Mediation through Silence: On Honor Killings and Female Genital Mutilation
With the recent killing of a Muslim girl in Canada, apparently by her father and aided by her brother, for refusal to wear the veil, an old dispute has rekindled between polemicists on both sides of the Islam divide. The "Islam is evil" crowd attribute the entire problem to the date Muhammad arrived on earth, and the "Islam means peace" crowd disassociate any link between Islam and honor killings, dismissing the latter as a "cultural practice" in the Muslim world that has absolutely nothing to do with Islam at all. We hear very similar debates about female genital mutilation.
Rarely are more complex nuances heard, though I do have to point to a thoughtful and well written editorial on the recent honor killing by a law professor (of course) at the University of Toronto, Anver Emon, in Canada's National Post as a significant exception. It's too bad that such voices are few, because I do think something considerably more complex is going on in these instances, which I've termed "mediation through silence". Let's approach this by looking at the flaws in each side of the polemical debate.
First, where the "Islam is evil" crowd goes awry is in the failure to grasp the absence of a strong link between the practice of honor killing to Islamic doctrine. Neither foundational text, meaning Quran and hadith, nor classical exegeses, nor even prominent scholars throughout the Muslim world say very much, if anything, in favor of the practice of honor killing. The few Islamic defenses of honor killings when posted on blogs, or stated by perpetrators in interviews on Arab television or in newspapers, hardly are coherent, let alone sound. It's wrong to point to the absolute absence of a link, most disturbingly, Jordan's Islamist party has, even while arguing that honor killings broadly should not be tolerated, argued vociferously and repeatedly against the repeal of a law, Article 340 of the Jordanian Criminal Code, that excuses absolutely any killing performed by a man who witnesses any of the women of his household (wives, daughters, sisters, mothers) engaging in adulterous acts, or under circumstances where such an inference can reasonably be drawn (someone else in the marital bed, for example). See link to Arabic interview with a female member of the Islamic party in Al-Sharq al-Awsat here. She insists that such rules are important for the protection of the family. Still, you're grasping at not very much to make a strong, doctrinal case despite these rather isolated examples.
In addition, it really should be mentioned that honor killings happen very often in the Muslim world, but not always involving Muslims. The most sickening recent case in Iraq involved the village stoning of a girl of the Yazidi faith, perpetrated by Yazidis, for her desire to marry a Muslim. The whole thing is on cellphone video,and I won't link to it out of principle. It's entirely nauseating. The shari'a was invoked, but by Sunni extremists who vowed revenge on the Yazidis who dared to kill a girl who was about to accept Islam. (My use of the term "girl" is intentional, she was 17 years old.)
So what of the "Islam means peace" crowd? Well, the problem really lies in their failure to address the seeming unwillingness of scholars, outside of the West, that is (Muslim learned here repeatedly denounce these things in what by all appearances seems to be good faith) to say very much in favor or against the practice. You can find hints or suggestions, usually against honor killing, but search the websites of Fadlallah or Sistani, Qaradawi or Abdullah bin Jabreen or the old Shaikh Baz fatwas and you're really left with a great deal of nothing direct and unambiguous. If this were about something that really didn't happen in the Muslim world very often and was rather trivial in import, then maybe that's understandable. But this is killing. It's prevalent in Muslim societies. Isn't it the case that someone should take a stand on whether or not this killing is justified because if it's not, then it's murder, which last time I checked was a pretty serious offense justifying death under the shari'a? When other "bad things" are done in the Muslim world, these guys talk about it. You won't have to spend 2 minutes to learn Qaradawi's position on drinking, or wearing a veil. Why then the silence on a form of killing? (By the way, dear readers, please prove me wrong if you can. I'd love to be wrong, but I can't find very much from these folks on these questions).
