Shari´a, the cardinal concept of Islam, presents human understanding with a most baffling challenge and an insoluble paradox. For it incarnates norm, doctrine, authority, exegesis, praxis, tradition and much else at the same time. It is related equally to the transcendent above and the mundane below; it is paradigmatic yet pragmatic, symbolic yet societal, a system of external rules that is indistinguishable from internal norms. As the foundation of faith, it rests on the authority of Divine Will, but a divine will that reveals its secrets within the enterprise of human reasoning. Hence, as a divine command, the Shari´a demands obedience but as an existential response, it elicits noetic probing and free-discovery. Straddling transcendence and immanence, faith and existence, eternity and temporality, the Shari´a defies the conundrums of nominalism and realism, rationalism and empiricism, positivism and idealism. It is overpowering and alluring, punitive and healing, retributory and redemptive and acts as the bridge that links revelation to reason, faith to community and history to divine imperative. To construe it as ‘law’ is to fall prey to the positivistic irreverence of modernity and to reduce it to a punitive code.
Given the metaphysical absolutism
of modernity, it is hardly surprising that the current discourse
of Islamic Law, where the authority of tradition is confronted
by the challenge of history, where claims of legality are contested
by those of morality, where the search for justice clashes head
on with the need for compassion, and where all the learning of
classical Islam is put under magnifying-glass of modern scepticism,
is a veritable cacophony. Not only does it show ample signs of
the frustration of the academic – temperamentally and ideologically
alien - intellect, but it also testifies to the growing disenchantment
of the indigenous reformer with the obduracy of the traditional
method and its inability to meet the requirement of the modern
maslaha. All the works presented here reinforce the insight
that the discourse on the sacred law of Islam is the most contested,
controversial and confounding field of academic and ideological
polemics. It can only be presented piecemeal or summarised without
any semblance of an ideational coherence but cannot be analysed
and critiqued from a vantage-point that may claim neutrality,
totality and unity. Such, unfortunately, is the state of the
discipline today: Having renounced the unity of transcendence
for the polymorphism of temporality, it has degenerated into
an idolatrous cult of nihilism. Little wonder there’s not
a ghost of meaning left in its epistemological mansion.
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Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. By Jürgen Habermas (Tr. by William Rehg). MIT Press, Cambridge, Mass., 1996. Pp631. $42.00 (cloth). ISBN 0-262-08243-8. A History of Islamic Legal Theories. By Wael B. Hallaq. Cambridge University Press, 1997. Pp294. ISBN 0-521-59026-4. Freedom of Expression
in Islam. By Mohammad Hashim
Kamali. The Islamic Text Society, Cambridge, 1994. Pp 349. ISBN
0-946-62160-8. |
Before entering the ideational minefield of the disciplines of Islamic law and tradition, it might be fruitful to acquaint oneself with the impasse and aporias of western theory that, after two centuries of flirtation with positivism and literalism, is now forced to concede that the legal vision mediates between transcendence and empiricism and that the discourse of law, consequently, must balance the claims and counterclaims of factual verity and normative validity. No other work may help the interested reader navigate the dangerous waters of western legal history and theory with as much aplomb and daring as the magisterial, albeit highly daunting and demanding, volume of Jurgen Habermas that presents ‘a discourse theory of law and democracy’. Between Facts and Norms (the authoritative English rendering of Faktizität und Geltung; Suhrkamp Verlag, Frankfurt, 1992) fully redeems the promise of its suggestive title and delivers a normative account of the rule of law and the constitutional state. It also lives up to the reputation of its author as the most cogent defenders of the tradition of European Reason today; the last of the philosophers committed to the project of modernity who is neither a Hegelian historicist nor ascribes to the transcendent rationality of the sovereign subject of Enlightenment.
The very prolific and versatile German scholar, Jurgen Habermas, it must be pointed out, is chiefly responsible for dethroning the paradigm of subject-centred rationality of Enlightenment and replacing it with the inter-subjectivist paradigm of communicative action. Just as the theory of inter-subjectivity and communicative action allows Habermas to escape the aporias of subject-centred reason, his proposed discourse theory of law and democracy is meant to overcome the duality of the context-transcending, normative, reason and the limited fact of human experience in which reason demonstrates its validity. It is an attempt to bridge the gap between normative and empirical approaches to democracy that vitiate much of the current theory. The principal claim of Habermas’s theory is that the rule of law, or the constitutional state, is intrinsically related to ‘deliberative democracy’, and that the legitimacy of the modern legal order is premised upon a system of rights which ‘citizens must accord one another’ if they want to … regulate their common life by means of positive law.’ (p 82; Italics added). These legal rights (economic prosperity and private liberties, in plainer language), Habermas contends further, have an inter-subjective character and that they do not necessarily imply societal atomism and unchecked subjectivism. Citizens’ rights, legal order and deliberative democracy of the modern political community, then, are formalistically inter-related and ideationally buttress each other. The source of all legitimacy, in short, lies in the democratic lawmaking process, which in turn calls on the principle of popular sovereignty.
