Wael B. Hallaq on Islamic Law and Human Rights
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Glad to be here. Thank you for your good invitation.
Supposing for the moment that we grant the fact that the modern state stands for a certain moral order, my argument is that this order drastically differs from what Islam on the whole stands for.
There is no doubt that Islam is many things. It is Sharia and Sufism and many other things besides, but for us, especially nowadays, to wrap our minds around the diversity and pluralism in the Sharia and the Sufi orders would be a challenging task. The Sharia encompassed various schools, with many internal but divergent interpretations, and Sufism is as individualistic and as diverse as the Sharia, and frankly more.
Yet, in all these divergencies, and on a long spectrum of difference and variety, nowhere in Islam can a citizen-subject be raised and nurtured. To be a citizen is to be loyal, psychoepistemically, to the nation and state as the final existential desiderata. The state and nation command life and death. But the state and nation are not sufficient to command the faith and loyalty of a Muslim subject. State and nation are not and cannot be the locus of an ethical exemplar in which the meaning of life, for Muslims, resides.
It is in this context that we should understand why the example of the Prophet was so central to both the Sharia and Sufi subjectivities, which were more often than not one and the same. It is really not about the Prophet as Prophet that such ethical emulation acquired importance and centrality. It is rather because to worship an entity, the entity had to be the exemplar of the technologies of the self, the way one deliberately fashions himself or herself as an ethical subject. Without this conscious and deliberate technology there is no Islam, and as Foucault has shown us in volume after volume in his College de France lectures, these technologies have disappeared from modern modalities of existing, of living — with a heavy price that we have come pay for such a loss.
The modern state forms subjects from the outside, through coercion and discipline; Islam forms them from the inside, through a process of the self consciously and deliberately operating on the self, a process of introspection and self-discipline, a process of ethical self-cultivation.
The process in Islam is therefore highly individualistic, but in the modern state, by sharp contrast, it is collective and lacks the inner dynamics of self-performance.
Any society that subscribes to a social system grounded in ethical norms will be profoundly challenged to fit into a secular mode of existence. Let us remember what secularism is. Secularism is not just segregating religious life into the private sphere. It is rather the determination of the state of what religion is and is not, where and how it can be exercised. In terms of political theology, secularism is the murder of God by the State. The state can delimit, limit, exclude or curtail any religious practice, and thus has the power to determine the quality and quantity of the religious sphere as it sees fit. This is because the state is the ultimate sovereign, with its own reason for existence — what we call reason of state or raison d’etat, a relatively new concept in the long stretch of human history.
Now to answer your question directly, I would say that if religion is a social system grounded in ethical norms, then yes, all religions would face roughly the same challenges at the hands of the modern state.
These are no doubt complicated questions that require a foray into the complex and complicated history of the 19th and 20th centuries, during which the Muslim world was effectively colonized and its social structures, along with its major institutions, were dismantled. No one should speak of the current circumstances in the Muslim world without understanding what happened during the last two centuries.
Briefly put, the gap between what we call international human rights and the Islamic conception of human rights is not as large as we imagine it. There is lots of Islamophobia that severely distorted the image of Islam, and this is one such area. There are many respectable arguments by legal historians now to the effect that European international law, including laws of war as well as other legal provisions and even institutions, were inspired by the legal tradition of Islam.
This tradition has been quite sensitive to the status of prisoners and bellicose conduct during war, to such an extent that it may astonish many modern minds. The resistance of some Muslim states to certain “universal rights” decrees is not one that is a matter of principle as much as it is a rejection of specifically Western conception of rights.
The issue of women is much more complicated. To begin with, unlike Western law which began to recognize the full legal status of women only in the early part of the twentieth century (among others, matrimonial property laws and rights to vote, etc.), the Sharia has by sharp contrast recognized women as full legal persons since the seventh century AD.
Women and men have the same legal capacity in Islam, a situation that prevailed for over a millennium now. The problem is that women moved from a traditional social structure, where they were largely protected, to a modern, capitalistic one, without this being accompanied by the necessary changes to accommodate their new circumstances. There is plenty of scholarship now that shows that women under the pre-19th century Sharia system were cushioned in a sensitive legal matrix and had flourished much better in terms of legal rights than under the so-called modern legal reforms, which drew heavily on European legal institutions and provisions.
