition of Muslim interpretations. That is, they
    look at the debates that scholars have held among themselves over the
    last 1,200 years. The idea is to find places within the tradition
    -- variant opinions within the tradition -- that can be further
    developed, because their day has come. Islamic literature preserves
    this diversity of tradition."

    The push toward ijtihad, by contrast, neglects the richness of Islamic
    legal history, in Mr. Feener's view. "This has been signaled by many
    in Indonesia as a kind of arrogance," he says. "The notion that you
    can see clearly the will of God in the seventh century in a way that
    all of these distinguished jurists who came before you couldn't. ...
    Imagining that you and you alone can see what was going on in the time
    of the Prophet has historically lent itself to a kind of
    authoritarianism in Islamic speech."

    Mr. Khan, meanwhile, insists that the most urgent danger of
    authoritarianism lies in entrusting Islamic thought and interpretation
    to an elite corps of scholars and jurists. "There are some serious
    issues that Muslims have to deal with," he says. "One of them is that
    they have to reach a conclusion that shura is binding. Right now many
    scholars say, 'You have to consult,' but they don't really mean it.
    Shura has to be binding, otherwise the governance is not legitimately

    Mr. Khan acknowledges that his is very much a minority view. He is
    nonetheless excited about the current intellectual climate. "Two weeks
    ago I was at the Stanley Foundation and one-third of my audience was
    Muslims," he says. "Afterward we spent the whole night having a
    Muslim-Muslim dialogue. We disagreed about everything. But we did come
    to consensus on one point -- and that is that the discussions are
    getting more sophisticated. There is no doubt about it."

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