Analogous to the ideal ‘speech community’ of Harbermas’s communicative-action theory that transcends the subject-object dichotomy of modern epistemology, the ‘legal community’ of discourse theory attempts to overcome the normative distinction between ‘law’ and ‘morality’. However, though in principle, Habermas anchors his legitimacy of law in a discourse that is prior to any such distinction, in actual fact, he merely unanchors law from morality (and by so doing simply adopts a metaphysical, immantetist, stance which, whether dogmatic or not, is not amenable to the arbitration of rationality). No transcendent principle, no doctrine of morality, no theory of natural law may, in his view, claim a legitimacy higher than a particular (perforce contingent and only temporarily binding!) consensus of a legal community. For law becomes legitimate by passing a discursive test that includes not only moral and ethical discourses but also pragmatic ones. Further, though moral reason enters into law via the democratic deliberations, the moral contents, once translated into the legal code, undergo a change and meaning that is specific to the legal form. Also consistent with this immanentist prejudice is the assumption that no legal community can be coterminous with the universal moral community; or that the universalism of the Hegelian subject, who as world-citizen becomes indistinguishable with the human being, whose "I" is both unique and universal, is an illusion.
It is difficult not to be impressed by the neatness of Habermas’s synthetic and dialectic vision. His discourse theory smoothly balances and mediates such notorious dualities as individual and community, law and state, freedom and coercion, validity and facticity, rights and responsibilities and else that have plagued, and continue to plague, modern thought. Habermas himself is fully cognisant of the radical nature of his breakthrough as he readily admits that ‘thus far no one has succeeded in satisfactorily reconciling private and public autonomy at a fundamental conceptual level, as is evident from the unclarified relation between individual rights and public law in the field of jurisprudence, as well as from the unresolved conflict between human rights and popular sovereignty in the social contract theory’. (p 84). In the discourse theory, by contrast, everything is related to everything else: language, communication, discourse, politics, legitimacy, legality and rights all display a structural and ideational harmony and unity that would be the envy of any medieval system of scholasticism. In this splendid work, the normative vision of modernity seems to have attained its philosophical fulfilment and at last found in Jurgen Habermas its own Thomas Aquinas!
The pale shadow of reflection, however, starts another train of thought and discloses that the seamless unity of the modernist theory, doctrine if you will, has been bought at a very high price. Habermas achieves his philosophical and conceptual synthesis by squandering the most cherished treasure of the pre-modern man, indeed that of Enlightenment philosophers as well, namely, faith in universal morality and its incarnation in revelational/rational law. It is thus in this pragmatic and anti-universalist vein that Habermas dismisses Kant for subjugating law to morality and asserts that ‘the principle of democracy must not be subordinated to the moral principle’ (p 84). All of this is, of course, in consonance with the postmodernist temper and, notwithstanding his strictures against it, Habermas shows no reticence in endorsing, in the name of social realism, the metaphysically fundamentalist immentism of postmodernity. ‘The theory of communicative action,’ he proudly announces, ‘detranscendentalizes the noumenal realm only to have the idealising force of context-transcending anticipations settle in the unavoidable pragmatic presuppositions of speech acts, and hence in the heart of ordinary, everyday communicative practice.’ (p 19; Italics supplied). Nor are his secular prejudices any less pronounced. With his proposed system of rights, he asserts, we have assured ourselves of the presuppositions that ‘members of a modern legal community must take as their starting point if they are to consider their legal order legitimate but cannot base this legitimacy on religious or metaphysical arguments.’ (p 132).
It is within these ideologically secular, morally anti-universalist and metaphysically immanentist parameters that Habermas’s theory of law and democracy locates itself. His proposed thesis of the autonomy of law from morality constitutes a necessary corollary of the claim of the autonomy of state and politics from morality and merely reinstates the notorious Machiavellian doctrine of raison d’état. Like all theories of authority, then, the normative claims of Habermas’s communicative rationality are founded upon on a circular logic. Citizens qua political community make laws through the exercise of political sovereignty; laws, enforced by the coercive sanction of the state, provide them with a system of rights; hence citizens qua legal subjects submit to the authority of the law and accept the legitimacy of the legal order they themselves have created. However, citizens qua moral community get disenchanted with existing laws, they don their legislative robes and frame new laws which they regard binding, at least for the time being! Citizens may in fact, because they are both legal sovereigns and legal subjects, make and break as many laws as they wish, provided that everything is done through the exercise of communicative rationality and within the constraints of democratic process.
