The Islamic Secular 1st Edition

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The Islamic Secular
The Islamic Secular
SHERMAN A. JACKSON
 Oxford University Press is a department of the University of Oxford. It furthers the University’s
objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a
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Published in the United States of America by Oxford University Press
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© Oxford University Press 2024
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
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acquirer.
CIP data is on file at the Library of Congress
ISBN 978–0–19–766178–9
eISBN 978–0–19–766180–2
DOI: 10.1093/oso/9780197661789.001.0001
 To the memory of my parents,
who gave so much from so little.
 Contents

Acknowledgments

Introduction
The Nemesis of Language
Divine Law and Sharī‘ah
Islamic Studies 2.0
The Chapters

PART I: THE CONCEPTUAL LANDSCAPE

1. Secular, Religious, Islamic
Basic Lay of the Land
The Secular
The Secular in Historical Perspective
The Secular: Macro- and Micro-Modes
Differentiation
Between the Non-Shar‘ī and the Non-Religious
The Religious
Religion As Subject and Object
Of Definitions and Usages
“Religion” and “Dīn”
The Islamic Secular’s Religion
The Islamic
“Muslim” versus “Islamic”
“Islamic” and My Evolutionary Turn
Marshall Hodgson
Shahab Ahmed
2. Islam, Fiqh, the Ḥukm Shar‘ī, and the Differentiated Realm
Between “Bad” and “Juristically Proscribed”
Beyond the Ḥukm Shar‘ī
 The Standard View
The Bounded Ḥukm Shar‘ī
Islamic Law: Sharī‘ah, Fiqh, Madhhab
Of Horizontal and Vertical Boundaries
Early Proponents of an Unbounded Sharī‘ah
The Emergence of the Theoretical Foundations of a Bounded Shar
ī‘ah
The Theoretical Consummation of a Bounded Sharī‘ah
Modern Continuities and Discontinuities
Misrecognizing the Bounded Nature of Sharī‘ah
Sharī‘ah Minimalism and Maximalism
Ibn Ḥazm and the Ẓāhirī Project
The Sharī‘ah-Maximalism of Ibn al-Qayyim and Ibn Taymīyah
Ibn al-Qayyim
Ibn Taymīyah
3. The Islamic Secular
Between Divine Sovereignty and Divine Communication
Islām Mā Warā’ al-Ḥukm al-Shar‘ī
Islamic Law Beyond Sharī‘ah
The Dystopian Narrative of Islamic Law
Sharī‘ah and “Islamic Law”
Siyāsah
Maẓālim
Ḥisbah
The Islamic Secular: “Beyond the Law”
Nomos and Plausibility Structure
Efficient Decision-Making
The Islamic Secular versus Ijtihād
The “Islamic” in the Islamic Secular
Coda: The Islamic Secular and the Challenge of Talal Asad
The Asadian Frame
The Asadian Challenge
The Islamic Secular’s Response
Has Islam Become a Religion?

PART II: THE ISLAMIC SECULAR, MODERNITY, AND THE MODER

N STATE
4. The Islamic Secular and the Impossible State
Basic Anatomy
The Impossible State
Avoiding Distortions and Straw Men
What Hallaq Is Not Saying
Hallaq and the Modern State
Provenance
Sovereignty and Law
Violence, Sacrifice, Bureaucracy, Culture
Sharī‘ah between Hallaq and the Islamic Secular
Reason and Islamic Law
The Curse of Modernity
Al-Ḥusn wa al-Qubḥ al-‘Aqlīyān
Morality vs. Shar‘
Is vs. Ought
Back to Reason
The Islamic Secular and the Islamic State
Shar‘ī vs. Non-Shar‘ī: Law vs. Fact
Islamic Governance between Discretion and Juristic Law
The Promise and Threat of Discretionary Authority
The Authority of the Islamic Secular
5. The Islamic Secular and the Secular State
Basic Anatomy
The Islamic State, Secularism, and An-Na‘im’s Secular State
The Basic Aim of the Present Analysis and Critique
Two Necessary Digressions
The Purity of Religiosity
Human Rights
The Na‘imian Secular State: Substantive Details
The Alchemy of the Secular
History
The Wages of Rational Certainty: Khilāf, Sui Juris, and “Decreed b
y God”
Undifferentiated Religion and An-Na‘im’s Secular
The Nemesis of Neutrality
Non-Muslims: Islam-cum-Sharī‘ah between the Modern State and the
Empire-State
 Al-Shāfi‘ī, Mālik, Ḥanafīs, and the Early Period
The Post-Formative Scene
The Empire-State between Sharī‘ah and the Islamic Secular
The Secular State and the Islamic Secular
6. The Islamic Secular and Liberal Citizenship
Basic Anatomy
March’s Framing and Its Implications
Rawls, March, and the Basic Question
Rawls
The Rawlsian March and the Marchian Rawls
The Marchian Challenge
Islam and Comprehensive Doctrines: Between March and Rawls
The Primacy of Public Reason
March’s Response to the Challenge of Islam and Liberal Citizenship
Conjecture and Islam’s Ostensible Default Position
Liberal Citizenship between March and the Islamic Secular
March on Islam’s Response to His Four-Part Criterion
Residence
Loyalty
Pluralism and Solidarity
Islam, Liberalism, and American Democracy: An Alternate Approach
Standing Where I Sit
Race
Religion
Politics
The US Constitution between Sharī‘ah and the Islamic Secular
Protecting the Protection
Conclusion

