The Islamic Secular (2017)*

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Sherman A. Jackson

Keywords

Abstract

It is common to assume an inherent conflict between the substance
of the category “religion” and the category “secular.” Given
its putative rejection of the separation between the sacred and
the profane, this conflict is presumed to be all the more solid in
Islam. But even assuming Islam’s rejection of the sacred/profane
dichotomy, there may be other ways of defining the secular in
Islam and of thinking about its relationship with the religion.
This is what the present essay sets out to do. By taking Sharia as
its point of departure, it looks at the latter’s self-imposed limits
as the boundary between a mode of assessing human acts that
is grounded in concrete revelational sources (and/or their extension)
and modes of assessing human acts that are independent of
such sources, yet not necessarily outside God’s adjudicative gaze.
This non-shar`ī realm, it is argued, is the realm of the “Islamic secular.”
It is “secular” inasmuch as it is differentiated from Sharia as
the basis for assessing human acts. It remains “Islamic,” however,
and thus “religious,” in its rejection of the notion of proceeding
“as if God did not exist.” As I will show, this distinction between
the shar`ī and the nonshar`ī has a long pedigree in the Islamic
legal (and theological) tradition. As such, the notion of the Islamic
secular is more of an excavation than an innovation.


*This article was first published in the American Journal of Islamic Social Sciences 34, no. 2 (2017): 1-31

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References

Endnotes
1 Of course, “religion” also generates its share of definitional ambiguity. See, for example,
R. T. McCutcheon, “The Category ‘Religion’ in Recent Publications: A Critical
Survey,” Numen 42, no. 3 (October 1995): 284-309; J. Z. Smith, “Religion, Religions,
Religious,” Critical Terms for Religious Studies (Chicago: University of Chicago Press
1998), 269-84.
2 According to T. N. Madan, “the word ‘secularization’ was first used in 1648, at the
end of the Thirty Years’ War in Europe, to refer to the transfer of church properties
to the exclusive control of the princes.” See his “Secularism in Its Place,”
Secularism and Its Critics, ed. R. Bhargava, 6th ed. (New Delhi: Oxford University
Press, 2007), 297. According to Madan, the Englishman George Jacob Holyoake
coined this term in 1851. See Madan, “Secularism,” 298. According to Ashis Nandy,
Holyoake coined it in 1850, a time when it was still “accommodative of religion.”
See his “The Politics of Secularism and the Recovery of Religious Tolerance,” in
Secularism and Its Critics, 327. The Thirty Years’ War was a devastating religious
conflict, ostensibly between Protestants and Catholics, that claimed several million
lives and ended with the Peace of Westphalia. I note for the record the dissenting
view of W. Cavanaugh regarding the significance of Europe’s wars of religion. See
his The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict
(New York: Oxford University Press, 2009), 123-80.
3 J. Casanova, “Secularization Revisited: A Reply to Talal Asad,” Powers of the
Modern Secular: Talal Asad and His Interlocutors, ed. D. Scott and C. Hirschkind
(Stanford: Stanford University Press, 2006), 19-20. Casanova mentions, incidentally,
Confucianism and Taoism as examples in this regard.
4 Cited in C. Taylor, “Modes of Secularism,” Secularism and Its Critics, 34.
5 See note 2.
6 J. Israel, Enlightenment Contested: Philosophy, Modernity, and the Emancipation of
Man 1670-1752 (New York: Oxford University Press, 2006), 64.
7 Israel, Enlightenment Contested, 65.
8 N. Stolzenberg, “The Profanity of the Law,” Law and the Sacred, ed. A. Sarat, L.
Douglas, and M. M. Umphrey (Stanford: Stanford University Press, 2007), 34.
9 S. Wolin, Politics and Vision: Politics and Change in Western Political Thought
(Princeton: Princeton University Press, 2006), 147.
10 See, for example, M. Zurqa, Fatāwā Muṣṭafā al-Zarqā (Damascus: Dar al-Qalam,
1420/1999), 405.
11 For example, while Ibn Rushd cites unanimous consensus on the ban on Muslims
inheriting from non-Muslims, the Hanbalis Ibn Taymiyyah and Ibn Qayyim al-Jawziyyah
incline toward allowing converts to inherit from their non-Muslim relatives,
partly in light of their recognition that this ban was functioning as a bar to Islam.
