Reflections from Baghdad on the American Muslim Experience
Some time ago, I wrote a post about child marriage and the shari’a. It’s not something that Muslims outside of North America in particular have found particularly surprising or controversial—that the medieval jurists who wrote the books on the substantive rules of the shari’a specifically granted the right of a father or grandfather to compel a female child to marry, and that there was never a dispute within the Sunni schools about this, it in fact is referred to as a matter of consensus. (The Shi’a have a similar rule but do give to the girl the right to reject the marriage at puberty, which in the Hanafi Sunni school is a right given to girls who have been contracted into marriage by a male guardian who is not the father or grandfather, the so called khiyar al bulugh.) That doesn’t mean most modern Muslims think this is or should be the law, certainly in
I still get American Muslims telling me when they see me that my description of Islamic law on this rather obvious question is wrong, even after I presented a follow up post with jurists of each Sunni school clearly indicating something that, again, every Arab law student knows well, even if it is not in most cases the law of the Arab world anymore. This is just an example, plenty of others exist, where one gives countless examples from actual medieval text, but these don’t seem to register in conversations and discussions and Friday sermons and the like. That there is this whole history and whole fabric of legal material that actually exists out there as a historical fact seems completely beyond the knowledge base of most American Muslims, who sort of take what they like, and decide what they don’t like is not dictated by Islam, without much reason, knowledge or interest in coming to that conclusion. (Khaled Abou El Fadl specifically mentions this odd phenomenon in The Great Theft, saying he won’t address arguments that Islamic law is X simply because one wants it to be that way.) It is always a pleasure to see American Muslims in my class, they really struggle early on learning things they never knew to be, because nobody had taught it to them. From jihad to slavery to marriage, all but some hot button topics (polygamy, etc) deeply decontextualized in the American Muslim experience because of lack of knowledge of what the base is.
That’s not to say one must take the whole record as immutable and inviolable, or hang one’s head in despair at medieval rulings. They are what they are, they do not require strict adherence or a commitment to anticlerical atheism, I don’t mean to suggest that. I just mean that, again, we’re talking about base knowledge that most Muslims know well, and American Muslims seem almost completely ignorant about. Of course there is great work being done in US and Canadian universities, and of course there are any number of American Muslims who have given deep thought to these questions. In fact I would assume that would describe most readers of my blog who are Muslim. Still I don’t think it really touches all too much the core community, all too many tend to assume anything that they don’t like about the Muslim world is “culture” and therefore lightly dismissed.
I’ve been struggling to decide this past many months whether or not this is a good thing, and I still haven’t reached much of an answer. As a policy matter, it does permit remarkable levels of liberalism for American Muslims, much like Americans who cannot remember what the Civil War was about are freed from regional hatreds that consume other societies for far longer. When the past doesn’t exist or “Islamic Law” as it is understood by Muslims everywhere else in the world does not exist, it’s all the easier to escape it.
Still, it’s harder to be part of the broader part of the conversation on the development or advancement of shari’a in the Muslim world when US lawyers don’t know, for example, that a woman may not freely divorce her husband under the rules of the shari’a, and instead insist that of course she can, and cite a hadith to that effect, seemingly ignoring other source material and thousands of years of juristic history and Muslim state positive law, or dismissing most of it as “culture”. Even as a Realist who tends to dismiss arguments based on rules as being controlling, I would say you have to do better than that. No Arab lawyer, even one inclined to find a way to agree, is going to go for something that ridiculous.