Notes
Bibliography
Index
 Acknowledgments

From the time I completed my PhD dissertation on the seventh-/thirteenth-

century Mālikī jurist Shihāb al-Dīn al-Qarāfī in the early 1990s, the idea of
the limits or boundaries of Islamic law has informed my thinking about
sharī‘ah and its place in Islam. In this sense, the basic idea behind this book
is not new. From another perspective, however, my move in 2011 from an
Area Studies department at the University of Michigan, where I spent most
of my career, to a Religious Studies department at the University of
Southern California consummated my exposure to a different set of
conversations and a different bibliography, which cumulatively suggested
that the matter of sharī‘ah’s boundaries might have significance beyond
what I had been able to discern or contemplate theretofore. This proved
particularly relevant to the interest I developed in the question of Islam’s
relationship with the “secular,” as religion’s presumed binary “Other.” This
book brings aspects of these two academic disciplines into conversation
with each other around the topic of the secular (and by entailment the
religious) against the backdrop of the modern encounter between Islam and
the West, mediated through insights and arguments gleaned from the legacy
of Islam’s juristic (and theological) tradition.
Over the course of my thinking about and re-thinking Islam’s
relationship with the secular (and religious) countless individuals
contributed to the ideational tributaries that flowed into this book. No one
looms larger in my Area Studies background than my mentor, the late
Professor George Makdisi, whose memory continues to guide, inspire, and
discipline me. Meanwhile, I am deeply indebted to the late Professor
Charles Long, a towering scholar of religion, who, for over two decades,
albeit from a distance, provided kind and edifying tutelage. Similar thanks
go to my colleagues at USC’s School of Religion, who also helped me
expand my gaze beyond Area Studies into the world of Religious Studies. I
must also acknowledge the selfless instruction I received all those years ago
in Egypt from Shaykh Ḥasan Salīm Ḥasan Ṣāliḥ of al-Azhar University and
the profound impact it has had on my understanding of the Islamic juristic
tradition.
Beyond these scholarly influences, many contributions came from non-
scholarly quarters, for example, during some of my public speaking
engagements or more casual social settings or even telephone-
conversations. The queries, challenges, and suggestions I received were
often indirect and open-ended, aimed at a still inchoate and imperceptibly
evolving thesis whose concrete contours had not yet fully crystallized in my
own mind. Yet, as serendipitous and indirect as these interventions often
were, they continued to inform my thinking over the entire course of
writing this book. The sheer number of these “unwitting” contributors (and
the treachery of my memory) makes it impossible to name names today. But
I want to acknowledge and thank all these interlocutors for what they so
charitably and meaningfully contributed to this book.
More directly, several accomplished (and very busy) scholars were kind
enough to share their intellectual capital with me. Ebrahim Moosa (a
constant soundboard), Joseph Lowry, Intisar Rabb, and Ahmad Ahmad
(also constantly engaged) were all gracious enough to read and comment on
an earlier (and painful) draft of the entire manuscript. All of them went
beyond the call of duty in demonstrating a kindness of candor that testifies
not only to their big-heartedness as human beings but also to their integrity
as scholars. While the final product shows that I did not always agree with
their critiques or suggestions, I have not the words to express the deep
gratitude and appreciation I feel towards them all. I can only hope that
“Thank you” will suffice for the moment. My colleague at USC, David
Albertson, dutifully read and provided useful comments and suggestions on
an earlier draft of Chapter 1. My former teacher, Adel Allouche, agreed to
“re-traumatize” me with a brief review of aspects of Mamlūk economics,
discussed in Chapter 2. Jessica Marglin, Nomi Stolzenberg, Arjun Nair,
Mohammad Fadel, Samy Ayoub, Ovamir Anjum, Asma Sayeed, Humaira
Iqtidar, Michael Cooperson and Rushain Abbasi were valued interlocutors
at various points along the way. I would also like to thank my graduate
students at USC, especially Hadi Qazwini, Omar Qureshi, and Naseeha
Hussain, all of whom suffered me through semesters on end of seeing the
Islamic Secular around every corner and underneath every bed but who
continued to engage me all the same. Of course, it goes without saying in
connection with all these scholars that I alone am responsible for the views
I express herein.
A distinct challenge I faced in writing this book sprang from the counter-
intuitive, if not oxymoronic, ring of “Islamic Secular.” Beyond their
substantive intellectual contributions, several friends and colleagues
(especially Ebrahim Moosa and Ahmad Ahmad) offered much needed
encouragement to persevere and see this project through, despite what they
(and I) recognized to be the formidable psychological barrier standing
between readers—especially perhaps some Muslim readers—and their
ability (initially at least) to reconcile the juxtaposition of “Islamic” with
“Secular” or to avoid seeing any articulation of the “secular” in Islam as
necessarily entailing “secularism” or “secularization.” This encouragement
proved critical to my ability to complete this book, and I would like to
thank all those who offered it for so courageously and insistently doing so.
I would also like to thank the fine folks at Oxford University Press,
especially Theo Calderara and Chelsea Hogue, for their professionalism and
kind indulgence in seeing this book to production. I must also thank OUP’s
anonymous Readers. Jubilee James and the team at Newgen also deserve
recognition for their hard work and kind assistance. I am also grateful to
Ursula DeYoung for her editorial support.
Last but not least, I would like to acknowledge the sacrifice, love, and
support of my family, especially my wife, Dr. Heather Laird, and my dear
departed mother, Mrs. Evelyn Crute, not only for continuing to believe in
me and for encouraging and allowing me to stay the course but also for
simply putting up with me—the often distracted husband, father, and son—
throughout the vicissitudes that invariably accompany a project of this
magnitude, import, and complexity. Thank you, family, for this and for all
that you so graciously and consistently provide.
 Introduction