Something similar happens with respect to the question of female genital mutilation, which is also a form of cultural practice that transcends Islam and the Muslim world. The situation is a little different, the practice has somewhat firmer doctrinal bases, though there is still a great deal of confusion and uncertainty on it. As a result, the ability of scholars to engage in fine distinctions and ambiguity (what kind of mutilation, do doctors deem it safe or harmful, what are the girl's interests, is sexual pleasure diminished or enhanced) leaves a reader in such a muddle that you can't actually understand what the rule is from most of them. In Arabic, an article summarizing various positions is here, along with the quote in the comments of an equally ambiguous fatwa by the Shi'i cleric Fadlallah, though the commenter seems not to recognize the latent ambiguity).
So what is happening? Quite clearly, it seems to me, the clerics don't want to take a stand, because they're caught between two influences they can't figure out how to navigate in these instances. On the one hand, they have a broader world community that is rather repulsed by honor killings and female genital mutilation and views them as barbaric, and it's quite clear that this sensibility has affected Muslim societies and their leaders enough to make them hesitate to endorse any of these ideas. The last thing a cleric wants to do is to be dismissed as some sort of unwashed barbarian. Of course, some particular Islamic values and norms that the rest of the world does not endorse necessarily, from veils to interest based financing, clerics are happy to take a stand on (and some do that on female genital mutilation as well) to demonstrate their autonomy from the west, and their engagement in an entirely different moral universe.
But the clash of civilizations is hardly so stark as the fundamentalists of the East, and the Samuel Huntingtons of the West would have us believe. Some practices are so globally reviled, and that sense is so widespread, and has gone deep enough into Muslim communities particularly among the elite (including religious urban elite), to make the cleric at least take a step back. Global norms do affect how Muslim societies think, in other words, and their own sense of what texts require, even in the East.
On the other hand, there are enough of the tribal influences left around, and they tend to be an important part of the clerical constituency. So what to do? Mediate the fault line through silence or, if not possible, through ambiguity. Don't say anything direct and clear, and let everyone say what they want. Then the tribes go on with their honor killing, sometimes using weak Islamic bases, sometimes talking about customs, those who take religion seriously among American Muslims and in the drawing rooms of Cairo talk about the unIslamic nature of these things, a few clerics in more progressive societies say things that help out the latter, and everyone ends up being able to argue what they want. CAIR can insist it's not an Islamic practice but a cultural one and how dare you modify the word honor killing with Muslim, the Jordanian Islamists can defend the family by insisting that a son be allowed to kill his mother engaged in adultery, and we all move on.
In female genital mutilation, the mediation is not quite so much through silence as ambiguity, designed to please both sides. Well, if it increases sexual pleasure, some say, then it should be allowed. (huh?) If there is harm to the woman, nearly all say, we are against that. (again, huh?) But if it is enhances her health (one more time, huh?), or is meant to protect women's dignity from temptation in the temptation filled modern world (apparently nobody before 1800 had problems with sexual desire) then how can we oppose that? It's not required, but surely it must be okay if it is in the girl's interest. That particular gem comes from Qaradawi. Others might be even more circumspect, ask them if its allowed and they say anything harmful is bad, so check with doctors, not us (that's been the substance of Tantawi's position for some time though he's even ambiguous on that). Thus is the buck effectively passed. Needless to say, 'check with psychologists to see if sexual desire really rises to the level of being debilitating if a man sees a woman's hair, it's their call' is not very frequently said.
I am certainly not suggesting that all of this is consciously manipulative, that clerics are out there running opinion polls and moderating their positions accordingly. I would expect a great deal of it is subconscious in fact, and like me when hearing an argument that cuts against my own sensibilities on salvific exclusivity (see last post), the arguments that my mind filters even before I've begun thinking are many times more legitimate than "well, so and so is not going to like that". My only point is that these influences are real and far more important than what any text has to say on these questions.
Just another way in which Islamic law works in our times. . .
Rarely are more complex nuances heard, though I do have to point to a thoughtful and well written editorial on the recent honor killing by a law professor (of course) at the University of Toronto, Anver Emon, in Canada's National Post as a significant exception. It's too bad that such voices are few, because I do think something considerably more complex is going on in these instances, which I've termed "mediation through silence". Let's approach this by looking at the flaws in each side of the polemical debate.