Needless to say such an endless cycle of lawmaking and lawbreaking cannot be maintained, not even in theory, without the postulation of at least one given; without the guarantee that the institutions of lawmaking and law-enforcing themselves will exist forever. The state in other words must be assured of permanent survival and the citizens ‘sovereignty’ must not include to right to abrogate the ‘constitution’ of the state or question the foundations of its legitimacy from the stand-point of any universal morality or transcendent ‘metaphysics’! Even in this infinitely flexible and perpetually self-regulating system (communicative discourse ad nauseam!), there’s no room for ‘anti-constitutional’ dissent. The state qua existential community remains an unnegotiable fact, whatever the norm of the legal community! Needless to say that the givens of the Habermasian ‘discourse theory of law and democracy’ are the existing western polities that are deemed as ‘constitutional democracies’. The are the indisputable fact of his normative theory and every conceptual scheme is premised on the axiomatic acceptance of their existence. Not unlike the Creator-God of the Bible (Genesis: I) Habermas, the spokesman of the creator-man of western civilisation, beholds his creation, the modern polities, and finds them good!
Lest this criticism be construed as an expression of smug religious sanctimony, it needs pointing out that Habermas’s thought is not necessarily immoral, anti-moral or even amoral. No, his plea for unanchoring law from morality is representative of the modernist paradigm whose moral discourse, having given up all pretension to universal validity, is conducted within the parameters of a nation-state and given legitimacy within the framework of a legal and constitutional community. Far from destroying the humanitarian ideal (Weltbürgertum), the nation-state, according to this view, is the vessel of a new, immanentist order of morality which can better cope with the pragmatic constraints of ‘the human nature’ and the historical world. Little wonder that citizenship is not merely some kind of legal fiction or a vacuous empirical concept with Habermas but also, and pre-eminently, a normative one. For all the Muslim’s woes with the ineluctably immanentist, secular and parochial (i.e. context-specific) discourse of Habermas, it cannot be pushed aside without an earnest, even respectful, engagement. Not only is his present opus encyclopaedic in format and colossal in its erudition, its intellectual profundity cannot be overrated either, It presents a panoramic yet penetrating, comprehensive yet detailed, account of the almost entire philosophical landscape of western modernity, especially of its highly productive German terrain. For all its demanding style and diction, it is a highly rewarding book that every Muslim ‘occidentalist’ must make his/her own deal with. True enough, in the realm of the legitimacy of law, Habermas has nothing to offer to the Muslim who submits to a divinely revealed and transcendental code, but in the sociological domain, of the modalities of the empirical and normative processes of validation (Geltung) as well as of the dynamics of the legal order in modern societies, he is an indispensable guide.
Against the backdrop of the comprehensive Habermasian theory of law and state, we may now introduce some recent works that tread the historical ground of ‘classical’ Muslim civilisation but whose conceptual approach has been duly modified by the intra-western and inter-civilisational debates of modern times. Without doubt, the most eminent among the academic scholars of Islamic law and jurisprudence is Wael B. Hallaq, currently Professor at the Institute of Islamic Studies, McGill University, Canada. Not only has he written extensively in these fields, his scholarship has also brought to the subject an originality of vision that has indisputably enriched the erstwhile polemical and parochial Orientalist discourse. Indeed, not only has his person come to symbolise a changing of the academic guard, his scholarship also marks something of a ‘paradigm shift’ in the discipline itself. It is thus befitting, and gratifying, that Professor Hallaq should now chose to present us with a synoptic view of his researches through a reconstruction of the history of Islamic legal theories, or more precisely that of the Sunni usul al-fiqh.
As is to be expected, it is a comprehensive work that not only amply covers the early, formative period with discretion and originality, but which also, by incorporating an extended and initiated survey of the modern debate (Crises of Modernity: toward a new theory of law?) tilts the historical, backward-looking, slant of the discipline toward contemporary issues. Needless to say, Hallaq takes full note of the scholarly controversies of his field but skilfully manages to avoid adjudication of the more radical claims of revisionist scholars. As an Arab and Middle Easterner, he is also full of empathy for the Islamic civilisation, just as he manages to stay, without compromising his scholarship, as close to the ‘Muslim’ position as is possible within the academic framework. Unlike most Orientalists who attribute the great flowering of legal activity in the classical civilisation of Islam to post-Arabian developments, Hallaq also believes that the perception of Divine Law was prominent from the inception of the Islamic enterprise. The unfolding of Islamic doctrine as Law is thus a natural, and perhaps ineluctable, consequence of the Revelation. The collection of the Qur’an itself, he suggests, ‘must have had a primary legal significance, for it defined the subject matter of the text and thus gave the legally-minded a textus receptus on which draw.’ A competent academic study that is also fully alert to the dialects of reason and revelation in the enterprise of usul al-fiqh and which perceptively uncovers the nature of the intellectual dilemmas which a faith community faces when it constructs a discourse that is at the cross-section of transcendence and temporality.
