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Liberal Theory and Islam: (Re)Imagining the Interaction of Religion, Law, State and Society in Muslim Contexts

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Liberal Theory and Islam: (Re)Imagining the Interaction of Religion, Law, State and Society in Muslim Contexts Liberal theory and Islam: (re)imagining the interaction of religion, law, state and society in Muslim contexts Arif Aminmohamed Jamal A thesis submitted to University College London (UCL) for the degree of Doctor of Philosophy January 2010 I, Arif Aminmohamed Jamal, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. ________________________________ Arif A Jamal 2 Abstract Within the global phenomenon of the (re)emergence of religion into issues of public debate, one of the most salient issues confronting contemporary Muslim societies is how to relate the legal and political heritage that developed in pre-modern Islamic polities to the political order of the modern states in which Muslims now live. This study seeks to develop a framework for addressing this issue by drawing upon two sources. The first is an interpretative understanding of the history of Muslim contexts emphasising, in particular, the diversity of views about what Islam mandates that have always been a part of Muslim experience and the distinction between political and religio-legal authority that developed in practice in these environments. The second source is a variety of contemporary liberal theory which this study develops and calls ‘justice as discourse’. The central argument is that liberal theory, and justice as discourse in particular, though it may have emerged in a different social and cultural milieu, can be normatively useful in Muslim contexts for relating, religion, law, state and society. It is argued first, that Muslim contexts are facing issues similar to those out of which liberal theory emerged. Additionally, it is argued that both Muslim contexts and liberal theory are dynamic and continually developing and that this shared dynamism means that there may be space for convergence of the two. Just as Muslim contexts have developed historically (and continue to develop today) the same is the case with the requisites of liberal theory and this may allow for liberal choices to be made in a manner that is not a renunciation of Muslim heritage. 3 Acknowledgements This thesis owes much to many. Some supervisors function mainly as intellectual comrades and guides, some are more sharply interlocutors; others make their major contribution in supporting the person behind the study. My supervisor, Professor Alison Diduck, did all of these things and she had the wisdom to know when, and in what measure, to guide, to challenge and to support. My thanks to her are enduring. I also thank Professor Cécile Laborde, who acted as my secondary supervisor, for her review and comments on various parts of the thesis. Other faculty at UCL were also willing to withstand my pestering. I would therefore like to express my appreciation to Professors Andrew Lewis and Riz Mokal for their support and sage advice. My friends at UCL provided intellectual, psychological and emotional support without which I am sure I would not have been able to see this work through to completion. To Joyce Chia, Tomoko Ishikawa, Gijsbert ter Kuile, Sharon Kaur and Meena Bhamra, I express my gratitude. Two other friends from outside UCL also listened to and challenged me and so to Anise Waljee and Farid Panjwani, the latter in particular for forcing me to realise my own convictions more clearly, I offer my sincere thanks. I must also acknowledge the generous scholarship support I received from the Institute of Ismaili Studies, London to undertake this work, and especially thank its former Director, Professor Azim Nanji (now of Stanford University), for relentlessly encouraging me to pursue a PhD. I also thank the Islamic Legal Studies Program at Harvard Law School for affording me the opportunity to spend a very enriching academic year at Harvard at the beginning of this study and especially thank Professor Roy Parviz Mottahedeh of the Harvard faculty for his time during that year. To my family in Canada – my parents, brother and sister-in-law and my two darling nieces – I am nearly at a loss for words to express my deepest gratitude for all that they have done. Their hopes, dreams and prayers, especially when things got difficult, have given me so much and have meant so much. And always will. Finally, to ‘FK’ (who in the course of this project became ‘FJ’): you have chosen to believe in me in this and in life generally. Your support and love helps to sustain me and gives me succour. I thank you from the bottom of my heart. To borrow a line from Vikram Seth, “To these I owe a debt past telling.”1 I only hope that I have been able to do them some measure of justice. 1 See the dedication in Vikram Seth, A Suitable Boy: a novel. New York: Harper Collins Publishers, 1993. Seth manages to make his dedication in rhyming metre; I could never hope to do that! 4 Table of Contents Abstract....................................................................................................................... 3 Acknowledgements.................................................................................................... 4 Introduction i. The challenge................................................................................................ 8 ii. The structure................................................................................................. 13 iii. The approach................................................................................................. 16 iv. The contribution............................................................................................ 17 Chapter 1. Liberal Theory I: Developing the concept of justice as discourse 1.0 Introduction.......................................................................................................... 19 1.1 The challenge of diversity: liberal theory’s normative commitment...... 20 1.1.1 Liberal and theological responses........................................ 23 1.1.2 Rawls’ Political Liberalism................................................. 26 1.1.3 Responses to and critiques of Rawls................................... 32 1.2 Alternatives to Rawls’ theory.................................................................. 43 1.2.1 Theologically-oriented positions......................................... 43 1.2.2 Wolterstroff’s consocial position......................................... 47 1.2.3 Habermas’ refinement......................................................... 49 1.2.4 Weithman’s two propositions.............................................. 56 1.2.5 Ladd’s critique of liberal absolutism................................... 60 1.3 Constructing a theory: justice as discourse............................................. 62 1.4 Justice as discourse versus alternatives................................................... 67 1.4.1 Bader’s ‘priority for democracy’......................................... 68 1.4.2 An-Na‘im’s ‘civic reason’/’public reason’.......................... 70 1.5 Conclusion............................................................................................... 73 Chapter 2. Liberal theory II: Justice as discourse in application 2.0 Introduction............................................................................................................ 75 2.1 Justice as discourse and classical liberal theory....................................... 76 2.1.1 Diversity................................................................................ 76 2.1.2 Neutrality............................................................................... 80 2.1.3 Limits..................................................................................... 82 2.2 Justice as discourse and the Secular.......................................................... 84 2.2.1 Secularism.............................................................................. 84 2.2.2 Secularisation......................................................................... 88 2.3 Implementing justice as discourse: axes of state, law, civil society and politics....................................................................................................... 94 2.3.1 Executive, bureaucratic and judicial authorities.................... 94 2.3.2 Legislative provisions............................................................ 97 2.3.3 Civil society: community organisations, NGOs.................... 98 2.3.4 Political reasons..................................................................... 100 2.4 Conclusion................................................................................................. 102 5 Chapter 3. Muslim Contexts I: History and heritage 3.0 Introduction............................................................................................................. 107 3.1 Why use the term ‘Muslim contexts’?....................................................... 109 3.2 What is the same and what is different about Muslim contexts................ 113 3.3 The politico-legal legacy of Muslim contexts........................................... 121 3.3.1 Muhammad: the Prophet, the Leader and the Lawgiver........ 121 3.3.2 After the Prophet: Power, law and religion............................ 126 3.3.2.1 Succession to Muhammad: the early caliphs and the emergence of the Sunni and Shia traditions.............. 126 3.3.2.2 After the Rightly Guided – Early dynasties.............. 129 3.3.3 The development of the law: the schools, the fiqh, and usul al-fiqh.....................................................................................
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