See Ibn Rushd, Bidāyat al-Mujtahid wa Nihāyat al-Muqtaṣid (Cairo: Dar al-Fikr, n.d.),
2:264; Ibn Qayyim al-Jawziyyah, Aḥkām Ahl al-Dhimmah, 3 vols., ed. A. al-Bakri and
A. al-’Aruri (Dammam: al-Ramadi li al-Nashr, 1418/1998), 2:853-72, esp. 2:253-58.
12 One might make a case for the maẓālim courts as a formally recognized, secular
forum. But they were more an alternative régime of enforcement, not an alternative
régime of law per se. This is certainly the impression one gets from such authoritative
descriptions as that of al-Mawardi. See Abu al-Hasan Ali b. Muhammad
al-Mawardi, Al-Aḥkām al-Sulṭānīyah wa al-Wilāyāt al-Dīnīyah, ed.
A. al-Baghdadi (Kuwait: Maktabat Dar Ibn Qutaybah, 1409/1989), 102-26. On page
15, for example, he explicitly states: “Maẓālim jurisdiction does not recognize rulings
disallowed by the religious law” (naẓar al-maẓālim lā yubīḥ min al-aḥkām mā
ḥaẓarahu al-shar`).
13 For example, the modern jurist Muhammad Abu Zahrah insists that “there is unanimous
consensus to the effect that the ḥākim in Islam is God the Exalted and that
there is no religious law (lā shar`) except from God.” See his Uṣūl al-Fiqh (Cairo:
Dar al-Fikr al-Arabi, n.d.), 63.
14 T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford
University Press, 2003), 21-66.
15 J. Casanova, “The Secular and Secularisms,” Social Research 17, no. 4 (2009): 1052.
16 J. Casanova, Public Religions in the Modern World (Chicago: University of Chicago
Press, 1994), 15; see also the discussion at 20-25.
17 C. Taylor, A Secular Age (Cambridge, MA: Belknap Press, 2007), 594.
18 Ibid., 2-3.
19 See O. Roy, Secularism Confronts Islam, trans. G. Holoch (New York: Columbia
University Press, 2007), xii-xiii, 7-8, 59 and passim.
20 S. L. Carter, God’s Name in Vain: The Wrongs and Rights of Religion in Politics (New
York: Basic Books, 2000), 4.
21 See, for example, A. March, “Are Secularism and Neutrality Attractive to Religious
Minorities: Islamic Discussions of Western Secularism in the ‘Jurisprudence of
Muslim Minorities’ (Fiqh al-Aqallīyāt) Discourse,” Cardoza Law Review 30, no. 6
(2009): 2821-54; A. An-Na’im, Islam and the Secular State: Negotiating the Future of
Shari’a (Cambridge: Harvard University Press, 2008), 1.
22 See H. A. Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law
in Modern Egypt (Chicago: University of Chicago Press, 2012), 24.
23 Asad, Formations, 36-37, nt. 41.
24 Ibid., 31, nt. 24.
25 Ibid., 30.
26 See Abu Bakr Ahmad b. al-Husayn b. Ali b. Abd Allah b. Musa al-Bayhaqi, Kitāb
al-Asmā’ wa al-Ṣifāt (Beirut: Dar al-Kutub al-’Ilmiyyah, n.d.), 35.
27 Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 1.
28 W. B. Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament
(New York: Columbia University Press, 2013), 51.
29 J. Locke, Two Treatises of Government, ed. P. Laslett (New York: The New American
Library, 1965), 448.
30 See N. J. Coulson, “The State and the Individual in Islamic Law,” International and
Comparative Law Quarterly 6 (January 1957): 49.
