Muslim Legal Tradition in a Time of Global Change
Some Aspects of the Problematic








During the past ten years we have noticed several Muslim ideologists and movements that explicitly, although in different ways and with different content, have formulated demands for democracy, legitimation of political power by popular mandate, Human Rights and liberties in the sense expressed in the UN¹s Declaration of 1948 and in other international conventions. This is done with emphatic assurance that these values are compatible with Islam and Islamic Law, or even that these are the true expression of Islam. The sources and the norm systems of the religion are thus interpreted in ways differing as well from the traditional schools and methods of Islamic jurisprudence as from the ³Islam², or ³Islamic order of society², as interpreted and propagated by the so called Islamist movements (Muslim Brotherhood, an-Nahda, FIS, JIM, Jamaat-i Islami etc.) and their ideological view of religion and its role in the state, including the judiciary.

Among the participants in the debate, pleading for Human rights and liberties, and reinterpretation of the legal sources, the Qur¹an and the Sunna of the Prophet, are the well-known Tunisian historian Mohammed Talbi, known also for his engagement in interreligious dialogue, the Sudanese lawyer and philosopher of jurisprudence, Abdullahi an-Na¹im, deeply influenced in his views on Islamic Law and the interpretation and applicability of it sources by Mahmud Muhammad Taha (who was hanged as a heretic in 1985). We find three of the leading ideologists in Indonesia, Amien Rais, now speaker of the Parliament, Nurcholish Madjid, engaged in education, and Abdurrahman Abdul Wahid (³Gus Dur²), today Indonesia¹s president.

For the Iranian students, in 1999 and 2000 demonstrating and very insistingly demanding democratic reforms, free speech and other liberties, the inspiring authority is Abdolkarim Soroush, whose importance as proponent of new hermeneutics and reinterpretation of Islamic Law we have become very much aware of recently. We can mention too the recent democratizing signals from the Malaysian ³futurologist² Munawar Anees. We could mention several others, and we could notice especially those Muslim feminists participating in the international debate on women¹s rights, who with arguments related to the sources of Islamic Law, with new hermeneutical approaches, argue against the patriarchal structures of traditional Muslim societies and against the traditional applications of Islamic personal law. We have there not only well established participants since considerable time, as Fatima Mernissi, but also more fundamentally religious thinkers as Riffat Hassan and Amina Wadud Mohsin.

Within the Islamist movements even, we can notice tendencies to lay more stress on the mandate of the people, on liberties; a certain change in the discourse. The word ³democracy² tends to have positive sentimental associations, as we can se in the recent vocabulary of Sudan¹s president, Umar Hasan al-Bashir, in his critique of the renowned and influential islamist ideologist Hasan at-Turabi, now deposed as Speaker of the Parliament. As Gilles Kepel has demonstrated very clearly in his recent work Jihad: Expansion et déclin de l¹islamisme, the Islamist movements, and the so called Islamic fundamentalism, is declining in influence, and their opponents and critics are gaining ground, and have the ear of intellectuals and of the middle classes, who have become scared and dismayed by the violence and terrorism connected with radical militant Islamist groups. The taliban in Afghanistan do not appeal to the pious bourgeoisie.

Now, can we see a connection between this tendency of an ideological reinterpretation of the concept of Islamic Law and ongoing processes of globalization and global changes?

One factor is evidently modernisation in itself. Modernity is commonly characterized as the differentiation of both individual and societal functions. In the pre-modern society the roles and ³identities² of the individual in society were intertwined. In the pre-modern village life, for instance, the individual¹s life had as a rule a certain cognitive coherence, He would die in the same village where he was born, the so called ³primary socialization² creating his basic concepts and understanding of life would be in the ³extended² family, and in the immediate neighbourhood. He would marry a girl from the same village and have the same kind of sustenance or profession as his father and grandfather. Family and neighbourhood constituted simultaneously the religious community. The rites and rituals of the family, the village, the agricultural year, and the different stages of life, were intertwined. The religious myths and narratives were integrated with the different functions of life, including the norm systems, and the distribution of ³punishment² by the social pressure and the customary law of the local community. The village constituted basically a self reliant and endogamous community, whose ³cognitive university² for all practical purposes was within the frame and horizon of village life. ³Custom² and ³law² was more or less identical.

