The Great Theft: Wrestling Islam From the Extremists (5 page)

the welfare of people, establishing justice, and enjoining what is good while forbidding what is evil. These are the ultimate objectives of the law or, as some have called them, the consti- tutional purposes, of Islamic jurisprudence. As such, Muslim jurists are instructed to serve and promote these ultimate pur- poses.

Unlike secular legal systems, Islamic law is not based on positive commands issued by a government. Rather, Islamic law is produced by jurists interpreting textual sources and ap- plying particular methodologies according to a fairly complex set of rules. The sources of Islamic law are the Qur’an, which Muslims believe is the literal, unadulterated word of God; the Sunna, which is a body of oral traditions describing what the Prophet and his Companions said and did; rule by analogy, which is effectively the following of precedents so that a judg- ment in an old case is adhered to in a similar new case; and consensus of the jurists (or, according to some, consensus of the Prophet’s Companions, and according to still others, con- sensus of Muslims in general, as opposed to jurists). Other than these main sources, a ruling in Islamic law could be based on equity, public interest, or custom. This, of course, is a general overview of the sources that Muslim jurists relied upon in constructing and building the Islamic legal system. But it ought to be noted that there were extensive debates and disagreements about the exact meaning and application of each these sources. For example, many jurists, particularly Shi’is, believed that reason is an independent source of law.

Like in the common law system, Muslim jurists exercised the dominant role in producing the set of judgments and rul- ings that we now know as Islamic law. In theory, Muslim ju- rists searched and interpreted the Divine law, and they exercised considerable leeway and discretion in deciding what is valid or invalid, what is legitimate or illegitimate, what to

count and what to abjure, what to rely on and what to ex- clude. Because most of Islamic law is the product of juristic reasoning and interpretive activity, on any significant issue one will find multiple legal opinions all claiming to be correct. In the first couple centuries of Islam, well over thirty schools of legal thought, organized along the lines of methodological and interpretive differences, competed for the hearts and minds of Muslims. Although the competition among the various schools of thought was often intense, all schools were consid- ered equally legitimate and orthodox. The sum total of all the legal opinions according to the various schools of thought, in addition to the principles and methodologies, were known col- lectively as the Shari’a (the holy law of God). In the classical age the state could not produce Shari’a law; only the jurists could do so. Laws passed by the state were considered regula- tory rules not included as part of Shari’a law.

By the tenth century, most Islamic jurists received training in one of four Sunni schools of thought: Shafi’i, Maliki, Hanafi, or Hanbali. Each of the four schools was considered equally orthodox, and the laity could choose to follow any of them. (The many other schools existing earlier for various complicated reasons had become extinct.) Shi’i jurists, de- pending on their theological affiliation, trained in the Ja’fari or Zaydi schools, and at times they also trained in one of the Sunni schools of law.
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After many years of study in a law school or with distin- guished jurists, a student would receive a sufficient number of licenses (
ijazas
) from professional mentors, until reaching the status of a jurist, or expert in Shari’a. Trained in Islamic ju- risprudence, such a graduate enjoyed many career opportuni- ties, all of which would have earned him a high level of social esteem. Jurists could work as professors of law, as judges, as court clerks, or in other high-level administrative positions

within the state bureaucracy. Importantly, however, regardless of their official or governmental post, jurists who earned the greatest trust, respect, and loyalty of the public through their teaching and writing also enjoyed the greatest level of social esteem and exercised the greatest influence on defining Islamic orthodoxy.

The Shari’a was richly diverse. Indeed, it is difficult to con- vey to modern readers the degree of richness and diversity that the Shari’a enjoyed. The only legal tradition that I am aware of that comes close to the richness of the Shari’a tradition is the Jewish Rabbinic tradition, with its multi-interpretive meth- ods and various competing interpretations. As in the Rabbinic tradition, the students of Islamic law considered a wide range of alternative interpretations and opinions on any particular point of law, and the various sages of Islamic law worked hard to earn the respect and loyal following of a number of stu- dents, who in turn worked to spread and develop their mas- ter’s intellectual heritage. The Rabbinic tradition, with all its various sages, methodologies, and legal determinations, collec- tively represented Jewish law. Likewise, the Shari’a contained a wide range of ethical and moral principles, legal methodolo- gies, and many conflicting and competing judgments. This rich and diverse matrix of opinions and judgments was collectively considered to be God’s law.

