Monday, 30 June 2014

Islamic Law & The Modern State (Wael Hallaq)

Genre: Religion & Philosophy
Tagline:An Islamic State is a contradiction in terms

This is one of those rare books that changes the way you see the world, so long as you can forgive its occasionally unnecessarily adversarial style, in particular its unfair dismissal of all things Kantian in the Western philosophical tradition, but as a starting point for self-reflection and critical enquiry, it is perfect. The events of 2014 re-enforce how the desire for self-independence of peoples has been translated in modern international society into the desire for the State. This expresses itself in diplomatic initiatives as in Scotland and Catalunya, but can also  degenerate into violent resistance as in Syria, Iraq, Libya and Ukraine. The State is a site of decolonisation and self-determination, but also a source of potential sectarianism and civil war, especially when the mechanisms of the state do not represent and care for the peoples under its dominion.

The Israel-Palestine problem has often been framed as requiring a two-state or a one-state solution, but reflecting on Hallaq’s book, we see that perhaps the state itself is the problem in limiting our imagination of what a harmonious world should look like. The Jewish people needed a refuge after the horrors of the Second World War, and the state offers such a refuge, but for whom and against what? It was part of the solution to a problem that it had itself created in its extreme form in the Nazi state. How else to protect a people from the oppression of other states, but to create a state oneself? There are no easy answers. The State is the gold standard and only symbol in contemporary society of a people’s emancipation. Nevertheless, it is interesting to join Hallaq in tracing back the intellectual history within an Islamic context of what the state has come to stand in the place of, and how it has failed by comparison. And indeed, what we might discover is relevant in a non-Islamic context also.
Photo: “Man praying in Morocco”  —Umbreen Hafeez

Until the early 19th century and for twelve centuries before then, the moral law of Islam had successfully regulated customary law and local practices across the Muslim world, from North Africa to India. Beginning in the 19th century, it was structurally dismantled by colonial powers and lost its autonomy to the modern state. Nevertheless, it still remains a source of religious and moral authority, a spiritual source of moral ends, procedural laws and “technologies” for caring for the self. Islamic law is no longer the living breathing entity it once was, and what remains of it are distillations in special cases or appropriations to legitimize the modern state’s own structural violence. Semerjian’s “Off the Straight Path” tells how Islamic law was never as harsh in its punishments as it stipulated in theory, and as it is reputed to be. Judges were encouraged to be forgiving, finding loopholes to justify lesser sentences. For example, adultery met with a fine, while prostitutes were at worst expelled from the community.

Modern Islamic thinkers and scholars take the modern state for granted as a timeless phenomenon, but the state is a false idol of our times. Hallaq claims it is incompatible with the bottom-up nature of Islamic governance, and indeed with any reintegration of morality within modernity. Morality he claims has been displaced by the paradigm of the Enlightenment. Despite its internal multiplicity, despite its rebels in Rousseau, Kierkegaard, Marx and Herder, what Enlightenment thinkers shared was the assumption of a critical rational morality, secular, humanist and binding universally on all civilizations. To say this is the Enlightenment paradigm is not to say that there were not exceptions. Indeed, a paradigm shift occurs when the subversive discourses become the new norm. In drawing on pre-modern Islamic thought, just as modernity draws on the Enlightenment, Hallaq believes that we can engage with what is truly important, namely morality as end in itself, and not politics or law which have replaced it, not to mention economic growth, as a standard of human flourishing.

Islamic law rested on a concept of jihad (striving) toward the accomplishment of a moral end (the Arabic word is much misunderstood in late modernity with its political usage that I choose not to use it, just as the word Sharia for Islamic law has become symptomatic today with barbaric punishments when British colonial administrators had once criticized it on the contrary for being “too lenient”). In this striving for a moral resource from an earlier age, Hallaq defends himself against the charge of nostalgia. In the first place, this project is no different from an archaeology of ancient Greek and Roman thought with which Islam too has a shared heritage. The project is not one of revival of institutions, but of ideas. Any claim that we cannot learn from others is either one of self-diminution (that we are incapable of transcending the narrow self) or of hubris (that we have come too far already). Secondly, whilst Islamic law is defunct, its “five pillars” and their consequences are still preserved in the spiritual memory of all Muslims. Thirdly, disenchantment with modernity is not an Islamic concern, but a shared and distinctly modern, even postmodern, concern. It transcends both religious faith and the modern paradigm. Fourthly, and most importantly, any charge of nostalgia is closely allied with an ideology of progress, which dogmatically adheres to current ideas of truth, claiming to “know better” and in so doing ignores profound existential and moral questions regarding underlying causes, unwitting assumptions, as well as the ephemerality of the present moment that one day will also be history.