First, where the "Islam is evil" crowd goes awry is in the failure to grasp the absence of a strong link between the practice of honor killing to Islamic doctrine. Neither foundational text, meaning Quran and hadith, nor classical exegeses, nor even prominent scholars throughout the Muslim world say very much, if anything, in favor of the practice of honor killing. The few Islamic defenses of honor killings when posted on blogs, or stated by perpetrators in interviews on Arab television or in newspapers, hardly are coherent, let alone sound. It's wrong to point to the absolute absence of a link, most disturbingly, Jordan's Islamist party has, even while arguing that honor killings broadly should not be tolerated, argued vociferously and repeatedly against the repeal of a law, Article 340 of the Jordanian Criminal Code, that excuses absolutely any killing performed by a man who witnesses any of the women of his household (wives, daughters, sisters, mothers) engaging in adulterous acts, or under circumstances where such an inference can reasonably be drawn (someone else in the marital bed, for example). See link to Arabic interview with a female member of the Islamic party in Al-Sharq al-Awsat here. She insists that such rules are important for the protection of the family. Still, you're grasping at not very much to make a strong, doctrinal case despite these rather isolated examples.
In addition, it really should be mentioned that honor killings happen very often in the Muslim world, but not always involving Muslims. The most sickening recent case in Iraq involved the village stoning of a girl of the Yazidi faith, perpetrated by Yazidis, for her desire to marry a Muslim. The whole thing is on cellphone video,and I won't link to it out of principle. It's entirely nauseating. The shari'a was invoked, but by Sunni extremists who vowed revenge on the Yazidis who dared to kill a girl who was about to accept Islam. (My use of the term "girl" is intentional, she was 17 years old.)
So what of the "Islam means peace" crowd? Well, the problem really lies in their failure to address the seeming unwillingness of scholars, outside of the West, that is (Muslim learned here repeatedly denounce these things in what by all appearances seems to be good faith) to say very much in favor or against the practice. You can find hints or suggestions, usually against honor killing, but search the websites of Fadlallah or Sistani, Qaradawi or Abdullah bin Jabreen or the old Shaikh Baz fatwas and you're really left with a great deal of nothing direct and unambiguous. If this were about something that really didn't happen in the Muslim world very often and was rather trivial in import, then maybe that's understandable. But this is killing. It's prevalent in Muslim societies. Isn't it the case that someone should take a stand on whether or not this killing is justified because if it's not, then it's murder, which last time I checked was a pretty serious offense justifying death under the shari'a? When other "bad things" are done in the Muslim world, these guys talk about it. You won't have to spend 2 minutes to learn Qaradawi's position on drinking, or wearing a veil. Why then the silence on a form of killing? (By the way, dear readers, please prove me wrong if you can. I'd love to be wrong, but I can't find very much from these folks on these questions).
Something similar happens with respect to the question of female genital mutilation, which is also a form of cultural practice that transcends Islam and the Muslim world. The situation is a little different, the practice has somewhat firmer doctrinal bases, though there is still a great deal of confusion and uncertainty on it. As a result, the ability of scholars to engage in fine distinctions and ambiguity (what kind of mutilation, do doctors deem it safe or harmful, what are the girl's interests, is sexual pleasure diminished or enhanced) leaves a reader in such a muddle that you can't actually understand what the rule is from most of them. In Arabic, an article summarizing various positions is here, along with the quote in the comments of an equally ambiguous fatwa by the Shi'i cleric Fadlallah, though the commenter seems not to recognize the latent ambiguity).
