09 April 2013

Justice, Shari'a, and Hermeneutics

Written by 
Chandra Muzaffar: “There are three important accomplishments Malaysia can be proud of in the journey towards national unity.” Chandra Muzaffar: “There are three important accomplishments Malaysia can be proud of in the journey towards national unity.” http://www.freemalaysiatoday.com/category/nation/2011/08/29/chandra-lets-not-forget-our-achievements/

This concludes my blogs on the justice lectures I delivered in Singapore in January 2013. We started with some of the best theoreticians of secular justice in the political arena and then dealt with Jesus’ teaching on justice. Last time we looked at the centrality of justice both in the Qur’an and in Muslim practice. We continue and conclude with the work of some key figures in Malaysia.

My main point here is that though justice may be everyone’s slogan, Muslims see it working out in radically different ways, depending on which current of thought they choose to follow. And each current reads the Qur’an differently – it’s about hermeneutics.

But first, what has the rising tide of conservative Islam in Malaysia done to change family law and what might this say to us about hermeneutics? Might there be a “disconnect” between female aspirations for greater justice and the greater restrictions on their agency imposed by male ulama (jurists/Islamic scholars)?


Today’s Muslim “disconnect”

A recent article bordering on law and sociology deals with the modern tension between Islamic law in Malaysia and the status of women (“Islamic Law, Women’s Rights, and Popular Consciousness in Malaysia,” by Tamir Mustafa in Law & Social Inquiry, 2012).

Mustafa notes that in the 19th and 20th centuries family law was codified in Muslim countries “in a manner that provides women with fewer rights than men” – a process “that was both selective and partial” (1). He then adds, “Far from advancing the legal status of women, legal codification actually narrowed the range of rights women could claim, at least in theory, in classical Islamic jurisprudence.”

Today, however, we are witnessing “a new mode of political engagement.” He continues, “… some of the most promising initiatives for expanding women’s rights in the Muslim world lie with activists who explain that the Islamic legal tradition is not a uniform legal code, but a diverse body of jurisprudence that affords multiple guidelines for human relations, some of which are better suited to particular times and places than others” (1).

Zainah Anwar, the founder of a particularly influential Malaysian NGO, Sisters in Islam, states that “[v]ery often Muslim women who demand justice and want to change discriminatory laws and practices are told ‘this is God’s law’ and therefore not open to negotiation and change.” As a result of this erroneous understanding of “Islam,” she contends, “the laws concerning marriage, divorce, child custody and a host of other issues critical to women’s well-being are effectively taken off the table as matters of public policy” (2).

In fact, for activists like Anwar, the biggest factor behind the disconnect between Islamic principles and practice is the reality of the modern nation-state. Traditionally, “The distinction between fiqh [the jurisprudence of the ulama] and siyasa [the policies of the rulers] helped distinguish the sphere of religious doctrine from the sphere of public policy” (6). This practical separation of mosque and state had another reason as well: “Fiqh had thrived, in all its diversity, largely due to the limited administrative capacity of the rulers” (7). Modern state bureaucracies, however, project a good deal more power!

Take a specific issue, that of the institutionalization of family status law in Malaysia. Between the arrival of the British in 1874 and the 1990s “Malaysia went substantially further [than other Muslim countries] in building state institutions with a monopoly on religious interpretation” (11). The net effect was a hardening of legal positions and a heightening of gender injustice.

According the 1984 Family Law Act, a mother’s custody of her boy ceases at 7 and at 9 for her daughter (Art. 84). On the issue of child custody, conditions were stipulated for a mother’s loss of custody, while no conditions were stated for a father (Art. 83).

In a nationwide survey on “popular legal consciousness,” conducted in 2009 through the Merdeka Center for Opinion Research, 82% of respondents agreed with this statement: “Islam provides a complete set of laws for human conduct and each of these laws has stayed the same, without being changed by people, since the time of the Prophet.” This goes completely against the historical facts, exclaims Mustafa – Islamic law evolved over times and incurred many changes, whether between its various schools or within them.

These popular misconceptions, he goes on, “have significant implications for democratic deliberation on a host of substantive issues, of which women’s rights is just one important example” (13). This raises a wider issue – how the sacred texts are interpreted and how as a result the theoretical side of Islamic law is especially being rethought today (see "Emerging Voices").


The Hermeneutical divide

I have often written about the crucial nature of the interaction between text, reader and author – and at great length in my book, Earth, Empire and Sacred Text (which I just heard will come out in paperback this fall!). I say more here, but first I need to backtrack a bit.

In March 2006 I presented a paper on Islam and globalization at a conference at the University of Wisconsin. The paper was highlighting a scholar I have written a good deal more about since then, the Malaysian social scientist, Chandra Muzaffar. Now Professor of Global Studies at the Science University of Malaysia, he is best known as the long-time President of the International Movement for a Just World (JUST).

Muzaffar himself got a hold of my paper through the Internet and contacted me. He then invited me to participate in an international conference (2008) he was sponsoring in Kuala Lumpur on the theme, “Religion in the Quest for Global Justice and Peace.” The conference itself was opened by Prime Minister Ahmad Badawi, and on the third day I was privileged to be one of two respondents for Muzaffar’s closing address, “Towards a Universal Spiritual and Moral Vision of Justice and Peace.”

When I heard that Prof. Chandra Muzaffar was giving two morning lectures at the Pathways conference in Singapore, I was thrilled. Appropriately, I determined to use the recent book (of which he had kindly sent me a copy) in my third lecture on justice, Muslims Today: Changes within, Challenges without (2011) [see this Pakistani blog reviewing the book].

