Rumee Ahmed’s Sharia Compliant: A User’s Guide to Hacking Islamic Law is a unique book in that it tackles some of the most difficult questions in the clearest and most accessible language. In doing so, it pushes us out of the comfort of our specialized research and jargon, and forces us to engage with matters of immediate importance.
To my mind, the book’s central message can be summarized as follows: The Islamic legal tradition has always contained within it the tools necessary to strike a critical balance between authenticity and practicality. This process of internal adjustment (referred to as “hacking”) has historically been monopolized by a class of scholars, but today can be exercised by many “fiqh-minded” Muslims at various social levels. This proposition is both conservative and subversive. On the one hand, it wishes to preserve the tradition by tapping into the dynamics of evolution necessary for its continuation. On the other hand, it aims to release it from the structures of authority that have historically controlled it and that are no longer adequate.
To me, this proposition raises two sets of questions. First, to what extent does Ahmed’s account of precolonial Islamic substantive law (fiqh) correspond to what we may consider legal, as opposed to purely religious or aspirational, to use Ahmed’s terms? This inquiry, as further elaborated below, may have implications on our assessment of the uneasy place of the Islamic legal tradition in today’s legal systems. Second, why should the tradition be preserved at all? This question can be easily answered from the “internal” standpoint: Every tradition needs to adjust to its surroundings in order to survive. But, from an external standpoint, one might ask, why bother hack it at all? Why not upgrade, or replace, rather than hack? And, somewhat relatedly, how can you continue to improve a system independently of the very structures of authority that have made it possible?
None of these questions is rhetorical. They do not reflect implicit preconceived answers. Nor do they aim to suggest that Ahmed should have addressed them, as they are primarily intended to expand upon and offer alternative ways of thinking about the book’s valuable offerings. They are, however, closely linked, as they all stem from a concern with what can be seen as a set of sweeping sociopolitical crises in the Muslim world, as evidenced most clearly by a consistent emergence of the question of the constitutional place of shari’a in virtually every attempt at political and constitutional reform in a Muslim-majority nation. It is true that the shari’a continues to have a redemptive power. But how can a broad effort in hacking, and, therefore, preserving the tradition, help address those crises? One of the most noteworthy moments in Ahmed’s book comes early in the sixth chapter. He writes, “Although we normally think of the state when we think of law and power, state actors are not the only ones with power. The general population also has power, and they have their own demands of the law. [. . .] ulama [i.e. scholars] [also] have soft power to influence all sectors of society . . .”
The idea of a broad conception of state and non-state power that underlies the shaping and reshaping of law is an attractive one. But in a post-Arab spring world, on purely descriptive and analytical grounds, I find myself unable to share this outlook, as much as I would love to. We have repeatedly seen that autocrats, allied with self-serving regional and global forces, will not hesitate to physically crush popular aspirations for self-determination as long as the external political incentives continue to outweigh the local price of bloodshed. The utter destruction of civil society and all that comes with it, a mere theoretical possibility in the precolonial world, is a reality we experience on a daily basis. While it is true that power does not only mean state power, the reality of domination and the various forms of exploitation we witness today make it necessary to ask to what extent we can be certain that a break from old forms of authority can inspire real socio-legal transformations.
This takes me to the first question: Where does the law reside? This is a difficult question, and Ahmed’s account reflects a keen awareness of this difficulty. At the heart of this debate is the question of political power. Is the backing of a sovereign a necessary condition for something to qualify as law? Many, myself included, are inclined to answer in the positive. While law tends to draw upon a wide range of cultural realities, including moral ideals, the definitive attribute that separates the legal from the non-legal but otherwise normative, is, ultimately, the backing of a sovereign authority.
This does not mean we all experience law this way; many of us find it to be intrinsically moral to follow the law regardless of material consequences. In many ways, the operation of the legal system influences, and is influenced by, cultural practices. But none of that is specific to law; only the backing of state power is. When we turn to the precolonial Islamic setting as explained by Ahmed, the picture becomes even more complicated. While modern laws generally aim to produce one general principle per legal question, Islamic law openly embraced the plurality of norms in each given case. Whereas modern legislatures aim to give an account of the law as it is, precolonial Muslim jurists opined about the law as it ought to be. Whereas modern courts are supposed to apply the law, precolonial shari’a courts tended to reconcile the litigants based on what judges saw as the best outcome in each case.
