WEEKLY TRUST FRIDAY, MARCH 15, 2002
The Muslim woman and family law: Philosophising the debate (I)
Sanusi Lamido Sanusi
Introduction
The desire of Muslims living in various epochs
in different parts of the
world to base their social order on Islamic principles has been a major
stimulant to the evolution of discourses on Islam and modernity. Noel
Coulson believes that law has at least two distinct traditions. In "the
classical tradition," the "law.postulates the eternally valid
standards to
which the structure of state and society must conform." The second view is
one that sees the law's function as one of answering social problems and is,
consequently, "shaped by the needs of society." He then
follows up with a
critical comment:
"The needs and aspirations of society cannot be, in Islam, the exclusive
determinant of the law; they can legitimately operate only within the bounds
of the norms and principles irrevocably established by the divine command.
And it is precisely the determination of these limits which is the
unfinished task of legal modernism."
What follows in this section is an analysis of this insightful statement,
with a view to clarifying my own conception of the modernist project in
Islam and its relation with (on the one hand) the classical tradition and
(on the other) the political economy of modern Muslim societies. I trace the
root of the debate to divergent conceptions of the epistemic subject and
discuss the political dimension of this ontological debate. In subsequent
parts of the article, I examine the relation between Muslim family law and
subjectivity and follow up with a discussion of the topic in the Nigerian
context.
Islamic modernity and the question of the subject
At the level of epistemology, the conception of all Islamic laws as a static
body of knowledge revealed at a point in time and space and binding upon all
Muslims to eternity in its revealed form has since been subjected to strong
challenge. The study of the history of the evolution of law by Orientalist
scholars, in particular, has led to a greater appreciation of the role
played by individual lawyers or mujtahids in its formulation. The
recognition of the mujtahid as subject is only a first step towards applying
general philosophical principles to Islamic knowledge. The attempt by
traditional scholarship to arrest the evolution of Muslim law by "closing
the gates" of ijtihad or independent legal reasoning, for instance,
effectively confers on the founders of Schools of Law the status of
"disembodied" subjects who have asked and answered all questions for
all
time. This, in turn, conjures the image of the transcendental subject,
immune from history. The entire discourse of Islamic modernism, from Jamal
al-Din al-Afghani onward, has focussed on the need for new ijtihad. In
philosophical terms, it is a demand that Muslim thought recognizes at the
minimum the subject in its Hegelian construction as a finite, concrete
object of history, whose knowledge and capabilities are bounded by the
realities of historical existence. The belief in an unworldly metaphysical
subject, be it in the form of the Cartesian cogito or the Kantian Moral
Subject, presupposes the tenability of man standing above history,
conquering all spatio-temporal limitations. The rejection of this humanism
takes the form of arguing for an "embodied" subject, existing
"concretely
and materially in the midst of the world" and "influenced, affected
and
conditioned by history."5 Indeed long before Hegel, the importance of
reading scripture and narratives in the light of concrete history was
stressed by the Muslim historiographer, Ibn Khaldun.
The nature of Islamist modernist discourse renders the term
"modernity"
problematic in terms of the images conjured with regard to what became known
as "Modern Philosophy" in Europe. If Descartes marked the beginning of
modernity in western philosophy, the principal epistemological revolution of
his Meditations lay in what became known as the Cartesian Dualism, which
sees human beings as made out of the union of two incommensurable
substances, res cogitans (thinking substance) and res extensa (extended
corporeal substance). By claiming further that the rational soul cannot be
derived from matter but is, rather specially created by God, Descartes sets
the stage for his metaphysical view of human beings.7 From there, it
was a
short step to the emergence of a new "Archimedean Point" for knowledge
and
ethics: Man (with a capital M). Man became a transcendental, narcissistic
subject at once of this world and above it, at once capable of cognition of
his circumstances and immune from them. Although Descartes himself took
pains in the Meditations to "prove" the existence of God, modern
philosophy
after him simply took the birth of man as marking the death of God.
No argument that discountenances God as the foundation of knowledge and of
ethics can remain within the ambit of Islamic discourse. Modernism in Islam
is therefore neither humanism nor secularism. The irony in Islamist
discourse is that it is the classical tradition (or, more correctly, the
neo-fundamentalist tradition) in the form it came to take as advocacy for
the fixity and eternal validity of the totality of Islamic law, which is
comparable in a sense to European humanism. By pretending that the
historical interpretations of jurists have eternal validity, this tradition
treats the early lawyers in much the same way man came to be seen in modern
philosophy, even though in theory, the concept of infallibility of any man
other than the Prophet was denounced by mainstream Sunnism. The principal
difference is that Muslim scholarship never abandoned God as the prime
metaphysical source of existence, knowledge and values.
