The Enhancement of the Realist Effect in Religious Law
To date, I've made the argument that American Legal Realism, that jurisprudential theory that challenges most centrally the idea that legal rules determine the outcome of actual disputes, as opposed to external political, social and ideological circumstances that dictate how those rules will be used to achieve preferred outcomes, can be exploited to understand developments in modern Islamic law because it applies equally well in the Islamic context. It occurs to me, however, that in some ways, Legal Realism applies better in religious contexts than it does in the very area of law in which it gave rise. Whether I am scaling back my Realist tendencies or advancing them further in different paradigms is an open question, though I suppose I'd maintain I am doing a bit of both.
To illustrate the point, let's suppose you are an antislavery zealot, or let's call you by your true name, an American moral hero, just before the Civil War. When it comes to the matter of slavery and the Constitution, you ultimately have two choices before you. One is that of the great Lysander Spooner, who develops a fascinating position that even the antebellum Constitution prohibited slavery, largely on a textualist basis--not even the name of the thing, alleged to be sanctioned, is given to quote Spooner. It's far more involved of course, you can read Randy Barnett's wonderful work on Spooner to get a better flavor, but suffice it to say, it is one path to take.
The other was that adopted by Garrison, and at least originally Frederick Douglass (until Spooner brought him around), and that was to dismiss the Constitution as a pact with the devil, a covenant with evil, an awful monstrosity that deserved no recognition. This may be harder, it does require one to abandon a foundational document of one's homeland, but Garrison and Douglass could do it readily. You're dealing with the devil, to hell with you, when you decide to be on the side of the angels by fixing this corruption, let us know.
Now if we try this in the Islamic context, we have a far more complicated situation. That is to say, the Lysander Spooner analogue on the question of slvery and the shari'a would be the dominant Muslim one, which is to find in Islamic foundational text some basis to determine that slavery is at least disfavored, or that it sows the seeds of its destruction in its limitations in Islam, or that the political leaders can ban the practice even if it was once permitted with strict limitations, or whatever. The arguments are many, advanced by Freamon, Fadel, Abou El Fadl among others, but they are present. This much is easy.
But think of the Garrison alternative. It is one that would dismiss God's Word as in fact a pact with the Devil, or, to put the matter more bluntly, a rejection of the Qur'an as God's Word. You can stop short of that--declaring the Prophet to be a real Apostle, but somehow the Word not to be taken literally, or viewing the Prophet as a Divine Spark whose communication is limited by his own human abilities--but suffice it to say, these are not popular approaches, they seem to come too close to the question of the Qur'an as Divine Revelation.
It is not hard to see why a Muslim, say living today in a nonslave world, is less comfortable with this latter approach, as the rejection of the Divine Text concerns so much more than the founding document of a nation-state, it is in fact an assertion of identity, an expression of metaphysical fealty, a connection to the Divine all wrapped up into one. It is not easily parted with, or better put, it is more difficult to part with than the already difficult rejection of one's own national constitution. That it cannot be formally amended only adds to the difficulty. And so while some might adopt it and proclaim flaws in the once considered Sacred Text, most will not.
What that means is that reinterpretations will be the dominant modus operandi, even in circumstances where the argument is more difficult to maintain. When you decide the age of majority and voting in the US should not be 21 because it's simply too old, there is a solution-declare the Constitution outmoded by not having ages, amend it to make voting at 18 a right, and be done with it. You don't actually try some argument that renders a textual reference to 21 to mean a different number--it's too hard. You just change it.
By contrast, what do you do when you want to change the Islamic age of majority from nine for girls (whether it's consummation of marriage or concluding a contract) to something that does not seem to modern eyes to be clearly child molestation? There's really only one choice--reinterpret. Or at least that's the only choice available if you want to declare sexual intercourse between 35 year old men and nine year old girls to be a horrible sin as opposed to some technical state illegality. It's actually not that easy to do given foundational instruments, but believe me, Muslims try it, because they think it's important to, because they have to, because there is no other way for them to remain faithful to text without finding a solution. The other approach involves so much more than just rejection of a single ruling, it involves abandoning one's entire normative and theological system entirely.
What that means is the breaking point, the point at which the American legal scholar looks at the law and says that if this is what it is, then he will not support it and will openly defy it--he will not attempt a textual construction that avoids the conclusion he does not want, that is, but concede the conclusion the text demands and challenge the law, even if foundational, is far away, but not infinitely so. The lawyer will seek anything short of formal amendment if he can, as Ackerman points out, but will at some point demand formal amendment because no other option remains. That breaking point, at which one declares a Holy Text, a source of salvation and the basis of the Good Life alike, to be flawed, is much, much harder to reach. So what one expects to see is more reinterpretation, more manipulation of rules and canons and modalities of interpretation in order to achieve preferred outcomes, because the preferred outcomes are so strongly desired, but also because so is all else that comes with the religion, which affords such singularly special forms of comfort and repose is also strongly desired. The believer can dispense with neither.
Which means, of course, there'll be a bit more Realism.