Thinking Aloud: How Not To Debate The Shari’ah
Sanusi Lamido Sanusi
United Bank for Africa Plc
(Being text of a paper presented at the Zamyn “Thinking Aloud” seminar on Culture and Globalization, London School of Economics and Political Science, June 16 & 17, 2005)
Let me first of all make a few remarks on definition. It is difficult, I think, for any one to speak about the Shari’ah, or about Islam, or Muslims, without specifying the sense, to use Gottlieb Frege’s term, in which each of those referents is used. This is no longer a matter of semantic formality. The fact is that these terms, along with others like “west”, “reformist”, “orientalist”, etc are hyper-saturated with meaning and politically and historically over-determined. Each term is, as observed once by Edward Said, accompanied by a “formidable rhetoric” that conceals the very object it purports to label. I therefore specify that I refer here to the debate, or rather debates (in the plural) that have accompanied the implementation of Shari’ah (or the demands to do so) by political authorities in post-colonial (often multi-religious) states, using as a prime example contemporary northern Nigeria. Even this is, strictly speaking, problematic, because of clear differences in the motives, antecedents, processes and policies associated with Muslim law reforms among the various states. We will however, for our purposes, note this fact in passing without making it central to the argument.
The debates point to areas of tension and possible friction, which can be condensed into three. First, the expected tension between religious laws and a liberal state which understands itself, at least in theory, as a post-religious contraption that is strictly neutral among world-views. Second, the inter-religious tension that accompanies any real or imagined attempt to tilt the balance of political power in favour of one religious group, in a country that is finely balanced between competing religious traditions. Finally, the internal debate among Muslims themselves as they engage in the contestation of meaning and debate the propriety (or prudence) of privileging certain interpretations of the law given the historical and socio-political context. All of this takes place against the background of a purported “clash of civilizations”, in a world in which conflicts in Iraq, Afghanistan and Israel, accompanied by religiously-charged rhetoric from Washington, Teheran and Tel Aviv have accentuated the sense in which the matter may be viewed as a local instance of the general phenomenon of cultural resistance to the onslaught of globalisation.
My contribution to this conference is a set of reflections, some not yet fully thought- through, on the terms in which the debate itself is conducted. It is my view that this has not received sufficient attention, and that in focusing on it, we may actually find a way forward-at least in the case of Nigeria- out of a seeming impasse. Opponents of the Shari’ah are too willing to accept, with strong approbation, every criticism of the discourse as “progressive”, or “liberal”, or “reformist”, without subjecting the arguments to rigorous intellectual scrutiny. Defenders of the discourse, on the other hand, hold firmly to equally dogmatic ideological positions to which are ascribed dubious labels of authenticity and tradition, and insist on the authority of sources that are the site of theoretical debate in criticism and hermeneutics. They thus seem oblivious to the fact that, at the very least, reason must acknowledge the existence of space for the contestation of exegeses and their contextualization in historical and political territory. It seems to me that there is a general reticence to recognise the Shari’ah, understood as the law codified in the states implementing it, as the product of a field of knowledge and system of thought whose epistemic and epistemological frameworks are amenable to, and in need of, problematization. The critical analysis of cognitive structures, methodologies and raw material, as well as the interrogation of relevance to changing circumstances, are a necessary corollary to the reification of Islam and the Shari’ah as objectified fields of study. Whereas this point has been made effectively in the major academic discussions on implementation of Muslim laws in other contexts, it has remained, in Nigeria, rather marginal. However, my attention here will be mainly on the critics of the Shari’ah, and the weaknesses and strengths of their approaches.
Many critics of the Shari’ah begin from implicit premises that the European model of society is superior to all others and that traditional societies must aspire to conform to the European model if they are to be considered civilized and modern. At this point I am not discussing the merit of specific arguments that may have been put up against specific aspects of Muslim law. Rather, I discuss a normative frame that forms the basis of much criticism. It is for instance, argued, that certain punishments in Shari’ah Law are inconsistent with “universal human rights”, but the question of the authority and legitimacy of the particular conception of human rights is conveniently neglected. For believers in a religious tradition, human beings have only those rights that are conferred to them by that tradition and where a people establish a consensus on what is considered the limit to those rights this argument falls on deaf ears. An example is the death sentence. There is no point in trying to convince a Muslim state that a murderer does not deserve to lose his life. The Shari’ah provides for options to retribution and permits, even encourages, the immediate family of the deceased to show leniency and forgo their right to retribution through acceptance of compensation from the murderer’s family, or outright forgiveness. However, the principle in law is that if one human being unjustly takes the life of another, then he has by his own act stripped himself of immunity. The argument against the death sentence does not address the Muslim argument for it and instead seeks capitulation by the Muslim world to what is essentially a European consensus that is not even shared by other liberal democracies like the US.