In challenging this conception of knowledge and ethics, the modernist trend
in Islam is closer to what is now referred to as post-modernism, with some
pertinent qualifications. It shares with all of Islamic thought a retention
of belief in God, and in the ultimate metaphysical source of revelation.
However, by insisting that the early lawyers were embodied subjects and thus
limited in their capacity to know by their spatio-temporal existence,
modernism in Islam challenges the static totalisation of Muslim discourse
and opens the door to change.11 The movement of humanity in space and time
leads to a dialectical process of interrogation and counter-interrogation
between law and the social. The law continues to demand that society conform
to its core values while society demands of the law relevance to its changed
situation.
Thinking of the contact between Muslim law and modernity in these terms is
useful as a basis for understanding the broad outlines of what is referred
to in this paper as "modernist" thought in Islam. A number of those I
refer
to as modernists would agree with the interpretation of the distinctive
feature of their oevre while rejecting the modernist label. Fazlur Rahman
would for instance not object to being presented as a critic of
neo-fundamentalism (which he calls "post-modernist fundamentalism").
However, while he sees neo-fundamentalists as obsessed with a hatred for
anything western, "modernists" to him are also haunted by the west
through
attraction. In classing Rahman as a "modernist" along with 'Abduh
and Rida,
for instance, and radicals like Qutb and Shariati, the taxonomy is purely
based on epistemology. What they have in common is a belief in the
undeniable impact of subjectivities and discourses shaped by history on the
evolution of law and consequently in the need for reinterpretation of law in
modernity. It seems to me that, at least in theory, there can be as many
approaches to the study of Islam and modernity as there are conceptions of
the critical elements constitutive of subjectivity.
In developing a critique of traditional thought, reform-minded thinkers have
been conscious of a need to maintain an essential link with basic sources.
To the extent that a writer considers himself bound by faith to the primary
sources of the law, or (in the case of the non-Muslim) recognizes the role
of the sacred texts in defining the possible limits of knowledge, the debate
is not unbounded and the epistemic chain not disrupted. The modern attempt
must found itself on some link, no matter how tenuous, with the original
sources for it to have legitimacy. What this means in reality is that the
engagement between the classical tradition and modernity has been on the
first level one of defining the limits of that which is human, and that
which is from God. This is the essence of Coulson's statement quoted above.
In certain cases, reform has involved attempts at changing the ground rules
of jurisprudence, by redefining the extent to which a particular source is
binding, or narrowing the scope of its application or even meaning.
Modernist thinkers like Muhammad 'Abduh and Rashid Rida adopted a salafi
approach of narrowing the scope of binding law to the Qur'an and authentic
sunnah (or traditions). Rida, in particular, was deeply involved in hadith
criticism, contending that even where a tradition had a sound chain of
transmitters (isnad), its content should be rejected if found to be
rationally or theologically objectionable.14 Sudanese Republicans led by
Muhammad Mahmud Taha further narrowed eternally binding sources to the
revelation before the hijra (migration) of the Prophet to Madina.
Revelations after the hijra were historicised and considered a specific
application of law in a particular context. Taha's thesis is that the law
in its Madinan stage represented God's response through the Prophet to the
specific needs of the Muslim community in time and space, pointing as
evidence to the differences in temper of the two revelations (pre and
post-hijra). Daniel Madigan seems to endorse this position through his
hermeneutic examination of the Qur'an's own references to itself as a kitab.
He argues that contrary to the general belief that the Qur'an considers
itself as a completed book, the term kitab in fact means it considers itself
an ongoing process of divine "writing" and "rewriting" as
God's
authoritative response to actual people and circumstances. Fazlur Rahman
insists that the traditional view fails to take cognizance not only of the
general conditions of Arabia at the time of the revelation of the Qur'an but
the specific historical situation to which a particular revelation was
addressed. It is only by separating the historically specific from the
general that we can understand the Qur'an's own weltanschauung and maintain
its coherence and internal consistency. Bassam Tibi18 has suggested that
the Islamic jurist of today can learn a lot from the European concept of
"the legal norm," which "has an existence independent of social
reality
within its fundamental sphere of validity." He borrows the term
"flexibilization" from German juridical debate to support his thesis
that
"recourse to the same laid-down law can have a different content in
different times and different systems." Tibi's thesis, like Rahman's,
revolves around historicisation of Islamic jurisprudence and
reinterpretation of divine texts in a changed spatio-temporal context.
