Thoughts on the International and the Islamic
First of all, today is the date of Eid Al-Adha, or the Festival of the Sacrifice, commemorating Abraham's near sacrifice of his son Ismail (Isaac in the Hebrew Bible, and even according to some early Muslim (some Sunni, mostly Shi'i) reports, though most Muslims are not aware of this). It is Islam's biggest holiday, so Eid Mubarak to all my fellow Muslims, and, since I'm likely to take a couple of days off of the blog during the next few days to read contracts exams, Merry Christmas to the Christians, Happy Chanukah to the Jews, and Happy whatever other Holiday I missed to everyone else who chooses to celebrate, or not. On to the topic of the day.
Last night I finally had a chance to read a recent symposium piece by probably the most well known of us Islamic law professors in the American legal academy, Khaled Abou El Fadl, and in it I found a number of topics worthy of exploration. This is a blog post, so I won't go into all of the article in detail, but I do recommend it (8 Chi. J. Int. L. 43 for those interested with access to Lexis or Westlaw). It has to do with the type of engagement that must take place between international law, as a unifying body of law that by its nature cuts across various regions and cultures, and the particular regions, religions, belief systems it transcends, with particular focus, of course, on the Islamic world.
In discussing why international law needs to accommodate and make space for the particulars of each culture, not as some sort of culturally relativistic "exception" but rather as a fundamental imperative due to the need of international law to retain its legitimacy within those cultures, for what good is law without legitimacy, I found much to agree with. It was in the reverse, the discussion of why the particular, namely the Islamic paradigm, had to accommodate international law that I found areas of disagreement. It is not so much because I don't think such accommodation is imperative, I do, but I tend not to agree with Abou El Fadl's approach to the question, or at least I consider it normatively appealing to some extent but descriptively an impossible manner to go about considering the law. I thought I'd outline my own ideas against those of our Islamic Law giant to better define my own view of things.
Abou El Fadl begins by reciting what he believes (and I agree) to be the mantra of the prototypical believer if he seeks to resist engagement in international law. The believer will maintain that he has no need to engage in international law, as this is fundamentally a man made law, and he, the believer, follows God's law. Abou El Fadl finds two problems with this, but I focus here on the second, more important (to my own project) of the two.
The problem Abou El Fadl identifies is the failure of the believer to realize that the Divine Law is necessarily interpreted through human agency. Therefore, though it must have a divine core to a believing Muslim, the shari'a is to some extent affected by the "sociology of process that reflects the power dymanics and social biases that prevailed, or continue to prevail" within the relevant interpretive communities. That makes it subject to a potential "failure of process" when important members of the community (say, women) are systematically excluded. To some extent, this reminded me of John Hart Ely's work in the American context, where the idea was that the judiciary used the Constitution to ensure that the process of democracy worked properly--everyone had access, everyone could speak, everyone had the franchise, etc. and constitutional defects to be remedied in the courts were essentially those of process.
This "failure of process" is where I think I have the greatest trouble.
First, it involves taking a normative step that is by no means obvious. Who says that the interpretive community is supposed to be broadly representative? On what basis do we have to conclude this? Ely's thesis is easier to follow in a democratic context (I'm not endorsing it here, just using it for contrast). If the idea is that there is something normatively good about the people deciding on the rules that govern them, which is presumably the underlying theory in any democracy, then you should be giving all of the people equal access.
Why would that follow in an Islamic context? Within Shi'ism the idea would be I know categorically rejected, the interpretive community acts as the deputies of the infallible Imam, who lies in hiding among us and who alone among the living has the knowledge of all of the secrets of the Qur'an. The idea that we open this up to hear different voices would be viewed as ridiculous in the paradigm, do we need a broader diversity of voices to tell the infallible who sits on the throne of Peter what he's supposed to be doing? Now I realize that's Shi'ism, and Abou El Fadl is talking about Sunnism (pet peeve--Islamicists stop saying "Islam" when you mean "Sunni Islam"), but the point is that the idea that there is a "failure" of the process just because it isn't open to everyone is a normative jump that needs justification.
Secondly and more fundamentally, is there really a failure of process? I would argue definitely not. The problem is not that Fatima Mernissi, Asma Barlas, Aziza Al-Hibri, and the countless other Muslim feminists don't have a platform, google their names and see how much turns up in English. It's that nobody in the Muslim world really cares. (That's unfortunate, I hope that didn't sound too insulting, it certainly is not meant to). Law review writers do, Muslims in the West tend to pay some attention, and a few educated elites might listen, but overall, if we compare the interest in them to that of, say, Yusuf Qaradawi the female genital mutilator of my last post or Muhammad Taqi Usmani, an inspiration to the Islamic finance movement, it's not close.
Of course there has been historic denial and exclusion, back when the law guilds dominated the interpretation of shari'a, and generally we are made to believe that this history is what leads to the present difficulties. But as my previous posts on jihad and sharia generallyI hope have made clear, and if not my article certainly does, history is rarely a problem in Islamic law. (Running theme on this blog.) The rules of war have been rewritten. Islamic private law has been rewritten. The criminal rules operate on different premises. Slavery, a once fundamental part of the shari'a, is now deemed forbidden by most.
