Many Muslim societies are in the throes of tumultuous political transitions, and common to all has been heightened debate over the place of sharìa law in modern politics and ethical life. Bringing together leading scholars of Islamic politics, ethics, and law, this book examines the varied meanings and uses of Islamic law, so as to assess the prospects for democratic, plural, and gender-equitable Islamic ethics today. These essays show that, contrary to the claims of some radicals, Muslim understandings of Islamic law and ethics have always been varied and emerge, not from unchanging texts but from real and active engagement with Islamic traditions and everyday life. The ethical debates that rage in contemporary Muslim societies reveal much about the prospects for democratic societies and a pluralist Islamic ethics in the future. They also suggest that despite the tragic violence wrought in recent years by Boko Haram and the Islamic State in Iraq, we may yet see an age of ethical renewal across the Muslim world.
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About the Author
Robert W. Hefner is Professor of Anthropology and Director of the Institute on Culture, Religion, and World Affairs at Boston University. He is editor of Shari'a Politics: Law and Society in the Modern Muslim World (IUP, 2011).
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Shari'a Law and Modern Muslim Ethics
By Robert W. Hefner
Indiana University PressCopyright © 2016 Indiana University Press
All rights reserved.
Shari'a Law and the Quest for a Modern Muslim Ethics
Robert W. Hefner
In recent years many Muslim-majority societies have undergone complex and difficult political transitions. As in Indonesia and Tunisia, some of these passages have been from authoritarian rule to a significant measure of democracy and citizen rights. As in Egypt, Libya, and Syria, however, other transitions began with hope but soon gave rise to a barrage of state and societal violence that left the national landscape anything but civil or democratic.
Whatever the precise course of events, common to all these transitions has been heightened debate over the role of shari'a law and Islamic ethics in politics and social life. Across the world today, prominent Muslim democrats invoke shari'a and Islamic values to justify calls for democracy, pluralist tolerance, and gender equality (see Abou el Fadl 2001, 2004; Moosa 2001; Ramadan 2009). At the same time, however, radical movements such as the Islamic State in Iraq and the Levant (ISIL) and Boko Haram in West Africa cite what they insist are shari'a principles to legitimize rejection of democracy, enslavement of non-Muslim women, and mass killing of so-called apostates. Two generations ago, the idea that disputes over the forms and meanings of Islamic law and ethics might figure prominently in Muslim politics would have struck most observers as unthinkable — but no longer. The pervasiveness of appeals to shari'a in today's upheavals, as well as the existence of conflicting interpretations of Islamic values, shows that understanding the struggles of the Muslim world requires a coming to terms with the varied meanings and uses of Islamic law and ethics.
The chapters in this book aim to provide just such an understanding. They are the product of a two-year collaboration that began in March 2013 with a workshop at Boston University's Institute on Culture, Religion, and World Affairs and that ended in early 2015. The collaborators in this project came together in response to modern changes in politics and ethics in the Muslim world. In early 2011, the transitions collectively known as the "Arab Spring" had just gotten under way. Notwithstanding initially encouraging events, reform-minded proponents of democracy and citizenship in many lands soon found themselves challenged by rivals who dismissed democracy as being incompatible with Islam and who called for a new order based on their own understandings of shari'a law. By the time of our workshop, events in Syria and Libya no longer instilled springtime optimism but instead cast dark shadows of concern.
The quickened pace of developments did not end there. The first months of 2014 saw an explosion of killing, rape, and enslavement on the parts of Boko Haram and ISIL (Hanne and Flichy de la Neuville 2014). Mali, once known for its robust democracy, remained mired in an ethnic and Islamist insurgency (see chapter 9, Schulz). The Pakistani government, a beacon of modernist progressivism only two generations earlier, had difficulty recruiting clerical allies for its antiradical campaigns (see chapter 8, Zaman). Turkey, until recently seen as a model of democracy for the Muslim Middle East, saw its once moderate Islamist leadership impose draconian restrictions on the press as well as on opposition groups (see chapter 7, Kuru).
