Debate with Mohammad Fadel about Orthodoxy in Islam

I am posting here a Facebook debate with Professor Mohammad Fadel that has grown to such monstrous proportion that the time has come to switch mediums.

This debate was inspired by an Islamophobic witch hunt against one of our colleagues on the topic of slavery.  I will not discuss that here as I wish to avoid drawing unnecessary attention to said witch hunt.  Our colleagues’ comments, however, certainly have inspired debate.  Muslim intellectuals and scholars of Islam have understood the comments in question in vastly different ways.  Responses have ranged from defense of the substance of the comments to deep criticism and moral outrage.  There is general agreement that our colleagues’ academic freedom should be fought for and absolutely upheld, and there is general agreement that the interpolation of his case into the far right Islamophobia machine represents a danger for all intellectuals.

At one point in the midst of all of this (was that just yesterday?), I penned a rather sarcastic post about how touching it was to watch the “Muslim boys club” spring into action to defend one of their own.  I was frustrated on a few levels.  The first was a widespread conviction among feminist (or really, critical) scholars (which, for the record, can and does include men) that the same mobilization would not have occurred to defend their academic freedom.  But more seriously, my frustration was really located at the intersection of patriarchal privilidge and orthodoxy.  I was disturbed by the way a topic as morally repugnant as slavery and concubinage was being used as a kind of extreme example to uphold a dominant conception of Islamic orthodoxy.  I was disturbed by the the “actual women and actual descendents of enslaved people be damned” attitude of some of those who reasserted that orthodoxy.  It felt like the privileged playing word games at peoples’ (our) expense.

Later, after discussing this with Mohammad Fadel following his own sarcastic retort to that post, I realized that I very much did not mean to impugn the character of the men who lead the charge to protect our colleagues’ academic freedom.  I believe I share a concern with Mohammad that if we do not figure out how to talk about this productively, we will splinter as an academic community in ways that will will make us all much poorer on several different levels.  And so the monster facebook conversation was born.

So here is Mohammad’s post. He is MF and I am SE (you’re welcome.)

MF:  I wanted to thank Sarah Eltantawi for clarifying comments she made about the “Muslim boys club.” I have to admit that I found that post over the top, along with some other comments of people I consider friends and colleagues, leading me to make a satirical post in retaliation.

In any case, I wish to focus on what I think is the heart of the matter: what I see here is two orthodoxies at battle, with the different sides in this battle accusing their opponents of bad faith because they are, in the end, using entirely different normative vocabularies, even while they think they ought to have a shared vocabulary for resolving these moral questions.

SE:  I do not think the two normative vocabularies are totally different.  Certainly not necessarily.

MF:  To begin with, I don’t think the sincerity of the commitment to Islam of anyone publicly identifiable as a Muslim can be questioned given the fact that there is nothing to be gained by claiming to be Muslim when one actually has no meaningful level of Islamic conviction.

SE:  I certainly agree that in this climate there is nothing to be gained by identifying as a Muslim for instrumental reasons. What we mean by “Islam” in this sentence, however, is another question.

MF:  At the same time, western Muslims clearly have a different conception of what that Islamic conviction means in their public discourse.

SE:  A different conception than which Muslims? “Eastern” Muslims? Indonesians?  Uyghurs? Malays? Bangladeshis? Or is there a passive reference to the Sunni Arab Middle East at work here?

MF:  Knowing people on sides of this recent dust up, I am fairly certain that no one on the so-called “traditionalist” side endorses slavery, concubinage or rape.

SE:  I sincerely do not share this confidence.  Needless to say, this is unfortunate.  Much hinges here on what we mean by “endorses.”  I think one can make the argument that failing to condemn slavery, concubinage, and rape in no uncertain terms — especially when authoritative sources exist that justify the practice, in the case of slavery and concubinage, and negate the phenomena, in the case of rape — can easily amount to an endorsement.

MF:  Likewise, despite what seems to be the heretical consequences of certain categorical statements about these subjects when applied across space and time without historical qualification, I don’t think people actually pushing this line of reasoning think it is appropriate to apply contemporary intuitions about these questions anachronistically.

SE:  I think you are correct in perceiving an ambivalence, here.  On one hand, most Muslim scholars/scholars of Islam do not think it is methodologically sound to apply categorical statements or principles ahistorically. But here’s the problematic:  in response to calls to develop a universal Islamic ethic that condemns slavery across time and space, the traditionalist camp replies:  “It is invalid to call your 21st century ethical convictions an objective Islamic conviction.  Objective Islamic convictions are to be found in divine authoritative texts, and classical and medieval legal texts that we should dedicate the bulk of our time to studying and trying to understand.”  The progressive side says:  “We respect classical and medieval legal traditions as a historical treasure trove that teaches us how to reason, how to think with the tradition, and as precious sources of social and political history.  We believe divine authoritative texts can only be read in the present tense through a subjective lens.  We wish to be part of Islamic history, which includes shaping inevitable processes of innovation and change — remember, the Wahhabis themselves were innovators!  – and  not fool ourselves into believing we are simply and only recipients and reproducers of the tradition.”

