by Feisal H. Naqvi
The question of what to do with a revolution in a Muslim country has gained new relevance in the past few days because of the tumultuous events in Egypt and Tunisia. In both of those countries, popular dissatisfaction has led to the unceremonious ouster of well entrenched autocrats. As a consequence, many observers have jumped to the conclusion that the old choice between a secular dictator and a fundamentalist democracy a la Iran is now dead.
Is that really so? Have Facebook and Twitter really killed all the monsters lurking in the hearts of Muslims? I am not so sure.
Let me begin my thoughts with a plethora of caveats. I have never been to either Egypt or Tunisia. I know very little about the history and the culture of either country. I am in no position to prognosticate about their future with any degree of confidence. But like many other writers before me, I am not going to let my complete ignorance stop me from making a complete fool of myself.
In my defence, I am not trying to make sense of either the Egyptian or the Tunisian revolutions. What I am interested in is how these two countries will make sense of themselves in the years ahead. Both of these countries are predominantly Muslim. Both of these countries are now going to try and develop a popular form of democracy. If either of these countries can develop an intellectually sustainable form of Islam and liberal democracy, my life as a Pakistani will be different (as will the lives of all Muslims). And while I hope I am wrong, history certainly gives me great reason to be cautious.
Let me begin with the simple stuff: Facebook is not going to kill fundamentalism. Within 24 hours of the assassination of Salman Taseer, there were pages on Facebook extolling his assassin’s glorious services to Islam. Facebook is a tool which people use to connect, just like the internet generally. Some people use the internet to debate high philosophy. Other people use the internet to deliver death threats and to learn how to make dirty bombs. Most of Pakistan uses it to watch pictures of nekkid girls.
What then is the real issue?
The basic problem facing all Muslim countries is that there is a fundamental antipathy between Islamic legalism and liberal democracy. The essence of liberal democracy is that legitimacy proceeds from the freely granted consent of the governed. The essence of Islamic legalism is that legitimacy proceeds from fidelity to a set of rules ordained by Allah and that no government, democratic or otherwise, can be legitimate if it wanders outside those rules. Between the will of the people and the will of Allah, there can be only one which is supreme
At this point, the standard response on behalf of the Islamists is that Islam can too be democratic. At the end of the day, the Quran is but a constitution freely adopted by Muslim citizens of a state. And just like Western regimes cannot go outside their constitutional confines, Islamic regimes cannot go outside the confines of the Quran.
The analogy, though enticing, is wrong at multiple levels. The first problem is theoretical: a constitution takes its legitimacy from the fact that it is a living compact between citizens, not in the fact that it was revealed by God. Even if all the citizens of a country declare repeatedly and passionately that they wish nothing else than to be bound by the Quran, that will not turn the Quran into a constitution because the theoretical possibility of amending the Quran will not be present.
The second problem is more substantive. A constitution tends to consist of broad generalities and leaves much to the legislature. However, even within those broad confines, elements of conflict are inevitable. One consequence of this conflict is that the judges of the superior courts in every country with a constitution are engaged in a continuous reinterpretation of that constitution. However, no such reinterpretation of Islamic law is acceptable. In other words, Islamic jurisprudence simply does not allow for the interpretation of the Quran as if it were a constitution.
Let me explain further. I am not – repeat, not – trying to say that there is no room for interpretation in Islamic law. Every text requires interpretation and the Quran is no different in this regard. However, there is a huge difference between the norms of constitutional interpretation and legal interpretation as generally accepted within Islamic jurisprudential theory. To be more precise, Islamic jurisprudence differs from constitutional jurisprudence by not having a theory of change. Instead, Islamic jurisprudence only has a theory of error.