31 After explaining how the modern state is ubiquitous in terms of its jurisdiction,
Hallaq writes: “Whereas the modern state rules over and regulates its religious
institutions, rendering them subservient to its legal will, the Sharī’a rules over and
regulates, directly or through delegation, any and all secular institutions. If these
institutions are secular or deal with the secular, they do so under the supervising
and overarching moral will that is Sharī`a. Therefore, any political form or political
(or social or economic) institution is ultimately subordinate to the Sharī`a, including
the executive and judicial powers.” See Hallaq, The Impossible State, 51. Given the
entrenched incumbency of such a view, based in part on the straightforwardness
of its logic, it may be difficult at times for readers to remain focused on my actual
point. Suffice it to say at this juncture that there is a difference between Islam and
Sharia. And where Sharia’s jurisdiction ends it simply cannot concretely regulate
a matter, even if the matter itself remains within the purview of Islam’s values and
virtues. In short, even if Islam may preside over all matters, Sharia does not.
32 O. Anjum wrestles head-on with the problem of the community being excluded
from negotiating the quotidian order in his Politics, Law, and Community in Islamic
Thought: The Taymiyyan Moment (Cambridge: Cambridge University Press, 2012).
33 In his classic work on the Zahiris, I. Goldziher discerned that they were not about
literalism per se, but rather constituted an attempt to combat ra’y (i.e., informed opinion),
which could not recline directly on the sources for it content. See I. Goldziher,
The Zahiris: Their Doctrine and Their History, trans. W. Behn (Leiden: E.J. Brill, 1971.)
Meanwhile, we might note that Ibn Hazm (d. 1064), among the greatest representatives
of Zahirism, explicitly recognizes the legitimacy of figurative or allegorical
renderings of certain passages of scripture. See, for example, his Al-Iḥkām fī Uṣūl
al-Aḥkām, 8 vols., ed. A. M. Shakir (Beirut: Dar al-Afaq al-Jadidah, 1308/1993), 2:28
34 A. K. Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (New
York: State University of New York Press, 1995), 16.
35 See Abu Ishaq al-Shirazi, Ṭabaqāt al-Fuqahā’, ed. I. Abbas (Beirut: Dar al-Ra’id
al-’Arabī, 1970).
36 On the general debate around this point, see, for example, Reinhart, Boundaries,
128-32.
37 See Ibn Rushd, Talkhīṣ al-Mustaṣfā, ed. J. Alaoui (Beirut: Dar al-Gharb al-Islami,
1994), 47-48.
38 Part of the point I shall argue is that even where Sharia requires action or nonaction,
there may remain other evaluative bases upon which to assess how this act
or non-act is most appropriately instantiated in real time and space. Here we may
think of Sharia’s limits in terms, perhaps, of depth as opposed to scope. See below,
14-18.
39 The division between “formative” and “post-formative” is contested, both in terms
of when it occurred and of its meaning and implications. Recently, Intisar Rabb has
offered “founding period” as an alternative, pointing to three distinct phases: (1) the
founding period (the seventh to ninth centuries CE); (2) the period of textualization
(the tenth and eleventh centuries CE), including the purported “closing of the gates
of ijtihād”; and (3) the period of synthesizing textual and interpretive authority. See
I. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic
Criminal Law (Cambridge: Cambridge University Press, 2015), 8-9.
40 This goes back as far as my doctoral dissertation, “In Defense of Two-Tiered
Orthodoxy: A Study of Shihāb al-Dīn al-Qarāfī’s Kitāb al-Iḥkām fī Tamyīz
al-Fatāwā ‘an al-Aḥkām wa Taṣarrufāt al-Qāḍī wa al-Imām” (PhD diss., University
of Pennsylvania, 1991).
41 See, for example, Ibn Hishām, Al-Sīrah al-Nabawīyah, ed. M. al-Saqa, I. al-Abyari,
and A. Shalabi (Damascus: Dar Ibn Kathir, 1426/2005), 523.
42 See Muslim b. Hajjaj, Ṣaḥīḥ Muslim, 5 vols. (Beirut: Dar Ibn Hazm, 1416/1995),
4:1464.
43 Ibid.
44 See, for example, Jamal al-Din b. Umar b. al-Hajib, Jāmi’ al-Ummahāt, ed. A. al-Akhdari
(Damascus: al-Yamamah li al-Tiba’ah wa al-Nashr wa al-Tawzi’, 1421/2000),
331ff.
45 See, for example, Al-Risālah, ed. A. M. Shakir (Cairo: al-Maktabah al-’Ilmiyyah,
1358/1939), 487-503 on ijtihād.