By defining the limits of that which is from God, and therefore considered
eternally binding, all of the interpretations, additions, commentaries,
opinions and embellishments falling outside these limits are open to
interrogation. The debates on the position of the sunnah (prophetic
tradition) and ijma' (consensus), as well as questions on the nature of
prophetic infallibility (or in Shiite discourses the infallibility of the
Imams) all go to the heart of precisely what may or may not be subject to
change. Khomeini's theory of the Guardianship of the Juris-Consult, for
instance, opened up this debate among Shiite scholars because it extended to
the faqih the rights of the Imam and resulted in the revival of man as a
metaphysical source of law. In this sense, Khomeini is not an Islamic
modernist thinker since his faqih, like the Cartesian cogito or the
infallible Pope of medieval Catholicism, is effectively a transcendental
subject. An important distinction between Khomeini's jurisprudence and its
sunni corollary, however, is that Khomeini's faqih lives in the time of
those for whom he interprets the law.
It is clear from the above that Islamic modernism can never be a completely
different narrative from the classical tradition. Both traditions accept,
implicitly, the existence of God as the Transcendental Source of being,
knowledge and ethics. Most scholars in both traditions also accept the
position of at least part of the prophetic tradition (or sunnah) as
Undictated Revelation (wahy ghayr matluww). To this extent, Islamic
modernism therefore also differs from post-modernism. While it does share
with post-modernism a belief in the death of the humanist subject in all
those areas identified as human constructions, it is not completely
anti-foundationalist, and it certainly does not degenerate into the
fragmentationalist posture that cedes to man the right to define his own
private morality. The tendency of certain strains of post-modernism to
degenerate into moral relativism and fragmentation is antithetical to all
Muslim thought. Similarly, the concept of a liberal state, which as
described by Terry Eagleton is ethically neutral21 and whose task is to
create an environment in which every citizen is free to pursue his/her moral
preferences without hindrance is rejected by Islam. Islamic ethics is
metaphysical and does not recognise multiple versions of the truth. However,
in a number of cases, there is a dispute on what precisely constitutes a
correct apprehension of this truth hence the conflict between modernism and
tradition.
Subjectivity and the political
The attempts to break away from historical
formulations and reinterpret the
law in time and space are reflective of a desire to escape man as a
transcendental subject. However, without a specific conception of
subjectivity, a critique of humanism merely results in replacing one
metaphysical discourse with another. This immediately raises a question ever
so central to the entire debate, but always in my view brushed aside or
conveniently ignored. My principal thesis here is that it is doubtful, as
noted by Caroline Williams, if the question of the subject can be viewed in
isolation of the structure of the political. The reality of discussions on
subjectivity is that epistemological issues are folded into political ones
leading to a politicisation of ontological questions.
Even a cursory examination of the debate between "modernity" and
"tradition"
within Islam would show that ultimately, the central questions that define
the contested arena are socio-political in nature. Many of the questions
deal with human rights (including the rights of religious minorities in a
Muslim state), the position of women in the family and society including
their economic and political rights, the class character of the state and
questions of social and economic justice. There is also a second
equally
important issue. The debate within the Muslim world (including within
sub-Saharan Africa) is no longer one held between western educated,
"modernist" Muslims and traditional ulama without western education.
The
call for implementation of sharia in mainly secular emergent states is a
matter determined by political forces, many of which are represented by
western educated Muslims with an overtly religious political agenda. Of
recent, these movements have degenerated into what Olivier Roy refers to
as
"neo-fundamentalism." As argued by Roy, Islamist movements have not
abandoned the populist theme of a "return to Islam." What has changed
is
that.
".the revolutionary project of ideologically transforming the society is
being replaced by a plan to implement the sharia and purify mores, while the
political, economic, and social realms are challenged only in words. Women
are denied participation in political life. The right to individual
interpretation (ijtihad) has been surrendered. Today's Islamism, from which
both political reflection and ascetic elitism have disappeared, focuses all
its actions on filling daily life with morality and establishing the sharia.
