Non Skeptical Essays

Is there a crucial difference between someone who kills in order to die and someone who dies in order to kill? - [Talal Asad]

Alasdair MacIntyre - while making a ‘disquieting suggestion’ in the beginning of his chef-d’oeuvre ‘After Virtue‘ - hypothesized that what we chiefly possess as a vocabulary of morality can best be understood as ’simulacrum of morality’ rather than the actual and true morality. He argued that we are so confident of the absolute objectivity of this contemporary moral paradigm, which guides and constitutes our language, reasoning and transactions, that any transposed hypothesis would most certainly seem utterly implausible, at least at first glance. In short, that we are being betrayed by the very language we use is a proposition that is not acceptable to us.

In these heavily nuanced Welleck Library Lectures on Suicide Bombing, Talal Asad not only vindicates MacIntyre’s thesis but also contributes in reshaping the ongoing narrative regarding terrorism and war. Asad’s discourse centers around the paradoxes presented by the modern sensibilities regarding morally justified and unjustified violence and the responses that are essentially triggered by these sensibilities. As the ruminations move from terrorism to suicidal terrorism and speculations regarding dynamics of horror associated with the latter, Asad aims to disturb his audience with arguments and counter arguments - at times phenomenological and often historical or textual - questioning modern notions of clash of civilizations, war ethics and various assumptions regarding what motivates suicide bombings including religious significance of sacrificial suicide.

Coming from someone who has identified religion as an anthropological category, Talal’s take on modern ethics governing kinds of violence and delimiting its extent is perhaps the most assertive part of his musings. The idea of clash of civilizations, in his view, is based on a false premise that Jihad is a ‘culturally distinctive expression of Muslim intolerance’. Moreover, selective history-making often tends to insinuate - albeit inadvertently at times - that civilizational values are evolved and transformed in undifferentiated societal compartments. “There is no such thing as clash of civilizations”, he contends,”because there are no self-contained societies to which fixed civilizational values correspond”. False premises thus lead to fallacious arguments which in turn supply vocabulary to the modern discourses that contain subjective and oversimplified entities to base conclusions upon.

Asad’s choice of texts - from left as well as right - is appropriate as he chooses the ones that are recent, foundational in respect to philosophical problematics and encompassing. Among these, his critique of Michael Walzer’s ‘Arguing About War’ is most profound. He does not see Walzer’s reiteration of war being a legally sanctioned activity as problematic; what he instead sees questionable is Walzer’s ingenuity with which he gives an absolute mutually exclusivity to ‘war’ and ‘terrorism’ and the manner in which he differentiates both on the basis of legality, vulnerability and fear of social disorder: Even a just war, in Asad’s opinion, infuses insecurity in public sphere and intrudes fear into private life. On the question of various motivations and intentions of suicidal terrorists, Asad looks objectively at wide range of western commentators as well as theorists and analyzes critically their explanations. In Asad’s view, all these explanations - whether theological, political or psychological - tell us more about ‘liberal assumptions of religious subjectivities and political violence’ rather than what is ostensibly being explained. Pointing out the kind of violence embedded in liberal thought, he writes,

More difficult is the question of the role of mortal violence in the continuing maintenance of the good political life. For in liberal secular society, one that apparently abjures political metaphysics, the morally autonomous individual has the right to choose his own life, and the sovereign state has the right to use violence in defense of the conditions for the good life.

In effect, Asad consistently contests the idea that an absolutely objective comment on the individual motivations of suicide bombers is possible. Obviously in line with the argument itself, the question of motive has to be left open ended as he develops his thesis; but he does enough to attain a shift in the central point around which the contemporary debates about individual acts of suicidal terrorism revolve. “The uniqueness of suicide bombing”, Asad opines, “resides elsewhere. It resides, one might say, not in its essence but in its contingent circumstance.”

