Theorizing Islamic Constitutionalism - Dr. Asifa Quraishi | Spring 2016 Bayan Conference

I like them I am very honored to be here

and very proud of Diane I am on the

board of trustees I'm a teacher I've

taught classes here and also an academic

committee so this is very nice to see

this live so and be part of it so um I'm

going to take us a step back we've had a

lot of specific examples of areas where

we've heard a psalm or some akash

idiotic has problems with some of our

sensibilities about what's right from

our own Muslim perspective of human

rights perspective or whatever um the

idea of Islam and religious freedom if

you say it to a cabdriver somewhere

they'd be like what isn't that like the

thing Islam was really bad at right so

we have lots of examples in the world

where were pointed to as areas where

this is not about religious freedom

examples of a person of religious

minorities all the blasphemy and

apostasy stuff that we've just seen or

even just governmental banning of music

or imposing a dress code this doesn't

seem to be very much about freedom and

so Muslims are you know addressed as you

bad at this this is not what you're all

about and this conference has talked a

lot about individual areas where we can

rethink some of the classical position

or reveal as he just did that the

classical position may not be is

negative is as if it portrayed but

that's a little too micro for me I'm a

constitutional scholar and theorist and

I want to back up to see the forest here

a little bit I'm all for that rethinking

I've done a little bit of myself but I'm

I've noticed that a lot of the problem

with the oppression that comes out of

all of these laws being enacted and

applied is actually a problem that's

much more rooted in a failure to be

constitutionally creative and so I want

to open that up a little bit and explain

why I think that is and where it

happened and maybe what we can do to fix

it so I want to start with this basic

major assumption that nobody seems to be

questioning and and it's become very

dangerous as these examples that we've

seen and that one assumption that nobody

seems to be questioning at least that is

a very popular level is the nation-state

the inside of a nation

government is a European colonial import

that we are we've inherited in the

muslim-majority world and what is that

well the main feature of this that I

want to focus on is the idea that law is

centralized with the state the state

controls all lawmaking and they enforce

all lawmaking there's it's all bound up

with some modern concepts today that are

very popular like equality one law for

all everybody has the same laws applied

to everybody and then the state is can

control of all of those laws if you

combine that proved that very strong

assumption with another assumption that

more educated Muslims to know that this

isn't true but it's still very pervasive

around the world and that is the Islamic

law even using the word law is

problematic Islamic law is a code of law

it's a collection of laws the fixed

collection of laws you would go

somewhere so if you put these two

assumptions together you get the idea

that an Islamic government is a

government that would enact and apply

those laws to everybody and that's where

you get this like everybody has to have

the same dress code everybody has to

follow the same particular

interpretation of some Islamic law on X

Y or Z and I think that's not just a

huge mistake but it is not faithful to

our own heritage our own Muslim heritage

our pre colonial experience so I want to

show you how to deconstruct all of that

and maybe question this this template

that's been handed to us through the

modern colonial era so I have a

PowerPoint that I'll try to get through

here and it's a summary of some basic

concepts that should be familiar to you

but I'm also trying to illustrate

visually I have been diagrams too and

they move so mine are better than yours

so and it's a use it in class so my

students who are here those who see me

give this talk before our variation on

this talk this will be familiar but this

is I'm trying to take these ideas and

apply it specifically to the question of

religious freedom and promote something

a new way of thinking about this I think

so let's go ahead am i doing the clicker

on this then okay so this is what we

think of as government and this is what

we tend to think of as law and it's it's

a European import it comes from up in

the history but the idea that that a

nation is a community that's relatively

homogeneous ethnically religiously etc

and so then the state that is that

nation-state is the one that makes laws

for them we have divided the power up in

this

with this separation power stuff fine

okay that moderates it a little bit but

it's still all centralized at the state

I want to point out how that's very very

different oh one little point here

anything that is non-state law exists

may be morals ethics may be tribal

customary law but it's the the plank is

off the radar of anything that's

considered official law in any way

that's recognized and accommodated in

any real way if you want to be

recognized you got to get into that big

green circle in the middle somehow so

this I want to say is very different

from how law was understood for Muslim

societies in the pre-colonial period now

that's a huge period obviously in a huge

different Geographic space I'm trying to

point out commonalities and common

themes that I see when I look at this

whole vast history of 1,400 years across

many many places and this has been

alluded to in several of the talks

already but I hope I'm going to give you

some structural features to understand

it better there's two types of law one

is the interpretation of Scripture from

the Quran hadith everything else all the

tools I'll talk a little bit more about

that and that law is the fifth and we

arrive at it from through process of HT

hat I don't have to go into all the

definitions of that for this audience

the other kind of law also existed but

