The Ulama and Legal Reform

What is it about law and religion that embroils jurists and theologians in deep, sometimes acrimonious
discussions that critics say deliver less than was promised? Well, for one, they both make progress
without making discoveries. Their aim, in other words, is rarely to unearth the unknown in their
particular vocations, but rather, to focus on that which is familiar, and yet escapes notice. And that is not
entirely an exercise in futility! To quote Wittgenstein, throwing a different light on the familiar, has
epistemic value as well, if only because, “the aspects of things that are most important for us are hidden
because of their simplicity and familiarity”. (One is unable to notice something – because it is always
before one’s eyes). The other similarity that law and religion share, and upon which I will focus more
attention—with particular reference to Islam—is that they are both in their own ways quite traditional.

While both religion and the law are steeped in tradition, and both work towards preserving their
respective traditions, only religion is generally labeled as such. As for law, ever since Hobbes, it has been
described as living ‘time-free’ in an ever-present world of sovereigns, commands, sanctions, etc. But
Martin Krygier, writing on the peculiarities of the law gives three reasons why the law is as much part
past and part present. The first has to do with law’s historical substratum which is almost always
anchored in some momentous past replete with revolutionary legal opinions that changed the course of
human history. The second has to do with the authority tradition wields in the present, without which
law can lay no claim to normativity or ‘ought-ness’. And the third—which is of particular interest to us—
has to do with the powers that determine the authenticity and continuity of the tradition, and what
passes from past to present, and more importantly what of the present is to be read into the past. In a
democracy, we the people ostensibly determine what changes tradition undergoes, whereas in Islam it
is supposedly the ʿulamāʾ. But authority today is being challenged at both ends by a cacophony of
competing voices no longer willing to defer passively to any single authority. And then there is
multiculturalism which today has so entangled the traditional authority of the ʿulamāʾ with secular
society that both are forced to work out a modus vivendi. For the individual however, living this way,
between past and present is, to say the least, quite stressful.

But the stresses suffered are surprisingly most evident, not under authoritarian regimes, but where
secular democracies prevail. Minorities fleeing religious intolerance back home feel somewhat betrayed
by secular civil society`s own intolerance towards their cultural practices. France, for instance, wants the
hijab outlawed in public places, whereas Scandinavia wants a complete ban on circumcision. In both
cases it would seem, it is not so much the demands of the secular law that faith based minorities fall foul
of, but rather the secular traditions upon which civil society is based. In fledgling democracies, in Africa,
and elsewhere, this is less the case for at least two reasons: firstly, the respect for, and immersion in
indigenous traditions makes accommodating the Islamic tradition an affirmation almost of their own
tradition. And secondly, Islam’s own amendments to local traditions have in time been so domesticated
and indigenized as to become indistinguishable from local traditions. That this domestication of Islam is
less successful in the modern world is according to some scholars the fault of the `ulama.

In his study of Muslim societal development D.E. Smith concluded that Islam’s promise of material
wellbeing, and societal felicity based on social justice, have been hobbled by its static legalism.
According to Smith, this is because every effort to exercise Islam’s universal norms within given social
paradigms has failed to “receive ecclesiastical recognition, legitimation and support.” Smith suggests
that the blame lies with the custodians of Islam’s legal tradition, the ʿulamāʾ, and in particular, with their
persistence in privileging tradition over change. Smith is certainly not the first to come to this
conclusion: almost every other Muslim reformist from the past century and a half has in similar vein
blamed the ʿulamāʾ for the Islamic world not abandoning obsolete traditions.

That the Muslim world lags in terms of human rights and material progress is clearly evidenced by the
endemic poverty Muslims suffer as a whole, and which Muslim women and children are forced to
endure disproportionately. But to hold the ʿulamāʾ responsible for retarding social and material
development is to misunderstand both their role in social transformation, or as custodians of the sacred
law.

To the extent that they failed to use their pulpit to bully their congregants into living by Islam’s own
human rights culture, the `ulama certainly have been remiss. But beyond the confines of the mosque
clerical authority was severely curtailed by forces beyond `ulama control. Perhaps the most subversive
of these forces came from Europe where earlier, the Enlightenment had trumped Church authority. In
time, and as a result of colonization, all traditional societies, including the Islamic, were infected by the
European bug, and thus began society’s awkward oscillation between tradition and change. This was
particularly onerous on the `ulama as custodians of a tradition which centered itself on revelation rather
than human creativity, and whose social values hearkened unto the Medina of the Prophet rather than
John Rawls’ overlapping utilitarian future.

