Who Owns Islamic Law?

If all goes according to plan, Iraqi political leaders will gather this year to forge a new national constitution. It is easy to imagine many things that might shipwreck the process. Near the top of that list: Will Iraq's political forces manage to find a consensus about what role, exactly, Islam should play in the public sphere?
That question has created deep tensions within Islamic reform movements for more than a century. Certain persistent strains of Muslim thought insist that an authentically Islamic nation must enforce Shariah -- traditional religious law -- in all spheres of life, from banking to inheritance to the performing arts. Muhammad Kamaruzzaman, the assistant secretary general of an Islamist party in Bangladesh, recently wrote an essay celebrating democracy, but adding that "Islam does not accept the idea of separation of state from religion." Other Muslim activists, citing the recent unhappy history of Afghanistan and Iran, insist that lines must be drawn between mosque and state -- even if those lines do not look exactly like Western secular pluralism.
For outsiders, it is tempting to caricature this debate as a contest between Taliban-style radicals and Western-style liberals. (And there are indeed authentic representatives of both those camps in Iraq today.) But the terrain is actually far more complex than that. There are dozens of strains of traditionalist and liberal thought in the Muslim world, each looking toward different conceptions of Shariah and drawing on different elements of Islamic history and jurisprudence.
Now a few prominent liberal scholars are aggressively promoting a concept that they believe can nurture democracy and allow an authentic Islam to thrive in the modern world. Islam can regenerate itself, these scholars say, if it returns to the principle of ijtihad.
The Arabic term -- which literally means "strenuous effort" -- has historically referred to the practice of systematically interpreting Islamic religious texts in order to resolve difficult points of law. (In an oft-cited example, early Muslim jurists strove to interpret an ambiguously phrased Koranic verse about how long a divorced woman must wait before remarrying.) In the early centuries of Islam, ijtihad was confined to an elite set of scholars and jurists (mujtahidin) with rigorous training in the religion's texts and laws. Beginning around the 12th century, most Muslim communities restricted the practice even further: Some juridical schools declared outright that "the gates of ijtihad have been closed," while other regions limited the practice of ijtihad to questions of the family and everyday life.
Today's proponents of ijtihad take a far more expansive view. "There will be no Islamic democracy unless jurists permit the democratization of interpretation," wrote M.A. Muqtedar Khan, a professor of political science at Adrian College, in a 2003 essay. In Mr. Khan's view, political elites in the Muslim world have for centuries restricted the development of democracy and political accountability by hiding behind religious principles that they proclaim to be fixed in stone. Mr. Khan argues, in effect, for an end run around the entire traditional apparatus of Muslim jurisprudence. Believers should instead, he suggests, look directly to the Koran and to the practices of Muhammad and his companions, and use their own efforts at interpretation to build ethical communities.
Mr. Khan is not alone in this general approach. He and four other scholars gathered at a 2004 conference on ijtihad, sponsored by the United States Institute of Peace. "Is ijtihad part of the expanding democratic culture of the Muslim world?" asks Muneer Fareed, an associate professor of Islamic studies at Wayne State University, who also spoke at the conference. "Or will it remain the forte of an exclusive group of intellectuals? These are some of the fundamental questions that people are asking today."
But other prominent scholars -- including some who share Mr. Khan and Mr. Fareed's urgent interest in pluralism and democracy -- have deep doubts about the ongoing conversations about ijtihad. Certain formulations of the ijtihad model, these skeptics say, are ahistorical and counterproductive. "Part of what hobbles their argument is that they're nonjurists," says R. Michael Feener, an assistant professor of religious studies at the University of California at Riverside. "They're nonlaw people talking about law."
Instead, Mr. Feener suggests that Muslim reformers should embrace, not discard, the heritage of Islam's traditional schools of jurisprudence. Other skeptics point to a striking irony: The ultratraditional Salafist movements associated with Al Qaeda -- who are in some sense the polar opposite of the liberal enthusiasts of ijtihad -- use very similar language about scrapping the vast corpus of Islamic legal commentaries and returning to the original texts.
Worlds Away From Wittenberg
The reformist interest in ijtihad is not new. For more than a century, Muslim scholars and activists have cited the concept as they have tried to respond to the trauma of colonialism and its aftermath. In his 1934 book The Reconstruction of Religious Thought in Islam, Muhammad Iqbal, the poet known as the spiritual father of Pakistan, argued for transferring "the power of ijtihad from individual representatives of [legal] schools to a Muslim legislative assembly," which would build toward "spiritual democracy which is the ultimate aim of Islam."