So what is happening? Quite clearly, it seems to me, the clerics don't want to take a stand, because they're caught between two influences they can't figure out how to navigate in these instances. On the one hand, they have a broader world community that is rather repulsed by honor killings and female genital mutilation and views them as barbaric, and it's quite clear that this sensibility has affected Muslim societies and their leaders enough to make them hesitate to endorse any of these ideas. The last thing a cleric wants to do is to be dismissed as some sort of unwashed barbarian. Of course, some particular Islamic values and norms that the rest of the world does not endorse necessarily, from veils to interest based financing, clerics are happy to take a stand on (and some do that on female genital mutilation as well) to demonstrate their autonomy from the west, and their engagement in an entirely different moral universe.
But the clash of civilizations is hardly so stark as the fundamentalists of the East, and the Samuel Huntingtons of the West would have us believe. Some practices are so globally reviled, and that sense is so widespread, and has gone deep enough into Muslim communities particularly among the elite (including religious urban elite), to make the cleric at least take a step back. Global norms do affect how Muslim societies think, in other words, and their own sense of what texts require, even in the East.
On the other hand, there are enough of the tribal influences left around, and they tend to be an important part of the clerical constituency. So what to do? Mediate the fault line through silence or, if not possible, through ambiguity. Don't say anything direct and clear, and let everyone say what they want. Then the tribes go on with their honor killing, sometimes using weak Islamic bases, sometimes talking about customs, those who take religion seriously among American Muslims and in the drawing rooms of Cairo talk about the unIslamic nature of these things, a few clerics in more progressive societies say things that help out the latter, and everyone ends up being able to argue what they want. CAIR can insist it's not an Islamic practice but a cultural one and how dare you modify the word honor killing with Muslim, the Jordanian Islamists can defend the family by insisting that a son be allowed to kill his mother engaged in adultery, and we all move on.
In female genital mutilation, the mediation is not quite so much through silence as ambiguity, designed to please both sides. Well, if it increases sexual pleasure, some say, then it should be allowed. (huh?) If there is harm to the woman, nearly all say, we are against that. (again, huh?) But if it is enhances her health (one more time, huh?), or is meant to protect women's dignity from temptation in the temptation filled modern world (apparently nobody before 1800 had problems with sexual desire) then how can we oppose that? It's not required, but surely it must be okay if it is in the girl's interest. That particular gem comes from Qaradawi. Others might be even more circumspect, ask them if its allowed and they say anything harmful is bad, so check with doctors, not us (that's been the substance of Tantawi's position for some time though he's even ambiguous on that). Thus is the buck effectively passed. Needless to say, 'check with psychologists to see if sexual desire really rises to the level of being debilitating if a man sees a woman's hair, it's their call' is not very frequently said.
I am certainly not suggesting that all of this is consciously manipulative, that clerics are out there running opinion polls and moderating their positions accordingly. I would expect a great deal of it is subconscious in fact, and like me when hearing an argument that cuts against my own sensibilities on salvific exclusivity (see last post), the arguments that my mind filters even before I've begun thinking are many times more legitimate than "well, so and so is not going to like that". My only point is that these influences are real and far more important than what any text has to say on these questions.
Just another way in which Islamic law works in our times. . .
I'm making a habit of checking this every day now, Haider. You're going to have to keep up the regular posting!
I had followed the story of Ms. Parvez's death as well over the weekend and am thankful for you links, especially Professor Emon's article, as I hadn't found that. I noticed a common theme in both his article and yours that, although not explicitly mentioned, I feel warrants some further discussion.
Specifically, Emon said, speaking of the (presumably) Candadian Islamic response to the killing, "Is it realistic to think that we can leave our homes, come to a new country and not expect changes in the way we and our children construct our identity?" In addition, you brought up the point with the statement that "Global norms do affect how Muslim societies think, in other words, and their own sense of what texts require, even in the East."
In a small way, this addresses our discussion on the previous article concerning adjusting Islamic immigrants to a new, possibly secular, country, and the response of Islamic countries to non-Muslim immigrants. However, this seems to raise a more important issue to me as a human rights researcher. Does the Islamic faith create a single, authoritative standard for issues of human dignity? Or, in a more legal wording, does Islam promote Universalism rather than Cultural Relativism?
