WEEKLY TRUST FRIDAY, MARCH 15, 2002

The Muslim woman and family law:  Philosophising the debate (I)

Sanusi Lamido Sanusi

sanusis@ubaplc.com

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