Modern Muslims love to talk about how so much of what has gone wrong in Islam is about “culture”, and so many people from Khaled Abou El Fadl to Irshad Manji (that whole range I mean) have tried to point out what is wrong with that, for good reason. Given the discourse, something we professors teaching Islamic law have to deal with often, I thought it might be useful to provide a distinction between some invocations of culture to dismiss pseudo-Islamic practice, which make sense, and other ones, which don’t and require deeper consideration.
As for the ones that too easily dismiss practices with some pedigree, and require deeper thinking than casual dismissal as simply “culture”, let me re cover the ground of giants. Perhaps a good example are the rules of status in Hanafi marriages. The Hanafis have very specific rules on the status and class similarities as between bride and groom. It’s not that they can’t be waived, but at the very least the bride’s guardian, and arguably others in her family, can refuse to waive and nullify the marriage because the groom is of the wrong social status. The rules are complex, but more importantly, out of date, particularly to modern Muslims who want to live in the legend of a world in which race and class never meant a thing to Muslims ever, from the date of Gabriel’s initial Call to Muhammad to this day. So all too often this is all just dismissed as ”culture”, it’s not real Islam, and pointing to some Sunna or other to prove it.
The problem, of course, is NOT that Abu Hanifa or the later Hanafi jurists are unaffected by culture, it’s that they are no more and no less affected than the person dismissing them as engaging in acts of culture in derogation of religion. That is to say, unless you are going to take the preposterous position that the rules of marriage in Islam are so self-evident, and so devoid of these bases of status, that the Hanafis were simply either dumb or deluded (and if so why use them for anything), then you have to acknowledge that just as they are influenced in reading the text on the basis of their culture, so is the liberal, and therefore, as Abou El Fadl would say, or An Naim would say, or I would say, there’s no such thing as a religious interpretation devoid of culture. All religious text is interpreted through people, and people have cultures and those cultures affect how they understand things. This is so self-evident I am almost embarrassed to write it.
One liberal approach (mine) would be to acknowledge this, and to ask that this debate be stripped of its doctrinal mask and we actually just admit what we’re trying to do. Some schools have elaborate rules on class in marriage, others don’t, and the difference isn’t that one has been seduced by culture and one hasn’t, and our favoring one over the other has nothing to do with our freedom from cultural influence, it’s precisely our capture by cultural interests. We don’t LIKE rules that don’t permit nobles to marry commoners. We’ve seen Sabrina just like everyone else, or Slumdog Millionaire which was heavily watched in the Muslim world, and so some rules we like more than others. Once we acknowledge that, and admit our preferences and necessarily that those preferences affect our interpretation, then the debate is honest and free of delegitimization by one side or the other. The conservative doesn’t get to call me some sort of deviant, I don’t get to call him influenced by culture and not truly following the Sunna of the Prophet. I read Mernissi as suggesting something like this–not suggesting that somehow her readings of the Sunna are untainted pure and correct, but rather no less plausible than the dominant hegemon that dismisses her alternatives as in the best case weird (shadh in Arabic, best translated as queer and yes the same term used for homosexuals) or sometimes Zionist, even though they have nothing to do with Zionism that I can find. I think she’s right, her readings are just as plausible, and too easily dismissed. I would say Mernissi likes women’s rights in a modern sense, traditionalists don’t, and the doctine isn’t the dispute, the competing ideological preferences are. Change those preferences, and Mernissi wins tomorrow.
But that mutual recognition doesn’t happen, it stuns me the level of presumption among Muslim liberal and conservative alike, that every human being who can observe the world empirically can see everyone from Bin Laden to Qaradawi to Mernissi to An Naim making arguments based on Qur’an and Sunnah and still every single Muslim thinks he can dismiss centuries of scholarship by googling a hadith, announcing it, and proving the falseness of that scholarship as influenced by culture. There’s somehow an easy answer, and the person who has it is the one talking to you and nobody else.
An example of this occurred to me recently when I said on BBC Radio, in relation to a recent Saudi case where a judge was trying to find a doctor to paralyze a person who had himself intentionally injured a second, causing him paralysis, that this sort of thing was embarrassing no doubt to the Kingdom but harder to clamp down on because of its classical pedigree. I misrepresented Islam, I was told, I should have said it is evil and barbaric and unIslamic, and that anyone who argued otherwise is simply deluded by culture. I am sure someone who called me to say this quoted a Prophetic statement he found somewhere. I could respond with Koranic verse, which could be read to support the notion and with centuries of classical practice on Qisas, which does sanction things of this sort, but didn’t. The point is NOT that these punishments are inevitable, I didn’t say that, I never would, leave that to the Islamophobes but only that they are defensible as Islamic on the basis of traditions and doctrines and practices, and as modern liberal Muslims the solution isn’t to pretend otherwise, it’s to adopt different methods and explanations and practices and acknowledge our history even as we progress beyond it.
