Fortune Telling and the Goals of the Shari'a
Happy New Year to All, and may it be a Blessed and Prosperous one. I'm back now from holidays and conferences and thought I'd open with my typical provocation, this time on the goals of the shari'a, or in Arabic the maqasid of the shari'a.
Around this time of year, or perhaps just before this precise time of year, all sorts of people are asked to prognosticate on what the New Year will bring. Will the recession end? What will happen in Iraq? How successful will Obama be in transforming American politics? And the like. In answering such questions, nearly everyone knows one trick--one must try to be as general as one can, as broad in language as possible, so as to encompass some variety of situations, without being so vague and abstract as to lose all credibility. So if you say "things will happen", you have no credibility, obviously things will happen. But if you say "in the spring of this year, Barack Obama will pass a transportation bill and inflation will go up 2.3% that quarter for that reason" or some such thing, you're basically asking to be shown that you are wrong. Rather, something in between is generally preferred. And so many end up saying something like "there will be a national security event" or "the recession is likely to ease up on the average American", both of which can be defended at year's end in most cases, but neither of which is totally devoid of content.
But that's actually the amateur's play. If you really want to win this sort of thing, what you have to do is say precisely nothing while phrasing it in such a manner that it suggests that you are saying a great deal. "This president is going to face a serious test in office." "America's economy is going to have to deal with some serious challenges." Can you think of a president who doesn't face some sort of "serious test"? Is there any time ever when we don't think we have "serious economic challenges"? So basically you've left almost everything open, it's hard to imagine a scenario where you could actually be shown to be wrong, yet it seems as if you've said something. That's the way the pros would play the game, ask any psychic who isn't nuts enough to believe they actually talk to dead people.
This is precisely what I make of the goals of the shari'a, really a brilliant move, whether intentional or not, to say pretty much nothing while seemingly putting forth a rather bold proposition. These goals are, as so many of my colleagues will faithfully recite, the protection of "life, family, religion, mind, and property" though some had things like honor, or replace family with honor, and other additions are possible depending on the scholar. That's not the point, the point rather, is that this is precisely the kind of thing that doesn't mean anything while looking like it might mean something. The syntax is actually quite clever. First, you say you have a goal, which already raises the reader's interest. We're looking for a purpose now, something every reader loves to seek out. Then I use a verb that's reasonably specific--"protect". (Not only is it specific, but it gibes well with modern sensibilities--we don't "attack" anything, our goal is to "protect"). Then a series of buzzwords that sound really nice--religion (we're all for that, or those of us who count ourselves among the believers anyway), life (yes to life), mind (swearing upon the altar of God Jefferson style against every form of tyranny over the mind of man), property, and of course family, the favorite buzzword of every politican anywhere. So to recap, a goal, to "protect", and then a bunch of things we associate with goodness. And the ultimate irony in some ways is that the more goals we add, the seemingly more precise we should be making it. Normally, when you add words, you add precision. Law X prohibits a person from spitting on a sidewalk while it is crowded unreasonably near another person. Each provision (on a sidewalk; while crowded; near someone else) makes it more specific. So the subconscious tendency is to conclude that if the goal was just to protect religion, well who knows what that means, but when we have five goals, then all the clearer. It's quite seductive. It sounds like it means something so it must. We believe in freedom of religion (protection of religion). And we also believe in free speech (protection of mind). Maybe we even oppose the death penalty! And of course we believe in the institutions of marriage and the importance of family. It's all good, there may be troublesome details here and there, but we can ignore those, just go straight to the goals of the shari'a and we can build a nice happy liberal society.
