So What That Islamic Law Evolves?
Over at The American Muslim, Farish Noor, a Malaysian professor and intellectual, weighs in on the case of the Malaysian Muslim woman sentenced to be caned for consuming alcohol in public. His argument is that times have changed and Islamic Law must recognize the reality of changed circumstances – and therefore the caning verdict is wrong. To demonstrate that Islamic Law has changed he provides some examples of things where Muslim jurists held one opinion in the past but hold a different opinion now. Some examples he gives are: coffee, firearms and the printing press.
He leaves out the most glaring examples. Slavery is one. Chattel and sexual slavery were, by and large, allowed by pre-modern Muslim jurists but are completely rejected by them today. Female suffrage is another. Until the middle of the 20th century countless Muslim jurists opposed the idea of women voting but now there is hardly any mainstream Muslim scholar who would oppose the idea of women getting the vote.
However, the mere fact that Islamic law changes is not the issue, and I think Noor’s piece ellides over that point. After all, a hardliner can argue that given today’s changed circumstances, they have to be more severe than in the past. In fact, totalitarian ayatollahs in Iran or militant clerics in Pakistan rely on precisely that changed circumstances reasoning in order to justify their ratcheted up reaction. For example, when Pakistan’s Maulana Maudoodi argued that apostates should be put to death, he did not merely argue from religious text. He also argued that in today’s day and age, due to the political infringement by Western powers in Muslim nations, the act of apostasy was even more criminal than it was before, because it was political in impact. In short, merely saying that Islamic Law must take changed circumstances into account, is just not enough. Evolution, as everyone knows, is not always progressive.
What is necessary, instead, is for the enunciation of certain fundamental liberties within Islamic Law. Historically, these were called the ‘maqasid‘ and with varying degrees of success there are a number of jurists today who are trying to bring the historical maqasid in line with modernity. One big project where the maqasid are going to see a lot of action is Imam Feisal Abdul Rauf’s mammoth program to determine how “Islamic” the Islamic Law in each Muslim state is. From what little there is about the project, Rauf is apparently going to measure each country’s Islamic Law against his definition of the maqasid and reach a verdict. This approach runs into the problem of being utterly subjective. Thus, depending on whether or not Rauf thinks that consuming alcohol in public is a fundamental right or not, he would tell us whether Malaysia’s decision to cane this woman was violative of the maqasid.
The other solution is to simply remove Islamic Law from the political arena so that religion does not become the handmaiden of political cynicism and gets devalued in the process. Everyone knows, for example, that the Malaysian caning case has more to do with a political game being played by the PAS than it has to do with Islam. Such a move would give Muslim jurists the sort of breathing space they need to figure out how to reconcile modernity with tradition. At the current time each time they start the project they get sidetracked by some machiavellian use of religion by a demagogue — as the history of the cynical use of Islam in Pakistan has clearly illustrated. Of course, this reality is not likely to come about until Islam’s scholarly class themselves get tired of being peons to the politicians and give up acquiring secular power for themselves.