The Nemesis of Language

In a lecture at the University of California, Berkeley, in 1979, the celebrated
American writer James Baldwin (d. 1987) spoke of the nemesis of
language: “What a writer is obliged at some point to realize is that he is
involved in a language which he has to change.” Applying this more
specifically to Blackamerican1 writers, Baldwin continued: “For a Black
writer, especially in this country, to be born into the English language is to
realize that the assumptions of the language, the assumptions on which the
language operates, are his enemy.”2 Speaking of the dislocations visited by
the Western lexicon on the Muslim East, the contemporary Arab
philosopher Ṭaha ‘Abd al-Raḥmān strikes a similar chord: “The reality is
that as long as Muslim society does not find its way to innovating new
conceptual tools or reprocessing the conceptual tools of others to the point
that they become as if they had been innovated originally by Muslims, there
will be no hope of exiting the intellectual desert that has become the
Muslim mind.”3 Both of these thinkers go to the heart of what it means to
have to represent oneself in a language that has routinely been used,
consciously or otherwise, to misrepresent one—a language, alas, that
modern reality will not permit one to ignore.
This book is an attempt to address this problem of language and the
various assumptions, polarities, and obstructions it spawns, with specific
reference to the term and concept(s) of the “secular.” My basic argument is
that, while the secular, as commonly understood in the contemporary West,
connotes a fundamentally dichotomous relationship with the religious, the
Islamic juristic tradition, particularly uṣūl al-fiqh, points to an alternate
understanding of the construct. By “alternate understanding,” I do not mean
simply a different way of mapping the reigning Western meaning of
“secular” onto Islam; nor am I referring to a different vocabulary by which
Islam’s lingua franca might express the standard Western understanding of
the concept. I am arguing, rather, that, understood against the structural and
ideational backdrop of Islam and its juristic tradition, “secular” acquires a
different meaning altogether, one that does not render it the antithesis of
religion. This alternate meaning is what I refer to in this book as the
“Islamic Secular.”
In his thoughtful summary of the history of Western studies of Islamic
law, Baber Johansen provides insight into how, beginning in the nineteenth
century, unquestioned presuppositions made their way into the scholarly
literature, powered by Western hubris.4 These presuppositions routinely
denied Islamic law its own story and effectively assigned it a mere
supporting role in that of the modern West. Accordingly, academic
discussions of the secular in Islam rarely take Islam-cum-sharī‘ah as their
point of departure. This book is an attempt to remedy this failure, not by
ignoring the West or assuming a zero-sum relationship between it and
Islam, but by recognizing that, even where Islam and the West share
vocabulary or concepts, taking the Western understanding as touchstone
generates significant inaccuracies, dislocations, and blind spots. From the
perspective of the Islamic juristic tradition, “secular” (as we will see)
intimates what many in the modern West would consider a contradiction in
terms, namely a “religious secular.” This contradiction only exists, however,
on the prior assumption of an oppositional relationship between the
“secular” and the “religious” as one’s point of departure. My point here is
not that the West is wrong in holding its position; it is simply to question
the universality of the West’s position. For, Islam’s secular—what this book
terms the “Islamic Secular”—defies the paradigmatic assumption of
secular/religious antipathy: the Islamic Secular is not “non-religious”.
Equally critical, as I detail in Chapter 3, the Islamic Secular cannot be
translated into Arabic as simply al-fikr al-‘almānī fī al-islām or al-‘almānī
al-islāmī or some other equivalent representing the wholesale grafting of
the regnant Western understanding of “secular” onto Islam.
The basic assumption of the Islamic Secular is that, while the divine
gaze of the God of Islam is universal and totalizing, God’s concrete
communiqué, in the form of sharī‘ah, is bounded. As such, between the
circumference of sharī‘ah and that of Islam as a whole there exists a
“space” within which Muslims do not and cannot rely solely on concrete
divine dictates. Yet, while operating within this space, Muslims are neither
removed from nor necessarily seek to remove themselves from a conscious
awareness of the presence and adjudicative gaze of the God of Islam. When
the great Ottoman architect Sinān (d. 996/1588) designed and built the
buildings that became signatures of Islamic architecture, or when Ulugh
Beg (Muḥammad Ṭaraghāy b. Shāhrukh b. Tīmūr (d. 853/1449) founded his
famous observatory in Samarqand, neither was drawing on direct, concrete
instructions from sharī‘ah or its sources as the basis of his craft. Yet, it
would be presumptuous to assume (especially given their time and place)
that a conscious awareness of the divine gaze of the God of Islam did not
inform their efforts. Just as Michelangelo painted “to the glory of God,” so
they designed, built, and studied to the same end. Their activity remained
‘secular,’ however, in that God’s revelation contributed almost nothing to its
concrete substance. But it was also “religious,” in that it was carried out
with sustained devotional intent. Moreover, in seeking a successful outcome
to their efforts, their appeal to God (isti‘ānah) would be as likely as it
would be in connection with any properly religious act of worship
(‘ibādah). Their efforts, in sum, fell within the province of the Islamic
Secular.
This understanding of “secular”—plainly counterintuitive for