Modernity includes very much a differentiation of these functions. It is very probable that you will die in another place than where you were born. Education includes today migration from the place of birth: Schools, university, peregrination, studies in other countries. Knowledge is today transmitted not by personal contacts only, but by media. Your profession will probably by another than your father¹s. your wife will not be a neighbour¹s daughter from your childhood, and she will certainly have a profession of her own. You will move in order to get jobs. The professional community will be distinct from other belongings: family, neighbours, religious community. The economic structure of family life will be different: Your wife has her income too, and both are contributing financially to sustain the nuclear family, not being any more dependent of the extended family or clan. The traditional gender roles lose their relevance, and the same happens in a considerable degree to other inherited norm hierarchies: they lose their character of being the self evident, the taken-for-granted truths.

The differentiation comes to the individual¹s ³cognitive universe² too. There will be a compartmentalization of how to understand and react to what happens in life and in the world. The mental ³system² is no longer a comprehensive one. The frame is no longer life in a local community. The horizon has moved. You know, even in detail, what happens in other parts of the Globe, and what ideas there are promoted in different societies. Norms depend on choices. We can see that ³belonging², the individual¹s belonging to a professional community, a religious community, an ideological community, networks of common interests of different kinds, are not any more geographically limited. By new communication techniques we can be in contact with colleagues, relatives, friends, people with the same hobbies (or ideas), or the same religious faith, all over the world. Even those who are small in numbers locally, can constitute a distinct and even powerful community on a global level. One characteristic of today¹s globalized modernity is availability. We can, mentally, choose among many competing ideas. We are aware of alternatives. The tradition, including the legal tradition and the hierarchies of norms, has lost its self evidence. What then can be the foundation of a norm system, or norm hierarchy, applicable in this new situation? The religious affiliation can not be taken for granted, and a religious foundation of the legal system can easily be questioned. Can the foundation be, for instance, professional ethics instead? Or international declarations and conventions? They have evidently a very high reputation. To use their vocabulary and categorizations is almost a necessity, even when criticizing and refuting them. They cannot be ignored. If a law system, legal practice, and legislation still should be founded on religious sources, as is the case in the Islamic legal tradition, there must be developed some kind of at least a verbal accommodation to these international documents. We can see this terminological accommodation very clearly in the Iranian constitution of 1979. It declares itself as entirely an expression of Islamic law and the Jafari jurisprudence, but its terminology and its structuring, is very much influenced from these international conventions, and from the formulations and structures of European constitutions (in some degree by the mediation of earlier constitutional debates in Iran). The actual application of Jafari law in Iran, however, is considerably more traditional then the vocabulary of the constitution seems to indicate. The vocabulary, the accommodation in terminology and formulations, have a certain apologetical function.

The new media means a change in authority. The traditional ulama, the ³learned ones², the fuqaha, the ³jurisprudents² of islamic Law, have their authority by means of specific knowledge. They are specialists: The alim has memorized the Qur¹an, he knows thousands of ahadith (Sayings of the Prophet), he is able to use the traditional methods to derive an answer, a ³response² (fatwa), to every question regarding norms and rules, But today, not only the Qur¹an but also the
collections of ahadith as well, can be found on the web. There are hundreds of home pages and web sites where especially young Muslims are discussing, with each other and with others. the young Muslim student or engineer does not ask the mufti or other traditional specialist for an answer. He will search for it on the web, and he will find many answers, probably even that one which is relevant in his own situation. He will find the alternatives, traditional answers, new answers, different methods of hermeneutical approaches.

Thus, in order to retain and maintain a law system derived from the religious sources, it has to change, be experienced as applicable, relevant for the much wider ³cognitive universe² of the individual and the society.

