Separation of Powers, Judicial Review, other Western notions and the Shari'a
Whenever I attend a conference on Islamic law at which a large number of Muslims are present, whether I am presenting or not, there is unfailingly a fair contingent of Muslims who endeavor to point out that a certain number of Western notions that Muslim nations actually struggle with come from the shari'a. Generally speaking the claims seem rather spurious, or at least subject to question.
To be clear, I am excluding the serious scholarship of such highly respected, and deservedly highly respected, individuals such as John Makdisi, who has made a career out of demonstrating links between the common law and classical Islamic law, or attempts to create a modern code from classical sources. I'm referring instead to any variety of notions, clearly derived from the West, that Muslims claim often actually come from them. Separation of powers? That's siyasa shar'iyya, a Hanbali doctrine. Human dignity? Read the Qur'an, "and thus have we dignified the children of Adam." Race and class blindness? Again, the Qur'an "the believers are a brotherhood." Democracy? The shura, requiring the leader to consult with others. Judicial review? Siyasa shar'iyya again. Constitutionalism too. (Basically, everything respecting political structure of modern nation states is siyasa shar'iyya).
I don't want to explain in too much detail why all of this is as a historical matter senseless, suffice it to say, Islam had slaves, the shura was never understood to mean consulting the masses, let alone letting them decide anything by vote, Ibn Taymiyya's ideas on relationship between jurist and caliph has very little by way of actual historical example and in any event, the modern nation states were not developed and do not seriously function on that basis--most lawyers in these countries supposedly operating on siyasa shari'yya have very little exposure to Ibn Taymiyya. THey are graduates of secular law schools, not jurists. They understand judicial review much more as a European Court would than Ibn Taymiyya.
Now of course one could say that in fact many of these so-called Western values can be derived from Islamic foundational text and we should create a modern Islamic doctrine that takes cognizance of that, but that's different from "we've always had these things, before the West had them we had them, and they took lots of them from us." That's just in large numbers of cases entirely completely wrong.
I've always been of two minds about this phenomenon. On the one hand, I sort of understand why people like Noah Feldman seem to think it's harmless mythmaking, because ultimately it gets you to the right result. There is some truth to this, after all these arguments are used to defend fairly nice liberal notions. So if they want to pretend it's siyasa shari'iyya, let them pretend it's siyasa shar'iyya. There is some level of condescension to that, and certainly I don't think academics should be giving this much credence, but perhaps as a broad popular notion, so long as it reaches the right result, no problem.
But there is a darker side too, in the implications of it. It seems to invoke the common Islamist notion that the only morally acceptable notions in the world come from Islam. Sure Western technology is okay, everyone likes a TV, but political ideas? Normative ones? We take these exclusively from ourselves, and import no others, because none other work for us. And so if we're going to defend democracy, we'll accept the Islamist preconditions, it has to have Islamic origins, not Western. It cannot be Western originally and compatible with Islam , we cannot say that the way we read things are going to have multiple global influences, some of which are non-Islamic, we can't point out that every Islamic civilization has done this, no we have to pretend there is this entirely autonomous and separate entity called the House of Islam into which no ideas from elsewhere emanate, though they do spread from it to other places, and this is the starting point of the argument. IN which case an argument is defeated if one can successfully respond to it, "you got that from the West." And believe me, there is a substantial constituency in the Muslim world who would accept that premise (and a substantial constituency on Fox who might accept the reverse, but that's for another time.)
Is this really how we want to approach our faith? As this comprehensive worldview that admits of no outside influence? Is it really heretical to point out the obvious, that the shari'a means nothing unless concretized in a time and place, and our time and place is necessarily influenced by developments and circumstances having nothing to do with Islam? It doesn't mean we don't care about our own texts, only that we acknowledge outside influences in approaching the way we interpret them.
It seems to me that once one accepts the bipolar world, the Islamist version of the clash of civilizations (and that's what the Islamists are all about--declaring the two worldviews to be fundamentally incompatible and always at odds), the task of progressivity seems all the more difficult. Because then we're just feeding into the Islamist frenzy--that nothing good comes from the West, that everything truly comes from us, and that if the West has anything of value at all, whether it's wealth, or interesting ideas, it's because they stole it from us. They're rich because they stole our oil, they're successful because they stole our ideas.