Like I said, nothing new here, well trod pathways, even if so many don’t recognize the problem,
The real point is that unless we are going to fall into what friend of the blog Andrew March calls an “exegetical free for all”, we DO have to dismiss some practices, defended precisely as Islamic, as in fact little more than exercises in culture that aren’t really Islamic. Easiest example is the Afghan practice of baad, practiced by some Arab tribes in Iraq too, where to settle a tribal feud you basically send one woman of your tribe over to the other side to marry a groom of their choice.
Now if you go back to the schools, you can find some authority for the notion that a father can marry off his adult virgin daughter among the Shafi’is, but that’s not the trade here. (ALL other schools require the adult virgin’s consent). All schools allow the father to marry off a child virgin, consummated at puberty, but that’s not the trade here either. It’s a TRIBE, not a father, making the deal. And there’s nothing about that, not in the schools, not in the Koran not in the Sunna that I can find.
Maybe you can construct an argument if you really tried, I don’t know, I don’t much care to. I’m enough of a Realist to say it’s possible maybe, but not so extreme a Realist as to think every argument can be produced out of any text. (I think if you want Islamic government, you don’t reinterpret the US constitution, you call for its demise. Similarly, if you want to practice idolatry, you don’t reinterpret the Koran, you stop following it). But more to the point, you talk to these guys, and they don’t even do so much as my students and google a hadith. It’s more “Islam wants good things and this is tribal peace which is good, and so baad is good.” Or “my grandfather practiced baad and he prayed 14 times a day. Do you pray 14 times a day? Okay then he knows better.” Etc. etc, etc.
The point is that’s not really adhering to any sort of methodological traditions, it’s not claiming reinterpretation of those traditions, it’s not finding a new way to deal with text, it’s just ignoring it in favor of what appears to be nothing but an invocation of culture as being in essence the touchstone of Islamicity. And there, I think, you can draw the line.
But what if, you ask, this view becomes prevalent? Don’t we then have to describe the practice as “Islamic”? Isn’t that my point in describing Realism, that the law is as it does and if it does this, then that’s the law? Or, take the converse, and say homosexuality and Islam. If gay rights spread in Islam, couldn’t you then argue that Islam allows for the practice of homosexuality?
My answer would be to say that if either baad were to spread as acceptable, meaning people of my ideological disposition were to lose out, or homosexuality were to gain acceptance in the popultation and be accepted, meaning the baad practices were losing out, then assuming Muslim scholars to be serious people, one of two things would happen. The first would be that they would develop methodologically sound, and doctrinally consistent, positions to defend these practices. That’s what they have done to defend abolition of slavery in derogation of centuries of tradition but is not close to what defenders of baad do now. The second would be that they wouldn’t bother to reinterpret, they’d just explain that secular law could do what it wanted, so long as it did not violate core tenets, and those core tenets would be defined not to include whatever rising practice it was that was gaining recognition. That’s easy because there’s no real such thing as core tenets of shari’a, no classical jurist talks that way, and the goals of the sharia are so abstract (protection of life, honor, family mind, religion, etc) they can mean anything, so you can readily weasel tolerance of homosexuality for example or of baad as not implicating core tenets. So the secular law would develop its own normativity, and Islam would stay on its, and they’d stay out of each other’s way such that Islam became increasinly privatized, focused on worship and dietary rules and less on public order, as the traditional rules become more and more antiquated and incapable of use in any modern society and slowly ignored as they fall out of use, among population and legal community alike. That’s how I’d describe 90% of legal change in the shari’a area, not reinterpretation, but rather marginalization. That I have written on extensively and described as the Death of Islamic Law.
But the point here is what certainly would not happen would be that the entire community of Muslim scholars would start to defend practices on Islamic grounds with nothing better than “my grandfather did it, and he prayed 14 times a day”.
No legal system, or ethical system, proceeds that way unless it’s on the verge of falling apart, into the “exegetical free for all” devoid of any doctrinal or methodological tradition or constraint of any kind.
HAH
Islamic Law In Our Times
Bankers in Islamic finance are increasingly outsourcing sharia supervision due to a lack of scholars in the industry, but critics say this is making the sector even less transparent and slowing its development.
“In banking you can lose a deal in one day,” said John Sandwick, a Geneva-based Islamic wealth and asset manager. “If the scholars are not responsive, and we know it is literally impossible for one man to provide so much work, then everyone suffers,” he said.