Mohammad Hashim Kamali’s original contribution to the debate over ‘Freedom of Expression in Islam’ is truly a labour of love and a work of devotion and piety. It is also uncompromisingly ‘Islamic’ in temperament, approach and method, a normative study in the ‘traditional’ mould that consciously strives to remain within the indigenous paradigm of fiqh. And yet, it is also quite radical and original in that it treats a thoroughly ‘modern’ theme and by so doing, willy-nilly, gets involved in ideological polemics with modernity. As a pioneering effort, it is both daring and imaginative, sober and scholarly and has won the ‘Isma´il al-Faruqi Award for Academic Excellence’. Fulfilling a genuine need and initiating an authentic discourse, its merits have been duly recognised by the scholarly community. In its dialogue with modernity, in its perception and response to the polemics of secular modernism, however, it is far from satisfactory. In reflecting over the problem of ‘freedom of expression in Islam’, the author may not have envisaged and planned entering into polemics with modernity but such is its sway over the moral and intellectual clime today that no contemporary discourse may claim authenticity if it ignores the modernist context of our world. Least justifiable is this negligence in a study that deals with a theme, freedom of expression, which is the gift, as it were, of modernist consciousness. In dealing with an uncompromisingly modern subject, there’s no escaping its polemics and criticism of ‘traditional’ worldviews. True enough, Kamali is not totally insensitive to the modernist context and subtext of his work and his diffidence and humility at the treading of this virgin territory are quite genuine and touching. Nevertheless, it is my conviction that a sharper intellectual vision of modernity and a more vigorous encounter with its polemics would have enhanced the already considerable worth of this work. The few following remarks, it is hoped, would put the polemical subtext of ‘freedom of expression’ in sharper focus.
Modernity espouses a metaphysics of immanentism within which the state, or existential body politic, assumes certain attributes that theistic religions ascribe to the Transcendent God. And yet, paradoxically, though secular modernity (ostensibly) passes no judgement on the question of God’s existence, it insists that religious and transcendent tenets be banished from politics, from the governance of the state. Or, differently expressed, questions of God’s existence or non-existence, and other similar ‘metaphysical’ issues, it claims, belong to individual conscience with respect to which the state and its legal order must remain neutral. But, the state also insists that there are other issues, not pertaining to conscience, where it is the highest, sovereign, authority and that these constitute the crux of politics and statecraft. The individual is free with respect to religious and metaphysical ‘beliefs’, but not with respect to civil matters such as taxation, property, matrimony etc. Here the state has the right to use force to secure compliance. State laws are thus not laws of conscience but those of coercion. Freedom of expression is the outward, public, side of the inward, individual, freedom of conscience. However, despite its neutrality with regard to questions of conscience, the state does get involved in the issue of their ‘expression’, their manifestation in the common, public, space. It is this very neutrality that stipulates, it is argued, that all individual consciences have the right to free expression in the public sphere and that guaranteeing that right is a state obligation. The state is concerned, however, only with the legal aspect of public expression and not with the moral content of private conscience. Freedom of expression, in short, pertains not to truth but to the logistics of its ‘self-disclosure’: it is not an individual issue but an ‘affair of the state’.
Any discussion of ‘freedom of expression’, it ought to be underlined, is contingent upon the dialectics of individual and state, conscience and society, public and private, religion and politics that are all peculiar to secular modernity. (However, not only is the definition of what constitutes a private act of conscience, in contradistinction to a public act of politics, always historically conditioned and dependent upon the prevailing societal consensus, even the distinction itself, namely between private conscience and public politics, is a contested claim of secular modernity and not a given fact of human existence.) Without taking full cognisance of these dialectics, or rejecting these dichotomies on normative grounds, in other words, there cannot be any meaningful probing of the theme of ‘Freedom of expression in Islam.’ Without any delineation of the Islamic vision of the state, albeit in modern times, the project of discovering (the dialectic of?) ‘Freedom of Expression in Islam’ cannot even be launched: it does not even lift off the ground, to use a modern metaphor.
