No doubt many readers of this blog have themselves dealt with the delicate question of responding to systematic and apparently willful misreading. I am pretty sure that, following the model of my elders and betters, I should try to reply only to substantive objections to my work, not to ad hominem arguments, the fallacy of which should be self-refuting. But how to do it when the criticism relies on vernacular, name-calling versions of once-fashionable jargon (Orientalism, paternalism) without specifying their content or explaining how they may be related to the text under attack? In such circumstances, I suspect, to defend is already to be deflected from what really matters.
With that in mind, a few clarifying points are nevertheless in order regarding an essay of mine in The New York Times Magazine that drew on a new book, The Fall and Rise of the Islamic State, out this past month from Princeton University Press. I began the essay with the recent lecture of the Archbishop of Canterbury to frame an irrefutable and I think interesting contrast: in the West, the word shari‘a is treated as radioactive, while in many places in the Muslim world (I quoted statistics from Egypt, Jordan, and Pakistan) substantial majorities say they favor making the shari‘a into the source of law. In the essay and the book, I am interested in exploring the basis for the apparent appeal of the shari‘a, which, I argue, is not properly understood as “Islamic law” but as a richer set of associated ideas connected to the constraint of all human beings under a divine justice that applies to all.
It should be unnecessary to add that the project here is not to “tell the Muslims how good they really are.” In fact, in the essay and at much greater length in the book, I express a deep skepticism about the capacity of the newly revived Islamist call for the shari‘a to succeed in delivering institutions conducive to political justice in the countries where it may be tried. If there is any advocacy implicit here—as well as in my earlier work on Islamic democracy—it is for the West in general and the U.S. in particular to refrain from adopting policies that seek to block Muslim countries from constitutional designs favored by majorities or super-majorities of their citizens. This is the very opposite of “paternalism of the failed American empire.” It is rather an argument against the paternalistic view that it is up to the West to tell Muslim countries that they must adopt our secularisms—a view embraced by the strange bedfellows of neoconservatism and internationalist secularism.
What, exactly, is “Orientalist” about this orientation is mysterious to me, unless, as I fear, I am being met with the tired identitarian canard that a non-Muslim cannot write or speak about Islam without somehow treating it as both “other” and as an irreducible unchanging unity. It is certainly true that in the essay, my account of what I called traditional Islamic constitutional theory is abridged as it is not in the book; but then as any reader would immediately notice, the essay is in fact devoted precisely to the drastic changes in constitutional arrangements in the Muslim world that gave rise to the common modern predicament of executive dominance. This is precisely a story of dynamism, not stasis.
Perhaps it could be argued that given the millennium over which it developed and changed, there can be nothing coherently called Islamic constitutional thought. As I explain in the book, the theories associated with the Islamic constitutional tradition were taken seriously in polities ranging in size from global empires to city-states. And yet we speak of English constitutional thought over a similar period without being assumed to be asserting any absence of change and development. Even American constitutional history is not so far from its half-millennium mark, if colonial arrangements are taken into account, as they surely must be. The nature of constitutional thought is to attempt to rationalize and legitimize disparate governing arrangements under a rubric of coherence and, often, continuity. To declare this practice impossible is perfectly reasonable—many critics over the centuries have done so, usually before advancing their own constitutional theories—but it is also, I think, a bit pointless, since I know of no constitutional arrangement, however beautiful or nasty, that has managed for long to avoid theorizing itself.
There does seem to be space for a useful debate about whether in fact the contemporary Islamist call for the shari‘a should be understood in terms of what is sometimes called the rule of law. This space is precisely what my essay and book try to open. The Islamists in their contemporary political platforms typically juxtapose the shari‘a and the rule of law, without insisting on their identity. When we are speaking of the views and attitudes of broader Muslim publics, polling data can be of some use. The recent book of data gathered by Gallup and interpreted by Dalia Mogahed and John Esposito, Who Speaks for Islam, takes more or less the same position that I’ve suggested. The authors point out that after saying they would like shari‘a to be the source of law, most respondents in a range of Muslim countries say they do not want rule by the scholars. And many reject harsh corporal punishments associated with shari‘a in popular consciousness.
This is the sort of viewpoint that leads me to reject what might be called the conventional wisdom of 1980: that “the sociological evidence suggests that the ideological demand for the Shariah as the basis of the constitution and source of all laws appeals to the puritanical moralism strengthened by the resurgence of Islam that sees divinely-ordained severe punishment as the most effective way of stopping the moral corruption and libertinism coming from the West.” Maybe—just maybe—in Iran among the mullahs of the generation of 1979. Social conservatism no doubt plays some role in the appeal of Islamist political parties. But Islamism today is not the same as it was in the immediate wake of Khomeini. (Talk about reductive essentialism!) Today one is more likely to encounter the media cleric Yusuf al-Qaradawi explaining in an important fatwa that democracy is a Western concept that is nonetheless now mandated by Islam as the most effective available technology for restraining despotic rule.
To suggest, as I do, that the Islamists who argue for the shari‘a are tapping into an aspiration to subject dominant executives to legal constraint is not to deny that there are other ways of talking about the rule of law in Arabic or Persian. (Though the rule-of-law is not the same thing as secularism, whatever might be the wishes of some.) It is to propose, rather, that the remarkable success of the shari‘a-advocating Islamists in many recent elections, especially in Arabic-speaking countries, has something to do with their success in providing a popular rubric for what might sound like rule-of-law arguments. (Indeed, one of several reasons for the Islamists’ poor showing in Pakistan’s recent elections may well be that the Supreme Court, not the Islamists, staked out the rule of law as its province.) To say that the Islamists have found a powerful way to talk about the limitation of arbitrary executive power is neither to embrace their project nor to impugn the judgment of those who vote for them. What is, to my mind, a display of questionable judgment is to assume that someone writing about the rich and complex subject of Islamic political thought must either be for the shari‘a or against it—and then to deflect attention from substantive disagreement by the selective deployment of insult and innuendo.
Professor Feldman addresses my mainly rhetorical point, and I am reassured that his attitude is “the very opposite of ‘paternalism of the failed American empire.’ It is rather an argument against the paternalistic view that it is up to the West to tell Muslim countries that they must adopt our secularisms—a view embraced by the strange bedfellows of neoconservatism and internationalist secularism.” Furthermore, I would go along with this rejection of unreconstructed secularism. The point about Orientalism was also rhetorical but not entirely so. What I had in mind was the assumption that his brief account of the checks and balances in Islamic constitutional history implied an essential Islamic model for the Muslims to restore once they would stop aping the Westerners. And the empirical evidence that can be set against such abstraction comes not just from Iran but also from Nigeria, the Sudan, Pakistan and elsewhere.
My main substantive concern remains unaddressed, however. It has to do with the lack of accuracy and confusion of categories—something one would not expect from a law professor. Yes, the Kemalists were and are secularists, but the jurists who codified the famous Civil Codes of Iran and Egypt were not. They certainly were not Islamists or Islamic ideologues. But in no way could they be considered secularists. On the contrary, they incorporated major substantive norms of the Shari`a into the Civil Codes to rationalize Islamic law (especially its procedure), and without the hullaballou of the Islamic ideology. What we talk about when we talk about ‘the Islamic state’—the core concept of Islamism or political Islam—should not include Afghanistan or Iraq, whose recent constitutions merely repeat variants of the staple so-called “repugnancy” clause—i.e., non-contradiction of legislation and the Shari`a.