My guess is that most of Islam would fall into the former category, especially with the nature of Shari'a law. In that respect, I find myself in the same boat, as my own faith determines that I believe in a set of universal standards that apply to all of humanity. Does the nature of honor killings, and as you pointed out, FGM, require Islam to recognize that a true adherence to faith may require condemnation of actions that have been and possibly continue to be viewed as "cultural traditions"?
Speaking from a study of the history of my own faith, I can offer the example of slavery, where the Christian church could come to little agreement over the standard of owning another human being. Even today, there are extremists that argue that slavery based on racial identification is a part of "God's plan." The Christian church went through a strong period of decline that many attribute to its failure to address this issue in a satisfactory way. Granted, this was because society became more liberal (in the classical political sense, not the modern partisan definition) and found their church to be falling behind in recognizing liberties they deemed essential.
Does Islam face a choice as well in deciding when it is necessary that a true adherence to the teaching of the Prophet require that past cultural practices be condemned as un-Islamic? And is that likely, given the apparent reluctance of Islamic spiritual leaders to address these topics, as you have pointed out?
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Thanks, happy to see my visitor loyalty trends rising.
I hesitate on your Universalism/Cultural Relativity dichotomy. The problem with Universalism in the Islamic tradition isn't so much one that respects cultural practices which by consensus violate core Islamic tenets, surely no jurist I know would accept that. It's more that there are disagreements among scholars as to what the proper interpretation is and so no consensus tends to be reached. Throughout the classical period, and to a lesser extent now, people sort of understand those different approaches and view them as equally legitimate. I say "to a lesser extent" now because you do find these days much more willingness among certain hardline elements to just throw almost anyone they disagree with into the infidel camp. Still, among most mainstream Muslims there is an understanding that on certain issues the community will be divided and a variety of ideas on how to deal with that division. That might be a fair characterization of the FGM dispute. Scholars have different ideas, nearly all of them are ambiguous and some, like Qaradawi's, are incoherent. (If the idea as he has it is that FGM of a milder variety enhances the woman's sexual pleasure and does not harm her (which is already ridiculous, but let's play with it), then how could it possibly be something that people do as a precaution given the temptations of today's world? Aren't you making the temptation all the worse by enhancing sexual pleasure? It's got to be one or the other.) Thus in the ambiguity and confusion arises the opportunity for some form of relativism, which isn't explicitly described as cultural but which in effect is (meaning different cultures come to different conclusions about what text requires without acknowledging or even perhaps consciously realizing the influences of their cultural biases).
But on honor killings, I don't really think there is an issue about permissibility that I've seen, as there is to some extent with FGM. That is, I haven't really heard a coherent, let alone sound, argument that suggests it is permissible. So yes, if it is the case that the scholars deem this by consensus to be a cultural practice unassociated with Islam, then you would think, under their own theories of "Universalism" in this instance, they would and should be shouting from the lampposts about this because there are a lot of murderers out there who need to be punished. Do I think that will happen? No, they can't negotiate among the competing forces and don't want to alienate anyone. Is the fence sitting very, very dangerous because it risks alienating everyone on an issue of moral importance? Perhaps. It's not quite the moral crisis of American slavery, though perhaps treatment of women generally in the Middle East will be at some point who knows. But you do identify a core problem with fence sitting, I think. Thanks agaiin
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Haider - this is an outstanding blog. I think you are writing about Islamic law and politics in just the right way. You don't dismiss doctrine and the classical tradition as meaningless in a dogmatic way but nor do you treat it as existing in its own space untouched by other factors. I look forward to more postings.
If I were to begin to think about an "Islamic context" for honor killings (while I agree with you that its *explanation* resides in socio-psychological factors) I would point to two general areas of thought (as opposed to a single point of law): 1) amr bi'l-ma'ruf; and 2) the ambivalence towards the authority and legitimacy of the state and non-Islamic law.