The Modern State:

Despite vast differences in theories of the state (Weber’s bureaucratic, Kelsen’s legal, Schmitt’s political, Marx’s economic, Gramsci’s hegemonic, Foucault’s cultural and so on), all these are merely differences of perspective. Despite also vast discrepancies in the actual content of the modern State, ranging from the communist Soviet Union to the democracies of Sweden and the United States, its essential characteristics are shared form-properties: (1) a historical product of a particular culture at a particular time, (2) its metaphysics of sovereignty, (3) its legislative monopoly and monopoly over law and violence, (4) its bureaucratic machinery, and (5) its cultural hegemony and production of the national subject.

(1) All things are historically specific, but the state defined in terms of territorial boundaries is concretely so. Through a scientific process of self-observation beginning in the early eighteenth century, the European state conceived of itself as universal and timeless and subject to scientific analysis. This analysis of content presupposed a prior metaphysics of existence. (2) The concepts of statehood are secular translations of Christian theological ones. The omnipotent God becomes the omnipotent sovereign, but the structures remain the same. Sovereignty presupposes not only a state, but also the shared imagination of a nation by its people. It exists for its own sake, an end for which the individual may even be sacrificed. This false idol is made explicit by Hobbes’ Leviathan. (3) Sovereign will gives birth to sovereign law and violence to realize that will. (4) The administrative order is a necessary extension of the legal order, and the image is of the blind lady of justice. Bureaucracy does indeed prioritize equality, but it also conceals structural inequalities and creates top-down pyramid structures of power controlling every aspect of life. It intrudes into the private sphere and fosters community, but on its own terms, the community of the state. (5) The internal strength and coherence of any state depends not only on organizing society, but also penetrating it culturally to form national identity. Should any of these five form properties change, the state would necessarily be a very different concept. But these five are also very closely intertwined, so any change in one would necessarily also entail a significant change in all.

I agree with Hallaq that the modern state identifies society’s interest with national interest. However, this identification is not purely ideological, but also representational. It is less an idol than an ideal of coherence, a tool bringing people together in the pursuit of moral ends. The belief in the state even to the point of sacrifice is a belief that the state is protecting morality and so worth fighting for. In so far as this ideal fails, the state is indeed weak, and falls into disrepute. Hallaq is right to warn that the state can become an ideology, continuing to exert its will when no longer serving its intended function. However, since it is constructed on human belief, it can also fail in its moral ends as a mere consequence of people no longer believing in it. When people lose confidence, are no longer willing to put the good of society before personal interest or are too cowardly to fight for an ideal in which they have lost faith (be it the nation or another kind of spiritual community), the result is the breakdown of society, and susceptibility to both internal and external corruption, criminal elements, and even military power. Hallaq is of course right that the state should not be an end in itself, and most Europeans do recognize that. Europe’s history testifies to the dangers of nationalism.

I would like to suggest the possibility that the modern state is not of European origin at all. The bureaucracy of the Chinese state comprising its emperor and civil service were over a thousand years old before the corresponding British institutions were even born, and perhaps even inspired them. The rise of the state in Europe follows the discovery of China. The birth of capitalism attributed to Adam Smith built upon the ideas of the French physiocrats who were in turn heavily influenced by the Chinese. Like the Chinese, they valued agriculture above all, identified society with the human body, compared money in the state to the circulation of blood round this body, from which they deduced the importance of exchange and saw the need for a general will to regulate this body’s well-being. For Rousseau, this general will arose through respect for the state, love for one’s fellow citizens and equality under the law. The correlative of the frontier which limits the state externally is the absence of internal limit of the “police” state (governing subjects, regulating economic activity, production, and the price of goods). The compensating mechanism for this absence of limit is law and political economy, or what Foucault termed the rise of “governmentality” in 18th century Europe. This Tang dynasty poem by Du Fu from 8th century China, inspired by sources even earlier, brilliantly encapsulates one aspect of “governmentality”, namely the skilful and appropriate use of force. It is not far-fetched to imagine the modern state and its law to be a translation of Chinese ideas into an Enlightenment context.

