An Introduction to Islamic Law (33 page)

In the
previous chapter
, we discussed the processes by which the law was modernized, as well as the cultural and other forces that underlay these transformations. Notable
Westernizing trends began in India at the end of the eighteenth century, and in the Middle East at the beginning of the nineteenth, culminating in the 1940s and 1950s. The changes, as we saw, were massive, involving the structural dismantling of the Sharis
a legal system, and leaving behind a distorted and gradually diminishing veneer of Islamic law of
personal status.

At one point, it seemed that Islam as a religion of legal norms was out of favor, having once and for all lost to the modernists and their new states. But the 1970s and early 1980s saw powerful events that appeared to halt the collapse of this religious force. The questions that confront us then are as follows. What were the sources of the re-Islamization trends that appeared during and after the 1970s? How far back do the origins of these sources extend? Are they a reenactment of pre-modern Islamic tendencies or are they, strictly speaking, the results of the modern project? What have they managed to accomplish in terms of converting the secularist legal changes, the engineered law of the state, into an Islamicized narrative? What methods and means have they pursued in order to accomplish this end, and where and when have they been successful?

To produce a manageable account of legal developments since the 1970s, a number of assumptions have been made about the “actors” involved. I take it as a reasonably valid proposition that there are four major actors on the legal scene who are not always neatly distinguished from one another, namely, the state, the “secular” modernists, the ulama and the Islamists.

Throughout the two previous chapters, we have pointed out several features that have necessarily made the
nation-state in the Islamic world a
modern
entity. This is to say that governance in Islamic lands had to acquire modernist structures by force of necessity in order for the
nationalist elite not only to challenge direct and indirect Western
colonialism but also, while attempting to accomplish this task, to rule their own populations efficiently. But this project involved an absurdity: to resist Western political and military hegemony, the state had to adopt modern technology, modern culture and modern institutions – in short, modernity in as mature and complete a form as could be imported or assimilated, according to need.

Yet, the modernization process, forced to depend for all its major features on a capitalist economy and/or technology, led to economic and other forms of dependency on one Western country or another (and in the 1950s and 1960s on the Soviet Union as well). Thus, to free themselves of the clutches of colonialism (a quintessential phenomenon in, and inherent to, modernity), Muslim states adopted modern institutions and cultures that led them to don new colonialist
trappings. The state – the most overpowering project of modernity – has therefore come to the Muslim world to stay, in effect creating this most fundamental dilemma for Muslims around the world: if Islamic law governed society and state for over twelve centuries, and if the rule of law had a significance beyond and above the modern state’s concept of such rule, then how is that sacred law accommodated by the irretrievable fact of the state, in effect the maker of all laws? This is the question that permeates the fabric of all the discourse and practice of politics and law in today’s Muslim world
.

The second actor is the camp commonly described as
secularist-modernist, a significant camp during the 1940s and 1950s, though it slowly declined over the next three decades, becoming something of a minority after the early 1990s. Whatever strength it could garner since the 1990s appears to have stemmed from its association with the state, whose tendencies, generally speaking, have all along been on secular lines (with the obvious exception of such countries as Saudi Arabia and, later, Iran)
.

Marginally stronger than the secularists (at least until recently) are the
ulama who, as a rule, survive as pockets in various Muslim countries, but not by any means in all of them.
South East Asia,
Pakistan,
Iran and
Egypt represent more prominent sites of
ulama strength, Iran especially, where they have been commanding the state since 1979. In
Saudi Arabia they constitute a powerful actor in domestic politics and especially in the legal system. Yet, thus far, in no
Sunni country has the Iranian experiment of almost exclusive ulama rule been replicated
. In
Egypt and
Pakistan, as we shall see presently, the ulama play a not inconsiderable role versus the state, at times standing in tension with it, at others in accommodation.

The latest but by far the most significant actor is the Islamist camp, distinguishing itself from the ulama in two critical ways, among others of lesser significance: the first is that the ulama, strictly speaking, continue to
uphold their “traditional” methods of interpretation or a semblance thereof, which is to say that they generally espouse the authority of their legal sources, treatises, legal schools, leading jurists and ways of instruction (although none of these spheres is an exact replica of its historical antecedents). A second important difference is the ulama’s professional loyalty to their area of
specialization: they have continued to dedicate themselves to religious knowledge, either by acquiring it as students or by imparting it as teachers, professors,
mufti
s or preachers. Although their functions are now nearly exclusively educational (i.e., not legal in the sense that obtained before the nineteenth century), they remain largely dissociated from other technical professions. (But this is not to say that such religious universities as Azhar do not offer extensive programs of study in the sciences
.)

