Madrasah Al Hikmah

Student's corner

Modernism's abortive attempt


by Ml. Taha Karan

It with interest that I read an article about a forum on domestic violence and the Islamic tradition of recent held in Kuala Lumpur. A central theme at this forum was the reform of Muslim family law, with specific reference to areas of tension between Islamic law and modern notions of justice and gender equality. Of particular significance was the suggestion that the reform of Islamic law should be steered along the same trajectory as contemporary Islamic finance.

The latter, went the claim, was unimaginable till a few decades ago. But the will to force change, underpinned by the avarice of the otherwise increasingly redundant and irrelevant  ulama, brought about the desired result. If similar pressure were to exerted in other areas of Islamic law whose violation of "modern notions that Muslims hold about human dignity and human rights" was described as a matter of consensus, those areas of the law, too, will see similar seismic shifts of interpretation.

A comprehensive assessment of every claim made, approach suggested, and aspersion gratuitously cast at this forum lies beyond the focus of this brief comment. Its only concern lies with the suggestion that the rest of Islamic law--or at least as much if it as stands out as "problematic"--could be rehabilitated to the specifications of 21st century sensitivities given a set of circumstances similar to those that allegedly precipitated the rise of contemporary Islamic finance.

Inherent in this suggestion lie several assumptions:
-Firstly, the notion that Islamic finance in its contemporary incarnation came about when pressure was brought to bear upon the ulama.
- Secondly, the blueprint for legal change is ready and accessible, but is being held back by nothing other than the recalcitrance of the ulama.
- Thirdly, commerce as a division within the law is no different from family law or penal law.
- Fourthly, nothing in Islamic law is permanently cast in stone; everything is open to reinterpretation ; and to the human interpreter belongs unrestricted power to shape the law.

Let us begin with the last of these assumptions. Unqualified and unrestricted mutability has for decades been modernism's cornerstone. Spurred into absolute conviction in this tenet by what they perceived to be Islam's violation of human rights and its trampling underfoot of human dignity, they have  spent the past few decades in a feverish search for a solution. Radicals advocated total abandonment of legalism in favour of a Pauline type of antinomianism--conveniently overlooking how it was that very shift that eventually gave birth to canon law. A somewhat less radical approach suggested the distillation of a number of absolutes and the cancellation of all specifics against those absolutes. In a paradox of grudging conciliation, a third attempt saw the appropriation of principles culled selectively, subjectively and with psychological transparency from traditional Islamic legal theory.  

When neither of these approaches found purchase within the broader Muslim community a scapegoat had to be found, for by no means could the fault lie with them or their theories. And finding a suitable scapegoat was never easier: who else could it be but the obscurantist, medieval and retrogressive ulama?

What consistently escaped their attention--or lay beyond the spectral horizon imposed by intellectual arrogance--was that perhaps, just perhaps, there was something so wrong with what they proposed that even the common lay believer was sent into revulsion by it. And perhaps, just perhaps, the fact that they operated out of ivory towers of Western academia with the blessings overt and covert of neocon imperialism had more to do with their dismal failure than comfort allowed them to admit.

In 2003, at the fourth annual conference of the Centre for the Study of Islam and Democracy held in Washington, Abdulaziz Sachedina, in a paper entitled "Why Democracy and Why Now" lamented the lack of impact he and his colleagues at Western universities have had upon the Muslim world, compared to that of the ulama.

"Our secure academic position in the Ivory Tower has made us oblivious of our moral responsibility to the people. Ironically, it is this indifference to the political empowerment of the average people on the streets of Cairo, Tehran, or Karachi that has provided the religious leadership – the Ulama – an opening to become the sole spokesperson for the contents of people’s political and social education."

A decade later came the Arab Spring and liberal hopes surged for a democracy that would end medieval and obscurantist law. And then, horror of horrors, the people in their first exercise of democratic freedom, elected a party that championed those very same medieval laws. The much vaunted democracy had to be strangled at birth. In a macabre Orwellian twist, with the incarceration of democratically elected leaders, some animals have indeed become more equal than others. Meanwhile, back in the ivory towers, the once ardent but now sobered advocates of democracy in the Muslim world quietly added a postscript to their slogan: "Why Democracy, Why Now (or perhaps not just yet)."

So how does that connect with what was said at the Kuala Lumpur forum? Well, the modernist project suffered a series of setbacks. It's theoretical gymnastics failed consistently to impress. Coupled with its neocon alliances it turned repulsive. Its hopes for democracy to catalyze its program of radical reform of Islamic law were not only quashed; the very hands that were poised to applaud the birth of democracy now assisted in strangling to death the child who was to be its saviour. Do paradoxes ever get weirder?

