Who Owns Islamic Law?





David Glenn, in the Chronicle of Higher Education (subscribers only) (2-25-05):

If all goes according to plan, Iraqi political leaders will gather this year to forge a new national constitution. It is easy to imagine many things that might shipwreck the process. Near the top of that list: Will Iraq's political forces manage to find a consensus about what role, exactly, Islam should play in the public sphere?

That question has created deep tensions within Islamic reform movements for more than a century. Certain persistent strains of Muslim thought insist that an authentically Islamic nation must enforce Shariah -- traditional religious law -- in all spheres of life, from banking to inheritance to the performing arts. Muhammad Kamaruzzaman, the assistant secretary general of an Islamist party in Bangladesh, recently wrote an essay celebrating democracy, but adding that "Islam does not accept the idea of separation of state from religion." Other Muslim activists, citing the recent unhappy history of Afghanistan and Iran, insist that lines must be drawn between mosque and state -- even if those lines do not look exactly like Western secular pluralism.

For outsiders, it is tempting to caricature this debate as a contest between Taliban-style radicals and Western-style liberals. (And there are indeed authentic representatives of both those camps in Iraq today.) But the terrain is actually far more complex than that. There are dozens of strains of traditionalist and liberal thought in the Muslim world, each looking toward different conceptions of Shariah and drawing on different elements of Islamic history and jurisprudence.

Now a few prominent liberal scholars are aggressively promoting a concept that they believe can nurture democracy and allow an authentic Islam to thrive in the modern world. Islam can regenerate itself, these scholars say, if it returns to the principle of ijtihad.

The Arabic term -- which literally means "strenuous effort" -- has historically referred to the practice of systematically interpreting Islamic religious texts in order to resolve difficult points of law. (In an oft-cited example, early Muslim jurists strove to interpret an ambiguously phrased Koranic verse about how long a divorced woman must wait before remarrying.) In the early centuries of Islam, ijtihad was confined to an elite set of scholars and jurists (mujtahidin) with rigorous training in the religion's texts and laws. Beginning around the 12th century, most Muslim communities restricted the practice even further: Some juridical schools declared outright that "the gates of ijtihad have been closed," while other regions limited the practice of ijtihad to questions of the family and everyday life.

Today's proponents of ijtihad take a far more expansive view. "There will be no Islamic democracy unless jurists permit the democratization of interpretation," wrote M.A. Muqtedar Khan, a professor of political science at Adrian College, in a 2003 essay. In Mr. Khan's view, political elites in the Muslim world have for centuries restricted the development of democracy and political accountability by hiding behind religious principles that they proclaim to be fixed in stone. Mr. Khan argues, in effect, for an end run around the entire traditional apparatus of Muslim jurisprudence. Believers should instead, he suggests, look directly to the Koran and to the practices of Muhammad and his companions, and use their own efforts at interpretation to build ethical communities.

Mr. Khan is not alone in this general approach. He and four other scholars gathered at a 2004 conference on ijtihad, sponsored by the United States Institute of Peace. "Is ijtihad part of the expanding democratic culture of the Muslim world?" asks Muneer Fareed, an associate professor of Islamic studies at Wayne State University, who also spoke at the conference. "Or will it remain the forte of an exclusive group of intellectuals? These are some of the fundamental questions that people are asking today."

But other prominent scholars -- including some who share Mr. Khan and Mr. Fareed's urgent interest in pluralism and democracy -- have deep doubts about the ongoing conversations about ijtihad. Certain formulations of the ijtihad model, these skeptics say, are ahistorical and counterproductive. "Part of what hobbles their argument is that they're nonjurists," says R. Michael Feener, an assistant professor of religious studies at the University of California at Riverside. "They're nonlaw people talking about law."

Instead, Mr. Feener suggests that Muslim reformers should embrace, not discard, the heritage of Islam's traditional schools of jurisprudence. Other skeptics point to a striking irony: The ultratraditional Salafist movements associated with Al Qaeda -- who are in some sense the polar opposite of the liberal enthusiasts of ijtihad -- use very similar language about scrapping the vast corpus of Islamic legal commentaries and returning to the original texts....


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