contemporary Westerners (and those under their influence)—takes us back
to the problem highlighted by Baldwin and ‘Abd al-Raḥmān. If the word
“secular” as commonly understood in the modern West implies a
necessarily dichotomous relationship with “religion” while Islam-cum-
sharī‘ah assumes that the two concepts need not be dichotomous, then the
present deployment of Western languages (my focus is English), through
which Islam is studied and engaged, can neither produce nor accommodate
an accurate depiction of the Faith. In other words, if Islam-cum-sharī‘ah is
to be understood on its own terms, this language, entrenched though it may
be, must be changed, at least in its implications. This is what The Islamic
Secular will attempt to do.
Part of the argument of this book is that neither Islam nor Islamic law
can be adequately understood without fully appreciating the Islamic
Secular. As a religion (i.e., dīn), Islam consists in not one but two distinct
yet inextricably bound modes of religiosity: 1) a shar‘ī mode, whose
ground is sharī‘ah, its sources, and dictates; and 2) a non-shar‘ī mode—
what I refer to as a “differentiated,” ‘secular mode’—whose concrete
substance is not a dictate or derivative of sharī‘ah or its sources. Adherence
to the dictates of sharī‘ah (i.e., the shar‘ī mode) is readily recognized as
both religious and Islamic; but culture-creation, technology-development,
institution-building, mundane and everyday decision-making, and even
various rational disciplines (e.g., medicine, astronomy, economics,
dialectics [adab al-baḥth], geometry or algebra) are equally indigenous to
Islam as dīn,even though hermeneutical engagement with sharī‘ah or its
sources does not, mutatis mutandis, determine the concrete substance of any
of these pursuits. In this sense, while these pursuits are all ‘secular,’ in that
their concrete substance falls outside the dictates of sharī‘ah and its
sources, they remain (at least potentially) “religious”—and, I argue, Islamic
—in the sense of falling within the attention of Islam as religion.
To be sure, the idea that things do not have to be derived directly from
scripture in order to be Islamic will strike some readers as “almost absurdly
obvious.” For this reason, in their view, the Islamic Secular is not saying
anything new or important. Muslims, they argue, routinely greet such
actions as “choosing the right color of flowers for a hospitalized friend” or
“going to law school to fight police brutality” with “an instinctive mā shā’
Allāh,” enthusiastically praising such actions as Islamically constituted
good deeds.5 While this may be true, this perspective fails to capture the
basic argument of this book. The meaning such observers impute to
“Islamic” is overly broad, popular, untheorized, and breaks down fatally in
application. If the mere fact that Muslims praise Pakistan’s victory over
India in cricket renders this victory Islamic, then Muslims exclaiming “mā
shā’ Allah” upon Brazil’s beating Germany in soccer must render that
victory equally Islamic.6 Ultimately, “Islamic”—like “legal” or
“constitutional,” indeed, like “Islam”—is a technical term whose technical
meaning and deployment must be distinguished from its popular usages,
even as the latter are acknowledged as a matter of fact. More importantly,
the praise in question tells us nothing about whether the acts in question are
perceived as secular or as religious. The Islamic Secular, by contrast,
includes definitions and usages of “secular,” “religious,” and “Islamic” as
fully theorized technical terms that can be successfully applied across the
board. Moreover—and here is where the view in question most crucially
misapprehends my thesis—the Islamic Secular as a theory is not simply
about how acts become Islamic but about how they can be Islamic and
secular and religious at the same time.
Again, it is not my contention that the reigning definition of “secular” in
the West is wrong. It is that this is not the only way that “secular” can be
deployed. Words bear possibilities beyond their etymologies and even their
dominant meanings. Often, a word’s currency will stem not from its
meaning or definition but from its usage and, as importantly, from the
standing of the group whose usage counts most. This explains how in
America the prevailing sense of “anti-Semitic” comes to be “anti-Jewish,”
that of “immigrant” (as in “immigration”) to be “non-White,” and that of
“terrorism” to be “publicly directed violence committed by Muslims.”
Jeffrey Stout sheds useful light on the point I am trying to make here in his
discussion of the history of “meaning” as a concept in the West. “Meaning,”
argues Stout (following Ian Hacking), makes its debut as a centerpiece of
Western thought in the late nineteenth century.7 Drawing on Wittgenstein,
he notes that what is really at stake in debates over words is not the relative
correctness of the sense or definition attributed to them but the frequency
with which they are used in association with a particular meaning. The aim
in such contests, in other words, is not to champion a specific meaning as
the most technically or lexically correct; it is to inspire more frequent and
uncontested usage of a word according to a particular meaning, even if
other meanings of the word may be just as (or even more) historically or
philologically correct.8
Stout’s point is clearly reflected in the scholarly literature on the actual
or ur-meaning of “secular.” For example, Talal Asad cites the secular’s
roots in the Latin noun saeculum and notes how it evolved into a series of
transfers first from monastic life to a life of cannons and then from Church
proprietorship to private hands and ultimately the market.9 Charles Taylor
writes, “Secular, as we all know, comes from ‘saeculum,’ a century or age.”
10 Craig Calhoun adds, “The root notion of the secular is a contrast not to