In my opinion, the book achieves its primary purpose; that is to shift the contemporary discourse from the moral interpretations of individual acts of suicidal terrorism to the realization that these interpretive attempts are always limited by the inherent political, philosophical and historical subjectivities. Moreover, it raises an altogether new question: Why the individual acts of suicidal terrorism do impress us with far more horror than the brutalities that are committed by modern states; further more, what gives the kind of morally justified and civilized sensibility to the modern war while generalizing most of the other conflicts as terrorism.

The book can be misread and misunderstood, as Asad points himself but after all, it is a ‘disquieting suggestion’; the kind of transposed hypothesis that must seem implausible in order to be closer to truth.

Don’t have much time these days to blog but the amazing accuracy of this quiz forced me to share it here. Thank you Lawrence of Arabia for the hat tip.

You’re Confessions!

by St. Augustine

You’re a sinner, you’re a saint, you do not feel ashamed. Well, you might feel a little ashamed of your past, but it did such a good job of teaching you what not to do. Now you’ve become a devout Christian [Muslim] and have spent more time ruminating on the world to come rather than worldly pleasures. Your realizations and ability to change will bring reverence upon you despite your hedonistic transgressions.
Florida will honor you most in the end.

Take the Book Quiz at the Blue Pyramid.

The “content” of any medium blinds us to the character of the medium.
[Marshall McLuhan]

In 1913, Mawlana Ashraf Ali Thanawi gave his famous juridical response to a British court in India. The seeker was a claimant who wanted to re-establish conjugal rights with his wife but his in-laws refused to let her join on the plea that she has apostatized and can no longer be his wife according to Islamic law. “Annulled”, wrote Thanawi while explaining that “unbelief causes annulment of the marriage contract and marriage of the claimant stands invalidated.“

During next seven years, the same fatwa was pronounced on ten different instances, albeit in marginally different contexts, by the same Mufti. However, in 1931, Mawlana Thanawi published an independent treatise dealing with the same issue at length and revised his previous opinion citing Maliki law as an authority instead of usual Hanafi law citations from al-Haskafi’s text or Ibn Abidin’s commentary.

Dr. Khalid Masud, in his paper on Apostasy and Judicial Separation in British India [included in this volume], analyzes the intricacies of these two fatwas (original and the revised one) at length and makes some interesting observations regarding social changes that took place between 1920 to 1930 in British India. He notes that the number of applications in the courts - seeking judicial separation from husbands - substantially increased in the span of these ten years. A large number of Muslim women were encouraged to declare themselves Christian and get their marriages dissolved by producing certificates of baptism.

According to Masud, situation became noticeable to an extent that some notable Muslim Scholars, for instance Dr. Iqbal in his famous lectures, questioned the validity of Hanafi law in this particular area and asked the Muslim jurists to exercise Ijtihad in order to reform the law. The debate triggered by these collective developments finally culminated into the revised fatwa of 1931, thus permitting the use of grounds in Maliki law - including husband’s impotence, cruelty or inability to maintain his wife - to dissolve a marriage instead of using apostasy as a legal device.

The normative shift in these fatwas, besides reflecting normative pluralism, also reflects another important dimension of legal change in Islamic Law: an almost inseparable construct of two mediums, i.e. Iftaa’ and Ijtihad.

Even though, many contemporary experts [1, 2, 3] of Islamic law argue that the terms ‘Mufti’ and ‘Mujtahid’ have been used interchangeably in pre-modern Islamic literature, it would not be entirely wrong to assert that fatwa still remains the primary medium of extending Ijtihad towards the society. For in actuality, it is only the Mufti (even today) who - inadvertently at times - creates and extends new legal norms to the level of positive law that works in a particular social construct.