The challenge they faced was to endorse and legitimize much needed societal changes without the
process itself delegitimizing their own authority. And so, in keeping with their predecessors and in fact
with most theologians the world over, they pulled off a veritable revolution by masking their changes . . .
as no change! Global transformations Zvi Werblowsky’s tells us, are often related to religion; “but when
change is made in or in the name of religion, it must usually be legitimized as non-change.” But will this
trend continue now that secularism inexorably squeezes religion even out of spaces once considered
sacred?
To answer that question one must first explain the two modalities of interaction that emerged as a
consequence of the aforementioned ‘squeeze’ and in particular, the one that best describes Islam. The
relationship of religion to the secular state, Waldman suggests, falls into two models, the organic and
the church. In the church model a unitary polity allows for the coexistence of the secular and the sacred,
but with the head of the temporal state overseeing the implementation of all laws; the ecclesiastical
hierarchy, as a result, is both separate and subordinate to temporal authority, except perhaps in matters
purely ritualistic. In the organic model, by contrast, religion is fused to the state, with the head of state
exercising both ‘temporal and spiritual authority; his chief function being the maintenance of the divine
social order according to sacral law and tradition’. But here’s a Faustian bargain if ever there was one,
for this means that where organic models exist—as in large parts of the Muslim world—religion is both
indistinguishable from the state, but also wholly subordinate to its secular authority. In the church
model, temporal and sacerdotal authorities are always separate, either in form or in purpose; and even
in cases where common purposes overlap, as in the case of Europe’s colonial expansion, for example,
the relationship becomes complementary—but separate.

The `ulama it seems, have a two pronged approach to this change without change, based on
demographics and political control. In minority, ‘shariah friendly’ countries that follow the church model
—India and South Africa, for example—the appeal is to a tradition that is inorganic but broad. In this
case the sacred law as exemplified by the different schools of law, and the juridical tomes of their
respective muftis, is seen as having ample breadth and depth to address any and all changes that
modern realities demand. And in Muslim majority countries where the organic model prevails, the
shariah itself is seen as organic and in a state of constant growth and refinement. It is also where the
rhetoric of classical Islam prevails, where the buzz words of change, such as ijtihad, and tajdid, and more
recently maslaha and talfiq make newspaper columns almost daily.

These buzz words have their own peculiar shelf life depending on the political stability of the various
Muslim communities. They fell out of favor for instance in the post classical period (13th century
onwards) as Islamic law moved from being a revolutionary instrument in the hands of jurists (ijtihad) to
becoming an instrument of state administration (taqlid). For centuries thereafter these terms lay
dormant, until colonization forced them back into circulation by challenging Islam with secular
humanism and liberal democracy—not in `ulama circles, but among liberals and fundamentalists. But
while these intellectuals could argue change using the rhetoric of the past they lacked the credentials to
represent that same past—what they lacked, in other words, was the credibility to pull off Werblowsky’s
earlier mentioned “change as no change”. Things are changing however, and as the lines separating the
custodians of tradition and the champions of change start to blur expect greater cooperation—and less
cooption—between the offices of `Ali Joma`ah and Mohamed Morsy. It’s not just rhetoric that is
resurfacing, but in some cases actual juridical change cloaked in the language of the past.
But in secular countries where Muslims are a minority, the former approach is preferred. In post-
independence India, for example, a prominent South Asian scholar, Ashraf `Ali Thanwi exercised every
legal relief at his disposal from ijtihad, to maslaha to istishab in order to overturn set laws on divorce.
His campaign, which culminated in the Dissolution of Muslim Marriages Act (1939) was nonetheless,
devoid of the rhetoric of reform, and this because the school to which he belonged waged grueling
battles against Muslim reformists appealing for juridical change based on this very rhetoric. There was
also no need for this because the state itself to which the appeal was ultimately being made was not just
non-Muslim but also largely indifferent to religion as such. Contrast this with the situation in the Middle
East where no substantive tension pitted the `ulama as a whole against social reformists or the state,
and where it was often the state that coopted scholars or their legal buzzwords to push through change
in the name of religion.