religion but to eternity. It is derived from saeculum, a unit of time.”11

Timothy Fitzgerald confirms: “The term ‘secular’ did not mean ‘non-
religious.’ ”12 And, according to Nikki Keddie, “secular” derived from the
Latin adjective saecularis and came down through the French seculer,
originally referring to “clergy who were not bound by the religious rules of
a monastic order.”13 Yet, the technical accuracy of these attributions
notwithstanding, little of this has much impact on the way the word
“secular” is commonly used and understood today. Today, “secular” stands
in contrast with “religious.” And this is a function not of language or
philology but of historical actors, intellectual interventions and
civilizational authority-cum-prestige.
In sum, successfully anchoring a word or concept to a particular usage
and connotation goes beyond the simple accuracy of the meaning attributed
to it. The word or concept must also be paired with deeply felt needs,
interests, perceptions or even vogues in a manner that secures these
associations and ideally places them beyond critique. Such a process
requires that those who wish to make such associations exercise enough
agency to make them stick, as occurred, for example, with the term
“Communism,” originally excavated from the legacy of Christianity.
According to Owen Chadwick, Marx and Engels simply “took an existing
word, deconstructed it, and made it a name for a new system of social
thought.”14 Rather than seeking to gain currency for an entirely unvetted
neologism, they appropriated the authority and basic sense (or one of the
senses) of an already existing term, the apparent ideological contradiction
between Christianity and their theory of Communism notwithstanding. I
will take a similar approach in this book.
I proceed, however, on the assumption that the West holds no copyright
on the term “secular” and that Muslims can assume and exercise the same
kind of agency that Marx and Engels used to imbue an old concept with
new meanings, connotations, and usages. At the same time, I will
demonstrate that, while the Islamic Secular participates in the same
semantic field as the Western secular, a careful reading of the Islamic
juristic tradition not only moves Islam’s secular beyond the reigning
Western meaning of the term but also renders it as Islamically authentic as
the Islamic juristic discourse from which it derives. This authenticity, along
with the concept’s utility as a conceptual, analytical, and generative tool in
the service of various academic and confessional interests, will be relied
upon to sustain the legitimacy and naturalness of “Islamic Secular” as a
term of art.