I will venture to say that, to the critical, realist eye, these distinctions may appear purely theoretical. It is not that modern state laws are any more predictable, uniform, or positivistic than the precolonial Muslim legal model; they are just less open about their own indeterminacy. The fact of the matter, to the realist, is that general and abstract rules are nothing but aspirations. Uniformity is impossible given the uniqueness of each fact pattern. Judges, at the end of the day, decide based on a general sense of justice, but cloth their decisions in the language of those aspirational general principles.
In thinking about how, and why, the precolonial should continue to inspire our current postcolonial (or rather neocolonial) present, it is important to think about what shifts in legal contexts have taken place. While Ahmed’s narrative fully accounts for the social and economic violence colonialism brought forth, it seems to suggest that, as far as the inner workings of Islamic law are concerned, those shifts may be less radical than we tend to think. The ulama continuously hacked and patched their own tradition then, and they continue to do that now. They produced aspirational “religious” opinions geared toward achieving salvation then and continue to do that now. They had no material power then and continue to lack material power now. The main difference that Ahmed accounts for is that they were respected then and are generally resented now. The reasons for this shift include an increase in literacy rates among Muslims and the adoption of modern, supposedly uniform, models of law that have left the traditional-minded scholars behind.
But that is not all: It is not just that the scholars have failed to adapt, it is that the configurations of socio-legal power around them have shifted so drastically that their role has become completely ambiguous. Perhaps, in a sense, they have adapted too well. It is true that the power of the ulama was spiritual throughout, but it was also legal in the precolonial context in ways that are no longer possible. Precolonial governance, as Ahmed explains, allowed the scholars to define the substantive content of the law, even though, theoretically, it could have been otherwise. While the law was then and continues to be now that which is backed by the physical power of the state, the fiqh then was systematically regarded as the ideal, and therefore, ultimate, recourse that could mobilize coercive state power. Today that is no longer the case. The school of law (madhhab) had a place in the general constitutional order of Muslim societies, but today it does not. Its role is at best vague and inconsistent, and at worst conducive to oppression. In that framework, the traditional authority granted to the ulama made constitutional sense, regardless of mere scholarly merit, but today that is no longer the case.
That takes us to the second question. Hacking the tradition will, I think, ensure its continued internal health and renewal. But, for the external observer, for the majority of non-fiqh minded Muslims, and the non-Muslim residents of the Muslim world, what would hacking do? This may admittedly be seen as an attempt to impose a certain normative commitment on this argument that was not intended by the book’s author. As Ahmed notes, however, the majority of Muslims are indeed non-fiqh minded, and therefore it may be worth attempting some reflections on what the value of such a call for reform might be from an external, non-fiqh oriented standpoint. For one, as long as we are contending with a historically profound and persistent tradition, we will all be better off if that tradition is dynamic, practical, and overall more responsive to its social surroundings. But why hack, rather than, for example, format and reinstall (which would roughly correspond to the various propositions occupying the Salafi spectrum)? Or, as the secularist would have it, why not just buy the new machine that seems to work so well for the neighbors?
Ahmed provides an answer, but I would like to slightly reword it. Islamic law has a considerable redemptive power. It is not, however, that general Muslim populations have actual power they should use to impose legal change. It is that engaging in any form of collective normative deliberation is, in itself, an act of self-determination that could challenge the current imbalance of power. Invoking the inner dynamics of the classical tradition for the sake of rejuvenation and reinvention of its own forms of authority is a promising project. But it does not seem likely that propositions concerning the place of Islamic law in the lives of modern Muslim communities can be entirely separated from the forms of power and types of law that characterize neocolonial states, within which the majority of the world’s Muslims currently live. The hacking project will not in itself resolve the constitutional crises that characterize the neocolonial condition, but can be hoped to participate in a broader process of revitalization of civil society. This could, conceivably, ensure that one day majority Muslim societies have a say in how their political and legal systems are governed.