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Conceptualizing Shari'a in the Modern State Volume 56 Issue 5 Article 1 2012 Conceptualizing Shari'a in the Modern State Khaled Abou El Fadl Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Religion Law Commons Recommended Citation Khaled A. El Fadl, Conceptualizing Shari'a in the Modern State, 56 Vill. L. Rev. 803 (2012). Available at: https://digitalcommons.law.villanova.edu/vlr/vol56/iss5/1 This Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. El Fadl: Conceptualizing Shari'a in the Modern State VILLANOVA LAW REVIEW VOLUME 56 2012 NUMBER 5 Donald A. Giannella Memorial Lecture CONCEPTUALIZING SHARI'A IN THE MODERN STATE' DR. KHALED AEou EL FADL Shari'a, i.e., animated and evolving role that T theHIS systemArticle addressesof Islamic the jurisprudence collectively or generally, and Shari'a conceptions play in the contemporary world. There are various manifestations of this evolving role in the often dynamic, subtle, highly negotiated, and far from formalistic ways that Shari'a is animated in to- day's world. There are three main points that I will address in this Article. First is to provide some insight into the various ways that Shari'a has been mani- festing in the recent revolutions sweeping through the Arabic-speaking world, while at the same time contrasting the rather curious case of the various anti-Shari'a legislations proposed in parts of the United States, as well as some of the anti-Shari'a European discourses taking place. Second, I will address two basic conceptualizations of Shari'a that we find histori- cally not just persistent, but historically competing and often wrestling for space. Although these conceptualizations have clear points of demarca- tion and delineation, they are quite broad and disagree in some funda- mental and basic assumptions, particularly in epistemological, as well as ontological and deontological, assumptions. Finally, I will address the way that the assumptions of each of these conceptualized perspectives or schools of thought in Shari'a have expressed themselves in various ages and historical contexts. Indeed, we find that there are very particular at- tributes or particular characteristics to the way that each conceptualized view of Shari'a expresses itself in various historical contexts. Before addressing the dynamics directly relevant to the conceptualiza- tion of Shari'a and its role, I would like to explore further the multi-fac- eted ways that Shari'a, in general, interacted especially with the Egyptian Revolution. Analyzing these interactions will help us in identifying what may be described as the "living and lived traditions" of Shari'a and the 1. This Article is based upon the Donald A. Giannella Lecture delivered by the author at the Villanova University School of Law on March 23, 2011. (803) Published by Villanova University Charles Widger School of Law Digital Repository, 2012 1 Villanova Law Review, Vol. 56, Iss. 5 [2012], Art. 1 804 ViuVANOVA LAW REVIEW [Vol. 56: p. 803 articulation of theoretical normative models for the role that Shari'a is supposed to play.2 I will start with some elaborations on observing the obvious. Anyone following the world today must be struck by some extremely powerful and memorable images. On the one hand, there is the striking image of Tuni- sians, Egyptians, Yemenis, and Libyans standing together in hundreds of straight lines of prayer, especially in the case of Egypt in Tahrir Square, where people are prostrating and standing up in tandem in a remarkable show of religiosity and solidarity. On the other hand, the collective prayer is not exclusively a religious ritual congruent with an aspiration for a par- ticular theological or theocratic state. Rather, it is done in the context of expressing religiosity in the midst of political dissent-an act that from the perspective of, for instance, Wahhabi Islam or puritanical Islam is seen as fundamentally a-religious and fundamentally contrary to God's purposes. While it would be inaccurate to claim that this display of religious symbol- ism was simply an expression of cultural proclivities devoid of normative ideological commitments, the Egyptian Revolution and the rebellions and revolutions sweeping through the Arab world place into focus the role of religion, and more specifically Shari'a, in the modern state. So, for instance, it is an invitation for reflection and study that in past revolutionary occasions across the Arabic-speaking world, the traditional call or slogan in various events of social empowerment was "Allahu Akbar' ("God is Greater"). But in the recent events from Tunisia to Egypt to Libya, Yemen, Bahrain, Oman, Jordan, and Syria, the traditional Islamic call of "Allahu Akbal' was consistently bolstered by calls for "Hurriya, hur- iya!" ("Liberty, liberty!" or "Freedom, freedom!"). The crowds would cheer "Allahu Akbai' and then "Hurriya, hurriya!" alternating