Let me explain this difference with some examples. The First Amendment to the US Constitution states in extremely blunt terms that Congress shall make “no law” respecting the freedom of the Press. What the words “no law” mean has been the subject of great debate over centuries. Justice Hugo Black, for one, thought that “no law” meant just that, i.e. no law, period. Most jurists have, however, conceded that some “reasonable” restrictions of free speech are permissible and then go on to discuss whether particular restrictions are “reasonable or not.” And at different moments in time, jurisprudential consensus as to what constitutes a reasonable restraint of free speech has varied enormously over time. The same Congress which passed the First Amendment also passed the Sedition Act of 1789, a law which would almost certainly fail to pass judicial scrutiny today.
The response at this stage is likely to be “so what?” After all, Islamic jurists spend their time engaged in heated debate as to what is the correct interpretation of particular verses. How then is Quranic interpretation different from constitutional interpretation?
To understand how Islamic legal interpretation is different, take the oft-debated issue of the number of wives a man may have under Islamic law. As is well known, the Quran says that a man have up to four wives provide he treats them equally. The Quran then adds a further injunction that no one can treat their wives equally.
The traditional legal interpretation of this point is that a Muslim man may indeed have up to four wives. The Quranic statement that no man can treat all four wives equally is thus taken to mean that absolute equality is impossible and that reasonable equality of treatment is sufficient.
Compared to this, we have the modern day reformist perspective. The reformist argument is that when the Quran states that it is impossible to treat all four wives equally, it should be taken literally and that Islamic law only allows Muslim men to have one wife at a time.
The heated debate over this issue tends to hide the fact that both the reformist and traditional schools of interpretation assume that there can only be one truly Islamic law which is valid for all times. Thus, the traditional scholar argues that a Muslim man could have four wives in 611 A.D. and that he can have four wives in 2011. The reformist argues that a Muslim could actually only have had one wife back in 611 AD and that the same holds true in 2011. What neither school is willing to concede is that Islamic law in back 611 allowed for four wives at a time but that Islamic law in 2011 only allows for one wife. This is because neither traditional scholars nor reformers allow for the possibility of change in Islamic law: both approaches assume that what is true in Islamic law is true for all times – past, present and future. And it is in this sense that Islamic jurisprudence differs from constitutional jurisprudence. Constitutional jurisprudence has no problems stating that what was true yesterday is no longer true today while at the same time conceding that was true yesterday was indeed true yesterday. Islamic jurisprudence does not allow for that: either something is true for both yesterday and today or it is not true at all. There is no temporal variation permitted in Islamic jurisprudence.
To understand why this is so, one has to go back back into Islamic history and the debate over the createdness of the Quran. To explain, there are two general schools of thought in Islamic jurisprudence when it comes to the nature of the Quran. The first school of thought holds that while the Quran is divine in origin, it was created at a particular moment in time at a particular place and consequently, the meaning of the Quran can only be fully understood through an appreciation of the temporal and historical context within which it was revealed. The second school of thoughts holds that the Quran is not just divine in origin but divine in essence. The Quran was thus not “created” at any moment in time. Instead, the Quran is “uncreated,” existing like Allah outside space and time.
The reason why the createdness of the Quran has jurisprudential consequences is because the Quran is the primary source of law for all Muslims. If the Quran exists outside space and time, then so too does Islamic law. And if Islamic law exists outside time and space, then it cannot vary over time. And if it cannot vary over time, then what is true today must have been true yesterday and vice versa. On the other hand, if the Quran was created at a particular moment in time at a particular place, then Islamic law is contextual. And if it is contextual, then what is Islamically true can vary with time and geography.
At one level it may seem absurd to have an argument over whether or not Islamic law can vary with time. After all, if Islamic law does not provide for variations in time and space, then one can with a straight face argue that both slavery and concubinage are Islamically valid, even today.
I do not have a good explanation for the jurisprudential poverty of modern Islamic thought (and yes, my own ignorance may well be relevant). One answer though can be found in Khaled Abou el Fadl’s book, “The Great Theft” which details how a flood of Wahabi money has led to a world in which a thousand years of legal scholarship is being systematically overwritten in favour of the simplistic theology preferred by the House of Saud. But as innately sympathetic as I am to that argument, I am not sure if that really captures the entire picture.
