Mediation through Marginalization: On Slavery, Jihad and Sectarian Killings
This past week I had the opportunity to review again some of the classical rules concerning the waging of jihad (partly reading Mawardi, partly Khadduri and Ann Elizabeth Mayer describing jihad and a touch of Ibn Qayyim), and to read once again my colleague Bernard Freamon's wonderful piece in the Harvard Human Rights Law Journal, and I think I have some material for a post on how at times Islamic law isn't really law, but rather some idealized conception of it.
First, if we turn to classical jihad, we see the world subdivided into two basic categories, the House of Islam, and the House of Unbelief, and more or less it is the job of the righteous Imam in the House of Islam to lead more or less perpetual war against the House of Unbelief and expand the dominion of Islam forever. This seems to serve a lot of anti-Islam polemics in the modern world, and I've written an earlier post about why that's ridiculous and how modern conceptions of jihad do not draw significantly from the classical ones.
But what sort of got me thinking was something obvious and largely undiscussed in broader, nonacademic circles, at least in the Sunni world (it's an article of faith among us Shi'a), which is that this crap about two Houses doesn't even fit the medieval world tolerably well. What House of Islam? When was there a righteous person under which all of Islam happily sat? Who was this Imam? There were disputes about succession moments after the Prophet's death, if traditional accounts should be believed. Three of the first four caliphs were killed. And then move just a few dozen years forward, and all hell breaks loose. Ummayyads, Abbasids, Mamluks, Ottomans, Muhammad Ali Pasha, Fatimids, Mughals, all at different times and different places but the point of this eclectic list is to demonstrate the precise lack of unity in the Muslim world, more or less ever. Now there is some degree of recognition of that in Mawardi's work, he recognizes war against rebels and apostates and whatnot in his sections on jihad against believers, but it's still not even close to a recognition of his contemporary reality where the unified polity but for a few rebels is an absurd myth.
Move to Professor Freamon's work, and we have similar results. Professor Freamon recites classical shari'a rules on slavery, and then shows pretty convincingly that nobody places much stock in them, and they are, in his words, "spectacularly ignored." These include how to get slaves. The rules require acquiring through birth and jihad, and instead the medievals ran slave raids, and picked people up. Some of them even picked up Muslims, particularly in Africa, and then suggested blacks weren't subject to these shari'a limitations because of the curse of Ham, the same racist nonsense that justified American slavery (thus does racism also benefit from the same cross fertilization of "ideas" if you even want to call it that). I'm not going to repeat what the curse of Ham is, it's so ridiculous, anti intellectual and offensive that you have to google it yourself, but the point is, it was widely enough spread as a rumor that black jurists felt the need to refute it at some length. A rumor that really has little if any force among the respected juristic schools carried more weight in terms of determining social order than anything the jurist said.
Islam is often referred to as a jurists' law, meaning the folks who make it up are learned men without real political power. But the problem is, once you say that, you do open up the system to the perfectly valid question of "if so, is there any law there?". In other words, for those of us who think that law can't effectively exist absent some means of recognition or legitimacy as to its binding nature, is it law when learned bearded men say something about slavery or jihad, and nobody seems to have the slightest interest in paying attention and follow rumors instead as the basis of rulemaking. What's so law about some old dude saying something that nobody cares about?
Move to the Shi'i world, and the situation gets more ridiculous. You have Shi'i jurists laying out rules of jihad that are well thought out and remarkably complex, but the thing is, they are all presumed on the return of the twelfth Imam, the hidden Mahdi, who will return to restore justice on earth one day. Which I don't get, because if he comes back we don't need the rules (can't we assume the Mahdi knows them?) and until he does what's the point of them?
Yet it's not like the jurists can really be thought to be entirely irrelevant in this period. Clearly the caliphs/sultans/imams/leaders/shahs pay attention to them at times, and then ignore them at other times. I wonder therefore whether some of this might be a deliberate marginalization, a way to move an Islamic society forward when you feel you need to do something for any reason, and trying to justify it as Islamic is, for whatever reason, just too hard and rather than compromise the jurist, the Islamic society ignores them and creates alternative legal order and uses the jurist to articulate an aspiration that they hope can be met one day.