46 A. El-Shamsy, “Rethinking Taqlīd in the Early Shafi`i School,” Journal of the American
Oriental Society 128, no. 1 (2008): 14-15. Emphasis mine.
47 See Abu Ja`far Muhammad b. Jarir al-Tabari, Tārīkh al-Ṭabarī, 6 vols. (Beirut: Dar
al-Kutub al-’Ilmiyyah, 1433/2012), 5:190.
48 Al-Ghazali, Al-Munqidh min al-Ḍalāl wa al-Muwaṣṣil ilā Dhī al-`Izzah wa al-Jalāl, ed.
J. Saliba and K. ‘Ayyad (Beirut: Dar al-Andalus, n.d.), 102. Of course, al-Ghazali did
not always speak with complete consistency in this regard. In Al-Mustaṣfā 1:3, for
example, he places among the three genres of knowledge, “the purely rational (‘aqlī
maḥḍ) which the religious law neither encourages nor applauds, such as statistics,
geometry, astronomy and the like, all of which amount either to false suppositions
… or valid knowledge that is of no benefit.” His Maliki commentator, Ibn Rashiq (d.
632/1235) criticizes this view, insisting that these sciences cannot be categorically
dismissed as being of no benefit. See al-Husayn b. Rashiq, Lubāb al-Maḥṣūl fī ‘Ilm
al-Uṣūl, 2 vols., ed. M. Jabi (Dubai: Dar al-Buhuth li al-Dirasat al-Islamiyyah wa
Ihya’ al-Turath, 1422/2001), 1:189. Of course, both of them are speaking in a specific
historical context regarding the degree to which non-Muslim science in general may
or may not touch upon issues of relevance or potential harm to religion.
49 See my Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn
al-Qarāfī (Leiden: E.J. Brill, 1996), 113-41.
50 Al-Qarāfī, Sharḥ Tanqīḥ al-Fuṣūl fī Ikhtiṣār al-Maḥṣūl fī al-Uṣūl, ed. A.F. al-Mazidi
(Beirut: Dar al-Kutub al-`Ilmiyyah, 2007), 109.
51 See, for example, his Dar` Ta`āruḍ al-`Aql wa al-Naql, 11 vols., ed. M. R. Salim
(Riyadh: Matba’at al-Imam Muhammad b. Sa’ud, 1399/1979), 4:146.
52 See, for example, Jalal al-Din al-Suyuti, Juhd al-Qarīḥah fī Tajrīd al-Naṣīḥah (Beirut:
al-Maktabah al-`Asriyyah, 1430/2009), 91-92 (an abridgment of Ibn Taymiya’s
Naṣīḥah Ahl al-Imān fī al-Radd ‘alā Manṭiq al-Yūnān). This is not to say that scripture
would necessarily have nothing to say about the religious status of a particular
rational claim. The point is simply that the claim itself would have to be rationally
examined to determine its actual substance before a shar’ī ruling could be reached.
On another note, I obviously cannot concur with the view of my former colleague
John Walbridge when he writes: “The great fourteenth-century fundamentalist
reformer Ibn Taymīya hated reason wherever it expressed itself in Islamic intellectual
life.” See his God and Logic in Islam: The Caliphate of Reason (Cambridge:
Cambridge University Press, 2011), 5.
53 See Al-Ibhāj fī Sharḥ al-Minhāj, 3 vols. (Beirut: Dar al-Kutub al-’Ilmiyyah, 1424/2004),
1:30.
54 Radd al-Muḥtār ‘alā al-Durr al-Mukhtār Sharḥ Tanwīr al-Abṣār, 12 vols., ed. A. Abd
al-Mawjud and A. Muawwad (Beirut: Dar al-Kutub al-’Ilmiyyah, 1415/ 1994), 1:118.
55 The late Muhammad al-Khidr Husayn wrote: “Whoever looks carefully will see
the difference clearly between what the religion provides guidance on and what it
leaves to the tried and tested experience of society.” See his Dirāsāt fī al-Sharī’ah
al-Islāmīyah (UAE: Maktabat Dar al-Farabi, 1326/ 2005), 13.