To add to all this, there is also the occasional backlash in the more conservative segments of Muslim societies against what is seen as the over-liberalization of women’s status, where the fragmented and unstable western family has not provided a convincing social model for them. Many have realized that the liberalization of women is structurally connected with capitalism, the very culprit that effectively destroyed the social fabric of the community (and wrought havoc on the western family structure).
And let me emphasize here that the concept of the community (umma) in Islam, at the micro and macro levels (i.e., locally, regionally, and internationally), is extremely important. Apart from the obvious radicalism and fanaticism of such groups as the Taliban and their likes (all of whom are small minorities, and largely rejected by the mainstream Muslim world), there is much to be considered and reflected on in terms of how the world, and not just Muslim societies, needs to deal with the structured connections between women’s rights, capitalism, the very concept of rights — i.e., what work do these rights really do, how they bear upon family values — and a host of other factors. In other words, the solution to the plight of women (in the Muslim world and elsewhere) is by no means autonomous, but rather one that demands from all of us to reconsider the structural and major features of the system we have built for ourselves. The narrow focus on women’s rights as if it is a discrete and totally autonomous category is a huge methodological mistake.
The Sharia had indeed created within its own system various modalities for legal change, as I and other colleagues have shown in many writings more than two decades ago. The issue is not about the ability to change as much as it is a problem of qualitative and irreconcilable difference. The issue, in other words, is an unbridgeable gap in ethical thrust.
Let me give you an example, one that has preoccupied much of modern Muslims thinking about the Sharia and its viability in modern times. This is Islamic banking and Islamic finance. The question is: How should Muslims conduct their financial transactions “the Sharia-way” within a dominating and hegemonic capitalist structure. Capitalism, I think we can agree, is not particularly grounded in an ethical system, much less on a principle of egalitarian distribution of property and wealth. Capitalism and its corporations recognize the fundamental truth that money is to be made for the sake of money. The Islamic system, in its various modalities that straddle the Shari-Sufi spectrum, recognizes capital as a socially-anchored phenomenon that is permeated by a thick matrix of religious praxis. Money and money making are therefore integral to the created world, which is to say that they are essential components of the ethical system of daily practice and religious praxis. Money in Islam was embedded in an economic system of ethics. Money, in other words, was an ethical field of play.
Modern Islamic finance has typically been technical and shallow in its understanding of what it means to live the Sharia tradition that had been around for a millennium before the west encroached on the world of Islam. Modern Islamic finance thinks that a few stratagems that give the illusion that usuary and risk can be averted would solve the problem once and for all.
This is self-deception at best. There is absolutely no way for truly Islamic finance to be accommodated within modern capitalism, because of the very fact that there is a robust ethical dimension and component to Islamic “economics” that unfettered modern capitalism lacks. I have discussed much of this in my various writings, and have explained, for instance, why the Sharia refused to allow for the rise of the limited liability company and the concept of corporation (see my Restating Orientalism).
Wael B. Hallaq: Restating Orientalism. Orientalism has often been blamed over its associations with colonialism. But is the rest of academia innocent, or does the West’s misguided relationship to the Islamic world need to be rethought in more depth?
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This disallowance was insisted on throughout twelve hundred years of Islamic legal and commercial history, despite the fact that the legal instruments necessary for creating the corporation existed in the Sharia repertoire of tools and precepts. The Sharia system is extensively and intensively philanthropic, and the modalities for the redistribution and re-circulation of capital were an essential and vigorous part of that system.
The Sharia also rejects juristic personality because it holds every (natural) individual Muslim responsible for any conduct that may lead to the loss of others’ property. This logic is rather unfamiliar to our ways of doing economy, and certainly to our ways of living now. Which explains why, in the 19th century, the European colonialist powers aggressively pursued a policy to demolish the Sharia and its institutions in the vast majority of Muslim countries. The Sharia was antithetical to free-market economy, highly philanthropic, and operated in favor of the poor in ways modern capitalism would not even entertain.