MF:  What is left is that both sides feel insulted by the other: “traditionalists” are insulted by accusations of upholding patriarchy, etc., because from their subjective perspective, they are doing no such thing: they are sincerely deriving what they believe to be the best reading available of the evidence of the divine rule on a certain question.

SE:  See above about progressives wishing to admit that present Muslim communities actually shape history.  Inevitably — as a function of our existence in time.

MF:  Such a conclusion from their perspective does not say anything about worldly concerns because there is no necessary connection between the transcendental norm of divine revelation and its application in the realm of applied ethics.

SE:  I fear it is wishful thinking to think it’s possible that there can be no connection between “transcendental norms of divine revelation” (as reproduced by conservative Muslim scholars and authorities, claiming the mantle of objectivity) and application in reality (applied ethics).  This is because conservative Muslim authorities that uphold this version of orthodoxy are declaring those “transcendental norms” in historical time and space, subject to the rules of power.  All one can ever do is represent the so-called transcendental, they can never actually articulate it as long as that articulation is occurring in human time and space.

MF:  In other words, the statement that it is impossible, using the assumptions of usul al-fiqh, to declare slavery as such to be categorically immoral (which they translate as falling under the technical category of “haram”) does not mean, that as a matter of applied ethics, much less positive law, that it is not legitimate to outlaw slavery.

SE:  This is admirable as a legal strategy and should be endorsed as such. But perceptions of the world extend beyond the legal.  It is at a minimum morally confusing for many Muslims that foundational texts and the behavior of the Prophet does not condemn slavery. My sense is that without admitting it, necessarily, for reasons of internal and external intimidation, progressives and really many non-progressives wish for an explicit, direct engagement with these toughest of moral questions for Muslims:  reconciling the Prophet’s behavior with the moral convictions of the present (and even, perhaps, with the moral convictions of that time.) 

MF:  Conversely, “progressives” are insulted when “traditionalists” accuse them of implicitly committing kufr by reaching conclusions that “traditionalists” claim cannot be justified using Islamic premises, or lead to implications that are, from an Islamic perspective, unacceptable.

SE:  It’s not just offensive:  it’s dangerous and can lead to violence.

MF:  I suggested what some of these might be from the seemingly obvious statement that slavery is inherently immoral in my previous response to Sarah Eltantawi’s comment on my wall. But I remind my traditionalist friend: lazim al-qawl laysa bi-qawl.

There are a couple of choices here: the first is to recognize that feminist discourse and Islamic discourse are radically incommensurate. The advantage of this approach is that it simply recognizes that there is no possibility for common discourse except on issues of practical agreement. There would be no attempt to persuade one another, on the one hand, but there would be no reason to attack each other either, because each has granted the other side jurisdiction over its particular concerns. It’s unlikely that this approach will be acceptable, however, given that both currents are organically part of the Muslim community, and neither wishes to disconnect from that community.

SE:  Agreed.

MF:  The second is to discard the language of transcendental claims, in favor of arguments regarding law as a set of immanent norms rather than transcendental ones, whether rooted in divine revelation or some conception of right reason.

SE:  Or, there is (at least) another option, which is to advocate for an understanding of the Islamic tradition that is in conversation across genres:  law as disciplined by poetry, poetry as disciplined by embodied practice, embodied practice influenced by sira, and so on, so that the attempt to ascertain the divine is always a dynamic and creative one.  I would argue that this is what happens anyway, and I am thinking here of Shahab Ahmed’s vision of what Islam is.

MF:  By avoiding or deferring debate on metaphysical questions, such as the nature of good and bad, it may be possible to generate practical agreement that is principled and deep, even if it may be based on deeply conflicting metaphysical principles.

I tried to identify this as a strategy for thinking about Islamic law in a law review article I published in 2007. I made the following remarks about the abolition of slavery from the perspective of an adherent of orthodox Islam:

“Islamic law includes permissive rules, such as the right to own a slave . . . which contradict both the requirements of international human rights law and public reason. Because such permissive rules do not raise a question of conscience for a committed Muslim—as by definition he is not obliged to invoke these permissive rights—elimination of these rights would not appear to be problematic.27

SE:  You make the assumption here that a Muslim’s conscience would necessarily be assuaged because s/he is not obligated legally to invoke these permissive rights.  I think the present evidence suggests that this is not true, empirically.

MF:  [Abolition of slavery] should be particularly easy, since Islamic law has traditionally viewed. . . slavery . . . unfavorably, even if legally permissible. . . . Thus, Islamic law restricted the supply of slaves by first prohibiting the enslavement of Muslims or non-Muslims who were permanent residents of an Islamic state, even if such enslavement was pursuant to a contract and, second, by presuming that individuals in the territory of an Islamic state were free. Islamic law also encouraged manumission by imposing a duty to manumit slaves as a means for expiation of various sins. Islamic law further instituted a reduced evidentiary burden to prove acts of manumission, so that even ambiguous language—regardless of subjective intent—could be sufficient to result in the manumission of a slave. Finally, Islamic law has often manumitted slaves as a remedy for abuse of a slave by a master. The pro-liberation policy of Islamic law toward slavery was expressed in the legal principle that “the Lawgiver looks forward to freedom.”28 Accordingly, an absolute prohibition of slavery does not raise a question of conscience for Muslims and would arguably further the Islamic view of the good, even if traditional Islamic law did not consider slavery to be a categorical evil.”

