The Creative Mission of Muslim Minorities in the West: Synthesizing the Ethos of Islam and Modernity
by Louay Safi
Presented at Fiqh Today: Muslim as Minorities, organized by AMSS UK and Muslim College, Westminister University, London, England, February 21, 2004.
Fiqh of minorities is a concept borne out of the needs of Western Muslim who want to ensure that they can apply the rules of shari’ah (Islamic law) in a predominately non-Muslim society. The notion itself underscores the new realization by an increasing number of Muslims that they cannot adhere to the same fiqh rules adopted by their co-religionists in Muslim societies. As such the “fiqh of minorities” reflects reformist views, aspiring to transcend traditional conceptions and practices.
Yet the needs to transcend historical interpretations of Islamic law are not specifically minorities needs, but reflect a general need to transcend both traditional Islamic ethos and modern ethos. The latter are, though sharing many of Islam’s ideals and values, are in conflict with certain Islamic principles. This means that Muslim minorities in the West are forced by their peculiar experience and positioning to rethink both Islam and modernity, and to evaluate each by the means of the other. The search for a fiqh of minorities represents a great opportunity to enrich modern conditions by recalling the rich Islamic experience, and to enrich Islamic thought and practices by incorporating the modern into Islam.
If the above evaluation of the conditions underlying the quest for the fiqh of minorities is correct, then the exercise goes far beyond concerns and needs of minority groups to encompass those of modern humanity. This would immediately make the notion of the “fiqh of minorities” a misnomer. What the Muslim minorities in the West are confronting is no less than an attempt to apply Islamic values to solve problems emanating from the inadequacy of traditional Islam and modern thought to deal with emerging challenges.
Fiqh and Shari’ah
Fiqh has been defined by classical scholars as “the field of knowledge that is concern with the actions of the faithful,” and is understood to represent the outcome of human endeavor to apply the rule of Shari‘ah (Islamic law) in a given social milieu. Shari’ah is, on the other hand, denotes the precepts embodied in the Islamic revelation It is not simply a legal system, but rather a composite system of law and morality. That is, Islamic law aspires to inform various aspects of human activities, not only those that may entail legal consequences.
Historically, actions and relationships are evaluated in accordance with a scale of five moral standards. According to shari’ah, an act may be classified as obligatory (wajib), recommended (mandub), permissible (mubah), reprehensible (makruh), or prohibited (haram).’ These five categories reflect the varying levels of moral demand placed on human acts by the divine will. Actions that fall in the first and fifth categories are strictly demanded, whereas acts falling in the second and the fourth categories, around the neutral center of the scale, are not as solemnly demanded, and hence their violation, though discouraged, is not condemned. Put it differently, while the individual is obligated morally to follow the commands of the first and last categories — i.e., the obligatory and prohibited —he or she is only encouraged to observe the commands of the second and fourth— i.e., the recommended and reprehensible.
It should be emphasized, however, that even the absolute commands of the law have essentially moral, or more accurately religious, implications, and thus are not necessarily under state sanction. For instance, the pilgrimage to Makkah once in a lifetime is obligatory (wajib) for every Muslim who is physically and financially capable of performing this duty. Yet the state, according to shari’ah, may claim no authority to compel the individual to fulfill this personal obligation.
Notwithstanding the inextricable association between law and morality in Shari’ah, Muslim jurists conveniently differentiate between private and public morality—or, using Islamic-law vocabulary, haq Allah (rights of God) and huquq al ‘ibad (rights of humans) — and hold that only the latter may be subject to legal sanctions. Private morality includes purely religious activities pertaining directly to the spiritual relationship between a human being and God, labeled as ‘ibadat (services). Since ‘ibadat, or services, do not have, for the most part, any social consequences, the individual is answerable to God for fulfilling them, not to society. Public morality, on the other hand, encompasses those patterns of behavior that have social consequences, appropriately labeled mu‘amalat (transactions). Because of the direct implications mu‘amalat activities have on society’s ability to maintain public peace and order, their regulation may be legally enforced by the state. The division of individual obligations and duties into categories of public and private is, nonetheless, more apparent than real; for, according to Islamic theory, all human activities, regardless of whether they are public or private, are subject to ethical judgment, because all human beings are ultimately accountable to God for their actions.