New media: Not only the web. There are paraboles and satellite TV, videos and sound cassettes. Messages and ideas are available, they are even available for illiterates. Censorship is impossible due to new techniques. The Iranian student, bewildered by the fact that his source of inspiration, Abdolkarim Soroush, is prevented from lecturing to the students, will phone him with his mobile telephone, ask him questions, and when the professor answers, the student will attach the telephone to a microphone, and all his friends can listen.

This too constitutes a situation to which the legal system and its authorities must accommodate. The questions cannot be muted or ignored.

Modernity has meant a precedence of rationality. The religious answer is not the only one. In order to defend the religious authority, there has developed a need to show or to prove the rationality of religiously motivated rules. I use to call this ³the apologetic trap². In order to defend the religious rule by arguing for its rationality, the rule¹s foundation and motivation ceases to by the religion, it becomes its rationality, and not its divine origin. Reason over religion as authority. Natural science has very much taken over the function of being ³the truth², ³reality². Simultaneously the specific religion has lost much of its function as a foundation for norms in a society being involved in global processes. Now there is a demand to find a global ethic, norms valid, accepted and applicable on the global level. Then it is not possible to refer only to one specific religio-legal tradition and its sources. We can see that this problematic of a foundation for a global ethic is very much on the agenda for international ³parliaments of world religions² which have been organized in recent years. There is a common interest here, among representatives for different religions, to argue for the societal and political relevance of religion in general. One argument is then that it might be possible to seek the globally valid in what can be seen as values common for all the different religions. The ³consensus² between religions thus has become an argument and belongs to the criteria of how to interpret the tradition of the specific religion.

To this comes that the traditional function of religion as a legitimation for political power has lost and loses its role successively as the specific religious tradition no more is seen as the self evident truth. People ask for other legitimations of power, the mandate of the people, democracy, even if this demand now very often is expressed in the words, categorizations and narrative patterns of the Islamic tradition. The new interpretations, by the previously mentioned proponents of ³Islamic democracy², are very much responses to this problematic. The concepts of security, welfare, Human Rights, liberties and tolerance, are so to speak projected into the ³Madina state of the Prophet². The interpretation of the tradition being the task of the people itself (guided by the modern intellectual professionals) and not the prerogative of the traditional religious elites, the ulama/fuqaha.

Global processes, development of new media, the societal differentiation of functions, the individual¹s belonging to various networks regardless of geographical boundaries and traditional group structures, have rendered the reinterpretation of tradition a necessity, if it should be retained at all. It is obvious that the need is deeply felt by the participants in this Islamic-democratic discourse. But the methods of reinterpretation varies.

When Mohammed Talbi argues for religious freedom and the necessity to let the individual choose religious affiliation and praxis freely, without any compulsion, he not only refers to the verse in Sura 2:256 (la ikraha fi d-din), ³no compulsion in religion² - many are those who do that. He argues from the Qur¹anic idea that God created man, Adam, from clay (turab), and sees in this an indication of God¹s plan, His ³project² for humanity in creation. In distinction to the angels, man is not created from light, man is not ³transparent², but ³opaque² as clay. God created man with a free will, the ability to choose, also to choose that which is wrong, against God¹s will, and to take the responsibility
and the consequences of his choice. Man has individual responsibility. To force a human being to comply with specific religious rules or a specific affiliation, is thus against God¹s ³project² with man. In this way Mohammed Talbi finds Qur¹anic support for religious freedom as it is defined in Article 18 of the UN Declaration of 1948.

New interpretations are connected with new methods and approaches. We can take as an example the ways in which Abdullahi an-Na¹im, following M. M. Taha, sees the normative value of the Qur¹anic texts. The traditional approach is to regard the later revelations, the texts from the time of the Prophet in Madina, as abrogating rules from the earlier, Makkanic, texts, thus constituting the society in Madina during Muhammad¹s time as a normative model in Islamic jurisprudence. M. M. Taha and Abdullahi an-Na¹im make the opposite: The early revelations, the texts from Makka, are regarded as the eternal, for all times valid message, given by God. The principles derived from them is the eternally valid legal source. The texts from Madina, on the other hand, are regarded as reflections of an application of these principles in a specific social and temporal setting. They contain examples of applications, but these are not eternally valid rules, as they were dependent on the very special social, economic and mental conditions of that time and environment. Due to the development in technology, science, human knowledge and thinking, in modernity, the conditions have changed. Thus the applications of the eternal principles are today by necessity different, lead to other rules, other legal developments, where the international conventions are of importance. In that way there will be an accommodation between this ³second sending² (ar-risala ath-thaniya) of Islam and these conventions and legal reforms on a global level.