The latest proponents celebrate a much more inclusive model of ijtihad. No jurist can single-handedly interpret Islam, Mr. Khan says. "My argument is that Shariah should be by shura," or consultation, he says. "We should all consult among ourselves and conclude what God is telling us. ... Interpretation of God's message is the quintessential quality of humanity. To take away from me my right to interpret Islam, you have to deprive me of my humanity."
Even non-Muslims, Mr. Kahn says, should be permitted to participate in the process of ijtihad. "Islam belongs to all of us," he says. "It's not that Muslims own Islam, or that Muslim men own Islam, or that Muslim jurists own Islam."
Mr. Fareed cautions against making any glib historical analogies between ijtihad and Protestantism. "It certainly doesn't help to look for a Luther in Islam," he says. While Christian debates have historically centered on questions of doctrine and faith, he points out, Islam (like Judaism) tends to be consumed with debates about practice and ritual.
Among Muslim immigrants in the West, Mr. Fareed continues, debates about everyday practice -- such as whether it is permissible to pay interest -- have become very open and wide-ranging, thanks in part to the Internet. And as Western Muslims use ijtihad to debate such relatively quotidian questions, he says, they are also moving toward consideration of more fundamental questions about political structures and economic justice. Mr. Fareed hopes that these Western debates, couched within an Islamic vocabulary, will eventually provoke new kinds of conversations about democracy and political legitimacy in the heart of the Muslim world. (Last April Mr. Khan attended a scholarly conference in Saudi Arabia; when he returned, he wrote that he was, for the first time, cautiously optimistic that Saudi society was opening itself to "self-critical and reflective voices.")
Not all Muslim liberals, however, find the ijtihad model attractive. A very different strategy for working toward democracy and pluralism is put forward by Khaled Abou El Fadl, a professor of law at the University of California at Los Angeles. In Mr. Abou El Fadl's view, liberal Muslim scholars should revive, not dismiss, some of the longstanding threads of Islamic jurisprudence, looking carefully at historical cases in which Muslims have successfully built pluralist and relatively democratic societies.
Although Mr. Abou El Fadl's methodology is more elitist than Mr. Khan's vision of ijtihad for all, he also maintains that it will ultimately be more liberal. He wrote in a 2003 essay that basing government around consultation and shura, as Mr. Khan and his allies suggest, could lead to majoritarian tyranny. "Even if shura is transformed into an instrument of participatory representation," he wrote, "it must itself be limited by a scheme of private and individual rights that serve an overriding moral goal such as justice."
Mr. Abou El Fadl adds in an interview that he finds Mr. Khan's framework extremely ill-disciplined. "Instead of making the effort to study Arabic and study the texts," he says, "Muqtedar Khan is simply throwing around terms like ijtihad and mufti and fatwa. ... This kind of thing is why there's such a vacuum of authority. This is why we have people like bin Laden going around claiming to be Islamic."
If, as Mr. Khan suggests, ijtihad is truly open to all -- even to non-Muslims -- then what criteria, Mr. Abou El Fadl asks, can be used to distinguish sound doctrine? "If everyone's ijtihad is as good as anyone else's," he says, "then bin Laden's ijtihad is as good as Muqtedar Khan's."
"In its pristine form, shura was consultation on a patriarchal or tribal basis," says Emran Qureshi, a fellow at Harvard University's Carr Center for Human Rights Policy, who is sympathetic to Mr. Abou El Fadl's position. "It's difficult to tie a notion of modern democratic practice to that notion."
Mr. Khan, for his part, finds this position impossibly elitist. In a 2004 article, he charged that Mr. Abou El Fadl's model of liberal jurisprudence "allows the intellectual colonialism of Islamic legalism -- its tendency to engulf and marginalize other fields of study -- to subvert his quest for an Islamic democracy."
A middle ground of sorts is offered by Ingrid Mattson, a professor of Islamic studies at the Hartford Seminary. Ms. Mattson argues that there should be a wide scope for popular ijtihad, but adds that the process should be watched over by well-trained Islamic legal scholars. "The proper role of scholars and religious and legal specialists," she says, "is simply to point out when certain boundaries are being crossed. Not to dictate the process of ijtihad, but to monitor it in a way that is helpful and supportive of the development of society."