Shari‘ah law was historically developed by Muslim jurists by applying human reasoning to revealed texts with the aim to develop a normative system capable of regulating individual actions and social interactions. Early jurists relied primarily on the Qur’an and the practices of the Prophet to elaborate the rules of shari‘ah, and referred to the process through which shari`a rules were elaborated by the term ijtihad (intellectual exercise). Recognizing the imperative of rational mediation for understanding the rules of shari`a, early jurists exerted a great deal of time and energy to define the grammar of interpreting the divine texts and the logic of reasoning about their implications. The differences in Methodological approaches led to the differentiation of the various schools of jurisprudence. Because the Qur’anic texts were given in a concrete form, whereby the Qur’an commented on the actions and interactions of the early Muslim community, and directed early Muslims in concrete situations, the jurists applied legal analogy (qiyas) to expand the application of the Qur’anic precepts to new cases. The qiyas technique, widely accepted by the schools of jurisprudence, requires the jurists to identify the efficient reason (‘illa) of a specific Qur’anic statement, and to use this reason as the basis for extending the application of the Qur’anic precept to new cases. For example, early jurists extended the prohibition of wine to all intoxicating substance on the ground that intoxication was the reason for the Qur’anic prohibition of wine. Early jurists also utilized the statements and actions of the Prophet and his companions as a means to arrive at better understanding of the revealed texts. The practices of the Prophet and his companions became known as the Sunna and were captured in the hadith narrations. Early jurists did not feel that the Sunna has an authority independent from the Qur’an, and hence did not hesitate to reject a hadith narration whenever it was in a clear contradiction with a Qur’anic statement.
Ijtihad took a decisive turn when Muhammad bin Idris al-Shafi‘i declared that the Sunna was an inviolable source of law on par with the Qur’an, and insisted that it enjoyed an independent authority. Shafi‘i confined ijtihad to legal analogy (qiyas), declaring all other legal reasoning to be arbitrary. The restrictions on ijtihad were further extended by Ahmad bin Hanbal, who insisted that legal analogy has to be used only as a last resort. He therefore required that even a weak hadith has to be given priority over legal analogy. The other two major schools of jurisprudence of the Sunni branch of Islam, the Hanafi and Maliki, were able to escape the severe restrictions on ijtihad imposed by Shafi‘i and Hanbali schools by employing the techniques of istihsan and istislah respectively. Istihsan meant that the jurist was not bound by the apparent reason of a particular rule, but could utilize other reasons of shari`a whenever deemed more relevant. Istislah, on the other hand, allowed the jurist to base the rules of shari`a on public interests and utility, rather than confining them to ‘illah (efficient reason).
The desire of Hanafi and Maliki jurists to overcome the literalist approach that equates ijtihad with qias (à la shafi`i), or with linguistic explication of the Qur’an by reference to hadith (à la Hanbali), has inspired them to develop methods aimed at prioritizing shari‘ah rules and principles. Methods such as al-qaw‘`id al-fiqhiyyah (juristic rules) or al-maqasid al-shari‘iyyah (shari‘ah purposes) aim at the systematization of the shari`a rules by eliminating internal contradiction, and constitute what is referred to today as maqasid approach.
By its emphasis on meaning, reasoning, and purposes the maqasid approach provide a powerful tool for reforming historical shari`a, because it rejects the literal reading of statements apart from their rationale, and insist that those rationale cannot contradict basic Islamic values. The definitive exposition of this approach can be found in the work of the Andalusian jurist Ibrahim bin Ishaq al-Shatibi, Al-Muwafaqat. The maqasid approach expounded by Shatibi can be summarized in the following points: (1) Shari`a rules purport to promote human interests; (2) Shari`a consists of a hierarchy of rules, whereby the particular rules (ahkam juz’iyyah) are subsumed under universal laws (qwanin kulliyyah); (3) General rules must be modified to accommodate – whenever possible – particular rules; (4) Particular rules that contradict general rules should be rejected or ignored; (5) The various rules and laws of shari`a aim at advancing five general purposes: the protection of Religion, life, reason, property, and progeny.
