The Great Theft: Wrestling Islam From the Extremists (4 page)

For the first time in Islamic history, the state is in a position to do just that, because the institutions that have historically represented Islamic theology and law have become co-opted and are now closely controlled by the state. In the past, the au- tonomy, plurality, and diversity of religious institutions made this kind of theocratic state difficult to achieve, but today the powers of the state in most of the Muslim world are vast and dominant. A theocratic state such as Saudi Arabia, for in- stance, is a genuine novelty in Islamic history.

Medieval Muslim jurists believed that it was the solemn duty of the state to protect Islam; and as long as the state did so, its legitimacy was not to be questioned or challenged. In- terestingly enough, they also believed that Christians and Jews living in Muslim territory ought to be given the means to pro- tect their religions as well. Medieval Muslim jurists envisioned that in order for the state to protect religion it was obligated to build mosques, collect and disperse alms, pilgrimage to the holy sites of Mecca, Medina, and Jerusalem, ban public acts of indecency, and punish those who maliciously defamed the Prophet or sought to corrupt the faith. At the same time, the state was obligated to afford protection to the diverse schools

of thought and not to favor one interpretation of the faith over another.

That medieval legacy has left modern Muslims with ex- tremely challenging questions. What is the difference between the state protecting religion, on the one hand, and the state representing religion, on the other? Can the state protect reli- gion without undermining a democratic political order? En- gland, for instance, has several statutes and common law doctrines that obligate the state to protect the Christian faith from malicious slander; Israel has various ordinances that pro- tect Orthodox practices and observances in certain areas of the country, such as Jerusalem; Italy has a complex system of concessions and protections afforded to the Catholic Church; and Ireland, as well as other European states, is constitution- ally obligated to preserve the Catholic identity of the state. Yet there is a significant difference between the state playing some role in protecting religion and the state becoming the repre- sentative and enforcer of religion, as in the Saudi model.

The formidable questions that confront Muslims today are whether democracy is reconcilable with Islam, whether Islam has its own unique system of government, and whether the historical caliphate should be restored and revitalized so that it can unite most Muslims under a single polity. The current debates among Muslims are not whether Islam can be politi- cal or not. But the exact role that Shari’a should play in a modern state, the role of Islamic jurists (
fuqaha
), the relation- ship of the state to God, legislative sovereignty, constitutional limitations on the actions of the legislature, and even the de- sirability of liberal democracies as well as the place of human rights in a Muslim polity are all hotly contested issues in modern Islam. The spectrum of ideas on all these issues ranges from strongly puritanical on the one end to moderate on the other. These issues are but examples of the many prob-

lems that increasingly divide the two main groups wrestling for the soul of Islam.

The range of ideas explained in this book is based on my long engagement with the problems, issues, and doctrines of Islam and Muslims in a large number of Muslim and non- Muslim countries. The battle over these ideas is waged in the nations of the Middle East in particular, but it is certainly not limited to that region of the world. The battle for the soul of Islam takes place in every country, Muslim or non-Muslim, where puritans have clashed with moderates and have man- aged to make inroads. For most of my life, I have been a stu- dent of Islamic theology and law, and at different times I have moved along the spectrum of ideas presented in this book, and have experienced them both as an activist and as an academic. At this point I must confess that after years of reading Islamic sources on theology and jurisprudence, I have become con- vinced that the puritan end of the spectrum empties Islam of its moral and ethical content. And I have become convinced that a nonhumanistic Islam is a false Islam—that Islam is a message of compassion, mercy, love, and beauty and that these values represent the core of the faith. Nevertheless, my train- ing as an Islamic jurist, a secular academic, and a lawyer has taught me to represent positions and points of view I do not agree with. I will strive to do justice to both ends of the spec- trum, even if I not only disagree with one of those ends but also find it morally repugnant.

