Theocrats Living under Secular Law: An External Engagement with Islamic Legal Theory*
2010; Wiley; Volume: 19; Issue: 1 Linguagem: Inglês
10.1111/j.1467-9760.2010.00364.x
ISSN1467-9760
Autores Tópico(s)Jewish and Middle Eastern Studies
ResumoTHE idea of a divinely-revealed Law1 has long been central to Muslim identity. As Islam developed and flourished for the vast majority of its history as the public religion of state power, doctrines of public law and political obligation, no less than matters of worship and ritual, have always been objects of intense practical concern. On this conception of religious morality, a political order is legitimate to the extent that it approximates an ideal legal order as expressed in the idea of shari‘a, just as for a political liberal a political order is legitimate to the extent it approximates the terms of social cooperation as would be endorsed by parties contracting in ideal circumstances, whether something like the Original Position or an ideal speech situation. Let us call this the “classical” Islamic theocratic principle of legitimacy, bearing in mind both that this is an ideal discourse not directly transferable to sociological, political or anthropological experiences, and that what precisely constitutes the theocratic shari‘a vision is often indeterminate or deeply contested even by Muslim jurists. For a fairly representative contemporary statement of the Islamic principle of political legitimacy for Muslim-majority societies, consider the reflections of contemporary Egyptian-Qatari scholar Yusuf al-Qaradawi: For Muslim societies, as Islam is a comprehensive system of worship (‘ibada) and legislation (shari‘a), the acceptance of secularism means abandonment of shari‘a, a denial of divine guidance and a rejection of God's injunctions. It is indeed a false claim that shari‘a is not suitable to the requirements of the present age. The acceptance of a legislation formulated by humans means a preference for humans' limited knowledge and experiences over the divine guidance: “Say! Do you know better than God?” (Q. 2:140). For this reason, the call for secularism among Muslims is atheism and a rejection of Islam. Its acceptance as a basis for rule in place of shari‘a is clear apostasy. The silence of the masses in the Muslim world about this deviation has been a major transgression and a clear-cut instance of disobedience which have produced a sense of guilt, remorse, and inward resentment, all of which have generated discontent, insecurity, and hatred among committed Muslims because such deviation lacks legitimacy. . . . We Muslims believe that God is the sole Creator and Sustainer of the Worlds. One Who “. . . takes account of every single thing” (Q. 72:28); that He is omnipotent and omniscient; that His mercy and bounties encompasses everyone and suffice for all. In that capacity, God revealed His divine guidance to humanity, made certain things permissible and others prohibited, commanded people observe His injunctions and to judge according to them. If they do not do so, then they commit disbelief, aggression, and transgression.2 But what of societies where Muslims are a minority? Islamic jurists have traditionally given a variety of answers to this question, including that Muslims may not legitimately live in a land ruled by other than Islamic law, that Muslims may live in any land where they have the freedom to “manifest their religion,” and that Muslims may live in non-Muslim polities but must aspire to as much self-governance as they can negotiate.3 Islamic jurisprudence on the options for Muslims living as a minority community in a non-Muslim polity thus maps on to common models of living as a pious “theocratic” minority in a non-ideal polity. Consider, first, four common such models. The Thin Social Contract Model, or “loyal resident alienage.” On this model, the theocratic community understands that the wider public system of law and justice will not be its own, but theorizes certain minimal conditions whereby its own residence is legitimate from its own moral perspective even without institutions of self-governance. This model posits that when the wider community guarantees it certain rights of security and religious freedom, it will consent to obey laws which it does not necessarily regard as just from its comprehensive theocratic perspective. This is the dominant approach to the minority condition in mainstream Sunni Islamic jurisprudence.4 The Internal Retreat Model. This model is a diluted form of the Thin Social Contract Model. Perhaps because its presence in the alien polity is non-voluntary, or because it cannot actively imagine the conditions of living independently, the theocratic community tacitly accepts the reality of the wider polity but directs all of its spiritual and political energies towards its own communal life. It does not actively seek to disrupt the wider politico-legal order, but also does not seek to legitimate it even in a contingent way. Such communities do not necessarily seek