In his first chapter, “The Concept of Equality in Islamic Thought,” he engages his Muslim readers by asserting that his ideas belong to “mainstream thinking,” to the “consensual middle” (11). As in other religious traditions, he adds, Muslims display a variety of positions and perspectives.

One aspect of justice is equality of everyone before the law. This should be the case in Islamic law as well, but when it comes to gender, this is not often the case. Parroting a typical conservative answer to this objection he writes, “One can argue, for instance, that the so-called inequalities exist because of the natural state of affairs. As an example, men have to lead; women have secondary roles in certain areas. This is integral to God’s plan. It is part of His perennial plan” (12).

“There is a flaw in this argument,” Muzaffar notes. “We know that there is no natural law about man’s leadership. . . . Indeed, women are as rational or irrational as men are.” Put otherwise, there is no social scientific or biological evidence today to support such a thesis. Issues of this kind should surely be resolved on the basis of reason. The same goes for calls to Muslim unity on the basis of Islam’s exclusive monopoly on religious truth. And this especially applies to any kind of discrimination between people on the basis of ethnicity or social class. Equality, he believes, should trump any kind of discriminatory judgment.

“But you’re going against specific texts in the Qur’an,” another Muslim might reply. This is how Muzaffar answers that objection:


“The Quran has a twofold purpose. First, it enunciates a universal message relevant for all times and pertinent to human beings in all circumstances. This it does by laying out eternal values and principles which one discovers through reflection and analysis of specific verses and the overall thrust of the Holy Book. Second, to make this exposition of a universal message meaningful to a particular people who had to practise it and, thereby, establish its validity for future generations, the Quran draws upon ideas and institutions, laws and lores which belonged to that specific, time-bound, place-bound context” (14).


This is the kind of reasoning that Pakistani-American scholar Fazlur Rahman (d. 1988) developed in his books. The universal message of Islam as revealed to and applied by the Prophet Muhammad in his 7th-century Arabian context was above all a message of liberation and dignity of the human being, irrespective of sex, race or class. What is needed for today, then, is a focus on these universal values and their application to the drastically different context of today’s humanity. Revelation, then, has to be unpacked from its early historical embodiment and repackaged to meet the needs of present day society.

So Muzaffar continues with this line of argument. “Indeed, as far as the position of women goes, there is no denying that the spirit of the Quranic message is irrevocably committed to liberation. It is the failure of succeeding generations to continue with these reforms – to transform the spirit of the message into the letter of the law – that one should condemn” (15).

In the end, how one interprets the Qur’an and Sunna is everything. Of course, “a far more progressive” interpretation of the sources is possible; just as “a more retrogressive conception” can be made of the consensual middle’s position (19). As you can see, there is a direct contrast between those who hold to the letter of the law come what may, and those who want to emphasize the spirit of the revelation which may lead one to discard the letter of the law, at least in some cases.

The divide, then, is between a textualist (text-centered) and a values-based hermeneutic. The latter is the “progressive” approach. Muzaffar puts it this way: “… progressive Islam emphasizes the spirit rather than the details contained in the scriptures … It is the underlying philosophy that it cherishes the most, the reasoning, the thinking, the emotion behind a particular instruction or prohibition” (19).

One therefore has to look at the historical and sociological context of a text, seeking to “understand the values and principles of Islam.” In turn, this involves “separating the contextual from the perennial” and focusing on the “unchanging fundamentals.” This will enable the Muslim to bring into view “Islam as an evolutionary, dynamic movement through time.”

Here Muzaffar comes back to his previous remark that in the spirit of early (and “authentic,” as he sees it) Islam, Muslims should enter into dialog with people of other faiths or no faith and should intentionally incorporate new knowledge from other intellectual traditions. Several Muslim currents today have become frankly xenophobic and unhealthily focused inward. This is wrongheaded, he laments.

More than ever today, Muslims should be displaying greater openness to other spiritual traditions. And here is where Muzaffar, despite his assertions to the contrary, leaves the “consensual middle.” I mean, how many Muslims would actually agree with his statement that “God is one, and Truth is indivisible” (20). By this Muzaffar is affirming with one of the great American scholars of religion, Huston Smith, that Truth is the summit of a mountain toward which in the end all religious traditions converge. No religion can claim a monopoly on truth or salvation.

Muzaffar, to be sure, is not the only Muslim scholar to hold to this view of theological pluralism. With regard to religion and ecology, I’ve written about the great Iranian-American philosopher, Seyyed Hossein Nasr, who as a follower of the "Perennial Philosophy" also embraces this perspective. But it’s definitely a minority position.

Still, when it comes to hermeneutics or different readings of the Islamic sacred texts – including, of course, efforts to “reform” Islamic jurisprudence – you will find a wide spectrum of approaches today. My review of Mohammad Farooq’s recent book on Muslim law certainly underscores this point.

So as I conclude this series on justice by reminding us that “justice” as the convergences of such ideals as fairness, dignity for all human beings, human rights and equality before the law, and especially vindication, redress and affirmative action for the downtrodden – justice is a basic aspiration that all people share. Can religion become an engine for greater justice and harmony for humankind today? One can find stunning examples in both directions.

On this issue though, I believe Chandra Muzaffar is right, and perhaps this applies to all religious traditions. The danger comes from those who are stuck in the past and especially on past interpretations of the letter of sacred texts. In his words,


. . . conservative Islam “is obsessed with scriptural details, [a position] that negates reason and reflection, that is opposed to distinguishing the contextual from the perennial, that refuses to admit fresh currents of thought, that denies the need for interaction with other religions, that encourages, if unwittingly, static, fixed attitudes and beliefs which in reality repudiate universal truths” (20).