In fact, to help visualize the phenomenon that I am describ- ing, perhaps I should mention my own personal library on Is- lamic law. It contains about fifty thousand titles, the vast majority of which were written before the sixteenth century and as early as the ninth century. The books in this library rep- resent a variety of approaches, schools of thought, and opin- ions written over the course of several centuries. Many of the titles are multivolume—in fact, some titles contain as many as fifty volumes in print. As I repeatedly remind my students, the

fifty thousand titles do not simply present the same ideas and doctrines over and over again. Rather, each book is unique and special in terms of the ideas and doctrines presented. Legally speaking, the diversity reflected in these books could make a world of difference in terms of results: some jurists, for instance, barred women from serving as judges while others allowed it; many jurists banned women from leading prayer while a few permitted it. But as much diversity and richness that is contained in my library as it stands, there are hundreds (if not thousands) of other texts that I dream of acquiring someday, because there are yet many other opinions and views that I am eager to learn. Unfortunately, many of these texts are not published and remain in manuscript form. Neverthe- less, all these books together, those I have acquired and those I dream of acquiring, the published and unpublished, collec- tively represent what we call the Shari’a.

The Shari’a—as a symbol to the Divine path and as the rep- resentative of the collective effort of Muslims at understanding what God wants from human beings—functioned like the symbolic glue that held the diverse Muslim nation together, despite its many different ethnicities, nationalities, and politi- cal entities. Shari’a became a symbol of unity and commonal- ity for Muslims around the world, and jurists were the Shari’a’s guardians and protectors. Throughout the classical period, the Islamic Empire became divided into many princi- palities and kingdoms ruled by different emirs, sultans, or caliphs that at times were in military conflict with each other. But the Shari’a remained the transcendent symbol of unity, and the jurists, as its articulators and protectors, stayed above the petty political and military conflicts and struggles for power. As such, the jurists, although belonging to a variety of schools of thought, provided the quintessential source of reli- gious authority in the Muslim world.

This whole complex edifice that supplied religious authority in Islam started to crumble with the entry of Western colonial- ism in the eighteenth century. Domestic elements not related to colonialism, such as inefficient taxation systems and poorly organized militaries, had already started the process of deteri- oration well before the eighteenth century, but those elements would likely have self-corrected had it not been for the sharp blow that colonialism dealt to the institutions of Shari’a after repeated military defeats of Ottoman and other Muslim forces across the Islamic world. Slowly but surely, the jurists lost their privileged position in society; and with the deterioration in their status, the place of Shari’a in Muslim society was seri- ously compromised as well.

Colonialism, under the auspices of modernization, generated new elites of Western-educated secular professionals. Under the guise of reform, Shari’a law was replaced with Western-based legal systems, and with that shift emerged a class of lawyers trained in Western-styled law schools. Nevertheless, the real damage to the status of jurists and the place of Shari’a was done by native rulers installed by colonial powers in the post- colonial period. Especially in the 1950s and 1960s, many of the rulers of Muslim countries were military men, trained in secular armies organized along Western military doctrines; in short, they were, for the most part, Western-educated, secular, and nationalistic. The impact of this was nothing short of devastating. The religious endowments that funded the Shari’a schools were nationalized and became state-owned property. In most countries the role of Shari’a was severely narrowed down and replaced with Western-based secular legal systems. Many of the Shari’a schools were closed down, and today most of them function as poorly preserved tourist attractions. Shari’a schools, such as the Azhar in Egypt, became state-owned schools in which the state appointed and fired the faculty.