Divine Law and Sharī‘ah

A key constituent of my thesis is the argument that sharī‘ah is a bounded
entity rather than the totalizing, all-encompassing construct it is commonly
understood to be. Indeed, the bounded nature of sharī‘ah is what establishes
the possibility of the aforementioned “space” between its jurisdictional
circumference and that of Islam as a whole, the space wherein the Islamic
Secular resides. But I shall argue additionally that, on close examination,
the assumption that sharī‘ah is totalizing, in the sense of carrying universal
jurisdiction and in that capacity constituting the only Islamically relevant
metric of assessment, has no real basis in the Islamic juristic tradition, at
least not as the dominant view. Yet the totalizing view of sharī‘ah has
endured for generations and has thoroughly informed the perception of
Islam-cum-sharī‘ah in the Western academy and beyond. This longstanding
misimpression raises an important question: If this is not the view with
which one emerges from an attentive reading of uṣūl al-fiqh—the ultimate
theoretical basis of sharī‘ah—why has this presumption endured for so
long? What other interpretive prisms or presuppositions might explain this
long-standing perspective on Islamic law?
The Dutch Orientalist Christiaan Snouck Hurgronje (d. 1936) was
among the first continental European authorities on Islamic law, and his
characterizations “left lasting traces in the occidental understanding of the
subject.”15 Among these traces was the notion that fiqh was not a legal
system but a “deontology,” an undifferentiated collection of religious duties
and dictates handed down from on-high by the God of Islam, essentially the
Ten Commandments times ten thousand.16 On this understanding, it was
reasonable to assume that sharī‘ah’s status as a “sacred law” (after Weber,
who was also influenced by Hurgronje) implied all-encompassing
jurisdiction, the Divine Itself being presumed to possess unbounded power
and authority.17 Thus, echoing Hurgronje, Joseph Schacht (d. 1969) wrote,
“The sacred law of Islam is an all-embracing body of religious duties rather
than a legal system proper. 18 Meanwhile, Hurgronje had claimed “fiqh was,
from its very beginning, considered by its exponents as a divine doctrine
which is complete and perfect.”19 But while Hurgronje effectively denied
Islamic law’s rationality, Schacht affirmed it. And in this way, mutually
reinforcing notions of comprehensiveness, perfection, and completeness,
underwritten by the possibility of infinite extension through reason, came to
be associated with sharī‘ah.
In her insightful book, What’s Divine About Divine Law?, Christine
Hayes looks at how the notion of divine law was understood “in the
Mediterranean and Near Eastern world in the thousand-year period prior to
the rise of Islam.”20 She notes that the Greek understanding of divine law
differed dramatically from the Biblical conception of the Jewish rabbis. In
much of Greek thought, what made a law divine was not that it issued from
a god or gods but that it “expresses the profound structures of a permanent
natural order,”21 the ingrained laws that infuse the cosmos, including the
physical world and our nature as humans in it. A law was divine, in other
words, “by virtue of such qualities inherent in it, first and foremost its
rationality, which entails its truth value, its universality, and its static
unchanging character.”22 In this sense, divine law was as comprehensive in
scope as the natural order of which it was assumed to be a reflection,
whence its association with universal jurisdiction.
Anyone familiar with the early debates in Islam that pit the Mu‘tazilites
and their “moral objectivism” against their Rationalist and Traditionalist
adversaries will recognize a similar fault line in early Islam. All of the
major schools of Sunni theology lined up against the Mu‘tazilite insinuation
that God’s law, that is, what God rewards and punishes, has a pre-existence
in nature that ultimately dictates its status as law, implying that the law was
simply “uncovered” (kashf) by reason or revelation.23 The Sunnī counter-
thesis was that divine law was not “uncovered,” as a buried trove, but
unilaterally stipulated (waḍ‘) by God, as a function of God’s autonomous,
unilateral will. In taking this position, Sunnīs were comparable to the pre-
Islamic rabbis in their disagreement with Greek thought. What made
Islam’s divine law divine for Sunnīs was not its conformity to or reflection
of a rationally constituted, pre-existing cosmic order but the fact that it
issued from the Possessor of divine authority.
If a divine law is divine not because it is a reflection of an all-
encompassing, ingrained, cosmic order but because it is the product of the
Divine’s unilateral will, such a will might intentionally limit its field of
address. This need not mean that everything outside this field is beyond the
Divine’s interest, any more than a child, employee, or lover can assume that
everything outside his parent’s, employer’s, or lover’s explicit
communications remains unregulated. Nor need we assume that analogy
(qiyās) based on explicit instructions necessarily exhausts the demands of
living in such a regulated space. The Sunnī understanding of divine law
does suggest, however, that outside the Greek notion of divinity, there is
nothing to compel the presumption that divine law is all-encompassing
simply because it is divine. In seeing sharī‘ah as bounded, the Islamic
Secular simply privileges the Sunnī over the Greek perspective on the
nature of the Divine, seeing the Divine as (inter alia) voluntary Issuer of
Commands rather than Avatar of the Cosmos.
But there is another side to the issue. The Greek (and later Greco-
Roman) understanding of divine law typically emphasized ontological
realism as its point of departure. By this I do not mean that the law
confronted rather than fled from socio-political reality; nor do I have in
mind the “legal realism” championed by the likes of the legal scholars
Jerome Frank (d. 1957) or Karl Llewelyn (d. 1962). By ontological realism,
I mean that the structure of the law was assumed to be pegged to the extra-
mental structure of the world, its prescriptions corresponding to the inherent
nature of the universe. Murder, on this understanding, is evil and must incur
punishment not because God said it must but because it is objectively evil
in the same sense that fire is objectively hot and water objectively wet.
From this perspective, no authority can make murder good or not deserving
of punishment, any more than it can make fire cold.
By contrast, the nominalist approach, such as is found in the ancient
Biblical and later Islamic traditions, tends to emphasize divine fiat as the
basis of the law’s authority, thus embracing the idea that things are good or
evil (i.e., rewarded or punished) because God names them as such, which
implies that God could have named them otherwise. In other words, it is
neither the inherent nature of what God names as law nor its
correspondence with an extra-mental index that renders it law; it is the fact
that God names it as law.24 Of course, as Hayes observes, “All legal
systems appeal to nature and mind-independent reality in determining the
law; what makes a system realist or nominalist is the degree to which such
appeals are dispositive and uncontestable (more for the realist, less for the
nominalist).”25 The same holds for Islam: nominalists recognize any
number of acts, for example, killing a prophet or accusing an innocent
person, as plainly evil, while realists understand any number of things, such
as the number of units in a prayer, along nominalist lines. Realists simply
leave much less room for nominalism overall, while nominalists are
palpably more sparing in their subscription to realist explanations.
The tendency to approach sharī‘ah as a realist system (or a functional
equivalent thereof) has become more explicit in recent years. We see it, for
example, in certain appeals to “natural law” (often an iteration of realism)
as the purported basis of Islamic law.26 We see it as well, and perhaps more
prominently, in the proposed bifurcation between sharī‘ah and fiqh. This
divide is often an attempt to loosen the grip of Islamic law and make room
for more human deliberation. Muslim scholars tend to pursue this interest,
however, not by limiting sharī‘ah’s scope but by suggesting that even
within sharī‘ah’s jurisdiction what is claimed to be divine law is really only
a human understanding thereof. Fiqh, in other words, while constituting a
good-faith attempt to apprehend God’s all-encompassing law, is not
necessarily God’s law and need not always be deferred to as such.27
At issue here, for my purposes at least, is not whether jurists always hit
the ontological bull’s-eye but whether their conclusions must correspond to
an objective, extramental preexistent in order to qualify as God’s law. If
sharī‘ah is ultimately a realist entity that is all-encompassing, transcendent,
and unchanging, no Islamic Secular can exist. For, on such an
understanding, sharī‘ah is coterminous with Islam as God’s will and
correspondingly as expansive as God’s creation. There can be no “space”
between the circumference of Islam and that of sharī‘ah and thus nothing
within Islam that could be presumed to lie beyond sharī‘ah’s scope (again,
as described above). This, however, is precisely the presumption that the
Islamic Secular calls into question.
By “functional equivalent” of sharī‘ah as a realist bull’s-eye, I am
referring to the understanding of Islamic law that restricts it to a pure,
unadulterated index that exists objectively not in nature but in ‘the divine
mind.’ This appears to be the approach, for example, of Professor Khaled
Abou El Fadl. In one of his descriptions of the classical juristic tradition, he
writes: “Shari‘ah, it was argued, is the Divine ideal, standing as if
suspended in mid-air and uncorrupted by the vagaries of life. The fiqh is the
human attempt to understand and apply the ideal. Therefore, Shari‘ah is
immutable, immaculate, and flawless—fiqh is not.”28 Much more recently,
he wrote: “Shari‘ah was considered to be the immutable, unchangeable and
objectively perfect Divine truth. Human understanding of Shari‘ah,
however, was subjective, partial, subject to error and change. While
Shari‘ah is Divine, fiqh (the human understanding of Shari‘ah) was
recognized to be only potentially so.”29 Of course, assuming that he takes
its locus to be ‘the divine mind’ Abou El Fadl’s reference to an “objectively
perfect” sharī‘ah need not be understood in properly realist terms, that is, as
ontologically pegged to nature. Where it becomes the functional equivalent
thereof, however, is in its assertion that divine law is strictly limited to the
perfect apprehension of an objectively identifiable pre-existing rule.
Let us consider this, however, from the perspective of the celebrated
jurist-theologian Abū Ḥāmid al-Ghazālī (d. 505/1111). In his opus on uṣūl
al-fiqh, in the context of discussing ijtihād (unmediated juristic
interpretation of scripture), al-Ghazālī notes that not every issue is
addressed by apodictic revelatory indicants (adillah/sg. dalīl). For many
issues, there exists no more than “probable indicants” (amārāt/sg. amārah).
30 In these latter cases, according to al-Ghazālī, the assumption is that “God