Far from being dry scholastic theological disputes, disagree- ments over these issues have far-reaching real-life conse- quences and implications. The issue that confronts us is no less important than the following: Between the puritans and moderates, which of the two groups is more likely to define the meaning and role of the world’s second-largest religion in the future?

two

THE ROOTS OF THE PROBLEM

A

ll religions, like all sociological and political movements, have a process or method for generating and defining authority. Authority can be formal or informal, but either way, authority defines for people what is official, formal, and binding. Fundamentally, it defines what can be relied upon and what ought to be followed. In the Islamic context, the au- thoritative communicates to believers what is objectionable, what is acceptable, and what is binding, and also what is for-

mally a part of their religion.

However, in the modern era, Muslims have suffered a crisis of authority that has deteriorated to the point of full-fledged chaos. There are reasons for this that I will explain, but for now it is important to note that in the house of Islam, which includes any area where Muslims live, whether in Muslim countries or not, there are numerous parties who pretend to speak on God’s behalf but too few who are willing to listen. A brief aside is necessary here. Modernity, as a concept, is highly contested by social theorists, but by
modern era
I mean the twentieth and twenty-first centuries, especially after the 1950s. The deterioration in religious authority started with the age of colonialism in the eighteenth century, especially with Bonaparte’s invasion of Egypt in 1798. But even back then the
‘ulama
(religious scholars or jurists) were able to mobilize the

population into waging a vast rebellion against the French. By the twentieth century and onward, however, the
‘ulama
ceased to have that kind of influence in most of the Muslim world, and the crisis in religious authority was in full effect.

Westerners often complain that it is difficult to learn whether Islam endorses or condemns a particular position or practice, such as hostage-taking, suicide bombings, and the veiling of women. The same complaint is made by Muslims living in practically every part of the globe. Many Muslims in numerous venues, ranging from books and newspapers to call- in television and radio programs, complain that on a very wide range of issues—from those named above, as well as the legality of secret marriages and certain types of divorce, to in- terest on bank loans, house mortgages, fighting the Americans in Iraq or Afghanistan, and the duty of Muslims toward those suffering occupation in Chechnya and Kashmir—they find many contradictory statements about what is Islamically legit- imate or condemnable. The phenomenon described here is not limited to the Middle East or to one part of the Muslim world. I have received a large amount of correspondence from Mus- lims living in several non–Middle Eastern countries, including Malaysia, Indonesia, Pakistan, India, Bangladesh, Australia, and several South American and sub-Saharan African coun- tries, lamenting the same problem and asking if there is some way that a Muslim can ascertain the incontrovertible and true Islamic position on any of the issues mentioned above.

The reality is that in the modern age, there are many contra- dictory claims made in Islam’s name, and when it comes to Is- lamic law, the response one gets about any particular issue depends on whom one asks. This reality was keenly felt after the terrorist attacks of 9/11, but it has been evident in numer- ous controversies, such as the Salman Rushdie affair, the prac- tices of the Taliban against women and historical and religious

monuments, the stoning of women in Nigeria, the taking of hostages in Iran and Lebanon, the treatment of women in Saudi Arabia, the ejection of veiled Muslim girls from public schools in France, and the presence of women as religious lead- ers and advisers in Egypt, Canada, South Africa, and China.

JURISTS AND THE ONGOING BATTLE FOR RELIGIOUS AUTHORITY

There is no church in Islam, as was noted earlier, and although this contributes to the chaos, it does not fully explain it. There is likewise no clergy, in the Western sense; there is nothing in Islam that comes close to the papacy in Rome or the institu- tion of the priesthood. There is, however, a class of people who attend something like a seminary, where they study the religious sciences and Islamic law. In Islam, they are given var- ious names—in Arabic,
‘alim
(pl.
‘ulama
),
faqih
(pl.
fuqaha
),
mulla, shaykh,
or
imam.
Because of the nature of their techni- cal legal training and their historical role as lawyers and ex- perts in jurisprudence, I will call them
jurists
throughout the book. Today, these individuals play a role quite similar to that of rabbis in the Jewish faith, in that they give counsel, conduct marriages, conduct the last rites for the deceased, and in some cases serve as judges in a religious court.