The Purpose of Shari’ah
As classical Muslim jurists (fuqaha) continued throughout the early centuries of Islam to explore the meaning and rationale of various rules of shari’ah, they discovered by the forth century that shari’ah consists of different fiqhi rules that aim at protecting and promoting individual and collective human life. Classical Islamic jurists identified five main purposes of shari’ah: protection of religion, life, property, intellect, and progeny. The purposes of shari’ah ultimately boils to developing a normative order capable of enhancing human life and advancing the human condition.
The Qur’an presents its message as to provide guidance to humanity to criteria so that right (haq) may be distinguished from wrong (bati1). By adhering to the rules of law, the Muslims would develop a society superior in its moral as well as material quality to societies which fail to observe the revealed will of God. Shari’ ah, as a comprehensive moral and legal system, aspires to inform different aspects of human behavior to produce conformity with divine law. Adhering to the rules and principles of shari‘ah not only causes the individual to draw closer to God, the Qur’an stresses, but also facilitates the development of a just society in which the individual may be able to realize his or her potential, and whereby prosperity is ensured to all. Islamic Law (shari‘ah) is closely intertwined with religion, and both are considered expressions of God’s will and justice, but whereas the aim of religion is to define and determine goals (justice or others) the function of law is to indicate the path (the term Shari’ah indeed bears this meaning) by virtue of which God’s justice and other goals are realized.
Two Notions of Law: Legal Regulations in Islamic Tradition and Modern Society
Modern society is the result of a systematic restructuring and reordering of society in accordance with a set of core values that define modern life. Max Weber (1864-1920), the eminent German sociologist, called this process rationalization. Although he admired this process, Weber was disturbed by its tendency to shrink the area of individual liberty and thereby cause a progressive loss of freedom. This loss, he observed, is the outcome of rationalization, which takes the form of bureaucratic control. Although he considered bureaucracy to be the cornerstone of capitalist civilization and claimed that it brought a superior form of organization to society, he noted that it simultaneously transforms society into an enormous human machine in which everyone has to fit into a socially predetermined niche and perform a socially pre-designed role. Clearly, this mechanical environment engenders a tremendously increased efficiency but also undermines individual freedom and turns society into an “iron cage.”
The overpowering modern state – the leviathan preached by Thomas Hobbes at the dawn of the Enlightenment but rejected by liberal democrats – is being reinvented by the neo-Hobbsians of the twenty-first century. This leviathan, which ensures security at the expense of individual freedom, already controls most developing countries and seems to be creeping slowly into western democracies. The brutal September 11 attack on the United States, as well as other events, have underscored the vulnerability of American democracy to extreme restrictions on political freedom in the name of security. The passage of the Patriot Act by the US Congress in late 2001, despite the pervasive presence of provisions that undermine fundamental freedoms, displays the modern state’s propensity to acquire unbridled power.
Central to this process of power accumulation is the modern state’s ability to use law as a tool of power aggrandizement to extend its control over civil society and regulate every facet of individual and collective life. Taking that power, or limiting it markedly, is the only way to prevent the modern state from turning into a leviathan. It is also the only way to prevent the use of Islamic law (the Shari‘ah) as an instrument of persecution and control. It is an irony of history that the Shari‘ah, which historically strove to limit the state’s power, is being now used to make the state overpowering. This irony has its roots in the modern conception of state. For many Islamic reformers, an important landmark of reasserting Islamic values and identity is that Islamic law should become state law. Those who insist on marrying the state with the Shari‘ah are completely unaware of the fact that legislation in historical Islam was a function of civil society rather than of the state.
Lawrence Rosen gives us an insight into this important fact in his Anthropology of Justice: Law as Culture in Islamic Society. While his work focuses on a Shari’ah court in a small Moroccan town, it provides a wealth of information about the paradigm that guided the Islamic legal system in historical Muslim society. “n the classical Islamic theory of state,” he remarks,
law and government were kept largely separate form one another. The state was seen not as an instrument for the application of law, nor were the courts, either through religious doctrine or a concept of the social good, envisioned as vehicles for economic redistribution or the construction of a particular political order. It was the duty of the political authorities to enforce the claims of God – even by maintaining their own courts for the punishment of specific crimes – but beyond that they were to insure that men could carry forth their own affairs without governmental interference.