Yet of course, the reason we conclude that is because we are liberals, the medievals who first came up with it, we can fairly conclude, were not. (It's not an insult, it's a temporal statement, nobody East or West in the Middle Ages thought in those terms). The phrase itself is not liberal, it is meaningless, and the levels of abstraction so deep as to render the "goals" pointless, even as a place to start any sort of analysis. Look again at the phrase, and this becomes clear. "Protect" has some meaning when you refer to a person or a thing, but to an abstraction like "religion" it becomes terribly vague. I wouldn't be surprised if some devout Nazis actually believed that Jews were a threat to the continuing existence of Christendon. I KNOW for a fact that there are Muslims who feel precisely this way about Jews, as a deep threat to Islam. Want to know how they go about "protecting" religion vis a vis Jewish people? It aint the first amendment, I assure you. The same can be said about protecting "mind". Medievals, or some of them, saw in this the justification for the ban on alcohol, it messes with your mind. Their idea of protecting religion was not genocide of course (another meaningless concept then) but it was enforcement of laws against apostasy, something we'd consider an assault on the mind. Which brings us to the final problem, which is that the profusion of abstractions to protect only makes the matter more abstract, it does not by any means add precision. And once you have these sort of five abstractions, all competing with one another for "protection", you're left with meaningless. And I really mean meaninglessness, absolute and total and complete meaninglessness. Sure as a Realist I tend to think you can argue anything from any text, but here it's so easy I don't even think you need Legal Realism for it. I honestly think if you took any decision made by anyone throughout history, from the FInal Solution to Iran's developing a nuclear bomb, to Lincoln's Emancipation Proclamation to King Hussein's decision to oust the PLO from Jordan to anything else, really anything, anywhere, and you asked that leader, "does your decision protect life religion property mind or family" I think in good faith (meaning sincere, not meaning they're all good people) they'd answer in the affirmative and point to the one it does protect in their mind. Isn't Mao in his mind protecting property from rapacious capitalists? Isn't Reagan in his mind doing the same? Which one is right, if this phrase provides us such guidance.
I'm not suggesting that anyone I know thinks that the goals of the shari'a are entirely self defining. But they are taken quite seriously, I'd say by the majority of the law faculty types who do Islamic law, as a useful starting point for building and reforming shari'a. Sure anyone reasonably intelligent believes this needs to be "concretized" but they seem to think it has more meaning than a statement like "The purpose of the shari'a is to serve God." But I don't see how. Not all feel as I think the consensus does, my mentor and friend Abdullahi An Naim made a similar point to the one i am making here in his wonderful The Future of Shari'a, an excellent book to purchase if you can. So I'm not exactly breaking new ground, in a blog post of all places. In fact, quite the opposite, I am mostly just expressing something like extreme surprise that with all the economic, social and educational problems in the Middle East that have led to a flowering of such towering stupidies as Salafism and Wahhabism, and rendered groups like Hamas and the Egyptian Brotherhood the voice of the shari'a, we actually think that what's going to jump start a reform movement is "concretizing" something that doesn't mean a damn thing to begin with.
HAH
Around this time of year, or perhaps just before this precise time of year, all sorts of people are asked to prognosticate on what the New Year will bring. Will the recession end? What will happen in Iraq? How successful will Obama be in transforming American politics? And the like. In answering such questions, nearly everyone knows one trick--one must try to be as general as one can, as broad in language as possible, so as to encompass some variety of situations, without being so vague and abstract as to lose all credibility. So if you say "things will happen", you have no credibility, obviously things will happen. But if you say "in the spring of this year, Barack Obama will pass a transportation bill and inflation will go up 2.3% that quarter for that reason" or some such thing, you're basically asking to be shown that you are wrong. Rather, something in between is generally preferred. And so many end up saying something like "there will be a national security event" or "the recession is likely to ease up on the average American", both of which can be defended at year's end in most cases, but neither of which is totally devoid of content.
But that's actually the amateur's play. If you really want to win this sort of thing, what you have to do is say precisely nothing while phrasing it in such a manner that it suggests that you are saying a great deal. "This president is going to face a serious test in office." "America's economy is going to have to deal with some serious challenges." Can you think of a president who doesn't face some sort of "serious test"? Is there any time ever when we don't think we have "serious economic challenges"? So basically you've left almost everything open, it's hard to imagine a scenario where you could actually be shown to be wrong, yet it seems as if you've said something. That's the way the pros would play the game, ask any psychic who isn't nuts enough to believe they actually talk to dead people.