No, what keeps women like Mernissi and Barlas marginalized (beyond the world of Western Muslims) to my mind is not the intransigence of precedent. Rather, it is something that Abou El Fadl mentions later on; the desire among Muslims to shape a separate identity contradistinct from and in permanent conflict with the supposedly pernicious West, which I referred to in the article linked above and in my jihad post as the Islamic desire to engage in "resistance" to the global paradigm. You can rewrite Islamic private law totally to come up with the nonsense that is Islamic finance (it's been my main focus of scholarly inquiry, I promise to post on it soon), but it does have to fit the resistance paradigm. Women's rights sound, to all too many Muslim ears, like capitulation, and therefore those voices have a much harder time getting traction.
Abou El Fadl, being the perceptive, dedicated and deeply committed scholar that he is, recognizes this phenomenon, but dismisses it as some sort of distortion, preventing him from being able to point to perfectly legitimate and plausible cases in Islamic history from which a very different story on the role of women can be drawn. I do not so dismiss it. The reluctance to listen to his evidence is merely "social biases" at work, the same ones that shape the law everywhere, and the same ones that shaped the classical law. I think it is almost a descriptively impossible proposition that these biases will not shape the law definitively so long as the broader forces that led to their creation remain in place.
I think both Abou El Fadl and I are distressed by the awful circumstances in the Muslim world, and by the social biases that lead many scholars to take the positions that they do, and to ignore the possibility of a more progressive Islam, in which he and I are allies in the same fight, if he will permit me to be so presumptuous. But I don't think the problem is process, as opposed to social biases and ideological predispositions that are deep rooted, nor do I think that enticing the believer to participate so he can make a meaningful contribution to the international world and shape it partly to his liking will likely to do a bit of good.
I think, rather, that hope could only lie in trying to foster political economic and social changes that lessen the poisonous attitudes of so many Muslims towards the West, so that the fundamentalist, "resistance" driven, clash of civilizations paradigm will be of less interest than it is today in so much of the Muslim world. After all, when Muslims come here, they are far more willing to engage in Abou El Fadl's arguments, he is something of a hero to large numbers of Western Muslim youth. It is unfortunate that in the Middle East the same cannot be said, again because the conditions lead to a different reading of the law, only a "distortion" to those who don't like the results, much as Muslims abroad would call my views, or Abou El Fadl's, as a sad Westernized distortion of the true Islam.
I have no magic formula on how to achieve this reconciliation to bring the rest of the Muslim world around to our ideas, and I know many are trying. I only know that without it, the "distortions" that lead to the marginalization of more progressive figures like Abou El Fadl will continue, and a significant component of the shari'a will continue to be a medium of resistance to Western , and international, influence.
HAH
Last night I finally had a chance to read a recent symposium piece by probably the most well known of us Islamic law professors in the American legal academy, Khaled Abou El Fadl, and in it I found a number of topics worthy of exploration. This is a blog post, so I won't go into all of the article in detail, but I do recommend it (8 Chi. J. Int. L. 43 for those interested with access to Lexis or Westlaw). It has to do with the type of engagement that must take place between international law, as a unifying body of law that by its nature cuts across various regions and cultures, and the particular regions, religions, belief systems it transcends, with particular focus, of course, on the Islamic world.
In discussing why international law needs to accommodate and make space for the particulars of each culture, not as some sort of culturally relativistic "exception" but rather as a fundamental imperative due to the need of international law to retain its legitimacy within those cultures, for what good is law without legitimacy, I found much to agree with. It was in the reverse, the discussion of why the particular, namely the Islamic paradigm, had to accommodate international law that I found areas of disagreement. It is not so much because I don't think such accommodation is imperative, I do, but I tend not to agree with Abou El Fadl's approach to the question, or at least I consider it normatively appealing to some extent but descriptively an impossible manner to go about considering the law. I thought I'd outline my own ideas against those of our Islamic Law giant to better define my own view of things.
Abou El Fadl begins by reciting what he believes (and I agree) to be the mantra of the prototypical believer if he seeks to resist engagement in international law. The believer will maintain that he has no need to engage in international law, as this is fundamentally a man made law, and he, the believer, follows God's law. Abou El Fadl finds two problems with this, but I focus here on the second, more important (to my own project) of the two.
The problem Abou El Fadl identifies is the failure of the believer to realize that the Divine Law is necessarily interpreted through human agency. Therefore, though it must have a divine core to a believing Muslim, the shari'a is to some extent affected by the "sociology of process that reflects the power dymanics and social biases that prevailed, or continue to prevail" within the relevant interpretive communities. That makes it subject to a potential "failure of process" when important members of the community (say, women) are systematically excluded. To some extent, this reminded me of John Hart Ely's work in the American context, where the idea was that the judiciary used the Constitution to ensure that the process of democracy worked properly--everyone had access, everyone could speak, everyone had the franchise, etc. and constitutional defects to be remedied in the courts were essentially those of process.