to create de facto state forms within the wider state, but exert great efforts to socialize their members into common norms and to regulate internal matters and disputes informally, without appeal to the wider legal system. This model of “partial citizenship”5 is that adopted by the Amish, Haredim and some Fundamentalist Mormon communities, as well as ultra-pious Muslim Salafis.6 The Self-Governance Model. On this model, the theocratic community not only regulates its own internal affairs as much as possible informally, but seeks certain guarantees of its autonomy from the wider state. Such self-governance seeks to secure a form of legal pluralism, with communal control over as many areas as possible, from family and personal law to criminal law.7 Variations on this model include the Ottoman Millet system and existing countries such as India, Lebanon and Israel where family law is in the hands of religious authorities.8 This is the dominant, mainstream aspiration within Islamic jurisprudence beyond the Thin Social Contract Model.9 The Temporary Modus Vivendi Model. This model is immanent within all three preceding ones. However, here the emphasis is less on stabilizing the theocratic community's relationship to the state than on seeking to bring about conditions more in line with the community's theocratic vision. Perhaps it anticipates becoming a demographic majority in the near future, or somehow altering the balance of power with other communities. In contemporary circumstances, perhaps the society is divided not just between various religious communities but between religious communities and secular ones, and thus coalitions are sought with other theocrats to advance the cause of religion in general over secularism. Here theocrats might see themselves as forming a pious opposition to the state with no permanent, principled commitment to self-restraint in implementing its own comprehensive theocratic system. Such might characterize the position of many non-violent Islamist groups in secular Muslim states (the Qaradawi quotation from above), and to a certain extent some Evangelical Christian movements in the United States. If these are the most common models for living within polities not governed by one's own theocratic vision, all with echoes in Islamic legal thought, I want to note two other important options. The Religious Integralist Model. What has often been referred to as the problem of theocracy in recent political philosophy is not always theocracy in the strictest sense of the term. Many religious citizens and groups believe that their lives should be morally integral, with no radical break between their private and their political lives.10 But the idea that one should seek an integrated religiously-faithful path of behavior in all areas of life does not necessarily imply that one's religious morality consists in a comprehensive, pre-political legal code which one must strive to obey. Thus, a fifth model for “theocrats” is to move “beyond Law” to another form of religious political ethics. Such a religious ethics need not be liberal or fully comfortable with secularism, but is likely to be more open-ended and thus more easily placed into conversation with other ethical doctrines. This might be regarded as dissolution of the problem of “theocracy” insofar as such religious ethicists merely want their religious perspective to be admissible in public deliberation and not authoritative because of its truth. This form of non-theocratic religious integralism does not require, but is compatible with, the idea of an “overlapping consensus” on the basic terms of social cooperation in a pluralistic society, and is visible in the more recent approach to Islamic ethics of the well-known European Islamic public intellectual, Tariq Ramadan.11 The Thicker Social Contract Model, or Overlapping Consensus. A final model would be a doctrine of affirming the substantive justness or legitimacy of a politico-legal system not based on one's own theocratic doctrine, but without abandoning, dissolving or moving beyond the terms of that theocratic doctrine. Like the Thin Social Contract Model, the religious legal doctrine establishes moral standards for the alien legal system, but in a much more capacious way. It moves beyond the legitimate terms of residence to ask whether the substance of an alien conception of justice might be sufficiently just or legitimate. Is the Thicker Social Contract Model possible? Is it possible for a religious endorsement of the substantive justness of certain liberal principles to emerge from a theocratic, legal tradition? It is undeniable that there is a certain paradox, even absurdity, in discussing the legitimacy of non-Islamic law within Islamic legal discourse. If God has told us how He can be sovereign on Earth through a revealed Law, how can a person committed to this conception of legitimacy regard another form of law as just and legitimate? Islamic law is nothing other than a discourse about political legitimacy and political