I think it's a little hard for me to see how that's going to lead the Muslim world to modernity.
HAH
To be clear, I am excluding the serious scholarship of such highly respected, and deservedly highly respected, individuals such as John Makdisi, who has made a career out of demonstrating links between the common law and classical Islamic law, or attempts to create a modern code from classical sources. I'm referring instead to any variety of notions, clearly derived from the West, that Muslims claim often actually come from them. Separation of powers? That's siyasa shar'iyya, a Hanbali doctrine. Human dignity? Read the Qur'an, "and thus have we dignified the children of Adam." Race and class blindness? Again, the Qur'an "the believers are a brotherhood." Democracy? The shura, requiring the leader to consult with others. Judicial review? Siyasa shar'iyya again. Constitutionalism too. (Basically, everything respecting political structure of modern nation states is siyasa shar'iyya).
I don't want to explain in too much detail why all of this is as a historical matter senseless, suffice it to say, Islam had slaves, the shura was never understood to mean consulting the masses, let alone letting them decide anything by vote, Ibn Taymiyya's ideas on relationship between jurist and caliph has very little by way of actual historical example and in any event, the modern nation states were not developed and do not seriously function on that basis--most lawyers in these countries supposedly operating on siyasa shari'yya have very little exposure to Ibn Taymiyya. THey are graduates of secular law schools, not jurists. They understand judicial review much more as a European Court would than Ibn Taymiyya.
Now of course one could say that in fact many of these so-called Western values can be derived from Islamic foundational text and we should create a modern Islamic doctrine that takes cognizance of that, but that's different from "we've always had these things, before the West had them we had them, and they took lots of them from us." That's just in large numbers of cases entirely completely wrong.
I've always been of two minds about this phenomenon. On the one hand, I sort of understand why people like Noah Feldman seem to think it's harmless mythmaking, because ultimately it gets you to the right result. There is some truth to this, after all these arguments are used to defend fairly nice liberal notions. So if they want to pretend it's siyasa shari'iyya, let them pretend it's siyasa shar'iyya. There is some level of condescension to that, and certainly I don't think academics should be giving this much credence, but perhaps as a broad popular notion, so long as it reaches the right result, no problem.
But there is a darker side too, in the implications of it. It seems to invoke the common Islamist notion that the only morally acceptable notions in the world come from Islam. Sure Western technology is okay, everyone likes a TV, but political ideas? Normative ones? We take these exclusively from ourselves, and import no others, because none other work for us. And so if we're going to defend democracy, we'll accept the Islamist preconditions, it has to have Islamic origins, not Western. It cannot be Western originally and compatible with Islam , we cannot say that the way we read things are going to have multiple global influences, some of which are non-Islamic, we can't point out that every Islamic civilization has done this, no we have to pretend there is this entirely autonomous and separate entity called the House of Islam into which no ideas from elsewhere emanate, though they do spread from it to other places, and this is the starting point of the argument. IN which case an argument is defeated if one can successfully respond to it, "you got that from the West." And believe me, there is a substantial constituency in the Muslim world who would accept that premise (and a substantial constituency on Fox who might accept the reverse, but that's for another time.)
Is this really how we want to approach our faith? As this comprehensive worldview that admits of no outside influence? Is it really heretical to point out the obvious, that the shari'a means nothing unless concretized in a time and place, and our time and place is necessarily influenced by developments and circumstances having nothing to do with Islam? It doesn't mean we don't care about our own texts, only that we acknowledge outside influences in approaching the way we interpret them.
It seems to me that once one accepts the bipolar world, the Islamist version of the clash of civilizations (and that's what the Islamists are all about--declaring the two worldviews to be fundamentally incompatible and always at odds), the task of progressivity seems all the more difficult. Because then we're just feeding into the Islamist frenzy--that nothing good comes from the West, that everything truly comes from us, and that if the West has anything of value at all, whether it's wealth, or interesting ideas, it's because they stole it from us. They're rich because they stole our oil, they're successful because they stole our ideas.
I think it's a little hard for me to see how that's going to lead the Muslim world to modernity.
HAH
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