This "failure of process" is where I think I have the greatest trouble.
First, it involves taking a normative step that is by no means obvious. Who says that the interpretive community is supposed to be broadly representative? On what basis do we have to conclude this? Ely's thesis is easier to follow in a democratic context (I'm not endorsing it here, just using it for contrast). If the idea is that there is something normatively good about the people deciding on the rules that govern them, which is presumably the underlying theory in any democracy, then you should be giving all of the people equal access.
Why would that follow in an Islamic context? Within Shi'ism the idea would be I know categorically rejected, the interpretive community acts as the deputies of the infallible Imam, who lies in hiding among us and who alone among the living has the knowledge of all of the secrets of the Qur'an. The idea that we open this up to hear different voices would be viewed as ridiculous in the paradigm, do we need a broader diversity of voices to tell the infallible who sits on the throne of Peter what he's supposed to be doing? Now I realize that's Shi'ism, and Abou El Fadl is talking about Sunnism (pet peeve--Islamicists stop saying "Islam" when you mean "Sunni Islam"), but the point is that the idea that there is a "failure" of the process just because it isn't open to everyone is a normative jump that needs justification.
Secondly and more fundamentally, is there really a failure of process? I would argue definitely not. The problem is not that Fatima Mernissi, Asma Barlas, Aziza Al-Hibri, and the countless other Muslim feminists don't have a platform, google their names and see how much turns up in English. It's that nobody in the Muslim world really cares. (That's unfortunate, I hope that didn't sound too insulting, it certainly is not meant to). Law review writers do, Muslims in the West tend to pay some attention, and a few educated elites might listen, but overall, if we compare the interest in them to that of, say, Yusuf Qaradawi the female genital mutilator of my last post or Muhammad Taqi Usmani, an inspiration to the Islamic finance movement, it's not close.
Of course there has been historic denial and exclusion, back when the law guilds dominated the interpretation of shari'a, and generally we are made to believe that this history is what leads to the present difficulties. But as my previous posts on jihad and sharia generallyI hope have made clear, and if not my article certainly does, history is rarely a problem in Islamic law. (Running theme on this blog.) The rules of war have been rewritten. Islamic private law has been rewritten. The criminal rules operate on different premises. Slavery, a once fundamental part of the shari'a, is now deemed forbidden by most.
No, what keeps women like Mernissi and Barlas marginalized (beyond the world of Western Muslims) to my mind is not the intransigence of precedent. Rather, it is something that Abou El Fadl mentions later on; the desire among Muslims to shape a separate identity contradistinct from and in permanent conflict with the supposedly pernicious West, which I referred to in the article linked above and in my jihad post as the Islamic desire to engage in "resistance" to the global paradigm. You can rewrite Islamic private law totally to come up with the nonsense that is Islamic finance (it's been my main focus of scholarly inquiry, I promise to post on it soon), but it does have to fit the resistance paradigm. Women's rights sound, to all too many Muslim ears, like capitulation, and therefore those voices have a much harder time getting traction.
Abou El Fadl, being the perceptive, dedicated and deeply committed scholar that he is, recognizes this phenomenon, but dismisses it as some sort of distortion, preventing him from being able to point to perfectly legitimate and plausible cases in Islamic history from which a very different story on the role of women can be drawn. I do not so dismiss it. The reluctance to listen to his evidence is merely "social biases" at work, the same ones that shape the law everywhere, and the same ones that shaped the classical law. I think it is almost a descriptively impossible proposition that these biases will not shape the law definitively so long as the broader forces that led to their creation remain in place.
I think both Abou El Fadl and I are distressed by the awful circumstances in the Muslim world, and by the social biases that lead many scholars to take the positions that they do, and to ignore the possibility of a more progressive Islam, in which he and I are allies in the same fight, if he will permit me to be so presumptuous. But I don't think the problem is process, as opposed to social biases and ideological predispositions that are deep rooted, nor do I think that enticing the believer to participate so he can make a meaningful contribution to the international world and shape it partly to his liking will likely to do a bit of good.
I think, rather, that hope could only lie in trying to foster political economic and social changes that lessen the poisonous attitudes of so many Muslims towards the West, so that the fundamentalist, "resistance" driven, clash of civilizations paradigm will be of less interest than it is today in so much of the Muslim world. After all, when Muslims come here, they are far more willing to engage in Abou El Fadl's arguments, he is something of a hero to large numbers of Western Muslim youth. It is unfortunate that in the Middle East the same cannot be said, again because the conditions lead to a different reading of the law, only a "distortion" to those who don't like the results, much as Muslims abroad would call my views, or Abou El Fadl's, as a sad Westernized distortion of the true Islam.
I have no magic formula on how to achieve this reconciliation to bring the rest of the Muslim world around to our ideas, and I know many are trying. I only know that without it, the "distortions" that lead to the marginalization of more progressive figures like Abou El Fadl will continue, and a significant component of the shari'a will continue to be a medium of resistance to Western , and international, influence.
HAH
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