By contrast, the Islamists since the 1980s have come to represent an influential and pervasive camp, stretching across the entire Muslim world, and spanning the whole gamut of the social and economic orders. Generally speaking, they are not trained in traditional disciplines, nor (in part as a consequence) do they read the classical sources with the same perspective as the ulama. They are trained in a wide variety of modern technical disciplines, ranging from engineering and medicine to accounting, business and teaching in “secular” schools. Those of the Islamists who discourse on matters religious and legal seem willing to employ any modern interpretive amalgam. The
interpretive methods they employ – what they say, how they say it and why – are of complex hybridity. They are not bound by an established or a given reading of the Quran and the Prophetic Sunna, as the ulama generally are. Their interpretive techniques with respect to these sources can invoke a wide range of principles ranging from the social to the natural sciences. In other words, having shed the mantle of traditional juristic and hermeneutical authority, the Islamists do not feel bound by the cultural and epistemic systems developed throughout Islamic intellectual and legal history. The recent proliferation
of
fatwa
s on the Internet, in print media and in video-recordings attests to a multifarious production of “
religious knowledge” that has consistently lacked any axis of authority. Aside from
Pakistan’s
Mawdudi and
Egypt’s
Sayyid Qutb, whose writings have attracted significant numbers of Muslim readers around the world, and apart from a few other secondary writers, the Islamists, in terms of religious–legal authority, have thus far not unified their ranks under any clearly identified banner or ideology, which is to say that their camp – if the term is at all apt – is highly diverse.

But this diffusion of authority is also endemic, though to a lesser extent, among the
ulama as well as the so-called
secular modernists. The latter
cannot be classified in any uniform terms, for they may range from atheists and Gnostics (who are relatively few) to believers in God who do not wish to see religion play any role in the state, its politics or the public sphere. On the other hand, some ulama have effectively, though not formally, joined the Islamist camp, as is the case with certain members of the lower echelons of Egypt’s famous
Azhar. Their Islamist affiliation is attested not only by the political positions they adopt, but also by their hybridized
interpretive mechanisms which are no longer loyal to the Azharite juristic methods of interpretation. Arguably, the reverse is also true, namely, that the Islamists have penetrated Azhar’s lower ranks, and continue to do so. The boundaries are never neat, not even on the level of state involvement
.

In the following pages, we will discuss the main contours of juridico-political developments in five key Muslim countries, where trends have been set and where tensions and accommodations between and among these camps have had noticeable but varied effects
.

We begin with Egypt, as it offers, after British India (whose relevance for us is now limited to Pakistan), the longest experiment in legal
modernization and, simultaneously, perhaps one of the fiercest tendencies to contest
secularization of the law in the name of one Islamic ideology or another. Since
Muhammad
Ali, Egypt has enjoyed a relatively strong state, and from the middle of the nineteenth century it began to develop upper social classes imbued with vehemently secularist tendencies. But at no point was Egypt devoid of influential Islamic groups. The
Azhar and its
ulama were still forces to be reckoned with even after the exhausting effects of the nineteenth-century
reforms. In fact, despite the chipping effects of
Nasser’s institutional and administrative engineering around the middle of the twentieth century, Azhar grew phenomenally in size, increasing the number of its institutes from 212 in 1963 to 3,161 in 1993. Its student population increased from about 65,000 to almost a million during the same period. But even more phenomenal growth occurred in another religious movement that was to become far more popular and pervasive. In 1928, Egypt witnessed the birth of the
Muslim Brothers, an association created by the Arabic language teacher
Hasan al-Banna (1906–49). Spreading in the 1950s to Jordan, Syria, Sudan, Iran, Pakistan, Malaysia and Indonesia, the movement has continued to gain momentous strength, in Egypt as well as outside it, partly by virtue of an influential ideologue in the figure of
Sayyid Qutb, later considered a martyr after being executed by
Nasser’s regime in 1966.