A second example is the constant criticism of what is considered a patriarchal discourse in the Shari’ah. Many critics of patriarchy do not realise that their position is steeped already in western value judgements. Indeed Muslim feminists have always insisted that their project is totally Islamic. As argued by the South African Muslim scholar, Sa’diyya Shaykh, “the primary incentive for some feminist Muslim scholarship is the reality that there is a dissonance between the ideals of Islam which are premised on an ontology of radical human equality and the fact that in varying human contexts women experience injustice in the name of religion”. I have had occasion to critique this argument, first because underlying this assertion is a presumption of what constitutes gender “justice” which, in this quote, is juxtaposed not with “injustice” but with “equality”. In other words, it is already assumed that the absence of “equality”-which is itself undefined-is a state of injustice. Second, this is accompanied by a claim that this preconception is in fact the Islamic ideal. In fact the conception of justice held by Muslim feminists originates in the tradition of modern western scholarship and the European project of globalizing the idea of emancipation. This idea constitutes a pre-text grounded in western philosophy, which then provides the basis for a re-interpretation of the Muslim text. We know however from the writings of, for example, Annelies Moors, that in the study of Muslim societies we cannot totally ignore the reality of what anthropologists have come to refer to as the “bargain of patriarchy”, a situation in which women voluntarily cede authority and leadership to men in return for protection and material support. The Qur’an itself implicitly recognizes some form of this bargain, linking the leadership role of men to their responsibility for the material welfare of women.
Another example is the criticism of polygamy by western critics. In many liberal states today, a man may have sexual relations with any number of women based on mutual consent, and establish relationships of varying degrees of permanence without breaking the law. When he chooses to do the right thing and marry these partners he becomes a criminal. This is incomprehensible to Muslims and is actually clearly hypocritical. A society that legalises sexual relations with multiple partners has no moral basis for outlawing the same relationships established on a legal footing. If the key moral issue is that partners should be consenting adults, then once they reach the age of consent and marriage is not forced there can be no charge of immorality. If on the other hand the issue is that the feelings of a partner are hurt through sharing then those who engage in multiple liaisons are in no way more moral than those who engage in polygamy, and cheating on girl friends and mistresses ought to be criminalized, a fortiori. The point is that Muslims are willing to look at issues like forced marriages, under-aged marriages, clear cases of unfairness in the treatment of partners etc. and indeed Muslim personal law has resources for addressing the injustice women face in marriage in different cultural settings. What is not evident is the equation of polygamy with injustice or immorality by societies that make multiple sexual partnerships perfectly legal so long as they are not, if you like, legal.
Progressive criticism must come to terms with the reality that critical theory, as noted by Axel Honneth, ultimately depends on a pre-theoretical interest in the emancipation it seeks to articulate. This is not an argument for Gadamerian hermeneutics in which tradition is given a certain uncritical centrality. However, the resilience of tradition is often based on the stability and equilibrium created through the dialogue that it is. Not all Muslim societies today are polygamous, and with increasing poverty, exploding populations, and declining quality of life monogamy is going to look like an increasingly attractive option to Muslims in the modern world. But the criticisms of patriarchy and polygamy, as we have seen, tend often to represent a judgement on a people’s culture and tradition from the standpoint of a part of the world that has always considered itself to represent the telos toward which all societies must evolve.
One suspects, along with Abdulkader Tayob, that underlying some of the criticism of Shari’ah is a certain sense of disappointment in failed promises and expectations. Max Weber had shown the way to westernisation and modernisation, and it was assumed that Muslim societies would gradually “develop” by adopting some form or the other of the Protestant experience. Instead of a privatisation of religion, what is happening in northern Nigeria is a return of religion to public space with a vengeance. Thus we are confronted, in effect, with an argument that says that Shari’ah is wrong or, rather, that its re-emergence is wrong, because it diverts Muslim society from its desired goal of development and the appropriate trajectory of following the path of the modern “west”. This may sound like a simplistic caricature of some positions but in fact all criticism of the Shari’ah that is not based on cogent analysis of specific issues tends to degenerate in one way or another, into this kind of value-judgment.