has no concrete, predetermined rule” (laysa fīhā ḥukmun mu‘ayyanun lillāhi

ta‘ālā).31 But this does not render the attainment of Divine pleasure, or the
obligation to seek it, impossible or null and void. On the contrary, assuming
due diligence, God’s ruling, ḥukm Allāh, according to al-Ghazālī, is in such
cases what the independent interpreter (mujtahid) concludes it to be. In
effect, al-Ghazālī collapses the distinction between fiqh, or the human
attempt to apprehend God’s rule, and sharī‘ah, or God’s actual rule.
Practically speaking, the two become identical. As Abou El Fadl himself
summarizes this position, “sincerity of conviction, the search, and the
process are in themselves the ultimate moral values.”32 As many if not most
issues lack apodictic, revelatory indicants, much of the time, “God’s ruling”
must effectively become a human deduction ensnarled in the vagaries of
life, as opposed to a pristine entity suspended in mid-air like a Platonic
form.
Al-Ghazālī’s view is grounded in the position of the so-called
muṣawwibah, or those who believe that, assuming due diligence, every
mujtahid is correct (kullu mujtahid muṣīb). As this group was opposed by
the so-called mukhaṭṭi’ah (who argued that there is a specific, concrete view
in each instance that represents the actual rule of God and that those who
miss this mark are simply wrong), al-Ghazālī’s position cannot be put forth
as the sole view of Islam. But it was widely endorsed (differences in detail
notwithstanding),33 and even mukhaṭṭi’ah who opposed it neither generally
attributed sin to mujtahids who arrived at ‘wrong’ views nor insisted that
these jurists could not profess or act upon those views in the name of
sharī‘ah.34
On a practical level, then, pursuing God’s pleasure is not always a matter
of apprehending a fixed and “flawless” sharī‘ah, neither as an extramental,
ontological preexistent nor as a pristine, pre-existing notation in the divine
mind. Nor is the pursuit of divinely sanctioned human interests (i.e.,
maṣāliḥ/sg. maṣlaḥah), individually or collectively, necessarily a simple
matter of apprehending God’s pre-existing “flawless” sharī‘ah. Both God’s
pleasure and humans’ concrete, divinely sanctioned interests may lie
beyond the objective, concrete revelatory indicants of sharī‘ah, or fiqh. Yet
—and this is the thesis of the Islamic Secular—this does not mean that
Muslims must (or can) go outside of Islam altogether to pursue either God’s
pleasure or their own divinely sanctioned interests. For, neither “outside the
dictates of fiqh” nor “outside the dictates of sharī‘ah” necessarily means
“outside the attention of Islam,” in contradistinction to what a totalizing,
especially a totalizing realist, understanding of sharī‘ah would imply.
This is fundamental to my overall argument: the pursuit of divine
pleasure, like the pursuit of divinely sanctioned human interest, is not
strictly limited to the concrete dictates of sharī‘ah. Nor is it limited to fiqh
(which I argue in Chapter 3 is synonymous with sharī‘ah35). And yet, such
extra-shar‘ī pursuits are also not necessarily any less religious or, I shall
argue, any less Islamic, than those that are based directly on shar‘ī
indicants. For, not only is fiqh/sharī‘ah not all-encompassing (in the sense
that I argue), but it is also neither self-sustaining nor self-perpetuating;
rather, it requires cultural, intellectual, and institutional support for which
its sources provide no concrete directives or instruction. One thinks here of
the role of pre-modern Islam’s monied community, who established and
maintained its educational and public welfare institutions, with no concrete
sharī‘ah directives and no instructions from scripture on how to do so. It is
difficult to imagine the state of sharī‘ah education (to take one example)
including the relative independence of the fuqahā’, without the efforts of
these men and women, whose roles have been almost entirely eclipsed by a
singular focus on shar‘īyāt and their personnel as the sole presumed
determinants of a healthy, functional Islam. Similar recognition must go to
the entire field of “humanist adab”—grammar, rhetoric, poetry, history, and
the epistolary arts, all of which were integral to Islam’s success and self-
understanding as a civilization and yet palpably distinct from fiqh/sharī‘ah.
36 in a modern context, we might add such enterprises as editing and

publishing important texts from Islam’s vast repertoire of pre-modern Arab

(and Persian and Turkish) manuscripts, as recently studied by Aḥmad El
Shamsy.37 For all of these reasons, we can hardly justify ignoring or
discounting non-shar‘ī contributions to Islam’s health and stature as God-
pleasing, religious, and, indeed, Islamic activity, even though they were (or
are) not concretely dictated by sharī‘ah.
In sum, I am proposing that the totalizing, absolutist vision of Islamic
law, in whatever form, distorts the academic understanding of Islam-cum-
sharī‘ah, on the one hand, and impoverishes the Muslim attempt to
instantiate Islam as praxis, on the other. By excluding the Islamic Secular
from our interpretive prism as academics, we exclude extra-shar‘ī
contributions to the concrete instantiation of Islam-cum-sharī‘ah in history.
At the same time, by assuming that non-shar‘ī activity is, by definition,
non-religious, non-Islamic or, perhaps, contra-Islamic, we render sharī‘ah
itself the totalizing, coterminous equivalent of Islam, effectively excluding
everything else from the designation “Islamic.” Meanwhile, modern
Muslims who do not recognize as religious non-shar‘ī activity consciously
pursued under the adjudicative gaze of the God of Islam will nurse a
similarly dim estimate of its Islamic value. And given the centrality of non-
shar‘ī—“secular”—activity to everyday existence, this lack of recognition
may well drive Muslims toward secularization in the modern Western
sense, by limiting what they recognize as “religious” activity to shar‘īyāt
and stigmatizing or discounting non-shar‘ī activity (and those who
undertake it) as “non-religious.” The wages of such a perspective are
clearly reflected in the words an Imām in Philadelphia once conveyed to me
in explaining a group of Muslims’ hostile indifference to a major economic
development project by another group of Muslims in the city: “Ain’t no dīn
in it.” Remedying such misrecognition is among the fundamental concerns
of the Islamic Secular.