obligation. Either Islamic law is a positive law for Muslim societies, in which case it has no reason to discuss what laws other societies should apply to themselves, or it is a universal law coterminous with justice.12 Either way, it would not appear that Islamic law is a likely source for other ideas on how a religiously diverse society should distribute rights and responsibilities. Furthermore, even where Muslim jurists might approach non-Islamic laws individually to examine their acceptability, this is likely to involve no deeper engagement with the underlying principles of reasonable moral pluralism and individual autonomy. Thus, it seems that citizens of religiously diverse societies should be satisfied with one of the first four models of theocratic membership in non-theocratic polities, particularly the first two. Short of, in fact, ceasing to be theocrats stricto sensu and becoming “religious ethicists” (even integralist ones), there is by definition no way for theocrats to endorse the substantive justness of non-theocratic forms of rule, particularly secular ones and particularly where the subject of legislation is the distribution of religious freedoms. However, I believe that there are serious costs to adopting a purely political or agonistic attitude of “containment” towards all theocratic fellow citizens. Moving beyond Law and seeking to ground an overlapping consensus only with religious ethicists is tempting but runs the risk of leaving behind many more conservative fellow citizens.13 For certain religious citizens there may be no alternative to looking to revealed Law. Since it is the more conservative traditions and the believers who seek to follow them which are most likely to have principled objections to liberal citizenship, establishing consensus or congruence with them is also a greater priority.14 If political liberalism aims at the widest possible support for a public conception of justice, then it makes sense that it would begin with the most enduring principled hindrances to that support. Furthermore, and perhaps most crucially, the belief that a genuine and reliable Islamic doctrine of support for political liberalism requires a radical reformist project in both substance and language runs the risk of creating the common impression that all other thinkers who do not assert a radical break with Islamic law are therefore incapable of engaging reasonably with non-Muslims. It is at this impasse where this article enters. I outline here the possibility for a certain legitimacy of secular law and political justice from within Islamic legal/moral theory. I explore, specifically, the possibility for such legitimacy as emerging out of a long-term dialectical negotiation of the meaning and requirements of religious freedom resulting from the relatively sudden encounter with an exogenously-determined liberal framework. I argue that a particularly promising source of dialogue between liberal and Islamic moral theorists is provided by the Islamic legal theory of the “purposes of shari‘a,” which holds that divine law must be understood in terms of the promotion of universal welfare, achieved through the promotion and protection of five universal interests: life, religion, property, reason and lineage. This model of dialogue between political liberalism and a theological doctrine of legitimacy identifies the moment of engagement (and possible reconciliation) as occurring not only at the first stage of justification (whereby parties recognize reasonable pluralism and agree to construct terms of cooperation on a fair basis) but also at a later stage when liberal terms of social cooperation can be evaluated on the basis of their substantive congruence with fixed points of religious morality. Classical Islamic law is based on two conjoined principles: divine sovereignty and divine omnipotence. The first principle is that God is the creator and master of all existence. He is free to command obedience and punish disobedience. The second important corollary of this principle is that God's power is unlimited, which means that His power to command certain acts and beliefs cannot be constrained by a prior, ontologically independent moral order. God does not just reveal morality to us; he creates morality—good and bad, obligatory and forbidden—ex nihilo in a state of perfect freedom.15 God is under no moral or logical necessity to create a Law which is rationally beneficial to humans as they might perceive it. To foreshadow, though: as it happens, God has made provisions for man's wellbeing, including the Law itself, which exists to promote man's welfare. Man is assured that the requirements of the Law will not be greater than what he can bear, although this is not by logical necessity, only by God's good will and mercy and the assumption that a perfect being like God does not lie or act frivolously. Islamic law, like any legal system, distinguishes between positive (applied) law (fiqh) and legal theory or jurisprudence (usul al-fiqh, the “sources of