Stepping back from specific rulings, the general beliefs that persons are permitted to command the right and forbid the wrong (including "by the hand") and that the state (with its legal system) under which persons find themselves is a *contingent* reality with only circumscribed legitimacy are both points of doctrine and attitudes which can serve to contextualize honor killings. So would you agree that this is part of the nexus to locate the juridical ambiguity on these events: Muslims are permitted (or, required) to enforce Islamic morality ... departure from Islam is one of the three legitimate reasons for killing a Muslim ... it is not clear in the classical sources whether *only* legitimate state or scholarly authorities can carry out punishments ... while obeying contingent political authority might be necessary it is not clear that it is an unambiguous obligation ... crimes (even heinous ones) can be forgiven or "understood" if they are committed with an otherwise admirable Islamic objective (ta'wil; note Abou El Fadl's discussion of rebellion and the jurists constructed a distinction between rebellion based on an interpretation of Islamic duty and highway robbery). So one way of framing this "subconscious ambiguity" as you nicely phrased it is to focus on how the jurists might understand motivations behind crimes. The desire to stop veiling, mingle with men, etc. is a desire to be less Islamic. The desire to punish people (including your later post on alcohol and beauty salons) for being insufficiently Islamic is an error of too much zeal or too much voluntarism, but nonetheless derived from a motivation to promote "Islam" which springs from a "ta'wil". Thus, it is easy to produce formalistic rulings which denounce "violence" while not condemning the underlying motivation.
Your thoughts?
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Thanks very much Andrew, and my apologies for taking so long to post your comment. I've been otherwise engaged. If it makes you feel any better, I'd much rather have this discussion than grade another contracts exam ever again, but duty does call and I figured they do pay me, so . .. . .
Anyway, three comments on your very thought provoking and well considered post, with which I did agree to some extent. Qualifications follow.
First, I would qualify the Muslim ambivalence respecting modern, state law, by saying I don't think Muslims are ambivalent about state law as a broad and general matter just because it isn't derived from shari'a, but that to the extent that the state law DEPARTS from common , contemporary understandings of what the shari'a is supposed to be, then ambivalence will arise. Thus, at the AALS conference this past week, there was a great deal of talk of shari'a and slavery. I took the position, and still take it, that inasmuch as there are problems of labor abuses in the Muslim world that relate to trafficking and forced labor (and there are quite a few of these problems, Southeast Asian migrant workers in the Gulf were the most commonly cited example at the conference), the shari'a is marginal and what we should be talking about is ways to increase labor protections and ensure their enforcement through state law. Because I don't think whatever Saudi or Qatari individual is engaging in these abuses is running to the Qur'an to quote chapter and verse or classical law either (which in the area of slavery is just about completely obsolete and antithetical to modern Muslim sensibility). In fact I think Adam Smith is more likely the refuge of our Gulf labor abuser than religion. I'd say much the same respecting legitimacy and state law for the broad swath of criminal law that has nothing to do with shari'a, and even some that might impinge on shari'a, but more or less come to similar conclusions as shari'a in different ways. (Murder, for example, is bad in both legal systems even if handled differently.) But when modern law seems to permit what the Shari'a prohibits, or vice versa, than some ambivalence arises, whether that be the permissibility of interest or the prohibition of polygamy, or whatever. Mohammad Fadel is working on a great piece suggesting that state law should be viewed as legitimate in a Muslim paradigm so long as it does not require the Muslim to sin. Thus, a law that prohibits polygamy would be fine, Muslims don't suggest they have to take second and third wives. But I agree with you, the believing Muslim world isn't quite there, when modern law seems in clear conflict with shari'a as modern Muslims understand it, the more pious the believer, the more ambivalent he tends to be about that law.