Rosen’s work shed light on another fact concerning the relationship of law and state in historical Islam, a fact often missed by both the advocates and opponents of an Islamically inspired state: In historical Islamic society, down to the Ottoman Empire, the community was the locus of law and morality. Judges were expected to enforce local norms and follow locally accepted interpretations of normative texts, not to superimpose on the community an abstract doctrine articulated by non-local or distant individuals. “n Islamic law,” he points out,
the [legal] concepts are measured against those cultural principles that allow people to return to the negotiation of their own arrangement. Its regularity is vertical, not horizontal: it seeks consistency with common-sense assumptions about humanity, not through the refinement of categories of its own creation. Islamic law is a system of adjudication, of ethics, and of logic that finds its touchstone not in the perfecting of doctrine but in the standards of everyday life, and measured in this way it is enormously developed, integrated, logical, and successful.
As a legal anthropologist, Rosen was more aware of how Islamic law functioned on the societal level than among jurists. It seems he was not aware of the enormously elaborate and abstract science of Islamic jurisprudence. This fact should, of course, make us more intrigued by historical Muslim society’s ability to control legislation and adjudication, and to keep statesmen and jurists in check. Further, this fact speaks volumes about the vibrancy of civil society in historical Islam and should inspire contemporary scholars to reconsider the relationship between state and law. More specifically, I submit that the relationship among state, law, and society in historical Islam provides us with a cue for overcoming the “iron cage” of advanced modern society.
This vital task requires forward thinking and a creative synthesis of the modern and the authentic. And therein lies the enormous challenge facing contemporary Islamic thought.
Communal Pluralism and the Making of Minorities
In a diverse and heterogeneous society, one can recognize two types of minorities: ethnic and confessional. Ethnic minorities are subgroups distinguished from the dominant group by physiognomic, linguistic, or cultural characteristics. Confessional minorities, on the other hand, are subgroups distinguished by their values and ideologies, as well as the resulting practices. The classical Muslim world was divided into a multiplicity of confessional groups. Each confessional community was allowed to maintain its own code of law and an autonomous local administration run by local notables and religious leaders. This pattern of communal pluralism was later adopted by the Ottomans and continued to be the basic social organization in the Middle East until the collapse of the Ottoman Empire in 1919.
Communal pluralism has been criticized for its tendency to revert to hierarchy. Rodinson termed this pattern of social organization as “hierarchical pluralism,” since, despite their relative autonomy, confessional minorities were subordinated to the dominant Muslim majority. Rodinson argues that under the communal system that prevailed in the Ottoman Empire (a similar system flourished in the Austro-Hungarian Empire), the central government was controlled by the Muslim majority. Yet he and other critics seem to forget that even under modern democratic systems, state institutions are usually run by members of the dominant social group. In those countries where the population is differentiated along religious lines (i.e., India, Pakistan, or Israel) the dominant religious group tends to control state institutions. Likewise, countries where ethnicity is the basis of social differentiation (i.e., Canada and England), the state is run for the most part by the ethnic majority. The difference between the communal and national systems, however, is that while in the latter the majority imposes its values and ideas on the rest of society, the former system protects its minorities from the majority’s ideological and moral encroachment.
The communal system that flourished under the Ottomans was not without its own problems. Yet the transformation from a multinational empire into a system of nation-states fashioned after the European model has proven to be disastrous. It is true that the Ottoman Empire’s problems had become so large by the beginning of the twentieth century that one could hardly begin to imagine how they could be solved without dissolving the empire. Nevertheless, the creation of numerous nation-states out of the ruin of the Ottoman Empire did not solve the problems, but rather gave rise to a host of new problems that tended to exacerbate the ones already in existence.
In The Making of the Modem Near East, Yapp takes issue with the widely accepted description of the Ottoman Empire as the sick man of Europe. He argues that contrary to the claims of many Western historians, the Ottoman Empire was engaged in a process of profound reform. Yapp contends that some Western sources tend to perpetuate this image of the Ottomans for four reasons: 1) The Ottomans’ image has been constructed mainly on biased information obtained from the archives of their enemies; 2) The Ottomans’ history has been written by Christians who are either prejudiced against Islam or have little insight into the functioning of the Ottoman system; 3) Authors of books on the Middle East are committed to nationalism and liberalism and therefore have a negative view of multinational empires; and 4) Those Europeans primarily responsible for giving the final blow to the Ottoman Empire wanted to believe that it was doomed to extinction anyway.”