The Taha/an -Na¹im solution is a rather radical one, as it turns the traditional approach upside down. It has nevertheless been rather influential. an-Na¹im belongs to a very international ³jet set², and M. M. Taha has inspired the so called ³republicans² (jumhuriyyun) in the political life of Sudan.

As to one aspect, their approach is similar to arguments used by Islamic feminists, when these point out that even the Qur¹anic texts must be interpreted with regard to the social structures and conditions at the time and place of their revelation. When in the 34th verse of Sura 4 (an-Nisa) is said that the men ³excels² over women ³because they spend out of their property², that is: because of their economic responsibilities, the feminists can point out that today both men and women participate equally in the economic support of the family, why the hierarchy between men and women mentioned in the verse no longer is relevant. The historical context, and societal changes, become in that way tools in the hermeneutics in relation to the sources of the Islamic rule system, in this case in regard to personal law/family law.

Another method is the close reading of history: To collect all the available notices as to the role of women in Muslim history, especially during the most significant and normative period according to Islamic historiography, that is the time of the Prophet and his immediate successors, his wives, the female personalities among his companions, and so on, in combination with interpretations of their importance and the significance of their special features and actions.The feminists criticize some of the tradents of ahadith (especially Abu Hurayra is regarded as an unreliable authority), and they point out the male-biased selection which characterize traditional Islamic historiography.

Still another method is to re-interpret the meaning of the words in the Qur¹anic vocabulary. For instance, the word qawwamun in the verse mentioned above, is translated not as ³maintainers² or ³directors² of the women, but as ³supporters², ³helpers² of the women.

Perhaps the most original thinker is the Iranian reformist Abdolkarim Soroush. I will not go into his interpretations, but will signal his importance for the future, by his use of concepts from the contemporary international discussion of hermeneutics, his break with the traditional Aristotelian paradigm shaping much of the traditional Islamic jurisprudence and its way of working. A too vast topic to go into for the moment. It is quite clear that he in this respect has got influences from Wittgenstein, Popper, and Michel Foucault.

The main points in the tensions, or conflicts, between more traditionally interpreted Islamic Law and the UN Declaration of Human Rights from 1948, and the later conventions, have been in regard to family law, the question of gender equality ³without distinction², the Article 18 and its definition of religious freedom (including the right of conversion), and the questions of hadd and qisas, that is the corporal punishments (flogging), amputations as punishments, and certain kinds of the capital punishment (stoning), and the right to retaliation for murder and corporal damages, these having been seen as a part of the divine law; and the right of retaliation as a ³human right².

The reformist reinterpretations can we see as ways of accommodation to the international conventions in these matters, diminishing the conflicts and tensions, but preserving the idea of a specific Islamic legal tradition depending on the sources of a law of divine origin. Necessity is in itself a valid legal principle: maslaha, the equal to the commune bonum of Roman law, tends to be regarded as more important. One example is the reaction to the demographic development, the much too fast growth of populations, creating immense economic and social problems in several of the states in the Muslim world. We can see that this has been a driving force in changing the attitudes towards family planning, and we can see plenty of new fatwas giving legitimation to such measures, implicating reinterpretations of the sources.

One argument for this accommodation is that the principles of the international conventions could be more easily accepted and get popular support if they are translated, so to speak, to the categorizations and the terminology of the Islamic legal tradition. It might be so. But we can see the process also as a way to preserve the Islamic legal tradition. By the accommodation it can retain at least som of its relevance in a globalized world.


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