Ballad of the Frontier (Du Fu)

If you draw the bow, draw the strongest.
Choosing arrows, take the longest.
To down the man, aim for the horse.
Confronting bandits, aim for the chief.

Killing, let there be a limit,
And to each land, its own bounds.
If you can repel invaders,
What use in killing, maiming more?

To conclude with an even crazier thought, while the British imposed a Chinese-looking bureaucracy on India (and its other colonies, including Victorian England itself in the 19th century), it used a more Ottoman or Indian-looking extra-territorial law of the sultan to control (through treaties of tax and trade) China and other countries which it never formally colonized. There is something almost paradoxical and unnatural that this should have functioned with any degree of success. On one level it did, yet at a deeper level this also perhaps explains why the experience of European colonialism is said to have been traumatic in ways that even centuries of despotism or pre-modern colonial movements were not.

Separation of Powers:

There is an ideal in Western democracies enunciated by Montesquieu of a separation of powers to ward off the dangers of authoritarianism. In practice there is only a loose separation of functions (legislative passing law, executive and administrative enacting it, and judicial interpreting it), with power resting absolutely with the elected legislative body to indicate how law should be applied and interpreted. As the body supposed to represent the general will of the people, and accountable to them, it seems right that this should be so, and indeed breakdowns of democracy have always been allied with a ceding of legislative power to a presidential or military executive ruling by decree without consultation or to a judiciary forming an anti-state within the state.

Islamic governance also achieved a separation of powers with ultimate authority in the legislature, but by very different means and it is interesting to explore how it did things differently. First, there was no such thing as an “Islamic state”, but an Umma (Community). Muslim territories were known as Dar al-Islam, and non-Muslim as Dar al-Harb. The Community did not possess sovereignty, nor autonomous political or legal will. Sovereignty lay with God alone, and decision-making was by consensus, but restricted by general moral principles beyond the Community’s control. Care for the poor for example was their right, as all members of the Community were equal, and all wealth belonged to God. Islamic law was a bottom-up system of governance, and the power of the executive (the sultan) was limited, derivative and compared to the modern state relatively marginal. The sultan had little influence over the local culture and legal system. Analogous for example to native White Cap Chiefs in African customary law, they were not owners of territory, but holders on trust.

Meanwhile, the jurists of Islam lived with and by the values of the common social world, representing especially the lower and middle social strata of which they were mostly part. They were advocates of the disadvantaged to the higher reaches of power, and represented for the masses the ideals of piety, rectitude and fine education as “heirs of the Prophet”. As well as playing a pedagogical role, two particular legal functions were that of the mufti (legal specialist)  and the qadi (judge). The mufti was the legislative authority who issued legal answers to abstract questions he was asked to address. Consultation was free, so accessible to all. With time, these answers were brought together and systematized both in memory and in writing as “law books”. Legal opinions, called fatwas, though non-binding, were routinely upheld and applied in the courts. A judge in Cairo might even send a letter to a mufti in Muslim Spain or Syria. Because legal knowledge was widespread, social underdogs knew their rights before appealing to the courts, so won the great majority of their cases when they were plaintiffs. They could also ask for an opinion which then dissuaded them from proceeding to court, opting instead for informal mediation. The Muslim court could not make up its own law, its ultimate reference neither the executive nor itself but the authority of the mufti.

The qadi was a member of the community who, for a small and affordable fee, was expected to apply the law to judge cases and resolve disputes. He was not required to have the same expert legal knowledge as the muftis or author-jurists. The language of the court was the common language, so understandable to all. Unlike a jury member today, the qadi’s scope of consideration was not limited by a superior power (they might for example address underlying causes to a dispute), they were expected to be intimately familiar with the local customs and ways of life of the community they served, and their decisions were final. As well as passing judgments in court, they also oversaw public works and endowments to the poor and helped arbitrate in non-legal family disputes. Though chosen by rulers, qadis held their positions only a few years in parallel with existing employment, so they could not be so easily pressured or corrupted.