The opinions of these jurists carry persuasive authority, but they are not mandatory or binding. These opinions, known as
fatawa
(sing.
fatwa
), may address either a specific problem of interest to a particular person or a matter of public concern. In the classical age, Muslim scholars set strict qualifications that a jurist had to meet before becoming qualified to issue a
fatwa,
and the more serious the subject the higher the qualifi- cations demanded of a jurist. In the contemporary age, the in-

stitutions that enforced this system of qualifications have crumbled and disappeared. Today, practically anyone can ap- point himself a
mufti
and proceed to spew out
fatawa,
with- out either a legal or a social process that would restrain him from doing so.

A
fatwa
may be authoritative for some Muslims but not oth- ers. The decision to accept or reject a
fatwa
is entirely up to each individual Muslim. One group of Muslims may defer to one jurist and abide by his
fatwa
because they respect his learn- ing and judgment, while another group may completely ignore it because, for whatever reason, they do not believe his
fatwa
to be correct. A Muslim’s decision to accept or reject a
fatwa,
however, is not supposed to be based on whim or mood; every Muslim is expected to reflect upon and ponder each
fatwa
and abide by it only if he or she believes that it truly and accurately represents the will of God. Although each
fatwa
reflects the opinion of a learned person about what God desires or wills, it is up to the recipients of the
fatwa
not to follow it blindly or unthinkingly. According to Islamic law, practicing Muslims must exert a degree of due diligence in researching the qualifi- cations of the jurist issuing the
fatwa,
and also the evidentiary basis for the jurist’s opinion, before deciding to follow or reject any particular
fatwa
. Today, with the explosion in self-declared experts in Islamic law, and the absence of credible institutions that can discredit or vouch for the qualifications of
fatwa
is- suers, there is complete chaos in the world of Islamic law. Es- pecially since the advent of the Internet, most
fatawa
are authored by people trained as doctors, engineers, and computer scientists rather than Islamic scholars.
1
This jurisprudential chaos is confusing and even torturous to the conscientious Muslim, let alone the average non-Muslim.

In the precolonial age, particularly from the ninth to the eighteenth centuries, jurists played the most pivotal role in

providing authority in Islam. Although there was a long tradi- tion of plurality of opinions within the juristic class and a practice of disputation and disagreement, juristic institutions provided the power of definition in Islam; collectively the ju- ristic class determined what was orthodox and legitimate within the religion. Throughout the Muslim world, there were private religious endowments (known as the
awqaf
[sing.
waqf
]) that funded a network of seminaries. For the most part, these religious endowments were established by private philanthropists, many of whom were women. For all practical purposes, these seminaries functioned like law schools, pro- viding jurists with rigorous training in Islamic jurisprudence. Islamic jurisprudence is a legal system every bit as complex as the civil law, common law, and Jewish law legal systems. It is customary for Western scholars to distinguish between secu- lar legal systems and Islamic law by claiming that secular law is based on the command of a
human
sovereign, while Islamic law is based on the command of a
Divine
sovereign. At the purely theoretical level, this claim is true to an extent, but it is an oversimplification that tends to understate the role of human agency in the production of Islamic law. Unlike secular law, Islamic jurisprudence covers matters pertaining to the re- lationship between God and human beings—this has to do with ritual practices such as praying, fasting, giving alms, and making pilgrimage (these are known as
‘ibadat
laws). But, like secular law, Islamic jurisprudence also deals with matters re- lating to social and political interactions and to the relation- ship of human beings to one another (these are known as
mu’amalat
laws). These laws address a wide range of issues, such as marriage and divorce, inheritance, criminal offenses, contracts and commercial transactions, constitutional law, and international law. According to Islamic jurisprudential theory, all laws in either category must be geared toward achieving