56 Casanova, Public Religions, 21-25.
57 Asad, Formations, 237.
58 C. Taylor, “Secular Imperative,” 32-33.
59 Intisar Rabb summarizes the Mu`tazili position as follows: “The idea was that there
is a moral system woven into the fabric of this world that humans could rationally
discern, but that God made them free to follow or disregard the dictates of
that morality and promised to judge them on that basis… [W]hatever the human
intellect perceives as morally good or morally wrong is indeed so before God… In
other words, morality is objective, meaning that perceptions of moral value should
not differ from God to human beings.” See her Doubt in Islamic Law, 273. I would
argue that this Mu`tazili realism, and not reason’s evaluative capacity per se, was
the real, primary target of the critique by the Sunnis, who favored a more voluntarist
approach that accommodated God’s right and ability to act independently.
Of course, just how voluntarist God is would become a bone of contention within
Sunnism itself. For example, while characterizing the Mu`tazili position as “weak”
(ḍa`īf), Ibn Taymīyah rejects what he sees as Ash`arism’s completely “empty cosmology.”
He thus complains that, on their understanding, where the Qur’an speaks
of the Prophet “commanding good and forbidding evil,” this does not refer to any
substantive good or evil in existence prior to the command itself; rather, this phrase
merely means that “he commands them to do what he commands them to do and
forbids them from doing what he forbids them from doing.” See his Majmū`al-
Fatāwā, 37 vols., ed. Abd al-Rahman b. Muhammad b. Qasim (Riyadh: Maktabat
al-Ma`arif, n.d.), 8:433.
60 Kitāb al-Irshād ilā Qawāṭi` al-Adillah fī Uṣūl al-I`tiqād, ed. Z. Umayrat (Beirut: Dar
al-Kutub al-`Ilmiyyah, 1416/1995), 110.
61 Al-Iqtiṣād fī al-I`tiqād (Cairo: M. al-Babi al-Halabi and Sons, n.d.), 80-82.
62 Kitāb al-Arba`īn fī Uṣūl al-Dīn, ed. M. A. Mahmud (Beirut: Dar al-Kutub al-’Ilmiyyah,
2009), 244.
63 On the Maturidis, see, for example, Kamal al-Din Muhammad b. Muhammad b. Abi
Sharif al-Maqdisi, Kitāb al-Musāmarah fī Sharḥ al-Musāyarah, 2 vols. (Cairo: al-Maktabah
al-Azhariyyah li al-Turath, 2006), 2:38; Abd al-Rahim b. Ali b. al-Mu’ayyad
Shaykh Zadeh, Naẓm al-Farā’id wa Jam` al-Fawā’id fī al-Masā’il al-Mukhtalaf fīhā
bayna al-Sādah al-Ash`arīyah wa al-Sādah al-Māturīdīyah, Arabic MS. # 875, ‘Ilm
al-Kalām, 14 vols. (Dar al-Kutub al-Misriyyah).
64 See his Amrād al-Qulub̄ wa Shifā’uhā (Cairo: al-Matba`ah al-Salafiyyah wa
Maktabatuha, 1386/1966), 12-13.
65 Majmū` al-Fatāwā, 8:434-35.
66 ‘Aql, as employed by pre-modern Muslim jurists and theologians, included affective
and other elements that the Enlightenment explicitly sought to eliminate from
reason as a construct. When Mu`tazilis (and others) speak of the good of saving
a drowning man or the evil of falsely accusing an innocent man as being known
by reason (‘aql), this is clearly more than the dictates of reason as an autonomous
faculty unbounded and uninformed by culture, sensibility, or convention. By contrast,
the latter is precisely what Enlightenment thinkers such as Kant proposed
reason to be, namely, “an autonomous faculty in the sense that it was self-governing,
establishing and following its own rules, independent of political, cultural or
subconscious interests.” On this point, see F. C. Beiser, The Fate of Reason: German
Philosophy from Kant to Fichte (Cambridge, MA: Harvard University Press, 1987), 8.