The law applied by the qadis was the result of a centuries-long hermeneutical project. However, it was also legally pluralistic, with different legal schools developing very different legal opinions. Each jurist could exercise ijtihad (creative reasoning) to arrive at the best guess of what the law should be. This chimes with Lauterpacht’s optimistic vision of the lawyer as a Herculean gap-filler applying law for law’s sake, law assumed a priori to be logically coherent. But contrary to modern law, it was stable only in form while being remarkably flexible in both place and time depending on social and popular interests and concerns. On the one hand, only God knows the truth. On the other hand, it was an established maxim that every mujtahid (jurist conducting ijtihad) is correct!

The sultan possessed no real sovereignty, and without the bureaucratic machinery of the modern state was unable to penetrate society. The sultan could appoint judges and raise taxes so long as he protected life, property, and communal harmony (a sacred concept in Islam), his executive authority (the final decades of the Mamluk’s rule being an exception) restricted to protecting against disorder, including any reported misconduct by government servants or by the qadis. The system was based on an ethic of moral accountability of the individual, seen as indispensable for political legitimacy (corporations didn’t exist) and the well-being of society and dynasty. Qadis, muftis and tax collectors sat in governors’ assemblies, acting as intermediaries representing their communities’ interests. There were even times when the rulers of Islamic lands were non-Muslims, yet local Islamic values, customs and language remained.

Perhaps one reason why Islamic law persisted for twelve centuries was because of local homogeneity despite differences between localities. Rawls’ conception of a “well-ordered society” is one in which (i) everyone accepts (and knows everyone else accepts) the same principles of justice, (ii) social and political institutions are respected for satisfying these principles and work in harmony, and (iii) citizens comply with these principles and institutions. However, once local homogeneity is lost, and established principles are no longer accepted as obviously true, then the risk of arbitrariness becomes a problem, and a central presiding authority is inevitably needed to maintain predictability of the law. Islamic law in its time was a model of the separation of powers with legislative power residing with the private unpaid scholars within society, who through the mouthpiece of Islamic law represented the poor, protected their interests, and acted as intermediary to the politically powerful. However, that age has passed, and the future will need new ideas, with lost consensus locally reconstructed.

The Legal, the Political, and the Moral:

Hallaq next addresses the distinction in the Western history of ideas between the “is” and the “ought”, between positive law and morality. For Christian as well as Islamic theology, there was only morality. For Bentham, Nietzsche and Schmitt, there is only positive law. Law that once expressed a moral ideal or utopia has for some modern thinkers become entirely political, regulating a conflicting mass of private interests and dividing the world into friend and foe. Hallaq blames the possibility of such moral evacuation of law on the creation of the is/ought distinction in the first place.

He derides Kant in particular for his categorical imperative as well as much of Western philosophy in a strident tone uncharacteristic of the rest of the book. Kant’s imperative is not without its problems: it dictates one ought to act in such a way as one would wish to be a universal law. It is the duty of the moral subject to unite the “ought” and the “is”. Kant was a deeply moral man. If Germany had been a Muslim society, Kant would be a mufti, and his categorical imperative a fatwa which would have been widely respected and applied by the qadis in making their judgments. If Hallaq cannot respect Kant as a mufti of his age, how can the reader respect Hallaq as a mufti of our own age, and if not Hallaq, then who? This only goes to emphasize how the age of the mufti has passed.

Let us criticize ideas, but not people or traditions (unless done in good humour). Instead of polluting the wells of our mutual intellectual heritages, we should be asking, “what is wrong?” and “how to purify it?”. Islamic fatwas would be equally susceptible to critique, though this does not serve Hallaq’s purpose to recover a subjugated source and balance out against Western prejudice. Nevertheless, the dangers of Schmittian distinctions exist in Islamic law also: for example between Muslim lands, and non-Muslim; between the Muslim citizen and the “slave soldier” who had no choice but to fight; between the law as written and as applied by the qadi who used ijtihad and forgiveness; and even in the Quran itself between the prescribed forms of violence which say one thing (legal), but “better to forgive for God is all-merciful, all- compassionate” (moral). Hallaq’s very own argument takes on a friend/foe characteristic in pitting Enlightenment and Islamic law as enemies, instead of as in the rest of his book as merely incompatible ideas in need of new thinkers to find the best from both and reject what rightly should be rejected from both.