It is beyond the scope of this paper to determine whether the Ottomans would have been able to reform their empire if the Allied forces would have left them alone (I tend to think that the Ottomans were already on an irreversible course towards dissolution).
The Modern State’s Predicament on a Global Scale
Modern political structures have a tendency to impose the social morality of the dominant political groups on the rest of society. The moralizing role of state was confined early on to national societies, but most recently a systematic and concerted efforts have been directed at imposing the social morality of modernist societies on the rest of the world. The moralizing role of the state is premised on two basic notions: The superiority of modern norms and the irrelevance of culture to human values and social institutions.
Two main positions can be clearly distinguished: absolute universalism and absolute relativism. The former holds that culture is irrelevant to the moral validity of human rights, while the latter insists that culture is the only source of moral validity. Both positions fail to capture the full scope of the intercourse between culture and universal values, and both have been used to advance self-serving interests.
Absolute (or radical) cultural relativism cannot be theoretically maintained, given the fact that one can hardly find today a society that still maintains a homogenous culture. Besides, considering the dynamic nature of culture no community can claim that the cultural tradition it espouses is either eternally static, or is not involved in a process of cultural exchange with outside cultures. Absolute cultural relativism is often advanced by authoritarian regimes to shut off external criticism of the excessive use of power to silencing internal opposition.
Absolute moral universalism, on the other hand, is oblivious to the fact that moral values and legal systems are the outcome of the rationalization of a specific charismatic vision or worldview. Practically, radical universalism is often used by hegemonic cultures for imposing their morality on anothers, as Donnelly explains:
The dangers of the moral imperialism implied by radical universalism hardly need be emphasized. Radical universalism is subject to other moral objections as well. Moral rules, including human rights, function within a moral community. Radical universalism requires a rigid hierarchical ordering of the multiple moral communities to which individuals and groups belong. In order to preserve complete universality for human rights, the radical universalist must give absolute priority to the demands of the cosmopolitan moral community over all other (“lower”) moral communities.
The radicalism of the two positions summarized above can be avoided by recognizing that for legal reform to succeed, it must coincide with cultural reform. That is, one must recognize that culture is the only mediating milieu for restructuring individual and social consciousness so as to make them receptive to, and supportive of, international human rights. Yet even when cultural reform results in acknowledging the universal validity of human rights, a reasonable degree of cultural relativism must be allowed so the universal principles are interpreted from within the specific socio-political context of society, and are brought to bear on the particular circumstances of the various communities. An absolute universalism that ignores the essential role played by culture for the moral development of the individual suffers from “normative blindness” and is detrimental for both the dominant cosmopolitan culture, and the indigenous cultures it intends to reform. The devastating effects of the experimentations undertaken in Australia, Canada, and the United States to assimilate the aborigines illustrate the impossibility of achieving moral development apart from the cultural tradition to which an individual belong. They also illustrate the arrogance of the developmentalist outlook that equates moral superiority with economic and technological advancement.
The devastating consequences of the “normative blindness” of absolute universalism advocated by numerous human rights scholars is not limited to non-Western traditions, but extend to the tradition of modernity itself. That is, by attempting to globalize Western modernism in the name of international human rights, the West runs the risk of preventing, or at least delaying, the development of alternative cultural forms which could enrich the culture of modernity itself, and help it overcome some of the acute problems it currently confronts, including the problem of “normative blindness”. It seems, though, that for the latter problem to be overcome, a major reform in the dominant Western schools of jurisprudence is needed. As Richard Falk notes, neither in positivist nor in naturalist jurisprudence “does culture enter into the deliberative process of interpreting the meaning, justifying the applicability, and working for the implementation of human rights.”
Proponents of absolute universalism premise their arguments on either of the following two presuppositions: (1) that the notion of culture ― i.e. a normative system supported by a set of values and beliefs commonly accepted by a group of people ― is irrelevant to the debate on the meaning and desirability of human rights, or (2) that human rights are compatible with a set of moral values commonly shared by all cultures. The first premise is erroneous, and contend that for the common values to be universally valid, a non-hegemonic cross-cultural dialogue must take place among representatives of various moral communities.