Without a doubt, there has been more than a little dose of protestant influence on many strands of contemporary thought on Islam (and here I refer to contributions by Muslim and non-Muslim scholars alike). New approached in hermeneutics are indebted to Gadamer whose debts to the protestant tradition of Schleiermacher and Dilthey are well documented. In general, the discussion on the construction of authority, the authoritative and the authoritarian in Muslim law, to which scholars like Abou el-Fadl, Wheeler, Hallaq and Madigan have made path-breaking contributions, is firmly rooted in the protestant attempt to contextualise the origin of scripture and its exegeses, increase the legislative domain of reason when confronted with authentic texts, and acknowledge the agency and subjectivity of interpreters imbedded in their constitutive socio-historical milieux.
The above is to my mind inescapable, since in our globalised world the intellectual resources available from diverse intellectual traditions of textual criticism are of necessity appropriated by all traditions. This is nothing new. The development of the Muslim science of Usul al-Fiqh, or legal theory, benefited from Aristotelian logic (through works like Categoria and De Interpretatione. Indeed scholars like Shams Inati and Ashk Dahlen have attributed the rudimentary character of Sunni analogical deduction (Qiyas) to the fact that Aristotle’s Analytica Priora was not introduced into Arabic before the tenth century. Scholars like al-Ghazali continued to insist that logic was a tool like mathematics, and to encourage Muslims to learn methodologies without accepting the values of the owners. Thus classical Muslim jurisprudence saw nothing wrong with Greek logic and Mathematical Sciences, even while it rejected the pagan world view of the Greeks.(A notable exception to this rule was the Syrian scholar Ibn Taimiya whose diatribes against logic and the logicians are well known). Western modernity, on the other hand, drew on the knowledge of Muslim scientists, physicians and philosophers like al-Khwarizmi, Ibn Sina (Avicenna) and Ibn Rushd (Averroes). In a sense, the task before the Muslim scholar of our own time lies in a similar process of applying modern methods of philology and textual criticism and the study of society without succumbing to the temptation of uncritical acceptance of the world views and normative frameworks of a non-Muslim tradition. The historical experience of Muslim societies does not mirror the western experience under the Catholic Church and the Muslim attitude to religion-and its institutional reform-should naturally reflect its own experience.
In a sense this is the crux of the debate among Muslims on the Shari’ah in northern Nigeria. It would appear that a very large percentage of Nigerian Muslims share a belief that the Shari’ah is an inalienable part of their identity, and thus hold that it is their right to implement it so long as it is not imposed on non-Muslims. Agreement on this point however is only a part of the solution. The remainder is to decide the actual meaning of the Shari’ah that is to be implemented.
The main criticism of the implementation of Shari’ah from Nigerian Muslims has come from people with a social science background and a leaning towards radical social theory, who have taken issue with what they see as the influence of existing contradictions in the social formation on the application of Muslim laws. Drawing from a variety of sources-traditional and modern- the main thrust of criticism has been that the Shari’ah implementation project has not done enough for silenced and excluded voices. Shari’ah could be a tool for improving honesty and transparency in the management of resources, spreading literacy and education, forcing through more equitable distribution of income, reforming personal law to redress injustice against women (such as rights to maintenance, protection from arbitrary repudiation, equity among wives in polygamy, rights to child custody and maintenance, minimum age for marriage, protection against domestic violence) etc Instead, at least early on, it seemed that the real focus was the implementation of punishments in criminal law, almost exclusively on the poor and women, to the detriment of these other laudable objectives. Secondly, it seemed that the interpretation of the law was such that it would not achieve some of its objectives.
To give one example, in the state of Zamfara, a seventeen year-old village girl, Bariya Magazu, who was found pregnant before marriage was given 100 lashes of the cane for the crime of fornication. The girl had named three grown men who had sexually exploited her but all of them were acquitted because she had no witnesses and none of them confessed. No attempt was made to obtain circumstantial evidence in the form of scientific tests to establish the paternity of the child, even though Muslim law from the classical period has always admitted such evidence in the absence of direct proof. An example is the acceptance of the smell of alcohol in the breath of a suspect as proof of imbibing the substance and, more controversially, the acceptance by Malikites of pregnancy as proof of fornication as in Ms Magazu’s case, even though pregnancy proves neither penetration nor consent. Similar criticism followed the amputation of the hand of a village man who stole a goat. Here the argument from Islamic sources was based on a view that this punishment is only allowed in a state that had provided social welfare for its citizens, and that where large income distribution inequalities are the norm along with widespread poverty, other forms of punishment should obtain. More important is the fact that a law that punishes a teenager who was exploited by paedophiles and left with the burden of an unwanted pregnancy, while acquitting the real perpetrators of the crime is clearly immoral. If this is acknowledged, then it cannot be the law of God.