67 Of course, it might be objected that this is only according to my restricted definition
of ijtihād. But any attempt to return to the formative period’s approach, according
to which the boundary between the interpretive and the empirical was blurred
or absent, must be openly acknowledged as such. In addition, it should openly
take account of the potential abuses of the religious law that such an approach
might engender in a modern context. Second, any advocacy or recognition of the
distinction between scholars of the texts (‘ulamā’ al-nuṣūṣ) and scholars of context
(‘ulamā’ al-wāqi’) should be accompanied by an explicit acknowledgment that what
is desired in many instances is not a religious ruling (ḥukm shar`ī), but some other
evaluative judgment. Otherwise, we remain firmly within the shar`ī realm and
effectively the domain of the scholars of the text.
68 Even Qasim Amin, for example, would state that his issue was not with hijab itself
but with a specific concretion thereof in Egypt at the time: “Were there a single
text in the Sharia requiring hijāb as it is known among some Muslims today, it would
be incumbent upon me to avoid any investigation into the matter, and I would
not write a single letter that goes against these texts, no matter how harmful they
might appear to be at first blush; for one must submit to divine commands without
investigation or debate. But we do not find any texts in the Sharia requiring hijāb
as it is typically worn today (‘alā alṭarīqah al-ma’hūdah).” See his Taḥrīr al-Mar’ah
in Qasim Amin, Al-A`māl al-Kāmilah, ed. M. Imarah (Cairo: Dar al-Shuruq, 1409/
1989), 352.
69 This might provide some insight into the observation of Tariq Ramadan, a major
proponent of ijtihād: “[A]fter constantly referring to ijtihād, tajdīd, and iṣlāḥ for
over a century, Muslims – whether in Muslim-majority societies or Western communities
– still find it difficult to overcome the successive crises they go through
and to provide something more than partial answers; and even the answers [they
do put forth] remain constantly apologetic or [are] produced by mostly defensive
postures.” See his Radical Reform: Islamic Ethics and Liberation (New York: Oxford
University Press, 2009), 30. Oddly, he appears at times perhaps to fall into the trap
of inflating the role of fiqh to the point that it acquires relevance beyond the strictly
legal. And where fiqh does reach its limit, “ethics is often pressed as the appropriate
alternative. On what I see as an inadequacy of the ethics-approach, see below, 17-18.
70 Muḥammad Abduh, “Al-Zawāj,” in Al-A`māl al-Kāmilah li al-Imām Muḥammad
‘Abduh, 5 vols., ed. M. ‘Umarah (Cairo: Dar al-Shuruq, 1427/2006), 2:70 (the essay
runs from 2:70-75).
71 Asad, Formations, 232-34.
72 Abduh, “Al-Zawāj,” 73. Incidentally, it is not my intention in adducing this example
to imply that Abduh’s approach overall failed to recognize the Islamic secular.
73 See P. L. Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion
(New York: Anchor Books, 1967), 110-13. Berger argues, inter alia, that early
modern Protestantism’s significant success in stripping the world of any mystical
or super-natural elements has sapped religion’s ability to sustain its relevance in
the modern world, spawning the rise and diffusion of a secular (i.e., non-religious)
worldview. My argument is not that this has obtained in the Muslim world (the
situation of Muslims in the West is a different matter). My point is simply that the
intellectual and cultural “immanent frame” in which religion exists will affect its
overall plausibility as a way of life.
74 And here I suspect that the insight of Edward Bernays is gravely relevant, especially
given the realities of our contemporary globalized world: “The conscious
and intelligent manipulation of the organized habits and opinions of the masses
is an important element in democratic society. Those who manipulate this unseen
mechanism of society constitute an invisible government which is the true ruling
power of our country. We are governed, our minds molded, our tastes formed, our
ideas suggested, largely by men we have never heard of.” See his Propaganda (New
York: Ig Publishing, 2005), 37. The book originally appeared in 1928. This might also
provide the context within which to appreciate a view more recently expressed by
Shaykh Yusuf al-Qaradawi to the effect that rather than violent jihadis or more
assiduous commitments to jihad as organized violence, what Islam needs today is,
“a massive army of preachers, teachers and competently trained journalists who are
able to address today’s public in the language of the age and the style of the times,
through voice, image, spoken word, physical gesture, books, pamphlets, magazines,
newspapers, dialogue, documentaries, drama, motion pictures and everything that
ties people to Islam. This peaceful jihad which is an absolute necessity (al-jihād
al-silmī al-ḍarūrī) we have not undertaken by one thousandth of what is required
of us.” See his Fiqh al-Jihād, 2 vols. (Cairo: Maktabat Wahba, 1430/2009), 1: 402-03.