Political Convergence
All parties in this debate over ijtihad emphasize that their ultimate political visions are similar: They would like to see majority-Muslim countries develop democratic and accountable institutions, and to combine authentically Muslim cultural values with ample protection for individual rights and religious minorities.
Yet the devil emerges in the details. If even scholars with such harmonious visions find themselves tangled in argument, how much more difficult will it be for Iraqi political leaders trying to forge a new constitution?
Part of the difficulty, says Mr. Qureshi, is that "secularism" has been so thoroughly discredited in the Muslim world by Kemal Atatürk's ruthlessly anticlerical regime in Turkey and by the later secular-authoritarian governments in Algeria, Egypt, Syria, and Iraq. Only in Iran, which has suffered under a clerical tyranny for decades, do reformers now commonly talk about secular pluralism.
The fundamental challenge for would-be democracy-builders in Iraq and elsewhere is the contested relationship between Islam and the public sphere, Ms. Mattson says. Where religious authorities and institutions once had breathing room from the state and their own spheres of influence, she says, colonial regimes brought everything under the heel of the government. (And their postcolonial successors have been happy to do likewise.)
The opposite dilemma sometimes arose in the early centuries of Islam, Ms. Mattson suggests. In certain communities at that time, she says, Muslim jurists were in a sense too detached from the state. They protected their independent spheres by "trying to stay out, to some extent, of what they considered to be the proper jurisdiction of the government or the ruler. And they also really did believe that politics was corrupting. ... So the jurists were sometimes very good at looking at the rights of individual slaves, yet they never really addressed the issue of the slave trade and its overall political and economic considerations."
This, then, is the dilemma for reformers today. Centrist Islamists and liberal reformers would like to develop a model in which Muslim institutions are independent from the government and vigorously inform public governance, but do not swallow all of society in a totalitarian project like the Taliban's.
"A postcolonial context requires new institutions," says Mr. Fareed, of Wayne State. "So a debate has been stirred. Will we simply remake classical institutions, or will we take into consideration the changes that modernity and colonialism have wrought on Muslim society, and engage in a new form of ijtihad to establish new institutions based on these changes?"
Eastern Winds
Mr. Feener, of Riverside, believes that there are exciting and productive debates occurring along just those lines -- but they aren't happening in the Westernized context that is touted by the ijtihad enthusiasts. Instead, he says, the most intellectually exciting place in the Muslim world today is Indonesia, where students are reading translations of "works translated from Egyptian and Moroccan thinkers. You find works from Iranian thinkers. You find translations of people working in the States, like Khaled Abou El Fadl. I would argue that Indonesians are discussing these writers more than anyone else in the Muslim world. ... They're also reading Frankfurt School types, like Habermas. People know them. People know these debates about civil society."
In Mr. Feener's eyes, however, there are important differences between these rich Indonesian debates and the ijtihad model put forward by Mr. Khan and his allies. In Indonesia, he says, "the basic approach that many of these folks take to Islamic law is by diving very, very deep into the historical tradition of Muslim interpretations. That is, they look at the debates that scholars have held among themselves over the last 1,200 years. The idea is to find places within the tradition -- variant opinions within the tradition -- that can be further developed, because their day has come. Islamic literature preserves this diversity of tradition."
The push toward ijtihad, by contrast, neglects the richness of Islamic legal history, in Mr. Feener's view. "This has been signaled by many in Indonesia as a kind of arrogance," he says. "The notion that you can see clearly the will of God in the seventh century in a way that all of these distinguished jurists who came before you couldn't. ... Imagining that you and you alone can see what was going on in the time of the Prophet has historically lent itself to a kind of authoritarianism in Islamic speech."
Mr. Khan, meanwhile, insists that the most urgent danger of authoritarianism lies in entrusting Islamic thought and interpretation to an elite corps of scholars and jurists. "There are some serious issues that Muslims have to deal with," he says. "One of them is that they have to reach a conclusion that shura is binding. Right now many scholars say, 'You have to consult,' but they don't really mean it. Shura has to be binding, otherwise the governance is not legitimately Islamic."
Mr. Khan acknowledges that his is very much a minority view. He is nonetheless excited about the current intellectual climate. "Two weeks ago I was at the Stanley Foundation and one-third of my audience was Muslims," he says. "Afterward we spent the whole night having a Muslim-Muslim dialogue. We disagreed about everything. But we did come to consensus on one point -- and that is that the discussions are getting more sophisticated. There is no doubt about it."