It should not, therefore, sound surprisingly ‘liberal’ to a ‘traditionalist mind’ when a Maliki jurist from 14th century Spain, Abu Ishaq al-Shatibi, gives primary importance to social reality in his celebrated treatise on Islamic legal philosophy:

The rule is that you examine the given case in the light of Sharia. If it is correct according to the Sharia then consider its consequences in the conditions of its time and its people. If by its mention, your mind does not recall any evil then submit it to reason. If you feel that it will be accepted by reasonable people, then you may give your opinion in general terms if the case relates to a matter that is generally acceptable. If it cannot be generalized then give specific opinion. If the case in question does not accept this process, then it is better to keep silent; that would be more in conformity with the welfare of the people, legal as well as rational.

Having argued elsewhere, albeit not so eloquently, that Islamic law can be essentially experienced as a tradition of literature, I now use that observation to reassert that the available legal tradition - if hierarchically arranged and closely analyzed from primary texts (mutun) to commentaries / super commentaries (shuruh) to juridical responses (fatawaa) - can reveal a lot about normative pluralism in Islamic law and the inherent ability of law to perpetually adapt itself to the ever changing social conditions through well-knit and remarkably reasonable mediums.

concludes next…

Related:

• Dynamics of Change in Islamic Law (I): Normative Pluralism
• Tradition of Literature

If Tradition is a phenomenal conversation that we perpetually undertake with our collective histories, going back to it will result in anachronism.

Related:

• Tradition (I) : key Dualities
• Tradition (II) : Conversation Incarnate
• Tradition (III) : Converse to create knowledge
• Tradition (IV) : Conclusion and more

The Pakistani Spectator is a team blog centered at happenings in and related to Pakistan. They have been running a series in which they are conducting interviews of Pakistani bloggers. You can read my exchange here.

I can guess how they do it but I am not sure if it can be taken as a compliment at all. Considering the fact that my old blog (now defunct) can be understood with an education level of undergrad, I am quickly transforming myself into an incomprehensible abstractionist.

My wife agrees. It does not happen too often.

Click here and take your blog’s readability test.

In my view, the most important crisis that Muslim society miserably failed to handle during Islam’s sojourn into modernity is diversity. By diversity, I mean religious heterogeneity in any form, may it be the pronouncement of legal injunctions, opinions regarding societal norms or something as personal as individual religious practices.

Therefore, whether it is the abundance of contradictory fatwas on issues as diverse as women leading prayers to Muslims attending Christmas celebrations to Islamic prohibition of images to what constitutes death, Pakistani brothers arguing about the bare heels of a Chinese sister during Hajj or my grandma’s queasiness while watching me pray in a manner other than our family’s religious school, there is an invisible urge to see a kind of religious monism; a CONSENSUS based on an almost Utopian unity of intelligibility, opinion and action.

I would go as far as contending that pluralism, when it manifests itself in any of the above forms does not resonate well with the conventionally perceived absolute nature of religious discourse. And this perception, while breeding religious exclusivism and thus extremism, also undermines the true rationalistic nature of Islamic legal tradition.

One of the foremost reasons for this intellectual aversion to disagreement is the nature of Muslim law itself. While majority of traditional Muslim jurists - and I prefer to restrict my comment to Sub Continent as I am aware of some exceptions outside - seem perfectly at ease with it, western legal sociologists have always struggled with the antinomies of permission and prohibition that exist for a single issue. Max Weber, for instance, while attributing these “variety of norms” to the irrationality of the law, stated:

The priestly approach to the law aims at a material, rather than formal rationalization of the law. The legal teaching in such schools, which generally rests on either a sacred book or a sacred law fixed by a stable oral or literal tradition, possesses a rational character in a very special sense. Its rational character consists in its predilection for construction of purely theoretical casuistry oriented less to the practical needs of the groups concerned than to the needs of the uninhibited intellectualism of the scholars - its casuistry, inasmuch as it serves at all practical rather than intellectual needs, is formalistic in the special sense that it must maintain, through re-interpretation, the practical applicability of the traditional, unchangeable norms to changing needs. But it is not formalistic in the sense that it would create a rational system of law.