While all of this was happening, one area of Islamic law was experiencing phenomenal interest, growth and increasing success. From tentative beginnings in the 70s the Islamic finance industry has grown into a trillion dollar sector with a phenomenal growth rate. It was just a matter of time before the secrets of its success were probed, especially by an interest group that for all its intellectual firepower and political connections failed to register a significant advance. Having failed at its own projects and even aborted its saviour, modernism was now out to thumb a lift. In order to reform Islamic law, all that needed to be done, says the KL forum, was to follow the path of Islamic finance.

Instead of asking uncomfortable questions at this point about the extent to which legerdemain has become acceptable in academia, it might be more appropriate to interrogate the credentials of the claim. Was it truly a willingness to implement a no-holds-barred radical reform that set Islamic finance on its stellar trajectory?

There is much to learn from early controversies over commercial interest. A would-be radical reformer like Marouf Dawalibi tried to differentiate between productive and consumptive loans, deeming only the latter as the riba prohibited by the Qur'an and leaving the way open for industry and commerce to leverage off credit at interest. Muhammad Abduh's alleged fatwa on the permissibility of returns on post office savings, later echoed by Shaltut; Khallaf's view on fixed returns on bonds--all of these were attempts to revolutionize the very concept and definition of Qur'anic riba, and all subjectively motivated by the apparent insurmountability of the problem of interest. And all of these were met with summary rejection, for no reason other than the fact that in seeking a solution they crossed inviolable lines.

Had any of these attempts at reform succeeded, contemporary Islamic finance would probably never have come into existence. It was exactly in their rejection, premised as it was upon the acknowledgment of inviolable parameters beyond which even reform may not proceed, that the space was demarcated within which contemporary Islamic finance would be born and eventually flourish. So rapidly and successfully did it develop that Tantawi's 1989 abortive and self-incriminating fatwa on the permissibility of bank interest, reiterated later by Ali Gomaa, had no more effect than a fly hovering around the nose of a rising colossus. The only distinction this fatwa achieved was to become the most universally condemned fatwa of modern times.

Having set its parameters and proven its viability in the Mit Ghamr project, the Islamic finance industry set about expanding its base and diversifying its offerings. Independent Islamic banks were joined by conventional counterparts whose recognition of merit and value in this new version of banking motivated the opening of windows. But beneath all the expansion and sophistication operated a methodology founded on the one hand hand upon acknowledgement of the inviolability of certain parameters, and then making full, innovative and effective use of the ample latitude provided within those uncrossable boundaries.

An eclectic approach in drawing from the existing fiqh legacy provided many ready solutions. Eclecticism between madhahib in matters commercial was, after all, a principle well ensconced in fiqh centuries before the rise of contemporary Islamic finance. Its reiteration by a jurist as loyally committed to madhhabism as Mawlana Ashraf Ali Thanwi decades before Islamic finance came into its own is certainly not without significance. It wasn't uncommon for the search for precedent to transcend even the four popular madhahib.

Where the letter of the fiqh legacy fell short of providing solutions, its maxims and legal theory were brought into play--not in modernism's suicidal manner of using usul to erode Shari'ah, but with the responsibility of jurists who believe in their role as interpreters and not fabricators of the Divine Will.

A good part of what came from all of this was innovative. Forms of contract unprecedented in our fiqh legacy were brought into existence. But modernists observers who imagined that innovation in the law of contract justifies innovation in the rest of the law miss one essential point. The law of contract has always been one of custom and innovation within broadly prescribed prohibition, whereas family law and the penal code are areas of specific prescription. No amount of cleverly worded sophistry will set the innovation of sukuk al-ijarah on par with the legitimization of same-sex marriages--the perceived violation of human dignity notwithstanding.

The results of scholarly thought and innovation in Islamic finance have not always been homogeneous or approved by consensus. Differences of opinion have and will continue to come about. Contentious issues there certainly are, and they will continue to be debated with fervour. But then again, that is exactly how Islamic law has always been for a thousand years and more. What it has never been, and, Allah willing, will never become is the unbridled, unfettered and totally relentless secular construct which modernism wishes to pass off as the law of Islam.

If there is, in any way, something that modernism can learn from Islamic finance, it is certainly not how the rejection of Shari'ah could be camouflaged as its reform. The most important lesson it could ever learn from the story of Islamic finance is that success can only begin with the acknowledgement of inviolable parameters. As long as those limits remains unacknowledged, modernism will continue to bark up the wrong tree.

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Read 804276 times Last modified on Saturday, 30 May 2015 07:45