Second, in many of the alcohol and beauty salon cases, my point was that Islam was more pretext than cause, and that this had something to do with the public's considerations of Islamicity. If you bust up an alcohol store and beat up its owner, then you can at least claim to be serving Islam's cause, even if misguidedly (not so with the beauty salon, however, where I don't see the connection). But if you rob it and take its air conditioners home, AND you bust up the store and beat up the owner, well now I think your true motivations start to appear differently to large portions of the community. And I think by and large at least in Iraq, the subject of that post, a fair number of pretty pious Muslims turned against the Mahdi army precisely because activities of this sort seemed to lack Islamicity, because they weren't so much misguided attempts to enforce Islam as pretextual efforts to steal stuff.
Finally, I think there is something to the "by the hand" idea, but I'm not sure how far I would take it. The ambivalence over state law in areas of shari'a doesn't spill into some sort of embrace of anarchical disorder, which is almost what would happen if you let everyone enforce shari'a everywhere by their own hands. So if I went off and found a 17 year old girl to beat up from some village I'd never been to and allege adultery, I don't think much would be given by way of deference to me as enforcing shari'a badly. But yes, within the family, the tribe, the whatever, there is a certain notion that you should take care of your own, and in large portions of the Muslim world, the order employed within these nuclear units is Islamically inspired. Which of course only adds to the ambivalence when state law starts to conflict with shari'a. My tribal leader has three wives, and Jalal Talabani is telling me I can only have one in Kurdish Iraq. But he's not in my tribe, and the Qur'an says . . . and so on and so forth.
Haider
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Thanks a lot for the response.
My comments tried to work through the mentality of the jurists or public Islamic thinkers rather than that of the individual who might be motivated to violate a certain law [whether in the case of honor killings or beauty salons]. So the question you originally posed was: Why the ambiguity or ambivalence on the part of the jurists, given the ease of finding grounds for a hukm against FGM, honor killings, etc.
What is your take on my claim about the "ta'wil" and jurists having a different attitude towards transgressions which have a presumptive "Islamic motive" (promoting more Islam)?
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Sure, sure. I guess part of my point, or maybe part of my theme, is that jurists are a product of their own societies and therefore what tends not to offend contemporary Muslim sensibilities is not likely to offend jurists, either, and this will show in their legal interpretations and conclusions. Thus, to use one of the examples we discussed, modern Muslims don't really have to my mind much ambivalence towards state rules that have little to do with shari'a, and I think most jurists tend to ignore those rules as a result. It's not like Yusuf Qaradawi or Ali Sistani are out there clamoring about how securities trading should work in Islam.
As to the presumptive Islamic motive, I guess I reverse the normal trend and start the analysis through a Shi'i prism. And in Shi'ism, you're really supposed to check with the marja' on the rules, it's not an excuse to follow one's own interpretation and make a mistake. Even following the marja' when he gives you the "wrong" rules is okay, but developing ijtihad on one's own rather than following the rules of taqlid is among the first "don't's" discussed in the risalas of the marjas, abandoning that rule puts the entire structure in jeopardy. So given that Shi'i marjas are no more willing than Sunni scholars to articulate these prohibitions on FGM, etc. despite this deeply important structural factor, I suspect something more is at stake than that they are giving some sort of legal deference because these guys were trying to do the right thing.
That said, a case could certainly be made I think that it isn't exactly expedient, within Shi'ism or Sunnism, for the clerics to confront their own foot soldiers when the latter are understood to be trying to do something genuinely Islamic, and that as a result, de-emphasizing the deviation is the more prudent course. What I mean is, it isn't quite legally better to interpret shari'a badly than it is to ignore it, but the tribes and the clerics are allies, and one shouldn't, if the ultimate battle is over the role of shari'a in the social order, quibble about particular details concerning the shari'a with allies who generally acknowledge the supremacy of the shari'a, and (within Shi'ism) the right of the clerics to articulate it. That the killing and mutilating of girls is considered on balance marginal might have something to do with what Abou El Fadl calls a failure of process in the interpretation of shari'a, but that's another matter entirely I have discussed in a separate post.
HAH
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