It replaces discourse on the state with discourse on society."
This picture of neo-fundamentalism, so vividly painted by Roy, is found in
places like Nigeria where the "Islamisation" project is limited to
implementation of Sharia penal code, defining the place of woman in public
space and denying individual Muslims the right to ijtihad. In an
unprecedented act of comedy, one of the state governors in Northern Nigeria
has decided to spend part of his poor state's meagre resources on the
purchase of turbans to be worn by secondary school boys as part of their
uniform. Neo-fundamentalism has appropriated what Coulson called the
"classical tradition" in discourse for its political instrumentality,
and
thereby seeks to create a totalised, self-enclosed world view in which
dialogue is arrested and dissent anathematized as being at variance with the
truth. Whenever I use the term neo-fundamentalism in this paper, it is to
be understood in the sense defined by Roy.
My thesis is that at its core, the debate on the question of the subject is
largely a contest for political space. Many "conservative" scholars in
reality seek nothing but the restoration or entrenchment of social relations
and political structures inherited from the past. Many modernists seek to
challenge these structures. The conflict between Iranian ulama led by
Khomeini and Mutahhari on the one hand, and radical and liberal scholars
like Shariati and Bazargan on the other was just one example. In January
1985, the leader of the Sudanese Republicans, Ustadh Mahmoud Taha was
executed for "blasphemy" by a government in which the Islamic Front
led by
Dr Turabi was a major participant. Taha had declared, among other things,
that the "Islamic" laws of September 1983 "violated.Islam
itself" and made
it repugnant; that they were enacted to terrorize the people into submission
and that they discriminated against non-Muslim citizens who represented
one-third of the country's population.
This position also holds true for debates on Muslim personal law. In
northern Nigeria, which is the area of interest in this paper, there has
been over centuries an intermingling between cultural practices and Islam to
the extent that in many cases, Muslim men and women take as a religious duty
that which is a product of Hausa or Fulani culture. This is true of Nigeria
as it is of the rest of the Muslim world where often, as noted by Eva
Rosander, "the line between indigenous custom and Islam is often
ambiguous." According to this view, "local history and culture
contribute to
the religious practices and beliefs of Muslims around the world,"
leading
to the perception of "tradition" as an "essential part of the
local Muslim
heritage." Joseph Schacht goes so far as to assert that "the
laws which
rule the lives of the Muslim peoples have never been coextensive with pure
Islamic law, although this last has always formed an important ingredient of
them." Although, like Rosander, Schacht's focus is on custom as
the
overriding reason for this, in reality "custom" itself is but a
pseudonym
for the dominant ideology or world view in society. As argued by Ayesha
Imam, "societies characterised by class, gender, racial or other
forms of
hierarchy are supported and legitimated by ideology." Imam's analysis of
subjectivity is important for our purposes not least because her research
was conducted in a concrete setting in Muslim Northern Nigeria. Three of her
principal arguments will be mentioned here.
First, Imam shows that Discursive Formations "produce 'knowledges' which
are
given by the terms of the discourse itself.and which pre-empt the space for
and possibility of other 'knowledges' to be produced."35 Second, she
affirms that "analysis of subjectivity is not limited to ideology as
systems
of ideational representations," but includes what is implicit in modes of
action "in specific and concrete social structures." Finally,
she argues in
the specific case of Hausaland that "Muslim identity was already part of
the
constitution of subjectivity" but the possibility always exists for the
articulation of a particular law or practice as a constituent of Muslimness
by the dominant discourses. In what follows, we will examine the interplay
of the factors discussed in this section in constructing discourses in
Muslim family law in general, and in Nigeria in particular.
Printed and Published by Media
Trust Nigeria Limited. Corporate Office: No. 6 Sullubawa Close, Off Katuru Road,
Unguwan Sarki, G.R.A. Kaduna, Nigeria. Tel. 062 233734, 062 235916. Fax. 062
242496. Abuja Office: 14B Tunis Street, off Lusaka Street, Wuse Zone 6. Tel.
09-5238726. Fax. 09-5238725. Lagos Office: 260C Murtala Mohammed Way,
Alagomeji-Yaba. Tel. 01-4707296, 01-861008. Fax. 01-2622854. Emails: mtrust1@skannet.com
mtrust2@skannet.com . All
correspondence to P.O. Box 3675, Kaduna, Nigeria. Editor-in-Chief: Kabiru A.
Yusuf