But not all news from Muslim lands was dire. In the 2010s, an international coalition of Muslim feminists known as Musawah had established branches in dozens of Muslim-majority countries, invoking Islamic values in the cause of gender-equity reform (see chapter 3, Mir-Hosseini). In Morocco, the astonishingly open public debate surrounding a young woman's rape, marriage, and subsequent suicide revealed that new ideas of gender dignity had taken hold among a broad swath of Moroccan youth (see chapter 4, Salime). Moreover, over the course of 2014, Tunisian parliamentarians succeeded in crafting a boldly democratic constitution (see chapter 5, Zeghal). Indonesia in the 2010s was well into in its second decade of impressive democratic reform, with women's groups helping lead the way (see chapter 11, Hefner). However, what made the course of Muslim-world developments so perplexing was that actors and movements on all sides regularly invoked Islamic law and ethical values to justify vastly different positions.
In light of these developments and controversies, the contributors to this volume felt it imperative that they revisit the question of the varied meanings and uses of Islamic legal and ethical traditions today. The authors come from a variety of disciplines, including Islamic studies, political science, legal studies, and anthropology, but they share one conviction: that one of the keys to understanding Islamic law and ethics lies in exploring their imbrications with the various ethical projects and "social imaginaries" (Arkoun 2003; Taylor 2004) at play in the transitions under way in the contemporary Muslim world. In highlighting transitions, we do not limit our attention to the regime changes seen in the Middle East and North Africa (MENA) in the aftermath of the so-called Arab Spring. Rather, our cases extend well beyond the MENA region, involving disputations and transitions more varied than those of state-level politics alone and focusing on matters related to law and women as well as to governance. Our inquiries are also as much concerned with the "epistemological crisis" affecting Islamic ethical traditions — in philosopher Alasdair MacIntyre's (1984; 1988) sense of the term (see later this chapter) — as they are with state-related politics.
Three theoretical premises inform our aims: First, to understand Islamic ethics and law today, we must put aside narrowly instrumentalist approaches to Muslim politics, which see appeals to ethics as cloaks for more "real" political-economic interests. Rather than dismissing legal and ethical arguments, the contributors to this volume recognize that the varied ethical aspirations to which actors dedicate themselves are key features of Muslim society and politics. In adopting this perspective, the authors build on new approaches to ethics and morality that have emerged over the past ten years in fields as varied as anthropology, political ethics, Muslim feminist theory, and Islamic studies (see later this chapter). With regard to Islamic studies in particular, these approaches share the conviction that to understand contemporary events we must recognize "the continuing commitment of today's Muslims to the central domain of the moral" (Hallaq 2013, 169) even as the details of Islamic morality remain a point of contention.
Second, a proper assessment of Islamic ethicolegal traditions requires that we recognize that the latter are "in practice ... various, not homogeneous" (Hooker 2008, 1; see also Abou el Fadl 2014, xxxii; Moosa 2001, 7), being subject to widely divergent interpretations in different times and places. Much as ISIL and Boko Haram do, many among today's radical proponents of shari'a claim that its meanings are unitary, clear, and unquestionable. Muslims who suggest otherwise they deem fools or apostates. But the overwhelming majority of the world's Muslims adamantly reject these absolutist claims. More generally, history shows that Muslim understandings of Islamic law and ethics have always been varied. Rarely has that variation been more politically consequential, however, than it is today.
This, in turn, raises a third issue vital to a discussion of the matters addressed in this book. To understand how and why cultural understandings of Islamic law and ethics vary over time and space, merely probing the scriptures or textual commentaries to which some actors refer as the source for Islamic values is not sufficient. However authoritative such sources might be, Muslim ethical understandings vary because the achievement of those understandings is contingent and conjunctural. Ethical understandings are not hermetically sealed from the world but rather emerge from the efforts of real human actors who engage Islamic traditions even as they are involved in other life projects and influenced by other ethical norms. As a result of these "entanglements" (Lempert 2013), Muslims' understandings of shari'a and ethics can change over time and can differ from or contradict those of other believers (see Lempert 2013; Simon 2009, 265; Zigon 2008; 2014, 753; cf. Masud 2002; Metcalf 1984).