SE:  All I can say here is that this is excellent scholarship and enlightening to know.

MF:  In this case, the justifications of the prohibition or the regulation would be important from the perspective of a traditionalist Muslim. Even if he could comply in good faith with the prohibition, he may not be able to accept a particular justification of that prohibition on controversial metaphysical grounds, in which case he would be forced to express opposition to the rule in question, at least to the extent that the legislation was deemed to be the manifestation of a moral doctrine that the traditionalist Muslim believes to be false.
28 For example, in a case where a plaintiff alleges that another person is her slave, but lacks direct evidence for that claim, the defendant is exempted from the otherwise applicable evidentiary obligation to swear an oath denying the plaintiff’s claim on the grounds that “the law presumes the freedom of people, so the plaintiff’s claim that the defendant is a slave is contrary to the law’s presumption of freedom and the lawgiver’s desire for freedom, thus rendering the claim very weak indeed, with the result that the defendant need not swear an oath denying it.” Al-Sawi, 4 Bulghat al-salik at 219.

SE:  Again, enlightening.  And makes the questionable assumption that the moral problem is thoroughly addressed by legal history and precedent.

MF:  Now, as a Muslim, I realize that this “minimalist” approach has its own problems, specifically as related to understanding practices of a bygone era, and how we can uphold the moral integrity of previous Muslim communities,

SE:  I would suggest upholding the moral integrity of (all) previous Muslim communities is far too great a burden for us to bear. It cannot be done.

MF:  but the question of theological justification is always the product of a long-term conversation, and it is folly to think that we will arrive at a satisfactory theological explanation for our current moral intuitions in the short-term. Much better to act, practically, on areas of common agreement rather than to sling accusations back and forth of bad faith, while pretending that we don’t understand the legitimate concerns of the other side.

SE:  Totally agreed.

MF:  Just as it is unfair for “traditionalists” to dismiss feminist or progressive concerns that hierarchical structures in historical elaborations of Islamic law can lead to the abuse of women,

SE:  Ah, but as I’ve tried to say, our problem is much deeper than that.

MF:  even if traditionalists are correct in pointing out that such abuse is not an intended product of those structures,

SE:  Traditionalists have not at all made this case, let alone convincingly.

MF:  so too progressives should not think that concerns of traditionalists about preserving the integrity of theological teachings is simply about preserving male privilege or some other kind of privilege.

SE:  I would agree that it in many cases is not all about preserving forms of privilege.  But it is often enough to have become a phenomena that has been named.  But this phenomena is not all-inclusive.  I take that point.

MF:  If you want your subjectivity to be respected, in short, you need to respect other people’s subjectivities.

SE:  I think this advice is much better directed toward traditionalists, who don’t believe their perspective is subjective at all, but rather objective.

MF:  I do think it is crucial for progressive Muslims to take the theological objections raised against their positions seriously.

SE:  I agree.  To be fair, do consider the risks progressive scholars take by tackling the most difficult and controversial theological topics head on.

MF:  If they cannot reconcile their current justifications in Islamic terms,

SE:  Again:  what are “Islamic terms”?  You effortlessly claim that mantle.  Perhaps as a legal scholar.  I would suggest that the substance of the category “Islamic terms” is really at the heart of this debate.

MF:  it will be hard to get much purchase for their views among Muslim publics.

SE:  Generally true, depending on the public, in today’s particular world, which will also inevitably change.

MF:  So too, traditionalists cannot be so self-satisfied with pat answers derived from authority: that will alienate more and more of our community from Islam, and so answers based solely on a crude versions of a divine command theory are not viable in the long-term either.

SE:  Thank you for saying that.

MF:  On the particular question of slavery, the more I read in early fiqh the more I discover the historical plausibility of grounding a general anti-slavery policy in Islamic legal texts, so I don’t know why we need to justify our past using the weakest arguments available.

SE:  I don’t know why we need to justify our past at all.  Our tradition is part of a highly imperfect human community.  No people are pure and unscathed.  I advocate for pushing for the rest of the world to grow up, use logic and silence and marginalize Islamophobes with good old fashioned refreshing intelligence. I will admit that perhaps I am being too idealistic here.  But in any case we definitely shouldn’t lose our faith in the power of an argument that makes sense.

MF:  Finally, let me make a plug for Islamic law (furu’ — not usul al-fiqh, which in many ways, I think, unnecessarily introduced a transcendental dogmatism to Muslim moral reasoning) as a discipline that always strives to reconcile universal ideals with particular, historical circumstances. If read in that fashion, rather than dogmatically as either upholding some transcendental model of life, or in an equally dogmatic fashion, as intended to create a system of gender or class privilege, there is a lot we can learn from it, including, how to live comfortably with difference.

SE:  Plug for furu’ accepted.