law”). The theory of the “purposes of the Law” (maqasid al-shari‘a) is that all applied rulings (ahkam) of the Law, originally justified by the jurists through a painstaking hermeneutic study of the texts of revelation, can be shown to advance and protect a consistent set of human interests (masalih, sing: maslaha). Space does not permit a sufficient discussion of the origin and evolution of this theory; however, it suffices to note for now that this approach has traditionally been used by scholars to explicate the deeper wisdom (hikma) of the Law's rulings, to help in extending the Law to new circumstances and to help in adjudicating cases of indeterminacy or apparent conflicts between rulings. I would propose as a term for this form of Islamic legal reasoning something like “Complex Purposivism.” This is a method of legal interpretation and argumentation which makes central an appreciation of God's purposes behind legislating in general, and the specific body of legislation He has revealed in particular. However, this Purposivism is complex because of the way in which it is constrained not only by the letter of revelatory texts, but also the accumulated tradition of positive legal rules, most of which crystallized before the advent of the theory of the maqasid (or, indeed, before “classical” legal theory itself) and thus acquired the status of authoritative and binding interpretations. Today this theory is perhaps the most popular trend in Islamic legal and political thought with dozens of books and doctoral dissertations written on the theory of the maqasid and its application in every possible area from criminal law to the ethics of genetic engineering. It is a fully legitimate and popular discourse even amongst very conservative scholars.16 However, the idea that shari‘a should not be understood solely as embodied in specific rules (e.g., inheritance must be divided in this way) nor in terms of a painstaking, thorough extraction of those rules from the revelatory texts according to the methods of classical legal theory (usul al-fiqh), but rather defined in terms of the overall “purposes” (maqasid) for which God revealed the Law is often viewed as a panacea for modern reformers and pragmatists.17 For those who want to establish Islamic legitimacy for new substantive moral, legal and political commitments in new socio-political conditions, this idea allows Muslims to ask not whether a given norm has been expressly endorsed as compatible with the texts, but whether it is compatible with the deeper goods and interests which God wants to protect through the Law. Consider a few statements to this effect. Among the ways in which maqasid and maqasid-based thinking can serve the Islamic call and those engaged in it is by giving them greater flexibility and innovativeness in relation to the means and approaches which they employ. Things which can be classified purely as methods and means, including those which are mentioned explicitly in revelation, admit of change, modification and adjustment.18 I understand Islamic law to be a drive for a just, productive, developed, humane, spiritual, clean, cohesive, friendly, and highly democratic society. . . . The validity of any method of ijtihad[juridico-ethical reasoning and argumentation] is determined based on its degree of realization of maqasid al-shari‘ah. The practical outcome is Islamic rulings which are conducive to the values of justice, moral behavior, magnanimity, co-existence, and human development, which are ‘maqasid’ in their own right.19 The attractiveness of the Purposive approach to Islamic normativity is particularly stressed in the context of the Muslim minority condition. A prominent Islamic think tank, based in London and the Washington, DC area, The International Institute of Islamic Thought (IIIT), has an on-going publication series in Arabic and English of prominent texts on the maqasid and a translation series of maqasid texts from Arabic to English (and other languages spoken by Muslim communities). The coordinator of this translation project declares that “knowledge of the maqasid is a prerequisite for any attempt to address and resolve contemporary issues challenging Islamic thought. Indeed such knowledge can help in the process of developing a much needed objectives-based fiqh [jurisprudence, or ethics] for minorities.”20 In this vein, consider Tunisian/British Islamist activist Rashid al-Ghannushi's statements about political legitimacy and participating in non-Islamic governments: An Islamic government is based on a number of values which if accomplished in their totality would result in a perfect or near-perfect system. But it may not be possible for all such values to be implemented, and therefore some must suffice in certain circumstances in order for a just government to exist. A just government, even if not Islamic, is considered very close to the Islamic one, because justice is the most important feature of an Islamic government, and it has been said that justice is the law of God.21 