Scholars who deny the relevance of culture to the human rights debate usually favor a unilinear view of history that equates moral with technical superiority. According to this view, human cultures form a continuum in which primitive cultures represent one extreme while modern culture represents the other. Primitive cultures are seen to be lacking not only in technology, but in morality as well. Primitive cultures are described as barbaric and savage, while modern culture is seen as refined and civilized. History, from a unilinear viewpoint, is nothing but the movement from the primitive to the modern which forms the end of history. The logical conclusion of the conception of history as modernization is that modern culture is the measure of all cultures. The problem with this conception, though, is that it fails to account for important historical events. The unilinear conception of history fails, for instance, to explain why the European culture was more vibrant and developed ― politically, philosophically, and artistically ― during the Roman civilization than in medieval times. From the modernization perspective, culture is not relevant to the debate on human rights because there is nothing for modern culture to learn from other cultures. Modern culture should set the standards for both moral and technical action, and them pass then on to less developed cultures.
This is in essence the conclusion of a leading advocate of radical universalism in a chapter published as part of an edited book entitled Human Rights in Cross-Cultural Perspectives: A Quest for Consensus. Taking exception to the idea of a cross-cultural consensus on human rights, she writes:
In this chapter I have argued against the enterprise of surveying world cultures and religions in order to establish consensus on human rights that would answer charges that such are a Western Creation.
To look for an anthropologically based consensus on the content of human rights is to miss the point. There may be aspects of agreement worth noting among what many societies take to be fundamental to a life of dignity and what the modern notion of human rights includes as its content. The concept of human rights is not universal in origin, however; and it cannot be located in most societies.
Granted that an elaborate set of rights, purporting to protect the individual against an excessive or arbitrary use of power by the state, was first articulated by the modern West, one should not dismiss cross-cultural consensus as irrelevant. For even if we were to assume that the West could learn nothing from non-Western cultures, a cross-cultural dialogue would still be needed to understand the implications of applying a set of extremely abstract rights in various socio-political milieus. Such an understanding should help expand the margin of tolerance for cultural differences, and the appreciation of the complexity of cultural reform and the need to allow this process to run its natural course.
In contemporary Muslim societies, a cultural reform aiming at liberating the individual from traditionalist interpretations of Islam is already underway. Reformers are appealing to the values and ethos embodied in the Islamic sources to restore the moral autonomy of the individual, and to develop an egalitarian political culture. The reform is therefore Islamic in nature and intent, and cannot be otherwise. All reform movements that have brought about profound cultural reform have been religious. The essentially secularist and individualistic modern West owes its genesis, as Weber reminded us in his Protestant Ethic, to the Religious Reformation that took place in the Occident at the dawn of the modern West. The Orient should be allowed to undertake its own reformation, which would inevitably result in the reorientation and rationalization of the religious values and beliefs of the people of the orient, and must hence take the form of a Confucian, Hindu, or Islamic Reformation.
The Creative and Transcendental Mission of Western Muslims
Muslim presence is the US as a growing and vibrant community is quite recent, and it is still too early to tell the direction to which this almost unprecedented experimentation is going. But regardless of that direction, the US provides a free, relatively speaking, environment for Islam to interact with modern society.
And here lies the tremendous responsibility, and possibly the historical meaning, of Muslim Americans. The question we face today is two fold: can we do it and how? Can we reconcile modern practices and institutions with Islamic values and assumptions.
In the last two or three decades, Muslim Americans displayed a great energy and marked ability to build communities and to reassert their Islamic commitments and identities. The vibrancy of the Muslim American community is manifested in the many Islamic centers, schools, and national organizations developed over the last two decades. In many ways those efforts reflect a marked ability to adapt and catch up with the vibrant American society.
September 11 tragedy came to complicate the life of Muslims in the West, but also to bring Muslim Americans closer to achieving their historical role. September 11 put American Muslims in the spotlight, and pushed them to the heart of evolution of world history. Muslim Americans no more afford to speak to themselves or to operate in the splendid isolation of the past three decades.
American Muslims are faced with tremendous challenges but we also have unparalleled opportunities. We have the opportunity to give Islam a new expression, suitable to our age that it had never had in recent years. We have also the opportunity to rescue modern society of its current predicaments.