The identification of “is” and “ought” is reflected also in ancient language. For example in Pali, the language of the Buddha, the word “dhamma” means nature itself, the law of nature, the duty that must be performed according to that law of nature, and the fruits or benefits that arise from the performance of that duty. No distinctions are made between these four. However, once these divisions are made which Kant was trying to heal, no doubt unsuccessfully, there is no going back unless we can have faith in a kind of wisdom that transcends personal opinions. The contradiction between “only God knows the truth”, and “every mujtahid is correct” is no longer acceptable. Since God’s truth is inaccessible, Kant’s injunction is both demanding and inspiring: every person must become a moral subject and mujtahid in their own right! However, Kant falls short on an egalitarian ideal because those whom Kant deems incapable are not afforded equal dignity in his moral system.

Some Concluding Thoughts:

Whenever a society’s homogeneity of belief breaks down, some amount of positive construction is surely needed, which then needs to be mythologized. There follows an age of disenchantment and the cycle repeats. Enlightenment values of reason, progress and the state should perhaps be seen as temporary mediators to any breakdown of consensus, to try to help build it up again. What Hallaq warns is that they can also be divisive and a source of civil strife.

One important part of the cure is what Hallaq calls “technologies of the self” that build up the moral subject from the inside out instead of the outside in. The term, borrowed from Foucault, means techniques of self-transformation for the sake of “happiness, purity, wisdom, perfection or immortality”, in short a positive kind of self-discipline, founded less on rationality (self-knowledge) and more on love (care of the self). These techniques of self-mastery and virtue are universally known and ingrained in the pre-modern mind, but also easy to forget, so it is worthwhile to continuously remind ourselves of and practice them. They contrast with the biopolitics that engenders the docility and utility of the subject through systems of surveillance, education and healthcare, operating not from the volition of the subject, but from a political will located outside it, whereby the state constitutes itself as a problem-solving machine in the service of the people, the child a site of institutionalization, and in which the patriarchy of the family is replaced by that of the state. The crisis of the family and disintegration of the social fabric (which Durkheim termed anomie) seem to coincide with the emergence of the modern state that problematises the individual. In the place of religious, tribal and familial identities, we see on the one hand the emergence of nationalism and on the other the rise in consumerism and narcissism of the modern subject who rejects his or her own problematisation, yet does so in ways that are socially sanctioned and unwittingly encouraged. So what are the technologies that might liberate us?

In Islam, they are built upon the five pillars: (1) the faith in one God and in His Messenger, (2) prayer, (3) alms-giving, (4) pilgrimage and (5) fasting. While Rousseau concludes his “Social Contract” with a discussion of religion, Islamic social tracts always began with religion, and in particular the five pillars. As discussed previously, law and morality could not be separated. Through the five pillars (as well as ritual purification), practiced with niyya (intention), the Muslim comes closer to God and trains the heart to be compassionate and to do good. I cannot do justice here to Hallaq’s beautiful explanations, but suffice to say that each of these pillars and their performative acts carry a deeper mysticism and meaning, accomplished not out of obligation but with willingness and pleasure. They engender an inner peacefulness of the nafs (soul, or consciousness).

Ultimately, the risk of breakdown of the state is just as much a problem of the state as its continuing existence, so I do not read Hallaq’s book as anti-state, but as a thorough dismantling of the ideology of the state. As with any negative project, we need a positive vision. Hallaq’s vision is a re-centreing of society on the moral. What of the enlightenment ideal that if the moral is not discovered for oneself, with one’s own heart, then it is externally imposed and so replicates patterns of domination that regulate the individual externally as if he or she were a child from birth till death? Does this Kantian ethics of autonomy stand in contradiction to Hallaq’s autonomous morality? I don’t believe so, but Hallaq’s misgivings run deep. Citing Gray from “Enlightenment’s Wake” (1995):

“The most fundamental Western commitment, the humanist conception of humankind as a privileged site of truth, which is expressed in Socratic enquiry and in Christian revelation, and which re-emerges in secular and naturalistic form in the Enlightenment project of human self-emancipation through the growth of knowledge, must be given up…It is in reaching a new relationship with our natural environment…in which human subjectivity is not taken to be the measure of all things, that a turn… can be accomplished…dwelling together on earth in peace.”
But what else is there apart from subjective experience and revelation? Is that not the meaning of enlightenment — the turn must come from within. I believe so anyway.

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