Ghannushi's argument, based on his understanding of the theory of the maqasid, holds that the Muslim's duty is “to work towards preserving whatever can be preserved of the aims of shari‘a” understood broadly as the five basic human interests of life, religion, property, intellect and lineage. This emphasis on the ultimate purposes of divine Law serves to deflect attention from both particular, technical rulings of Islamic law and the un-Islamic forms of behavior permitted in non-Muslim states. Instead, non-Islamic governments can be seen as sufficiently just because of the general human interests which they protect (such interests include for Ghannushi, both in Muslim majority and minority political contexts, “independence, development, social solidarity, civil liberties, human rights, political pluralism, independence of the judiciary, freedom of the press, or liberty for mosques and Islamic activities”), possibly resulting in a legitimate form of governance which he calls “the government of rationale” as opposed to “the government of shari‘a.” The crucial measure of Ghannushi's doctrine of how to share political space with non-Muslims is how he addresses the question of social coalitions with non-Muslims. Here, he sides firmly with liberal secular groups over other non-liberal religious ones: “Can any Muslim community afford to hesitate in participating in the establishment of a secular democratic system if it is unable to establish an Islamic democratic one? The answer is no. It is the religious duty of Muslims, as individuals and as communities, to contribute to the efforts to establish such a system.”22 This goes for Muslim minorities in particular, who have no hope of establishing Islamic rule. “The best option for such minorities is to enter into alliances with secular democratic groups. They can then work towards the establishment of a secular democratic government which will respect human rights, ensuring security and freedom of expression and belief—essential requirements of mankind that Islam has come to fulfill.”23 The centrality of the maqasid for theorizing an Islamic approach to the minority condition which is itself not “political in the wrong way” from an Islamic juridical perspective is stressed by the most prominent scholars to have written on both Islamic legal theory and the jurisprudence of Muslim minorities, such as ‘Abd Allah Ibn Bayya,24 Yusuf al-Qaradawi25 and Taha Jabir al-‘Alwani.26 The idea of the maqasid also figures prominently in thought of non-traditional scholars writing for a broader audience, such as Tariq Ramadan27 and the American convert Umar Faruq Abd-Allah.28 This theoretical logic opens a crucial space for engagement on the part of the liberal political or legal theorist. Given that the Law exists to protect or preserve five primary purposes (life, religion, property, lineage and reason), that Islamic scholars have often used the theory of the maqasid to justify a principled and purposive flexibility in legal reasoning, and that scholars concerned with the minority condition have declared an eagerness to turn to the theory of the maqasid to theorize a permanent Muslim presence in non-Muslim polities, it is natural to ask whether these general purposes of the Law can be attained in a secular liberal state, thus establishing a certain legitimacy for liberal justice. Take two obvious examples: murder and theft. Classical Islamic legal theory accepted that the Qur'anic punishments for these crimes (retribution or blood-money in the case of homicide; cutting off of hands in the case of theft) were the revealed methods for preserving the universal necessary goods of life and property. It is obvious that only the strictest theocrat would deny that non-Muslim laws which also protect life and property without enacting the Qur'anic punishments are sufficiently just and legitimate, that they overlap sufficiently with shari‘a. For the Muslim or non-Muslim scholar interested in the long-term encounter between Islamic law and liberal justice, it is natural to ask a further question: Is the religious freedom offered by a liberal order sufficient for the shari‘a purpose (maqsad) of “preserving religion” (hifz al-din)? Could it not be argued that liberal societies with extensive religious liberties offer robust provisions for the preservation of religion?29 However, unlike homicide and theft, the distribution of religious freedoms is a much more complex and contentious matter and can obviously not be resolved in a cursory way by assuming that liberal religious freedom is sufficiently just and legitimate from an Islamic legal perspective, even in the minority condition. To this point, I have referred to the theory of Complex Purposivism as a framework which justifies legal change in “reformist” discourses. However, it should not be understood that the function of Purposive (maqasidi) reasoning is to liberalize the shari‘a by making it less restrictive on persons subject to it in all cases. In fact, the opposite is more likely