Islamic traditionalism permeates our practices and thinking. Many of our customs and social habits are the continuation of historical practices. The core of the Islamic message consist of universal values and principles, as well as basic concepts and beliefs: justice, compassion, honesty, cooperation, equal dignity of human beings, respect for the religious and moral freedom of others, etc. Those values are abstract notions that can function only when they are given a specific interpretation. All interpretation are historically bound because they are provided by historically bound human beings.
Today, many of the social, economic, and political ideas that are learnt from works are not suited for today’s and future society, because this ideas dealt with historical situations that were particular to past generations of Muslims.
At the same time we live in a modern society that emerged, and have been greatly influence by the particular historical experience. At the heart of this experience is the process of secularization.
In ancient times, the secular and religious worlds were kept apart and thus operated under markedly different rules. The secular world adhered to the paradigm of power, in which domination and control are intrinsic values and effectiveness served as an overarching criterion. The most eloquent expression of the purely secular rationale was captured in Machiavelli’s The Prince. “The end justifies the means” was the guiding principle of the secular world.
The religious world was a world of sheer spirituality and utter goodness, one completely divorced from the secular world. Religious people were expected to eschew and shun secular injustice and corruption, avoid politics and remain aloof from the state, instead of confronting and overcoming such developments. The uneasy coexistence of the secular and religious, and their utter separation, is best captured in St. Augustine’s The City of God. As one reads his attempt to isolate the “city of man” from the “city of God,” one is compelled to conclude that the two can never intersect, and that the latter can only be experienced in a heavenly, rather than an earthly, mode of existence.
These two worlds were brought into a remarkable harmony for the first time under the principles of Islam. It was in the state of Medina that we first encounter a clear example of a polity where universally proclaimed moral values formed the criteria of political judgment. Political leaders and statesmen were expected to recognize not only the value of efficiency, but also the values of justice, dignity, equality, and freedom. This important transformation was observed by Hegel (1770-1831), a leading European philo-sopher of history. In his Philosophy of History [New York: Dove Publica-tions, 1956], Hegel recognized that the unity between the secular and spiritual took place in Islamic society and civilization long before it did so in the modern West:
We must therefore regard [the reconciliation between the secular and spiritual] as commencing rather in the enormous contrast between the spiritual, religious principles, and the barbarian Real World. For spirit as the consciousness of an inner world is, at the commencement, itself still in an abstract form. All that is secular is consequently given over to rudeness and capricious violence. The Mohammedan principle, the enlightenment of the oriental world, is the first to contravene this barbarism and caprice. We find it developing itself later and more rapidly than Christianity; for the latter needed eight centuries to grow up into a political form.
The modern West followed the example of the historical Islamic world in demanding that holders of political power operate under a set of moral rules. But as the modern West harmonized the secular and religious only nationally, the international realm was free to operate under the dynamics of power politics and secular rudeness. This failure was a source for the senseless violence that claimed well over 100 million war victims in the twentieth century, including over 80 million in two world wars. Recognizing the danger of keeping international politics under a purely secular evaluation, the United States led the effort that culminated in formalizing international law and creating the United Nations after World War II. Yet this effort was effectively undermined and compromised by political realists who enjoyed a disproportionate sway over American foreign policy and who were always ready to justify American violations of international covenants and treaties in the name of national security.
Ironically, contemporary Muslim societies have exceeded all others in decoupling the secular and the religious and now find themselves entangled in a crisis of legitimacy. Many Muslim regimes operate outside the realm of moral correctness and follow only to the logic of power politics. Even more alarming is that this decoupling has reached deep into religiously inspired movements, which seem to succumb to the logic of power and are ready to employ amoral – even immoral – strategies in their fight against political corruption and oppression.
The decoupling of the secular and religio-moral spheres and the rise of political rudeness in western democracy should be a source of concern. The strengthening of ultra-nationalist sentiments in Austria, Germany, and most recently in France, and the return of religious and ethnic profiling in the United States in the wake of September 11, are quite disturbing trends and point to a process of secular-moral decoupling.
It is worth noting that this process advances despite the religious reassertion occurring throughout the world. This is because the coupling and decoupling of the secular and the religious must be judged by whether moral values limit individual and collective behavior, and whether a profound commitment to moral principles restrain the political actions of social groups and group leaders. An exclusivist religious community that permits rudeness and capricious violence outside ethnic and religious bonds can be as brutal as – or even more brutal than – groups purely defined on the basis of secular criteria.
