Rumee Ahmed’s Sharia Compliant begins with a letter to his Muslim readers. The Arabic term for “letter” is risala, a term that begins the titles of important historical sources of Islamic law. Muhammad b. Idris al-Shafi’i’s legal theory (usul al-fiqh) text is simply entitled al-Risala, or the Epistle of al-Shafi‘i (al-risala li’l-Shafi‘i). Reviewing Ahmed’s Sharia Compliant, I could not help but feel that Ahmed is reaching out and turning the pages for me as I read his own risala. Indeed, Ahmed’s latest work reflects the voice of an author who cares about both his subject and, most importantly, his reader. His study is about Islamic law, and in particular, the possibilities of reform.
Debates about reforming Islamic law are not new. They have been with us for decades, if not centuries. Scholars who write about Islamic legal reform often look to the wisdom of Muhammad Abduh, Jamal al-Din al-Afghani, and others for inspiration. They recognize the primacy of source texts in the formulation of law, and theorize strategies around the sources or through the sources. Their turn to the text presumes a certain epistemic training and expertise that ultimately gives the “jurist,” not unlike today’s lawyer or judge in a common law environment, an elite status that hierarchically separates them from the non-expert, whose experiences of law from below matter little to the analysis of what law is or should be. To center the textuality of law—and all that it implies by way of training, expertise, and the resulting elitism of legal analysis—ultimately reinstantiates the dominant paradigm of law, where the authority granted to the text masks the elitism of those who make an exclusive (and exclusionary) claim of competence and expertise to read them. This critique is not unique to Islamic law. The field of legal studies is peppered with a number of studies about law “from below,” where the hierarchy embedded in expertise and professionalization is the subject of critique.
Ahmed is no less attentive to the textual tradition of Islam, but he passionately brings into his analysis of the law the lived reality of Muslims—something not as easily footnoted as source text or electronic articles with unique DOI numbers. For Ahmed and his readers, “[s]omething’s wrong.” What is wrong, according to Ahmed, is the demonizing of humanity’s imperfection by those who proclaim Islamic law as redemptive salve. From mosque leaders to Boko Haram, Ahmed is concerned that the claims about Islamic law’s salvific promise rest upon presumptions of a deviant, undisciplined humanity, where the turn to the law is coupled with “shaming the community into compliance.” For Ahmed, the arguments about Sharia’s salvific promise operate more like a game of whack-a-mole, and are no less illusory in their promise of certain outcomes. Humanity, like the mole, is never truly tamed into compliance. Centering the humanity of the believer, Ahmed shows that competing reading practices allow one to “hack” Islamic law in ways that both celebrate the dignity of the individual and remain attentive to the textuality of a tradition. In short, his monograph offers a prescription for an “Islamic law from below,” where “hacking” is offered to a millennial readership as a technique by which to challenge the coercive tendencies the hierarchy of expertise too often makes possible.
His use of hacking implies the use of “existing tools to make something work better or more efficiently.” But to be a better or more efficient Islamic law, for Ahmed, means calibrating the legal tradition to the changing vicissitudes of what counts as human dignity. Without this calibration, adherence to Islamic law becomes a zero-sum game for many who see formal compliance as redemptive, while others may view it as harsh, unjust, and inhumane. With practice, he argues, anyone can “hack” Islamic law, thereby transforming what has become a zero-sum game of adherence/exit into a sum-sum game in which the pursuit of human dignity is the point of Islamic legal inquiry, rather than some formalistic discovery of legal doctrine pronounced in a singular tongue. As he states, “as more people learn how to do this and develop their skills, they will enter into fruitful, authoritative debates with fiqh-minded elite and state-sponsored ulama.”
Rhetorically, his work is powerful because the tools he uses to “hack” Islamic law are already well-developed in the historical tradition. The power of his analysis lies in the fact that he reads in a manner that is both familiar to those focused on the historical legal tradition, and reflective of a life lived in the present.