Of course, all of these activities would fall under the Islamic secular, none of them
being shar`ī endeavors.
75 This is related, I suspect, to the tendency to equate Islam with morality as an absolute
first order priority alongside the assumption that no other values (e.g., order,
privacy, safety, and charity) can compete with morality. Sharia, in this context, is
viewed as course-motor morality with ethics allowing us to fine tune things. Hidden
from consideration, meanwhile, is that the ethical still traffics in dos and don’ts and,
as such, remains impervious to the world beyond good and evil.
76 I acknowledge that my reference here to a modern approach to siyāsah shar`īyah
is oversimplified. The contrast I have in mind, however, might be highlighted by
a comparison between classical and modern definitions. In the introduction to
Ibn Qayyim al-Jawzīyah’s Al-Ṭuruq al-Ḥukmīyah fī al-Siyāsah al-Shar`īyah, M. J.
Ghazi cites the definition of siyāsah by the pre-modern Hanbalite Ibn ‘Aqil (d. 1119)
alongside that of the modern Abd al-Wahhab Khallaf. Ibn Aqil: “[Implementing] an
action according to which the people will be closer to wholesomeness and farther
from corruption even if the Prophet laid down no precedent and no revelation
came down in that regard.” Khallaf: “Arranging the public affairs of the Islamic
state in accordance with what secures the realization of interests and averts harm,
in ways that do not go beyond the boundaries of Islamic law (min mā lā yata’addā
ḥudūd al-Sharī`ah) and its universal principles (uṣūluhā al-kullīyah), even if this
goes against the views of the mujtahid-Imāms.” See Ibn Qayyim al-Jawziyyah,
Ṭuruq al-Ḥukmīyah fī al-Siyāsah al-Shar`īyah, ed. M. J. Ghazi (Cairo: Matba’at
al-Madani, n.d.), p. ‘A (‘ayn). Khallaf also cites these two definitions in his Al-Siyāsah
al-Shar`īyah, 15 and 17, apparently without seeing any tension between them. We
might note, incidentally, in Ibn Aqil’s definition, the implied recognition of formal
limits to Sharia beyond which those discretionary actions for which there are no
concrete scriptural indications are appropriately invoked.
77 See, for example, F. Vogel, Islamic Law and Legal System (Leiden: E.J. Brill, 2000),
173-74, discussing aspects of this approach in the context of Saudi Arabia.
78 See, for example, his Al-Furūq, 4 vols. (Beirut: ‘Alam al-Kitab, n.d.), 4:39, in which
he discusses those discretionary decrees that are to be enforced and those that are
not.
79 See, for example, his Kitāb al-Iḥkām fī Tamyīz al-Fatāwā ‘an al-Aḥkām wa Taṣarrufāt
al-Qāḍī wa al-Imām, ed. A. Abu Ghuddah (Aleppo: Maktabat al-Matbu’at al-Islamiyyah,
1387/1967), 183, in which he points to instances, such as the Imam’s declaring
jihad, where the community may ignore the state’s discretionary decree if they deem
it lacking in substance or legitimacy.
80 Cited in J. J. Owen, “Church and State in Stanley Fish’s Antiliberalism,” American
Political Science Review 93, no. 4 (1999): 922.
81 Ramadan, Radical Reform, 22.
82 This is not to suggest that every secular conclusion institutionalized by premodern
Muslims was wrong, illegitimate, or treacherous. It is simply to point out that no
society will be able to rely entirely upon law in the strict sense even for its legal
institutions. As such, society will have to draw upon any number of extra-scriptural
norms and presuppositions. Extra-scriptural, however, does not necessarily mean
wrong or illegitimate. Indeed, the Qur’an directs the Prophet and his followers to
draw upon any number of pre-Islamic Arabia’s ma`rūf (prevailing notions of good
and wholesome). The problem, of course, comes with imputing to such conventions
an authority that is greater or longer lasting than what they should properly enjoy.
83 See, for example, my “Islamic Law, Muslims and American Politics,” Islamic Law
and Society 22 (2015): 289.