insofar as the mandate to “protect and preserve” various fundamental interests turns the jurist's attention away from the justification of rulings through reference to specific revelatory texts and towards the policy of “blocking the means” to the corruption of those interests. It is true that maqasid-reasoning opens the door to considering new means for advancing stable goals and interests, but it is also simply the case that the jurist now sees more things as harmful to reason, religion and the other “universal necessary interests.” If before the jurist clung to a narrow, formalist prohibition on alcohol based on the Qur'an, he now sees countless potential sources of harm to reason.30 In a sense, this does in fact make the Law less restrictive—less restrictive on those who seek to “command the right and forbid the wrong” rather than less restrictive on those who might seek to dip their toes in the waters of the wrong. This is not the place for an expansive exploration of the Islamic juridical literature on “preserving religion” as an objective of the Law. I merely wish to note the way in which this discourse is most commonly used by traditionalist scholars not as a device for liberalizing the Law but rather as a way of demonstrating the underlying logic and wisdom of the traditional rulings of criminal and public law. As such these discussions tend to be an invaluable source for studying the philosophy of religious freedom in orthodox Islamic thought. This is a philosophy of a deeply communitarian, “positive” conception of religious freedom where “preserving religion” refers to fully realizing all of its possible objectives and removing any and all potential sources of harm. Or, in the words of the 14th century scholar whose work is the locus classicus for Complex Purposive reasoning, Abu Ishaq al-Shatibi (d. 1388), “preserving religion involves calling to it with promises and warnings,31 fighting those who resist it and those tumors who rot it from within, and repairing any accidental unforeseen defects.”32 First, it is important to take note of the definition of “religion” adopted by the legal scholars. This definition of religion is the most expansive possible: “Religion consists of divine rules which God has revealed through prophets to guide mankind to truth in matters of belief and to good in matters of behavior and social relations. Religion constrains mankind by these rules and brings them into submission to their commands and prohibitions so that they may attain the happiness of this world and the next.”33 Complete, perfect religion is composed of four elements: faith (iman), external submission (islam), belief in right doctrines (i‘tiqad) and works (‘amal). The jurists clearly specify the necessary human personal and social goods which are advanced by the various elements of religion, beginning with the metaphysical, or perhaps theologico-anthropological, claim that “since religiosity is part of innate human nature [fitra], all mankind must affiliate itself with some religion or another and opposing this innate nature is pure deviation.”34 The only question is whether it is the true one or one of the false ones. The only sense in which the jurists believe “preserving religion” to be one of the aims of the shari‘a is insofar as it is understood that only Islam is recognized by God as the final religion valid for all time. The idea is thus that: Religion in the sense of divine revelation sent down through prophets is necessary to guide human minds to truth. Religion in the sense of belief in God is necessary for individual human life in order for the soul to find security and tranquility from the kind of anxiety and stress which can lead to a nervous breakdown or even suicide. It is also necessary for social life because it guarantees the establishment of legislation which protects social relations from all ills which might corrupt them. Religion in the sense of divinely legislated laws is necessary in order to provide rules of justice and equality between persons and to protect them from the traps of human whims and passions. Indeed, mundane interests alone suffice to prove the necessity of religion in the lives of individuals and societies.35 The jurists then divide the modes through which the shari‘a protects the interest humans have in the integrity and flourishing of religion into the positive establishment of certain elements of religion (al-hifz min janib al-wujud)36 and the removal of potential harms (al-hifz min janib al-‘adam).37 The former has a literal meaning of providing for the “existence” and the latter has a literal meaning of providing for the “absence.” We may call them “positive preservation” and “negative preservation” respectively. A single principle of religious obligation underlies all of these modes of preserving religion: the idea of “commanding the right and forbidding the wrong,” the activist and interventionist conception of enforcing religious morality which might b
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