Regulating Sex
Ahmed’s approach is particularly powerful in his chapter on zina or illicit sex. He begins by identifying the inherited traditions on the Islamic legal regulations on sex. Turning to state practices he notes that zina is punishable by lashing and, according to some, stoning to death. But the historic and the textual (let alone modern legislative) are not the only sources of authority for his understanding of Islamic law. He writes:
Most Muslims today, however, believe that adultery is a private act that concerns the individuals involved, and no one else. Adultery might be sinful and grounds for divorce, but many believe that it should not be punished by the state, and certainly not by lashing or stoning to death. Many Muslims today believe that the state has no right to police marital infidelity and that when it comes to sexual relations between adults, the state should be involved only when sexual relations are nonconsensual.
Blending the historical, the textual, the official, and the popular, Ahmed recognizes that once aggregated, these factors demand a hack that will, by commingling the scriptural tradition with lived experience, also expand the range of possible legal meaning.
For Ahmed, if consent is the new dividing line between the moral and the immoral, the right and the wrong, the legal and the illegal, a hack that reads the zina prohibition in terms of nonconsensuality begins to look like a scriptural prohibition against rape. After aggregating what lawyers might consider formal and popular indicia of legality, Ahmed lays bare his conclusion: “the driving concern is that consensual sex should not be prosecuted at all, whereas rape, whether within marriage or not, should be punished by the state.” On this basis, Ahmed begins his hack. Examining the meaning of zina across a range of legal issues, he cannot help but ask counterfactually, “[w]hat if precolonial ulama assumed that zina was always coercive and nonconsensual, so that whenever they mentioned zina, they were not talking about consensual sexual relations but only about rape?” The remainder of the chapter is devoted to showing how one could hack the meaning of zina to conclude that it has always meant rape.
The (Dis)Trust in Freedom
By suggesting that this new reading of zina is actually old, Ahmed is not engaging in a positive inquiry of Islamic law; nor is he engaging in a reformist critique in the service of a particular telos of modernity. Rather, he raises a fundamental question about the scope of state regulation. As the academy devotes itself to explaining, if not denouncing, the neoliberal turn, one cannot help but locate Ahmed’s discussion of zina within a range of debates about the state, redistributive politics, and the increasing turn to free-market, laissez faire economic policies.
The trust we all enjoy from the doctrine of laissez faire falters when it comes to what we do with our penises and vaginas. Laissez faire is about trust, at least when it comes to who is in the best position to most efficiently spend my hard earned money. Conservatives and free-market economists often advocate deregulation in economic matters, on the ground that the state does not have the competency to know what is most efficient in market terms. Rather, individuals as profit maximizing rational actors should be trusted to spend their money as they see fit. On this logic of limited government and trust, one might expect laissez faire conservatives to similarly argue that the state has no business in regulating how people decide to spend their intimate lives. A laissez faire approach to intimacy would trust individuals to decide what is in their best interests as far as their intimate affairs are concerned. But we know too well that conservatives do not extend their trust in individuals to the bedrooms. While they advocate state deregulation to maximize individual economic autonomy, they demand the state intervene in how we manage our sex lives and reproductive autonomy.
Ahmed’s hack will most certainly appear to some as a type of revisionist form of history, an illusion, or a linguistic magic trick. But for me, it begs a foundational, epistemic question that links his critique of Islamic law with broader critiques of the state, both from above and below. While some might see his hack as illusory, is it any more illusory than the economic models that inform policies of market deregulation? Certainly we might all take comfort in the predictive model of homo oeconomicus, the rational profit maximizing actor. But that model is, as Kwame Anthony Appiah has shown, no more or less idealized (and thereby always and already false) as Ahmed’s claim that zina has always been a prohibition of coerced, nonconsensual sex. What Ahmed has shown, in his unique and provocative study, is that whatever zina means, it is always about what the text is made to say. Ahmed’s invitation to his reader is no less than a technique to subvert the hierarchical divide between the expert and the lay, and thereby calling to account the coercive tendencies implicit in a vision of Islamic law committed to preserving that hierarchy.