This is precisely what I make of the goals of the shari'a, really a brilliant move, whether intentional or not, to say pretty much nothing while seemingly putting forth a rather bold proposition. These goals are, as so many of my colleagues will faithfully recite, the protection of "life, family, religion, mind, and property" though some had things like honor, or replace family with honor, and other additions are possible depending on the scholar. That's not the point, the point rather, is that this is precisely the kind of thing that doesn't mean anything while looking like it might mean something. The syntax is actually quite clever. First, you say you have a goal, which already raises the reader's interest. We're looking for a purpose now, something every reader loves to seek out. Then I use a verb that's reasonably specific--"protect". (Not only is it specific, but it gibes well with modern sensibilities--we don't "attack" anything, our goal is to "protect"). Then a series of buzzwords that sound really nice--religion (we're all for that, or those of us who count ourselves among the believers anyway), life (yes to life), mind (swearing upon the altar of God Jefferson style against every form of tyranny over the mind of man), property, and of course family, the favorite buzzword of every politican anywhere. So to recap, a goal, to "protect", and then a bunch of things we associate with goodness. And the ultimate irony in some ways is that the more goals we add, the seemingly more precise we should be making it. Normally, when you add words, you add precision. Law X prohibits a person from spitting on a sidewalk while it is crowded unreasonably near another person. Each provision (on a sidewalk; while crowded; near someone else) makes it more specific. So the subconscious tendency is to conclude that if the goal was just to protect religion, well who knows what that means, but when we have five goals, then all the clearer. It's quite seductive. It sounds like it means something so it must. We believe in freedom of religion (protection of religion). And we also believe in free speech (protection of mind). Maybe we even oppose the death penalty! And of course we believe in the institutions of marriage and the importance of family. It's all good, there may be troublesome details here and there, but we can ignore those, just go straight to the goals of the shari'a and we can build a nice happy liberal society.
Yet of course, the reason we conclude that is because we are liberals, the medievals who first came up with it, we can fairly conclude, were not. (It's not an insult, it's a temporal statement, nobody East or West in the Middle Ages thought in those terms). The phrase itself is not liberal, it is meaningless, and the levels of abstraction so deep as to render the "goals" pointless, even as a place to start any sort of analysis. Look again at the phrase, and this becomes clear. "Protect" has some meaning when you refer to a person or a thing, but to an abstraction like "religion" it becomes terribly vague. I wouldn't be surprised if some devout Nazis actually believed that Jews were a threat to the continuing existence of Christendon. I KNOW for a fact that there are Muslims who feel precisely this way about Jews, as a deep threat to Islam. Want to know how they go about "protecting" religion vis a vis Jewish people? It aint the first amendment, I assure you. The same can be said about protecting "mind". Medievals, or some of them, saw in this the justification for the ban on alcohol, it messes with your mind. Their idea of protecting religion was not genocide of course (another meaningless concept then) but it was enforcement of laws against apostasy, something we'd consider an assault on the mind. Which brings us to the final problem, which is that the profusion of abstractions to protect only makes the matter more abstract, it does not by any means add precision. And once you have these sort of five abstractions, all competing with one another for "protection", you're left with meaningless. And I really mean meaninglessness, absolute and total and complete meaninglessness. Sure as a Realist I tend to think you can argue anything from any text, but here it's so easy I don't even think you need Legal Realism for it. I honestly think if you took any decision made by anyone throughout history, from the FInal Solution to Iran's developing a nuclear bomb, to Lincoln's Emancipation Proclamation to King Hussein's decision to oust the PLO from Jordan to anything else, really anything, anywhere, and you asked that leader, "does your decision protect life religion property mind or family" I think in good faith (meaning sincere, not meaning they're all good people) they'd answer in the affirmative and point to the one it does protect in their mind. Isn't Mao in his mind protecting property from rapacious capitalists? Isn't Reagan in his mind doing the same? Which one is right, if this phrase provides us such guidance.
I'm not suggesting that anyone I know thinks that the goals of the shari'a are entirely self defining. But they are taken quite seriously, I'd say by the majority of the law faculty types who do Islamic law, as a useful starting point for building and reforming shari'a. Sure anyone reasonably intelligent believes this needs to be "concretized" but they seem to think it has more meaning than a statement like "The purpose of the shari'a is to serve God." But I don't see how. Not all feel as I think the consensus does, my mentor and friend Abdullahi An Naim made a similar point to the one i am making here in his wonderful The Future of Shari'a, an excellent book to purchase if you can. So I'm not exactly breaking new ground, in a blog post of all places. In fact, quite the opposite, I am mostly just expressing something like extreme surprise that with all the economic, social and educational problems in the Middle East that have led to a flowering of such towering stupidies as Salafism and Wahhabism, and rendered groups like Hamas and the Egyptian Brotherhood the voice of the shari'a, we actually think that what's going to jump start a reform movement is "concretizing" something that doesn't mean a damn thing to begin with.
HAH
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