[Paleopsych] CHE: Who Owns Islamic Law?
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Fri Apr 8 19:20:09 UTC 2005
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.
By DAVID GLENN
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
"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."
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
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
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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