Take jihad. I guess you could really try to convince jurists that you are the real Imam, and others are rebels and apostates, and this was done to some degree, but the thing is, you can only do that so much before you either have to co-opt the independent jurist to the point where he is considered more or less a government hack (see most Sunni jurists today who are appointed by government officials) or at some point he's going to get off the bus. so another way to deal with it is to simply let him describe some impossible world that can't possibly exist where the Muslims (save a few random rebels) live hand in hand in peace and fight godlessness wherever it appears. Let them talk that talk and leave them alone because nothing they are describing will affect or comes close to describing the real world. Particularly since the real world, in this respect, doesn't look all that great.
Similarly with slavery, rather than compromise the jurists as complicit in real human evil (Islam's exploitation of Africa for slavery was truly reprehensible, we have to acknowledge this evil in our history) let them prattle on and the people will do as they wish.
Are the jurists complicit de facto? Well it's hard to know what that means, they have no power. They seek no power. They are complicit in the sense of not wanting to deal with the mess, I suppose, and certainly they know what's happening and saying nothing, but they aren't necessarily complicit in terms of wanting to see it.
So fast forward to modern Iraq. Listen to Sistani, and if you take seriously the idea that the followers must follow the law, then sectarian killing cannot happen. He doesn't sanction it. Neither do any of the other members of the marja'iyya. Nobody, not even that jackass Muqtada al-Sadr, says "kill Sunnis". (Not so much on the sunni side, where clearly there is authority sanctioning the murder of Shi'a, but let's leave that aside). The question is, then why does it happen so much? Widespread, mass killings on either side. If these Islamic rules are law, shouldn't it never happen?
Again, I think there is some sort of mediation happening. Shi'a know it's not terribly Islamic to kill the other side wholesale, and so do most Sunni jurists excluding the wackos. They know they look bad if they seem to sanction this. So rather than do this, they're content to let the jurists say what they wish, and the populace will kiss their hands, and sing their praises and honor the jurists, and then ignore them on these matters. The jurists know this and I don't think are happy about it, but there's not much they can do save seize control, and they'd rather not, perhaps because the work of the state is sullying (ie they are afraid they might have to do the stuff they criticize so much). So the mediation continues
In this way is Islamic law rendered, in these contexts, not so much law but aspirational normativity, a place we really should be but aren't, and so we'll let the jurists articulate our ideal and then set our own order in another way.
HAH
First, if we turn to classical jihad, we see the world subdivided into two basic categories, the House of Islam, and the House of Unbelief, and more or less it is the job of the righteous Imam in the House of Islam to lead more or less perpetual war against the House of Unbelief and expand the dominion of Islam forever. This seems to serve a lot of anti-Islam polemics in the modern world, and I've written an earlier post about why that's ridiculous and how modern conceptions of jihad do not draw significantly from the classical ones.
But what sort of got me thinking was something obvious and largely undiscussed in broader, nonacademic circles, at least in the Sunni world (it's an article of faith among us Shi'a), which is that this crap about two Houses doesn't even fit the medieval world tolerably well. What House of Islam? When was there a righteous person under which all of Islam happily sat? Who was this Imam? There were disputes about succession moments after the Prophet's death, if traditional accounts should be believed. Three of the first four caliphs were killed. And then move just a few dozen years forward, and all hell breaks loose. Ummayyads, Abbasids, Mamluks, Ottomans, Muhammad Ali Pasha, Fatimids, Mughals, all at different times and different places but the point of this eclectic list is to demonstrate the precise lack of unity in the Muslim world, more or less ever. Now there is some degree of recognition of that in Mawardi's work, he recognizes war against rebels and apostates and whatnot in his sections on jihad against believers, but it's still not even close to a recognition of his contemporary reality where the unified polity but for a few rebels is an absurd myth.
Move to Professor Freamon's work, and we have similar results. Professor Freamon recites classical shari'a rules on slavery, and then shows pretty convincingly that nobody places much stock in them, and they are, in his words, "spectacularly ignored." These include how to get slaves. The rules require acquiring through birth and jihad, and instead the medievals ran slave raids, and picked people up. Some of them even picked up Muslims, particularly in Africa, and then suggested blacks weren't subject to these shari'a limitations because of the curse of Ham, the same racist nonsense that justified American slavery (thus does racism also benefit from the same cross fertilization of "ideas" if you even want to call it that). I'm not going to repeat what the curse of Ham is, it's so ridiculous, anti intellectual and offensive that you have to google it yourself, but the point is, it was widely enough spread as a rumor that black jurists felt the need to refute it at some length. A rumor that really has little if any force among the respected juristic schools carried more weight in terms of determining social order than anything the jurist said.