One may, of course, regard Islam as an autonomous, self-referential, system that is in no need of corroboration or correction from other worldviews and philosophies. Modernity and adherents of secularism may, in such a case, enter into dialogue with Islam, but only on Islamic terms, only on the pre-condition of acknowledging the possibility of transcendence in human affair. Such a stance, had it been adopted in this study, would have entailed the task of deconstructing modernity, exposing its metaphysical foundations and charting the moral parameters of its secular project. It would have certainly not required the borrowing of a patently and self-consciously polemical topos of modernity and transplanting it in the Islamic intellectual and moral landscape as has been done here. For to launch a project of delineating the parameters of ‘Freedom of expression in Islam’ is tantamount to acquiescing in to the moral validity of the modernist claims, if not accepting them as the yardstick of Islamic theopolity. Then there are the notorious conundrums of the concept of freedom that are logically and metaphysically intractable. Again, for the purpose of managing them within a pragmatic discourse, modern theory reduces their scope to certain civil and political ‘liberties’, i.e. absence of legal and practical constraints from the authority and power of the state. To define freedom as ‘the ability of the individual to do or say what he or she wishes, or to avoid doing so, without violating the rights of others, or the limits set by the law’ (p 7) is to turn it into an empty tautology. For, if freedom is simply identical with the licit, the legally valid, one may dispense with the concept of freedom altogether, retain only that of law and not a whit need be modified of the moral discourse! Little wonder that prior to the advent of modernity, rights and liberties did not form the stock motives of the politico-religious discourse and, as Kamali himself realises, the introduction of the expression ‘Freedom of Expression’ into the political vocabulary of Arabic is of recent origin.
Kamali, who has been forced to approach this subject without the benefit of any precedent or prior model of reflection, declares in the beginning that the principal question that he addresses in the study is ‘whether or not the Shari´ah subscribes to freedom of conscience.’ If so, the title of the book fails to pay tribute to his intellectual labour, for it announces that the work is about ‘Freedom of Expression’, and the two are by no means identical. Sure enough, an inquiry into this subject is worth a sizeable volume and may demand a close examination of the traditional sources of fiqh, something that Kamali does quite judiciously before saying ‘yes’; nevertheless, to ordinary believers like this writer, the question admits of only one, affirmative, answer - with or without the ransacking of the brains of our illustrious fuqaha! The modern query leads to a single, foregone conclusion as the very concept of submission (Islam), as found in the Qur’an, denotes an act of voluntary assent, a receiving of God in the soul as it were. Islam and fettered conscience are contradictions in terms. Only a jurisitic intellect, which identifies Islamic reason with raison d’état, could be so befuddled as to regard ‘freedom of conscience’ an original fact of modernist consciousness that needs authentication from indigenous legal sources!
Though Kamali remains firmly anchored in the fiqhi tradition, his perception and conceptual schemes show unmistakable signs of having acquired modernist influences, nay prejudices. A clear, and for this critic quite distressing, sign of this is Kamali’s indiscriminate use of the prejudicial term, ‘religion’, which modernity regards as synonymous with private conscience. (The concept of a universal and essential ‘religion’, it has been cogently demonstrated, is part of the polemical repertoire of modernity and a historical construct of secular forces (Cf. Talal Asad, ‘The Construction of Religion as an Anthropological Category’, (Genealogies of Religion, Baltimore, 1993)). Another, far more grievous, sign of jurisitc positivism comes from the reified perception of the pivotal concept Shar´iah: it is used such that it can be totally identified with the extant corpus of fiqh. Needless to say that from the Islamic point of view, there are very convincing arguments for keeping the transcendent vision of the Shari´a distinct from its fallible appropriation in the juridic tradition, for keeping the text of the law separate from its interpretations. Nor is Kamali’s disregard of the modern distinction between the legal and the moral going to cut much ice with the critics of the tradition for whom it merely represents the obsolete and the archaic. He is least likely to convince modernists like Habermas with his contentions that actions like slander, insult and blasphemy are part of the modern political discourse.
"This work is a an attempt
to explore some of the Islamic responses to issues of contemporary
concern’, says Kamali, and ‘to develop further the
existing positions in the light of prevailing conditions, or
failing that, to take a direct approach to the source materials
of Shari´ah in the quest for an alternative solution.’
(p 5; Italics added). This reviewer couldn’t agree more
but would also like to add that in this search the philosophical
and conceptual analysis of the key Qur’anic terms be given
priority over the atomistic and literal approach of fiqh. Needless
to say that in this regard, regardless of Kamali’s commendable
effort, the task is yet to begin.
-ends-