Islamic Studies 2.0

It should be clear by now that there is a confessional dimension to my thesis
and its application. This should neither alarm nor surprise. As Talal Asad
observes, “The question of secularism has emerged as an object of
academic argument and of practical dispute.”38 Part of my aim in the
present project is to reverse the effects of the Islamic Secular’s exclusion
not only from the interpretive prism through which the West has studied
Islam but also from that of modern Muslims—an exclusion that has brought
the latter to a similarly dichotomous understanding of the relationship
between the religious and the secular, which ultimately sustains the power
and primacy of the Western secular/religious divide in favor of the secular.
The idea that an act is either religious/Islamic or secular/non-Islamic affects
Muslims’ perceptions not only of the quotidian efficacy of Islam but also of
themselves whenever they engage in activities commonly deemed to be
secular. This, as I explain in Chapter 1, can only promote civilizational
failure or civilizational schizophrenia, both of which the Islamic Secular
seeks to retard if not reverse.
To be sure, there are liabilities attending an approach to the academic
study of Islam that includes confessional interests. First, if the aim is to
proffer prescriptive articulations that contribute to the normative
understanding of Islam, a scholar’s identity as a Muslim can privilege his or
her perspective over those of non-Muslims who neither have nor seek to
represent any authority to speak in the name of Islam. This in turn can
insulate Muslim views from non-Muslim scholarly critique, potentially
lowering the standards of the scholarly enterprise and allowing all manner
of bias, sloppiness, and unfounded claims to parade as scholarship. Second,
as non-Muslims may have no interest in contributing to or debating the
normative understanding of Islam, confessional approaches may leave non-
Muslim scholars with no incentive to engage with such scholarship. This
can ultimately reduce the latter to a Muslim echo-chamber, in which
Muslim academics effectively sit around talking to themselves,
unconsciously (or perhaps consciously) confirming each other’s biases and
blind spots and then wondering why the rest of the world looks on with
apathy, if not quiet contempt.
Such is the explicit concern of Professor Aaron Hughes in his polemical
book, Islam and the Tyranny of Authenticity: An Inquiry into Disciplinary
Apologetics and Self-Deception.39 Hughes expresses alarm at what he
characterizes as an unhealthy co-mingling, indeed, a hopeless conflation, of
“theology” with bona fide academic inquiry in the work of Muslim
academics—particularly, according to him, “Muslim converts.”40 Hughes
argues that, while pretending to be engaged in objective, critical analysis,
these scholars are really playing a dangerous, ideological game of identity
politics wherein they seek to manipulate the sources and tradition of Islam
in an effort to confer upon their Faith the status of a “good religion.” Their
point of departure is the West’s ideological reaction to the horrific attacks of
September 11, 2001. They write thus not in the interest of scholarly truth
but, according to Hughes, “in the service of correcting negative stereotypes
and of self-aggrandizement.”41 They begin by imagining an Islam that is
“liberal, inclusive, pluralistic, feminist, gay-friendly, and so on,”42 and from
there try to force the sources and tradition of Islam to validate this vision.
According to Hughes, “Creating Islam as a religion of peace, if not the
religion of peace, has now become the foundation of the subfield of Islam
as taught within departments of religious studies in the United States.”43 In
the place of critical research, he laments, “we instead witness the creation
and dissemination of a liberal form of Islam to counter the version of the
tradition linked with terrorism.”44
Hughes explicitly states his belief that such attempts to determine or
influence the normative understanding of Islam are not within the purview
of what scholars may legitimately undertake in the secular, Western
academy.45 Rather, that enterprise must limit itself strictly to teaching about
religion and avoid the teaching of religion.46 In this light, he fleshes out the
framing of his book with three seminal questions: (1) What happens when
we use judgmental and reverential language in the classroom?; (2) What
happens to an academic field when historical questions retreat into the
background and instead become replaced with presentist concerns?; and (3)
What role is there for the non-Muslim scholar of Islam in the contemporary
period?47
The first of these questions is reminiscent of Bruce Lincoln’s assertion
that “Reverence is a religious, and not a scholarly, virtue.”48 One is also
reminded, however, of Timothy Fitzgerald’s retort, that this negative
depiction of reverence is simply “an act of power,” an attempt to reinscribe
the primacy of the “secular” over the “religious.”49 In other words, we may,
as Hughes does, speak reverentially about the secular without
compromising our scholarly objectivity but not about the religious.
Meanwhile, Hughes seems to imply that for a Muslim scholar in the
Western academy to teach, for example, that Mu‘tazilism or Khārijism was
excluded from Sunnī orthodoxy is somehow to speak “reverentially” of the
latter. But how would a non-Muslim scholar teach such facts? And what
about the use of intentionally irreverent language in the classroom
(“spurious ḥadīth,” “blind following,” “patriarchy,” and the like)?
 Regarding Hughes’s second question, an exclusively presentist
approach, with which, as we will see, I do not agree, is simply one approach
to speaking normatively about Islam (or any other religious tradition), not
the equivalent of speaking normatively about Islam per se. It is a part that
should not be taken as the whole, as Hughes does, to discredit all
approaches that speak normatively about religion. At any rate, these two
questions reveal as much about Hughes’s agenda as they do about that of
the scholars he critiques. And I will leave interested readers to investigate
this issue further for themselves. It is to the third of Hughes’s questions,
however, that I would like to speak more substantively.
Let me begin by noting that I do not see Hughes’s attempt to intervene in
the so-called insider/outsider problem in the study of religion as an entirely
negative enterprise—though, again, it is telling that he does not see a
similar problem with “insider” scholarly advocacy of the secular. Nor is it
my contention that the criticisms he directs at the views he targets are
always unfounded. Though I take issue with, inter alia, his
mischaracterizations of scholars’ views (including my own50), I agree with
his insistence that discipline, honesty, and integrity are critical to the
scholarly enterprise. As I recall Leonard Binder (d. 2015) stating decades
ago, high standards are the only way to keep us all honest. But I do not
agree that the Western academy should ban or even look askance upon
attempts by Muslim academics to shape the normative understanding of
Islam, any more than it does in the case of Black, gay, feminist, Marxist,
Jewish, Critical Theory, Law-and-Economics scholars, or other academics
who seek to influence the self-perception and/or broader image of their
respective affiliations or even the broader intellectual or socio-political
ecosystems in which these affiliations find themselves embedded.51
Nor, given the disparity in power as well as in cultural and intellectual
authority between the West and “the rest,” should the Western academy
pretend that the “objective” scholarship of non-Muslim scholars does not
exert (or intend to exert) any impact on the normative understanding of
Islam. Does not Schacht’s thesis on the authenticity of ḥadīth imply
something about how confidently Muslims should rely on this corpus? Does
not Wansbrough’s scholarship placing the date of the final fixing of the
Qur’ānic text in the late second/eighth or early third/ninth century imply
something about how Muslims should approach their Holy Book?52 Non-
Muslim scholars in Area Studies or Religious Studies should also not
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