between the two. In all of the revolutions, except perhaps the Libyan one for obvious reasons, the crowds also added "Silmiyya, silmiyya!" ("Peacefully, peace- fully!"). Depending on the occasion, circumstance, or context, we could find that the phrasing could alternate between "Allahu Akbar!", "Hurriya!", and "Silmiyya!". What is the animated association or relationship between liberty, peace, and God's supremacy in the collective consciousness of Muslims in this case? Furthermore, one cannot fail to notice that the pace of many of the revolutions going forward in the Arab world was regulated by the Friday congregational prayers, such that the very developmental stages of the rev- olutions were organized around the weekly services. In Egypt, for exam- ple, there was one week designated as "the week of endurance," named after the Friday congregational prayer (known as jum'a). Thus, we have jum'at al-or "the Friday of' endurance, the Friday of perseverance, the Friday of liberation, the Friday of victory, and so on. Far from being a 2. My discussion of the Egyptian Revolution draws upon a previous article. See generally Khaled Abou El Fadl, The Language of the Age: Shari'a and NaturalJusticein the Egyptian Revolution, 52 HARv. INT'L L.J. ONLINE 311 (2011), http://www.harvard ilj.org/2011/04/online_52_el-fadl/. https://digitalcommons.law.villanova.edu/vlr/vol56/iss5/1 2 El Fadl: Conceptualizing Shari'a in the Modern State 2012] SHARI'A IN THE MODERN STATE 805 formalistic process of labeling, these designations grew out of the very powerful normative dynamics of the congregational prayers as being vehi- cles for moral and social solidarity, collective aspirations, and mobiliza- tion. The reason that the pace of the revolution is regulated by such Islamic symbolisms is that the sermons given at these congregational prayers act as powerful rallying points. Indeed, if you study the history of political rebellion, whether pre-modem or modern, one of the most con- sistent and systematic difficulties that political powers experience in regu- lating Muslim polities is exactly the Friday congregational prayer. They try to regulate, control, manipulate, and direct it in a variety of ways. Yet, when you observe the recent revolutions, you see exactly why that intense concern about the congregational prayer on Friday continues. These Fri- day prayers are nearly an automatic rallying point for Muslims of various classes, various orientations, and various ideological persuasions. Now, add to this picture the very powerful symbolic, as well as spiri- tual, impetus in the revolutionary discourses of today's Islamic world-as well as in the rebellions against colonialism by various Muslim populations in the eighteenth, nineteenth, and twentieth centuries, and centuries before that in various conflicts: the very powerful imagery of the martyr. One of the contested spaces and powerful religious symbolisms is the la- beling of those killed in the revolutions as shuhada', or those who bear witness in martyrdom on behalf of God. In the case of the Egyptian Revolution, for instance, the point at which one realized that the revolu- tion was won was the point at which the Egyptian government accepted referring to those killed in the revolution as martyrs. In Yemen and Libya today, both sides are contesting this exact space of who earns this ex- tremely honorific, significant, powerful, and moving designation of the shahid, or the martyr. All of the above, in the view of some commentators, is an indication of ideological commitments that are fundamentally and profoundly incon- sistent with liberal democratic commitments, and perhaps even liberal hu- manitarian commitments. In my view, such commentators-both Muslim and non-Muslim-suffer from having highly mechanistic and formalistic ways of properly understanding "the other" in general, but in this case, the "other Muslim" or the "Muslim other" in particular. Without citing nu- merous examples of this, one can imagine an interlocutor arguing that because in these various revolutions, one of the rallying cries is "Al-shahidu habibu Allah," or "Martyrs are the closest or the most beloved to God," and because this is the same rallying cry we have heard in other radical con- texts, then this must mean that these revolutions have ideological commit- ments of various social orders, theocratic social orders in particular, that are Shari'a-based in one form or another. Of course, I would describe this argument as formalistic and dogmatic, but most importantly, it is highly inaccurate. At the same time that these various Islamic symbolisms-or what I call animations of Islamic moral commitments and moral under- standings-cannot be claimed to be devoid of ideological understandings Published by Villanova University Charles Widger School of Law Digital Repository, 2012 3 Villanova Law Review, Vol. 56, Iss.
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