These two Islamic camps, represented by Azhar and the Brotherhood, have advocated different visions of the Shari
a, but view its implementation in the social order as a matter of principle, a desideratum. Regarding themselves as custodians of the traditional religious law and its methods, the Azharis, generally speaking, advocate a conventional version of the Shari
a, largely derived from the legal doctrine expounded by the legal schools.

The Muslim Brothers, on the other hand, have a wider view of juridical possibilities, allowing for an Islamic law that can be modified to reflect the changing realities of the world, in ways comparatively far more open to interpretive possibilities. But the change is not to be of the sort dictated by the Western colonizer, for that form of change is precisely what has to be resisted and overcome. The colonizer’s change has been as detrimental to Muslim spiritual and social life as the conservatism of the Azhar ulama, whom the Muslim Brothers vehemently oppose.
Modernity, which in the Brothers’ discourse appears distinct from
Westernization, does not however pose any particular problem, that is, if we can assume that modernity
qua
modernity consciously posed itself as an intellectual subject in the thought of – at least –
Banna and
Qutb. But this perhaps is too much to assume, for it seems that the effects of science, technology and industry are not, according to the thought of these two men, appreciated in the social and moral realms. Although the Muslim Brothers, including Banna and Qutb, have never explained exactly what form of Shari
a might be adopted in the new, avant-guarde Muslim society, it is clear that religious
morality is expected to lie at the center of the social order
.

Morality represents the fundamental basis of any project of rebuilding a new Muslim society, and as such the Shari
a, to be implemented, would have to rest on a moral social order. Living a moral life appears even as a predicate to the introduction of any Shari
a order and explains at least in part the formation, in the 1980s, of local grass-roots Islamist communities throughout Egypt
. Somewhat similar to the pre-modern neighborhoods, these mostly urban, lower-middle-class communities fashioned themselves into cohesive neighborhoods with their own systems that encompassed schools, hospitals, mosques, preachers, “banking” operations for mutual financial support, and other social-communal services. (Similar phenomena have also emerged in Gaza and Southern Lebanon,
Hamas’s and
Hizbullah’s networks being, respectively, prime examples.) Most of these Egyptian neighborhoods are populated by Islamists (who are by no means political activists in the majority of cases), although lower-ranking, techno-Azharites have also come to share these habitats. Indeed, the growth of this religious movement would ultimately bring unprecedented pressure upon the government to take seriously the
popular request to implement the Shari
a. But how did the state finally deal with these pressures?

The fundamentals of the politics of law that we have discussed in
chapter 6
continued to be, in their bare essentials, largely operative on the Egyptian scene during the twentieth century. The regime needed Azhar to legitimize its nationalist and socialist projects, which were intended, as elsewhere, to reengineer the social order in the image of the ideal nation which is materially and culturally productive, just, successful and, most importantly, independent and free. On the other hand, Azhar, having become subordinated more than ever to the state and its apparatus, could not but oblige.
Nasser’s regime brought Azhar to heel, first by nationalizing much of the
waqf
property in 1952, then by excluding its personnel from the
national courts in 1955. But it was the 1961 reform that had the most drastic effect on Azhar, in both more and less predictable ways. The first major change was the introduction of scientific subjects into the curriculum, such as engineering and medicine, which, on the one hand, predictably liberalized Azhar but, on the other, created a class of techno-Azharites who – unpredictably – came in the 1970s to share and indeed strengthen the ranks of the Islamists. Nasser also subjected Azhar’s entire administration to the state, and made the appointment and dismissal of its head (
Shaykh al-Azhar) a direct responsibility of the President’s office. Having mercilessly suppressed the Muslim Brothers and outlawed their political formations, and having systemically and systematically subordinated the Azhar to the state, Nasser and his regime could easily afford to ignore all religious sentiments that voiced a concern about the implementation of the Shari
a.

These concerns might have continued to fall on deaf ears had the Arab regimes been more successful in their projects, including their conflicts with Israel. The crushing defeat of 1967 ultimately brought Nasser himself to his knees, and the Muslim Brothers sprang back – from imprisonment, torture and deprivation – with a great deal of resentment. Azhar dramatically transformed its discourse, now invoking notions of repentance, and casting the so-called
Setback (of 1967) as a lesson from God and exhorting Muslims to reconsider their erroneous ways, not least of these being Nasser’s socialism. Even Nasser himself spoke of the Setback as a divine intimation, a call for purification
.