Interpretive Constraints and Interpretive Authorities
As I am sure I have indicated many times on this blog, and elsewhere, Islamic law scholars can at times be obsessed with the tragedy of the destruction of the traditional schools of thought within Sunni Islam, the guilds to borrow Makdisi's phrase, as the moment when Sunni Islam went astray, and something of a methodological and exegetical free for all (to misapply the phrase of friend of the blog Andrew March) started to take its place. As a Shi'i and one who has spent some time focused on Iraqi Shi'ism, I have always been somewhat skeptical. Our schools of thought did not disappear, and yet many of the problems that Islamic liberals tend to find in Sunni Islam exist in Shi'i Islam as well. It is true that we do not have September 11 bombers and we have identifiable scholars who condemn such activity (run through the Najaf Grand Four and you get four condemnations), but we aren't exactly egalitarian on matters of gender, to take an example. It is true that recognized authorities constrain interpretation, but constraint works both ways, against nutcases, but also against progressives. The main benefit of the academy it seems to me is not that it constrains, but rather that it elevates the level of discourse. The reasoning behind such actions as 9/11 given the classical prohibitions against targetting noncombatants (largely, it's a democracy so their vote is combat) is so ludicrous it's hard to take religious reasoning seriously when that's the essence of the claim being made. In any event, a subject much discussed already.
What I thought I would raise in this post is the fact that while constraint is facilitated by recognized juristic authorities, it is not necessary for it. That is to say, one should not assume that in the absence of a juristic school, there can be no constraints on activity. Islamic finance provides the best example of coherence in the absence of authority.
There is no practice perhaps more diffuse in terms of its rule making than Islamic finance. Yes AAOIFI is a standard setting body, as is the IFSB, but the standards are voluntary, and frequently, as in synthetic murabaha, violated. The contracts within Islamic finance are governed by New York and English law more than sharia. The only authorities who ensure that any given transaction is shari'a compliant are the sharia review board, which is three people usually selected by those organizing the transaction. Under such standards, you might expect a devolution into entire incoherence, as random groups declare things acceptable, others challenge it, and the Islamic finance world divides into countless little islands of disputatious sectlike practices that are hard to consider unified under any sensible rubric.
Yet this is far from the truth. While some, such as Malaysia, may decry some practices such as tawarruq, while others, such as the GCC, embrace them, the practice overall displays remarkable levels of coherence. There is innovation, but when it extends too far, it gets shut down (as in the sukuk a few years back), and there is a general consensus about what is acceptable and what is not. There are some, like me, who find the entire exercise silly as it is merely a mimicry of conventional finance, yet for those who believe in it, the methods used within the industry are remarkably if not uniform generally unified.
Of course, there are strong and sound commercial reasons for this, the money benefits from having a practice that both is amenable to the legal and economic results demanded by conventional financial techniques while still paying sufficient adherence to sharia form and vernacular as to retain some minimum level of credibility, and banks and law firms work with each other across transactions to help ensure this. The money, that is, drives much of this, both in terms of being responsive to global requirements and Muslim consumer demand.
Yet what it demonstrates, to my mind, is that the reason that there is no coherence within the Muslim community over so many other matters is not so much because they have no authorities to whom to turn, or rather, it's not solely because of that. It's also because, unlike those involved in the game of Islamic finance, those Muslims don't agree on very much from whcih to derive a common interpretation. When you don't share the same basic ideological and normative presuppositions, there isn't an intepretive authority in the world that will unite you. When you share them with others entirely, there is no need for an authority, It's the in between where the authority is helpful. What that means for an increasing divided American polity as to the role that the Supreme Court can continue to play as unquestioned interpretive authority, that I leave for others to consider.