The theory of ossification and rigidity of Islamic law was an Orientalist myth that has been debunked a long time ago. It was promoted by the colonial powers and their armies of academicians in order to justify the overhaul and reengineering of law in the Muslim world.
The issue is not whether the Sharia is rigid or not. It is most definitely not. The issue is how much can the Sharia extend itself to accommodate modernity and modern capitalism and their offshoots and hegemonic effects without losing its ethical thrust — that is, without losing its identity.
Wael B. Hallaq’s An Introduction to Islamic Law explains the theories mentioned in this interview in more depth, while never ceasing to be a challenging and utterly absorbing read. How did Islamic thought change through the influence of the West? Learn all about it here.
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The example I have just given about Islamic finance well illustrates my point, and demonstrates the genuine difficulties in adapting to the system that has governed our lives for the last two centuries and which — we should not forget — is leading us to environmental, political, and social disasters. The failures of the modern project are such that they are giving pause to many people around the world — Muslim and non-Muslim alike — making them wonder what lessons they can draw from their older traditions to rethink their lives that they now live in the shadows of imminent disasters.
I do not think that it is possible to understand one part or one aspect of a system of power without understanding how that aspect or part is formed by, connected to, influenced, or structurally and epistemologically enveloped within the larger whole. Today’s so-called universal human rights are anything but universal, for they are mostly the product of the experiences of dominating western powers. International law and human rights and much else are shaped by the powerful, and the rest must tow the line.
Each society or culture, if left to its own devices, will develop its own concept of the human, and along with this, each society — again, if left to develop on its own terms — will have its own concept of human rights.
The problem arises when the “ecology” of a society or culture is destroyed, as happened in Islam in the 19th and 20th centuries at the hands of colonialist Europe. Once the 19th century lapsed, there was no longer any system that is native and indigenous. The Sharia was effectively destroyed, as was Sufism and much else; and in the few cases where it was not (as in the case of the law of personal status), it was eviscerated and transformed into a lip service.
The question now is how do Muslims recover the true spirit of the Sharia in terms of human rights (and much else) and revive a system that is now no more than an institutional memory. Therefore, the question is not only about whether or not we should accept other culture’s notions of human rights. The truly vexed question is what are these culture-specific rights that can be retrieved? How do we retrieve them, given that they had grown in socio-economic and political contexts that are no longer tenable today?
There is no doubt that such past systems achieved great success but what kind of heuristic methodology do we use to retrieve their spirit — or that spirit which will assist us in improving the human condition today?
Our present is highly problematic, with so much destruction happening all around the globe, and the future is unbeknownst to us. All we can do is try to learn from the good and the bad we have performed in our own histories. History is not just a series of events, a progressive linearity that leaves behind dead humans and events. History is also an ethical time, and ethical time is timeless.
You are most welcome.
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Wael B. Hallaq (وائل حلاق) is a scholar of Islamic law and Islamic intellectual history and the Avalon Foundation Professor in the Humanities at Columbia University. He is considered a leading scholar in the field of Islamic legal studies.
Professor Hallaq has published over 80 major scholarly books and articles on a variety of topics including philosophy, political and legal theory, and the intellectual history of Orientalism and the Islam. Some of his recent works include: Restating Orientalism: A Critique of Modern Knowledge (2018); Reforming Modernity: Ethics and the New Human in the Philosophy of Abdurrahman Taha (2019); Authority, Continuity, and Change in Islamic Law (2001); The Origins and Evolution of Islamic Law (2005); Shari`a: Theory, Practice, Transformations (2009); and An Introduction to Islamic Law (2009).
His works have been widely debated worldwide and translated into a dozen languages. Impossible State (2013) won Columbia’s distinguished Book Award. In 2007, he won the Islamic Republic of Iran’s best book prize for his Origins and Evolution, and in 2020, the Nautilus Book Award for Reforming Modernity. In 2021, he was awarded the TÜBA Prize of the Turkish Academy of Science for innovative and path-breaking scholarship in the Humanities and Social Sciences.
Cover image by David Rodrigo on Unsplash.