With these changes, career opportunities for those trained in the Shari’a schools became severely limited. Increasingly, ju- rists were perceived as state functionaries who were entirely controlled and directed by the state. But there was another de- velopment that has escaped the attention of many contempo- rary scholars. The curricula of the Shari’a schools were carefully redefined by the state, and the training of the stu- dents enrolled in these schools was completely overhauled in order to limit the jurists’ ability to provide intellectual leader- ship to society. The
‘ulama
(jurists) were trained to perform limited functions in society such as leading prayers in mosques, delivering Friday sermons, and at most, serving as judges in personal law courts. In order to limit the jurists’ so- cial and political functions, the state followed the dual policy of enforcing poor educational standards and paying low wages. In most Muslim countries the state aspired to be the gatekeeper controlling the access of the
‘ulama
to the Islamic intellectual heritage by eliminating certain chairs, banning par- ticular subjects or books, and firing jurists who stepped out of line or defied the state in any way. In addition, by lowering the educational standards and limiting the earning potential of the jurists, the state ensured that the religious schools only at- tracted the least able and bright students. The material taught in the religious schools no longer included studying jurispru- dential theory, legal maxims, legal precedents, hermeneutics, rhetoric, procedural theory, or any of the kind of subjects nor- mally encountered in schools of law. As a result, those gradu- ating from these schools were no longer jurists or legal experts in any sense. Effectively, the
‘ulama
became more like Western- styled ministers, who functioned at the margins of society as religious advisers without being able to influence social or political policy in any meaningful way. After most Muslim

countries adopted Western-based legal systems, the state took away the power of defining and enforcing the law from the ju- rists and gave it to lawyers educated in Western-styled secular law schools.
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This process left a vacuum in religious authority in modern Islam. The disintegration of the traditional institutions of Is- lamic learning and authority meant a descent into a condition of virtual anarchy in regard to the mechanisms of defining Is- lamic authenticity. In the nineteenth and early twentieth cen- turies, noticing that Shari’a law was losing its prominence in society, a number of jurists, including Rifa’a al-Tahtawi (d. 1873), Muhammad ‘Abduh (d. 1905), Rashid Rida (d. 1935), ‘Abd al-Rahman al-Kawakibi (d. 1902), Jamal al-Din al- Afghani (d. 1897), ‘Ali Jalal al-San‘ani (d. 1810), Muhammad al-Shawkani (d. 1834), Mustafa al-Maraghi (d. 1945), and Muhammad Iqbal (d. 1938), attempted to stem the disaster by promoting liberal programs for Shari’a reform. These thinkers tried to reinterpret Islamic law in order to make it more re- sponsive to modern challenges, such as women’s rights, civil and human rights, democratic governance, and economic eq- uity.
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Although their intellectual efforts were formidable, it is dif- ficult to assess the exact impact of these liberal reformers on the history of Islam. Institutionally, the political developments of the time pushed their reforms to the side, and rendered them marginal. The reformers, for the most part, were schol- ars and jurists who did not lead mass movements. The vac- uum in religious authority that they were working to address was quickly filled by popular movements led by men who had neither the training nor the education of the liberal jurists. Ex- amining their impact in the short term, one would be tempted to conclude that the liberal reformers did not make much of a

difference in the Muslim world. However, I think such a con- clusion would be too hasty. The original liberal reformers in- spired others, such as ‘Abd al-Majid Salim (d. 1954), Mahmud Shaltut (d. 1963), Muhammad al-Ghazali (d. 1996), Muhammad ‘Umara, Subhi al-Mahmassani, ‘Abd al-Razzaq al-Sanhuri (d. 1971), Salim al-‘Awa, Ahmad Hasan (d. 1958), Fazlur Rahman (d. 1988), and others, who have built upon the efforts of their predecessors in every decade since the early twentieth century. The reformers have had a significant impact upon moderate trends in contemporary Islam. For instance, some of the ideas that raised enormous controversy when originally proposed are now taken for granted by moderate Muslims. While the liberal reformers did not fill the vacuum of authority created in the postcolonial age, their ideas have inspired and shaped the thought of what I call moderate Islam. Today, it is the moderates who stand against the puri- tans aspiring to fill the vacuum of authority plaguing contem- porary Islam.
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