That has led to the resurgence of religion and its encroachment of the public sphere. But the brand of religiosity we hear expressed in the public sphere is the bigoted and divisive one the remind us of that prevailed in the pre-modern West. The recent attacks by Evangelical ministers, like of Robertson and Falwell, is indicative of the type of the political desecularization we are facing. It is evident the attacks are political in nature and are a prelude to violation of Muslim rights and to violence.
Muslims can provide an alternative model of society in which religion is reconciled with the modern society. In so doing, Muslim can provide new vision of how Islam can be lived in modern society to the full extent, and how religion can be reconciled with social living without relapsing into the medieval way of life.
But for that to happen Muslims need to meet two conditions. They need to liberate themselves from traditionalism by deepening the commitment to the universal values of Islam. And they need to forge ahead with a lot of courage and confidence that the Islam they love and embrace has a lot to offer to future humanity.
 Abd al-Wahab Khalaf, ‘Jim Usul al-Fiqh, 8th ed. (Dar al-Kuwaitiyah, 1388/1978); Fazlur Rahman, Islam, 2nd ed. (Chicago: University of Chicago Press, 1979), p. 84.
 For further elaboration on this point, see Louay M. Safi “Islamic Law and Society”, American Journal of Islamic Social Sciences.
 Muhammad bin Idris al-Shafi‘i, Al-Risala (Beirut, lebanon: Dar al-Kutub al-‘Ilmiyyah, n.d), pp. 401-76.
 Ibid. p.
 For elaboration of Hanbali Principles of Jurisprudence see Ibn al-Qayim, A‘lam al-Muaqi ‘in (Beirut, Lebanon: Dar al-Kutub al-‘Ilmiyyah, 1991 A.C. 1411 A.H.), Vol. 1, pp. 24-6.
 Shi‘a jurists imposed, by far, fewer restrictions on ijtihad.
 Majid Khadduri, The Islamic Concept of Justice (Baltimore: The Johns Hopkins University Press, 1984), P. 135.
 For an excellent commentary of the Patriot Act, see Nancy Chang, Silencing Political Dissent: How the USA Patriot Act Undermines the Constitution (New York: Center for Constitutional Rights, 2002).
 Lawrence Rosen, Anthropology of Justice: Law as Culture in Islamic Society (Massachusetts: Cambridge University Press, 1998), 61.
 Rodinson, as quoted in Birch, ibid., p. 6.
 M. E. Yapp, The Making of the Modern Near East (London: Longman, 1987), 93.
 See Ann Belinda S. Prais, “Human Rights as Cultural Practice”, Human Rights Quarterly 18 (1996) 288; Also Donnelly, Universal Human Rights, p. 109-12.
 See Max Weber, Economy and Society (University of California press, 1978) , Vol. 1, pp. 1121-1156; also Alasdair MacIntyre, Whose Justice? Which Rationality? (London: Duckworth), 1990.
 Donnelly, Universal Human Rights, p. 110.
 See Ibid, pp. 117-8; also Abdullahi An-Na’im, “Toward a Cultural Approach to Defining International Standards of Human Rights,” in A. An-Na’im (ed.), Human Rights in Cross Cultural Perspective (Philadelphia: University of Pennsylvania Press, 1992), p. 25.
 Richard Falk, “Cultural Foundation for the International protection of Human Rights,” in Abdullahi An-Na’im (ed.), Human Rights in Cross Cultural perspectives (University of Pennsylvania, 1992), p. 44.
 The unilinear conception of history derives its intellectual force from Hegel’s Philosophy of History.
 RhodaHaward, “Dignity, Community, and Human Rights,” in Abdullahi An-Na’im (ed.), Human Rights in Cross-Cultural Perspective, p. 99.
 For an excellent discussion on the impact of social context on the implementation of human rights, see Daniel A. Bell, “The East Asian Challenge to Human Rights: Reflection on an East West Dialogue, “Human Rights Quarterly” 18 (1996) 641-667.
 Georg W. H. Hegel, Philosophy of History (New York: Dove Books, 1956), 109.
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