Islam is often referred to as a jurists' law, meaning the folks who make it up are learned men without real political power. But the problem is, once you say that, you do open up the system to the perfectly valid question of "if so, is there any law there?". In other words, for those of us who think that law can't effectively exist absent some means of recognition or legitimacy as to its binding nature, is it law when learned bearded men say something about slavery or jihad, and nobody seems to have the slightest interest in paying attention and follow rumors instead as the basis of rulemaking. What's so law about some old dude saying something that nobody cares about?
Move to the Shi'i world, and the situation gets more ridiculous. You have Shi'i jurists laying out rules of jihad that are well thought out and remarkably complex, but the thing is, they are all presumed on the return of the twelfth Imam, the hidden Mahdi, who will return to restore justice on earth one day. Which I don't get, because if he comes back we don't need the rules (can't we assume the Mahdi knows them?) and until he does what's the point of them?
Yet it's not like the jurists can really be thought to be entirely irrelevant in this period. Clearly the caliphs/sultans/imams/leaders/shahs pay attention to them at times, and then ignore them at other times. I wonder therefore whether some of this might be a deliberate marginalization, a way to move an Islamic society forward when you feel you need to do something for any reason, and trying to justify it as Islamic is, for whatever reason, just too hard and rather than compromise the jurist, the Islamic society ignores them and creates alternative legal order and uses the jurist to articulate an aspiration that they hope can be met one day.
Take jihad. I guess you could really try to convince jurists that you are the real Imam, and others are rebels and apostates, and this was done to some degree, but the thing is, you can only do that so much before you either have to co-opt the independent jurist to the point where he is considered more or less a government hack (see most Sunni jurists today who are appointed by government officials) or at some point he's going to get off the bus. so another way to deal with it is to simply let him describe some impossible world that can't possibly exist where the Muslims (save a few random rebels) live hand in hand in peace and fight godlessness wherever it appears. Let them talk that talk and leave them alone because nothing they are describing will affect or comes close to describing the real world. Particularly since the real world, in this respect, doesn't look all that great.
Similarly with slavery, rather than compromise the jurists as complicit in real human evil (Islam's exploitation of Africa for slavery was truly reprehensible, we have to acknowledge this evil in our history) let them prattle on and the people will do as they wish.
Are the jurists complicit de facto? Well it's hard to know what that means, they have no power. They seek no power. They are complicit in the sense of not wanting to deal with the mess, I suppose, and certainly they know what's happening and saying nothing, but they aren't necessarily complicit in terms of wanting to see it.
So fast forward to modern Iraq. Listen to Sistani, and if you take seriously the idea that the followers must follow the law, then sectarian killing cannot happen. He doesn't sanction it. Neither do any of the other members of the marja'iyya. Nobody, not even that jackass Muqtada al-Sadr, says "kill Sunnis". (Not so much on the sunni side, where clearly there is authority sanctioning the murder of Shi'a, but let's leave that aside). The question is, then why does it happen so much? Widespread, mass killings on either side. If these Islamic rules are law, shouldn't it never happen?
Again, I think there is some sort of mediation happening. Shi'a know it's not terribly Islamic to kill the other side wholesale, and so do most Sunni jurists excluding the wackos. They know they look bad if they seem to sanction this. So rather than do this, they're content to let the jurists say what they wish, and the populace will kiss their hands, and sing their praises and honor the jurists, and then ignore them on these matters. The jurists know this and I don't think are happy about it, but there's not much they can do save seize control, and they'd rather not, perhaps because the work of the state is sullying (ie they are afraid they might have to do the stuff they criticize so much). So the mediation continues
In this way is Islamic law rendered, in these contexts, not so much law but aspirational normativity, a place we really should be but aren't, and so we'll let the jurists articulate our ideal and then set our own order in another way.
HAH
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