By making a distinction between that which is ethically defensible and that which is in conformity with a given interpretation of the Law, Muslim critics have already indicated their belief in legislative reason. Morality becomes a category that is separate from the religious law-or rather from the selected interpretation of that law- and reason becomes the yardstick for accepting that interpretation. It is a radical thesis, but not one that is unprecedented in Muslim law and even other religious traditions. The early theologians debated extensively question like the existence of the moral and immoral as independent categories, the ability of reason to distinguish between the two, the justification of such a judgment as the basis for legislation, etc. Mohammed Arkoun has discussed this in detail in his book on The Unthought in Contemporary Islamic Thought. Western readers are also familiar with this type of argument, going back at least to Pierre Bayle in nineteenth century France. In 1865 the French authorities retracted religious liberty by revoking the edict of Nantes, which allowed the Huguenots some religious freedom. Thereafter Bayle and his co-religionists were subjected to persecution by Catholics, who appealed to the words of Christ (Luke 14: 23) as justification for forcing conversion: “Go out into the highways and hedges, and compel them to come in, that my house may be filled.” In his Philosophical Commentary on these Words of Jesus Christ, Bayle introduces a single principle of exegesis: “Any literal interpretation which carries an obligation to commit iniquity is false.” In these words of Bayle we find echoes of Muslim theologians and rationalists, just as in some of the contemporary criticism of the Shari’ah we find echoes of Bayle’s protestant thinking. Similarly, one does not need to search too far for echoes of the mediaeval Catholic church in the sacredness with which the authority of historical interpretation is held by defenders of the discourse.
In a world of globalised discourses it is difficult to analyse the debate on Shari’ah in Nigeria independently of a total debate, or to ignore the difficult political situation faced by Muslims who feel genuinely targeted by neo-conservative Christian politicians led by George Bush and right wing republicans. The debate has been reduced to intellectual location of participants along a continuum where one end focuses on textual evidence and tradition while the other focuses on consistency with political ethics and the need for the empowerment of reason embedded in contemporary circumstances for relevant legislation. By ensuring freedom of speech and conscience, the Nigerian political situation has allowed for wide ventilation of all views and hopefully this will help shape the evolution of the Shari’ah project. There is already evidence that some of the states are taking criticism on board and focusing on the areas that critics felt were ignored. The next step will have to be a democratisation of the legislative process so that Muslim individuals and groups (such as professional associations, women’s rights groups and unions) can make recommendations based on well documented research for reform of the law in major areas to redress exclusion and alienation, as well as increase relevance. In this way the Shari’ah will be turned from a mere political tool in the politics of difference, to an authentic instrument of social change.
The argument therefore is that the form that the implementation of Shari’ah takes in a society is determined primarily by the ideological priorities and political will of the state. Wael Hallaq has noted that codification “is not an inherently neutral form of law, nor is it an innocent tool of legal practice devoid of political or other goals.” In her study of state formation and Muslim personal law in the Maghreb, Mounira Charrad has clearly traced differences in Muslim personal law to differences in colonial experience and political processes in Tunisia, Algeria and Morocco. Her principal thesis is that the relationship between the emergent political elite in each country and the traditional extended kin-based tribes was critical to the interpretation of family law adopted by the former. Similarly the manner in which Shari’ah is interpreted, and the resolution of the tensions between different groups based on ideology, can only be resolved through open debate and democratisation of the legislative process. This applies also to the question of the limits of religious identity in a multi religious state. Dialogue and open discussion among various groups will lead to some form of consensus, underscoring the need to strengthen democratic institutions, respect for freedom of speech and conscience and a system of law. Ultimately these are not religious, but political questions and they require a patriotic elite committed to the unity and progress of the country.
The substance of this argument is that what is often seen as a debate over the interpretation of Islamic law is often a debate over Muslim society and politics and how these should be structured and organised. To the extent that codification of the law is subject to the agency of political actors with concrete interests, the real contest is an ideological one, a challenge to those interests and their sacralisation through appropriation of the symbols of religion. We therefore are left with no option but to conclude that the major debates raised by Shari’ah shall be resolved not on the basis of theological arguments, but in the realm of politics and the political.