Needless to say that these comments by Weber in Economy and Society generally pertain to any religious law and do not specifically consider the dynamics of Muslim positive law. However, while Weber scarcely commented on Islam (except of course his formulation of Kadijustiz), above analysis while comprehensively illuminating the problem of “variety of norms” as construed by the post-Cartesian mind also highlights the kind of confusion that still prevails regarding contextual literacies of the pre-modern Islamic legal tradition.

While some attribute this characteristic of variety of verdicts in Islamic law to quasi-irrational nature of Islamic law, others argue that normative pluralism has a perfectly established pedigree in Islamic law and that new norms are perpetually created and recreated through a perfectly reasonable process that is an intrinsic part of the law itself.

The key question thus, in my view, can be formulated in this way: When a jurisconsult - a mufti, mujtahid or a faqih more specifically - adjudicate according to new circumstances thereby adding to the already existing variety of norms, is it a symptom of irrationality of law, per se or the change thus driven can be attributed to some rational interpretive method called Ijtihad.

to be continued…

Related:

• Dynamics of Change in Islamic Law (II) : Ifta’a, Ijtihad & Social Customs

The post was originally published on Pak Tea House blog.

A dead idea is an idea whose origins have been betrayed, one that has deviated from its archetype and thus no longer has any roots in its original cultural plasma.

-Malik Bennabi

It is amazing to discover the similarity with which history repeats itself in the cherished land of the pure. We often talk about the repeated military takeovers, political betrayals, judicial activism and ongoing misery of civil society but never fully realize the extreme ephemerality of our memories. At least I did not, until last night when almost accidentally, I picked up Selected Writings of Eqbal Ahmad from my bookshelf and went through a piece that was done in 1981 by one of the greatest liberal minds of Pakistan. The article is titled “General Zia is Now the Law”. Note that how explicitly the content becomes valid once you just change the names.

Now, General Zia has virtually destroyed the only peaceful recourse citizens had against the untrammeled abuses of power. On March 25, he fired at least nineteen senior judges when they refused to endorse his “constitutional order”, which restricts the civil courts, outlaws all political parties except the…[...]

Among the senior judges who declined to take the required oath of allegiance to this new “constitutional order” was Anwar ul-Haq, the chief justice of Pakistan, an appointee of General Zia, whose earlier compliances with the junta had done much to lower citizen respect for judiciary. Three of the six sitting judges of Supreme Court and a state High Court chief justice also refused. Another Supreme Court judge, Safdar Shah, had earlier fled the country on foot through the Hindu Kush Mountains. Twelve High Court judges, well known for their judicial integrity, were not invited to take the oath and automatically lost their posts.[...]

“A judiciary’s job is to interpret the law and administer justice, not to challenge the administration,” General Zia proclaimed at a March 27 press conference. As for lawyers, rule of law and civil liberties were none of their business. “They must mind their own business and not meddle in other affairs,” said the general[...]

For their defense of the rule of law, lawyers have been hit harder than the judges. A recent crackdown on the democratic opposition to the junta added another two thousand political prisoners, of whom a significant portion are lawyers. Since March, some two hundred senior High Court advocates have been jailed in Pakistan; the number of young attorneys in detention may be higher.[...]

Rarely in modern times have so many judges and lawyers shown such courage or suffered this much collective punishment in defense of the rule of law.

Eqbal Ahmad’s observations are telling in many ways. Even though they depict a silver lining in the form of constancy of purpose on the part of civil community to stand against the totalitarianism of despotic regimes, these also serve as a painful reminder. An admonisher that what we are witnessing recurrently may not be an experience entirely belonging to the momentary trivialities of the physical world; rather, most important nuances of this experience belong to the realm of ideas.

Its like a photographic reel that is playing itself time and again since last few decades. On the screen we can see a society, silent majority of which has not only learnt to survive without the food of ideas but over the years, has mastered the art of doing so.