This last point is, analytically speaking, the most critical, and it raises the larger question of how we are to understand the relationship of Islamic law and ethics to the diverse ethical currents that flow through all Muslim societies. In recent years, scholars of comparative law have come to recognize that all societies are characterized by legal plurality, defined as "a situation in which two or more legal systems coexist in the same social field" (Engle Merry 1988, 870; see also Tucker 2008, 9). This plurality is important because coexistent bodies of law "may make competing claims of authority; they may impose conflicting demands or norms; they may have different styles and orientations"; moreover, the plurality "poses a challenge to the legal authorities themselves, for it means that they have rivals" (Tamanaha 2008, 375; cf. Modood 2009; Turner 2011, 151-74).
Legal plurality is, however, but one part of the larger ethical plurality that characterizes all human societies. As highlighted in the anthropology of Islam and the new anthropology of morality (Clarke 2014; Laidlaw 2014; Lambek 2010; Robbins 2007; Schielke 2010a; 2010b; Simon 2009; Soares 2005; Zigon 2014), all societies make a variety of moral registers available to their members, each associated with a particular social field or fields and sustained by a distinctive interplay of actors, institutions, and powers. As is most notably the case with moral registers identified as "law" or "religion," some moral registers may be discursivized — which is to say performed, produced, and reproduced in explicit cultural terms by actors and institutions who have been endowed with authority and power. Contrary to the tendency of some authors to extend the notion of "discourse" to any and all normative forms, however, not all ethical registers that operate in society achieve such an explicit and authoritative standing. Other moral currents might be less formal or articulate or may not be officially recognized or publicly discursivized at all (see Laidlaw 2014, 82; Lambek 2010; Robbins 2007; Schielke 2010a; 2010b; Simon 2009; Zigon 2014). Notwithstanding their less public standing, these "ordinary" (Das 2012; Lambek 2010) moral registers may exercise a powerful influence on actors' subjectivities and aspirations. No less important, they influence the ways that actors understand more formalized moral discourses — including, for example, Islamic law. To borrow a notion from Zakia Salime (this volume, chapter 4), one often sees a web of exchanges among movements and across moral registers in a society, mutualistic imbrications that take on fuller meaning when linked to particular time-events (see also Lempert 2013; Simon 2009). Only by exploring this entanglement of moral registers and projects can we begin to understand the varied forms and meanings of Islamic ethicolegal traditions and their implications for the three concerns at the heart of this book: government, public law, and gender roles.
Having presented a few additional remarks on this framework, I turn in the second part of this introduction to the chapters themselves. I then conclude by making several general observations about what the ethical variety operative in contemporary Muslim societies says about the prospects for a democratic and pluralist Islamic ethics in years to come.
Islamic Law amid Ethical Plurality
To begin to understand Islamic legal and ethical traditions, one must dispense with the idea that the latter are a fixed and finished body of normative regulations, derived from sacred texts and uniform across time and space, an essentialist understanding of Islamic law and ethics once common among Orientalist scholars of Islamic law. In recent years, such a view has found a second lease on life among conservative Islamists and even among some mainstream Muslim scholars, particularly those who have sought to embed what they describe as "shari'a" in the positive law of the modern nation-state (see Hooker 2008; Musallam 2005; Zubaida 2003, 135). Ironically, an essentialized understanding of shari'a has also figured in the imaginations of anti-Muslim activists in the West. The "antishari'a movement" that emerged in the United States and Western Europe in the 2000s portrayed shari'a as uniform and unchanging while claiming, in the words of former House Speaker Newt Gingrich, that shari'a is "a moral threat to the survival of freedom ... in the world as we know it" (Shane 2011; see Center for Security Policy 2010; this volume, Emon, chapter 2; and Uddin and Pantzer 2012).
Rather than viewing Islamic legal and ethical ideals as being unitary and unchanging, we come closer to their living reality when we recognize that their understanding is always mediated through an array of popular and elite ethical imaginaries, as well as media of representation and organized practices of transmission, performance, and discipline. Rather than scriptural texts' generating a single and unchanging truth, ethical meaning emerges from "diverse and often far-flung materials" linked in ongoing and multisited "entanglements" (Lempert 2013, 373; cf. Simon 2009; Zigon 2014, 753). To borrow a phrase from Fredrik Barth's (1993, 177-236) anthropology of knowledge, the interplay of these elements may well bring about "criteria of validity" with sufficient internal consistency, social resonance, and public authority to allow a stable understanding of Islamic law and ethics in a particular time and place. Precisely because ethical understandings and practices emerge from this imbrication, however, the specific "corpus of assertions" (ibid.) inspired by what is regarded as shari'a or any other ethical tradition can vary, sometimes in contradictory ways (see also Dupret 2012; Mir-Hosseini 2003; Moosa 2001).