The missing element lies, I think, in the fact that Islamic jurisprudential thought is both tremendously advanced and tremendously irrelevant. Let me explain: Islamic jurisprudential thought is tremendously advanced because for more than a thousand years, the brightest minds of the Muslim world have devoted their energies to teasing out the finest details of Islamic law. That scholarship cannot and must not be taken lightly. Indeed, as George Makdisi has demonstrated, the very foundations of the system of colleges made famous by Oxford and Cambridge most likely lie in systems of Islamic scholarship imported by the West.
At the same time, the most important aspect of Islamic jurisprudence is that it has for the vast majority of its thousand plus years of existence resigned itself to being an ivory tower construct. What one finds in Islamic legal history is thus a Faustian bargain where the sultan de jour would ceremoniously bow towards the ulema and the ulema would in return obligingly rubber-stamp all that the sultan wanted. Since Islamic law was politically irrelevant for all but very small parts of history, it never needed to change.
Let me now try and put together all of these disparate elements into a coherent analysis. First, Islamic jurisprudence is serious business. That means the average person cannot just get up on a soapbox and argue that a particular course of action is “Islamic.” Instead, the only people who get to wield the stamp of Islamic legitimacy are professional Islamic scholars. Second, Islamic jurisprudence has been politically irrelevant for the vast majority of its existence. With obvious exceptions, it did not seek to challenge power; it sought only to preserve its own little zone of autonomy. As a consequence, it operates largely as an idealistic construct and does not recognize reality, economic or otherwise, as a constraint.
If the ruler of a Muslim country is an autocrat, the traditional relationship between the ruler and his scholars continues to function. The introduction of democracy, however, changes everything. Because the citizenry is Muslim, it wants its laws to be “Islamic.” Because of the deeply entrenched nature of the Islamic legal community, this hands power to a small group of scholars. Because of their historically isolated nature, it means that those scholars are entirely unequipped to deal with the modern world. And because of the massive influence of Saudi money, those scholars are being encouraged to adopt a particularly regressive approach to Islam. Islam in a democracy can therefore operate like a one-way ratchet into a progressively Talibanised world.
Obviously, my theory is grossly simplistic. To begin with, it does not take into account the immense common sense of the average Muslim who has happily survived the past thousand plus years by ignoring most of the stupidities mouthed by the average mullah. At the same time, common sense can only last so long. At least so far as Pakistan is concerned, the state has, up until now, been unable to prevent the ever-increasing exploitation by fundamentalists of the general desire for some sort of an Islamic imprimatur. As shown by the murder of Salmaan Taseer and the subsequent glorification of his killer, ideas which were once derided as ignorant or extremist have now moved into the mainstream of political thought.
My hunch though is that Egypt will certainly fare better in dealing with the challenge of political Islam than Pakistan. To begin with, Egypt is unlikely to share Pakistan’s neurotic obsession with the purpose of the state if only because Egypt has existed as a distinct nation for all of recorded history. The good news though is that if more countries succeed visibly in balancing Islam, modernity and democracy, the fundamentalist hold on the Muslim imagination will necessarily be weakened. And for that reason, the advent of democracy in Egypt can truly be the harbinger of something momentous.
Let me return now to my jurisprudential meanderings and the theory of the uncreated Quran. What is important to remember about this theory is that it is just that; a theory. The Quran itself does not say whether it is created or uncreated: both views are man-made additions to the corpus of Islamic thought. More importantly, the reason why a jurisprudential theory as visibly open to challenge as the theory of the uncreated Quran has continued to survive is self-evidently because it has not been challenged in public debate till now. Yes, one of the dangers of introducing democracy in a Muslim country is that democratic norms may become subordinated to the views of a narrow-minded few with the power to define that which is Islamic. At the same time, the reason why Islamic political thought has yet to reach an accommodation with liberal democracy is because the two concepts have not been forced to cohabit for any length of time. If and when that happens, the lives of Muslims will change radically for the better.