it was not the product of religious

interpretation of scripture it was the

product of rulers those who physically

ruled the land and the justification for

that being legitimate law from a study

on perspective is that it serves the

musca it served the public good for them

to exist and that that was legitimacy of

cxeh the authority of the ruler now how

did it get to this and how on earth

would you work a system that has these

two kinds of little actually I think

this is the genius of Muslim legal

history so just takes elaborated a

little bit to see how this all fits

together again this is familiar to most

of you is just a pictorial of this but

the idea we start with this idea there

is a shitty art there is a way that God

wants us to be in this world and we have

information about that from two sources

textual sources Quran and then the

example of the Prophet Muhammad SAW some

who that was put into textual form for

us an elaboration of the details of that

is going to take a little bit of work it

doesn't answer every single

so we go through the process of agency

had to interpret extrapolate and come up

with fit and again not a news for this

audience which is to reiterate for

everybody

funk is not the same word as shitty yeah

shoddy ha is God's Way so is literally

understanding of God's way and that is

extremely significant to understand the

nature of the epistemology of Islamic

jurisprudence so I want to re-emphasize

that the idea that the word the

conclusions they were drawing for what

the rules would be for every little

detail do I need witnesses for this

contract can I buy this property am I

legitimately married or not all these

details were interpretations of

understanding that were developed with

these all these arrows that are coming

in they're developed with tools of it

see how this is all this Sewell effect

tools that were created to develop the

folk but significantly you had as we

just saw an example of more than one

person doing this interpretation and

when you have more than one person doing

interpretation of original text you are

not going to get just one little purple

circle down here you're going to get

quite a few so the reality of should EMF

for Muslims is that we are always trying

to get there and understand it but we

can never actually touch it the metaphor

I give to my servant that my students is

like should he has like a recipe it's

God's recipe for how to live a good life

but you can't taste a recipe you can

only taste a chefs making of that recipe

and that that manifestation will be

different depending on the chef

depending a little Keysha depending on

the style of cooking etc so Sharia is I

can only see it through the methodology

of one of those schools and I've given

you some there were hundreds over

history and we have seen an example many

examples today of new HD had on some of

these same questions which may form news

holes or new variations on these schools

who knows but it's not something

tangible and this this diagram is

fundamental to understand the nature of

Sharia nature of Islamic law again to

use an English word that v itself is

diverse inherently diverse the only way

that it can be is that it is diverse

because the fokaha the ones doing this

acknowledge their own human fallibility

right up front at the process so they

never spoke as if they were speaking for

God they explicitly said this is my

understanding but I'm not certain that

this can't be sure 100

10% that this is right it's possible

that I'm wrong and therefore I have to

respect the other interpretation over

here and hence you have these diverse

schools that gets confusing because how

do you run a society with all these

diverse schools well there's this other

kind of law that existed so the

difference between these two types of

law is that they were answering to

different aspects of society and I like

to think of them as two arms of a shitty

ahh gruel of law the whole thing is all

still trying to serve God's justice in

some way it's not secular and religious

because the Cs of rulers definitely

thought of themselves as religious

rulers it wasn't a separation of church

and state that to hold different

phenomenons we just heard at lunch but

they did separate themselves in

authority and they from the time of the

mana they separated the rulers are not

the ones to tell us what Scripture means

it's fundamental to our history

the scholars tell us what it means and

by the way they do it in this very

diverse way and I as a Muslim can choose

which of those makes the most sense to

me to me by the way that's a fundamental

piece of Muslim religious freedom I

choose which fifth to follow you can't

force me which school I choose that is

fundamental to the nature of knowledge

of we don't know God's Way for sure we

have to allow individuals to choose

that's religious freedom for me as a

Muslim the relationship with these two

gets very interesting I have some

characters on the side I mean we talk

about the different entities the

institutions are built up around these I

won't spend a lot of time but suffice to

say the two operated in relationship

with each other sometimes tension

sometimes cooperation rulers over

various areas that had more than one

population of schools under their

jurisdiction would appoint odd these

judges from those different schools so

that individuals could go I have a

marriage to speed happen to be maybe I'm

a Shafi so I would find a chef a judge

in my area my neighbor happens to be a

henna fee she goes to a Hanif you judge

we live in the same space but we have

different v that applies that by the way

this allowed non-muslim religions to

also exist without changing the entire

system altogether because a rabbinical

court could operate very much for the

Jewish community as a henna feet

corridor Shafi court doesn't change the

overall system because the system

accommodates for those diversity what

was the acid do

the answer were things that are not

based on religious interpretation of