While recognizing their situated and conjunctural nature, we must take care not to deconstruct Islamic law and ethics so thoroughly as to assume that they have always been entirely relative from one time and place to another. In a manner most directly comparable to Judaism's ethical traditions (Neusner and Sonn 1999, 1-17), a concern for God's commands and ethical guidance has been central to Islamic civilization from the first. Moreover, one of the great achievements of that civilization in its third to fifth centuries of existence (the tenth to twelfth centuries CE) was to put in place an educational and political "assemblage" (Latour 2005) for the enduring production and reproduction of the knowledge that came to be regarded as Islamic law. Until the great political transformations of the nineteenth and twentieth centuries (when much would change; see later this chapter), the institution at the heart of this ethicolegal assemblage was the madrasa, a boarding school for intermediate and advanced study in the Islamic sciences (Berkey 1992; Chamberlain 1994; Hefner 2007; Makdisi 1981). Madrasa curricula varied, and in some times and places they included training in Islamic spirituality, mathematics, and astronomy or even in the Greek-influenced "sciences of the ancients" with their natural science and humanistic philosophy (Arjomand 1999; Grandin and Gaborieau 1997). In most pre-twentieth-century Muslim lands, however, the subject matter at the heart of madrasa curricula was fiqh, or Islamic jurisprudence.
Meaning, literally, "understanding," and referring to the efforts of religious scholars to understand God's commands, fiqh was the scholarly specialty par excellence responsible for the derivation of legal and ethical "rules" (Ar. ahkam, sing. hukm) from shari'a (Berkey 1992; 2003; Hefner 2009; Makdisi 1981; see also this volume, Emon, chapter 2, and this volume, Mir-Hosseini, chapter 3). In the premodern period, fiqh was neither codified nor rendered as positive statutory law. From the ninth century onward, different schools of Islamic jurisprudence (four Sunni and three Shi'a) each had a measure of "ijtihadic plurality" (Hallaq 2009, 449) that allowed scholars considerable leeway in legal judgment. Viewed from a comparative perspective, then, Islamic fiqh was in every respect a rich ethical "tradition" in philosopher Alasdair MacIntyre's sense of the term (MacIntyre 1988, 12, 350). Rather than a settled list of positive laws, Islamic legal commentary was "an argument extended through time in which certain fundamental agreements are defined and redefined," having its own standards of rational justification and inquiry through which actors come to understand "[their] own commitments or those of others ... by situating them within those histories which made them what they have now become" (1988, 12-13).
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Table of Contents
A Note on Transliteration
1. Sharìa Law and the Quest for a Modern Muslim Ethics. Robert W. Hefner
Section 1: Sharìa Pluralities
2. Sharìa and the Rule of Law. Anver M. Enom
3. Moral Contestations and Patriarchal Ethics: Women Challenging the Justice of Muslim Family Laws. Ziba Mir-Hosseini
4. Gender, Legality, and Public Ethics in Morocco. Zakia Salime
Section 2: Islamic Law and the State
5. Constitutionalizing a Democratic Muslim State without Sharìa: The Religious Establishment in the Tunisian 2014 Constitution. Malika Zeghal
6. Transformations in Muslim Views about "Forbidding Wrong": The Rise and Fall of Islamist Litigation in Egypt. Clark B. Lombardi and Connie J. Cannon
7. Sharìa, Islamic Ethics, and Democracy: The Crisis of the "Turkish Model." Ahmet T. Kuru
8. Islamic Modernism, Ethics, and Sharìa in Pakistan. Muhammad Qasim Zaman
Section 3: New Ethical Imbrications
9. "Sharìa" as a Moving Target? The Reconfiguration of Regional and National Fields of Muslim Debate in Mali. Dorothea E. Schulz
10. Syariah, Inc.: Continuities, Transformations, and Cultural Politics in Malaysia’s Islamic Judiciary. Michael G. Peletz
11. Islamic Ethics and Muslim Feminism in Indonesia. Robert W. Hefner