In my opinion, it may be so that the present fulminations are not the result of continuing hegemonies of old actors with new masks but an idea that is breathing its last. Only time will tell whether we can collectively construct a new idea to hold ourselves together before becoming completely colonizable.

Here is a new group blog reviving the spirit of the traditional Pak Tea House. Please visit and do pour in your comments.

Norman Calder, introducing Islamic law in one of his papers for Syed Hussein Nasr’s History of Islamic Philosophy, narrates a story of an anxious wealthy man trying to find a suitable wife for his son being fearful that he might divorce her and squander his wealth. He came to Abu Hanifah with his query.

“I could buy him a slave girl and provide him thus with the household but he might free her and so again squander my wealth. What shall I do?” “Take him to the slave-market,” said Abu Hanifah, “and when a particular girl catches his eye, buy her for yourself, and then marry her to him. If, then, he divorces her, she returns to your ownership; and if he frees her…well, he can’t, for she is yours.”

Calder rightly points out - after narrating this incident from Dhahabi - that no conclusion should be drawn from this story about the ‘marriage practices and family problems of ninth century Khurasan’ as this is basically a showcase for exploration of concepts. Concepts like acquisition and transfer of rights and legitimate sexual intercourse.

I remember arguing previously that corpus of classical legal tradition may principally be experienced as a tradition of literature in order to be able to appreciate the beautifully interlaced multiple traditions of education, thought, creativity and a desire for achieving some kind of social control. So does Norman Calder, when he asserts that without compromising its theological character, the genre of classical fiqh may be experienced primarily as a mechanism of self definition of classical Muslim scholarship. However, what Calder most certainly alludes to and I completely fail to acknowledge in my ramblings is the inadvertent and indirect denial of rational character of Islamic law.

For what else can be logically deduced from this argument except that traditional Islamic law does not in general cater for the needs of a real society but was only a means to explore the revealed word of God. Just for the sake and love of it.

I now come to believe that even in the presence of cunning contrivances, legal fictions and humor in the traditional books of law, one has to concede to the fact that Muslim jurists displayed an unflagging resolve of not compromising rational coherence of their arguments. Ignoring the historical authenticity and funny part of such incidents, one sees that Abu Hanifah takes a rational approach to the question posed to him; so does Malik when he replies to the Iraqi who after having sexual intercourse with a chicken wanted to eat it’s egg; so does the Egyptian scholar Ezzat Attiya who gave the famous ruling regarding adult men getting breastfed from female colleagues at work; and so does Sheikh Faraz Rabbani who remarkably considers every possibility while satisfying a questioner who is finding it difficult to differentiate between backbiting and literally biting his brother’s back.

It is obvious that juristic motivations in above mentioned examples are complexly interwoven. One can endlessly speculate but cannot tell with conviction whether traditional jurists do have an eye on social reality all the times or not. It is difficult because even though some of the egg-loving-weirdos do have sex with chickens, they seldom confuse backbiting with biting on someone’s back.

These casuistic extravagances usually marrying with rhetoric and endless citation of sources lead to a legal construct which is always pregnant with multiple and sometimes opposite rulings. To a modern mind, this construct, even though it theoretically conforms to the revealed norm, not only seems vulgarly fictitious but also disconnected from the ethical and moral normative base.

What then is the right way to proceed in order to synthesize the traditional Islamic law with ongoing social change? In my opinion, it is by asking right question about legal theory and social change. Not one, two, or few; rather, scores of them.

No amount of going-back-to-the-sources, ruling-by-what-Allah-has-revealed and how-to-pray-in-outer-space-manuals would achieve it for us. Unless we somehow deconstruct the fairly modern adaptability/immutability duality of Islamic law, we would not be able to move forward towards a workable corpus of Islamic law that fits meaningfully in the contemporary political realities. If somebody wants a single most comprehensive starting point, Shatibi asked most of these question in fourteenth century Spain.