Scripture things like we would think

today zoning health code laws you know

what which side of the street are we all

going to drive on there's nothing in the

Quran and hadith is going to tell me

what to do in that situation but

nevertheless it's very important for the

public good for the safety that we all

drive on the same side of the road so as

Sherman Jackson says what's the Islamic

speed limit right there's no scripture

on this question but we still need a

rule about it that's the CIO

responsibility and it's legitimate

because it's based on the public good

okay so they're very different in nature

inherently folk is diverse it is opt-in

opt-out nobody's going to force you one

way or the other

see ASSA tended to be very uniform it

was the fit was partly you ruler

enforced partly self enforced that's the

relationship between if I'm going to a

Mufti or I'm going to apology right if

I'm going to Mufti I can go to a

different movie if I don't like that

answer but if I have a legal dispute

where I need a party to actually resolve

it then the power of the state is behind

that judgment and now the ruler is

enforcing it but again it's done with a

recognition of the diversity of the fact

it was never done where one school was

applied to everybody all the time under

the entire jurisdiction or at least if

that happened it was very very rare in

Muslim history so this is where the

moving parts come fundamentally

different transformation in the

contemporary era as I said the colonial

inheritance is from this model so when

this is left over after independence and

you have Muslim communities with some

political parties saying hey where're we

going to get our salon back they took it

away from us where's the yeah this

isn't this is French law this is Europe

this English law how do we get it back

well they're not questioning the

nation-state model they just say oh well

law is with the government and it's made

by the Parliament as a legislature so

what we need to legislate it so what do

they do they go mining the parts of fik

sometimes parts of different schools and

then they create what we call now often

should be our legislation

sometimes we crepe should have courts to

then adjudicate the laws that are being

challenged or used in these states and

all the diversity that has been endemic

in

Herenton islamic history is now off to

the side just like all that non-state

ethics and everything else in the

central system so if you compare the two

they are fundamentally different ways of

thinking about Authority and they're

fundamentally different ways of thinking

about law and what it's done is its

created the first time in Muslim history

Muslim theocracies because now we have

the state telling you what Aslam says

and using its police power to enforce it

on you and of non-muslims living under

you that is brand new that is a child of

colonialism there's a child of the

nation-state this is not where we came

from and yet we have just adopted it as

if it's yeah that's how government is

let's just make it Islamic so it's

taking the nation-state and dressing it

up in Muslim clothing passing a few laws

that sound Islamic just goes hide your

crimes and maybe some blasphemy stuff

and who carries it for misquoting what

we got it sounds Muslim this is

extremely dangerous and I think it has

fundamentally changed the way that

Muslims think about government and think

about Islam and think about fit to the

detriment not only of individuals who

are suffering under some of these

applications but to the point where we

don't even understand that Authority

that we're using is actually a

misapplication of I think a much more

creative way to deal with diversity

religious diversity ethnic diversity

everything else that the rest of the

world is now wrestling with at a very

very macro level we actually had answers

to this a long time ago so we had

accommodation to the point where even

something that was considered

fundamentally immoral at the level of

Islamic think would be tolerated in this

society we get one example it's pretty

well known that the focal has said that

it is not appropriate for the state to

enforce Muslim marriage norms on even

marriages where the religion allowed

incestuous mother to son marriages okay

if it's in their religion we are going

to tolerate that one of those other

circles in there that now if you think

about what we think about Islamic

government today that is absolutely

opposite to what we think we think oh

they're going to take their immoral

version of what religion is

and marriages and they're going to make

everybody else follow it but no in

Muslim history there that was tolerated

as real a respect for those religious

differences by the way the the internal

wrestling that the United States has had

recently with same-sex marriage I think

as a direct result of the legislation of

Christian norms of marriage and morality

into our state law and that is not what

happened in Muslim history so I just

want to point that out and I want to say

that that if we were to go back and be a

lot more creative about how we allocated

Authority and really think

constitutionally big we would solve a

lot of these problems is separate from

the reinterpretation of the actual thick

because what would happen is you can

have a lot of diversity of fik but a lot

of this becomes not the business of the

state and so it's not the same problem

anymore that we have today so when I

leave you with that one clarification on

my title I've been working on this

project a long time before Isis showed

up so when I say Islamic state I'm just

talking about the nation-state Islamic

state Pakistan all these others

Isis is morph that term completely I'm

just dealing with this idea of state

borrowed from nation-state and then say

Islamic on top of that so my project is

much different it's a more I call it

Islamic rate constitutionalism

and I think that it is as I said not

theocratic not secular and also not

impossible thank you

you