Islam, the Law, and the Sovereignty of God

Policy Review

Volumn , Issue 149, 2008, Pages 3-17

  Gould, Mark ^a  

^a HAVERFORD COLLEGE   (United States)

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EID: 47249127751     PISSN: 01465945     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (27)

1. We might further contend, although I do not discuss this question here, that the constitutional principles must themselves be capable of revision, even if that process is usually laborious and cumbersome. For the notion of "civil religion," see Robert N. Bellah, "Civil Religion in America," reprinted in his Beyond Belief: Essays on Religion in a Post-Traditional World (Harper & Row, 1970).
2. H.L.A. Hart, The Concept of Law (Oxford University Press, 1997 [1961]); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980); Jürgen Habermas. Between Facts and Values: Contributions to a Discourse Theory of Law and Democracy, trans. by William Rehg (MIT Press, 1996 [1992]). On Habermas, see my "Law and Philosophy: Some Consequences For the Law Deriving From the Sociological Reconstruction of Philosophical Theory," Cardozo Law Review 17: 4-5 (1996).
3. This characterization is more apposite to ascetic Protestantism than it is to Catholicism, which is closer to Islam in these respects. Even so, while the emphasis in Catholicism has often been on the rules laid down by the institutional Church, its focus on Jesus as redeemer in contrast to an emphasis on the law allows for the same development.
4. Max Weber, Economy and Society (Bedminstet Press, 1968 [1926]), Chapters 1 and 3.
5. The most important discussion is Niklas Luhmann's Legitimation durch Verfahren (Frankfurt: Suhrkamp, 1983 [1969]); there is also a relevant discussion, in English, in his A Sociological Theory of Law, trans, by Elizabeth King and Martin Albrow (London: Routledge & Kegan Paul, 1985 [1972]). Cf. my "Legitimation and Justification: The Logic of Moral and Contractual Solidarity in Weber and Durkheim," Current Perspectives in Social Theory 13 (1993).
6. The discussion that follows in this and the following section draws on Mark Gould, "Understanding Jihad," Policy Review 119 (February/March 2005). A more comprehensive analysis is found in the earlier paper.
7. This is true of what we may label "post-Enlightenment" Christianity. In the contemporary period, however, forms of fundamentalist and Evangelical Christianity are growing more rapidly in most parts of the world than are Christianity's "post-Enlightenment" forms. Fazlur Rahman presents a picture of Islam moving from a more to a less enlightened status. He contends that a living Surma, "a progressive interpretation and formulation of the Prophetic Sunnah," which allowed early Muslims "to derive norms from it for ... [themselves] through an adequate ethical theory and its legal embodiment," solidified into a codified set of Hadith that enunciated precepts taken as valid at all times and in all places. Fazlur Rahman (Rehman on the cover), Islamic Methodology in History (New Delhi: Adam Publishers, 2005 [1965]), 80 and passim.
8. See my "Religion Within Reason: Pope Benedict's Critique of Islam," Policy Review 146 (December 2007/January 2008). The revised version of the pope's remarks, complete with footnotes, is available at: http://www.vatican.va/holy_father/benedict_xvi/speeches/2006/september/ documents/hf_ben-xvi_spe_2oo6o912_university-regensbuTg_en.html (accessed May 15, 2008).
9. Khaled Abou El Fadl, "Constitutionalism and the Islamic Sunni Legacy," UCLA Journal of Islamic and Near Eastern Law, 1 (2001); "Islam and the Challenge of Democratic Commitment," Fordham International Law Journal, 27 (2003).
10. Frederick M. Denny, Islam and the Muslim Community (Waveland, 1987), 68.
11. Ibrahim M. Abu-Rabi, Intellectual Origins of Islamic Resurgence in the Modern Arab World (State University of New York Press, 1996), 149. Cf. Rahman's comment: "Besides, the Mu'tazilah rationalism appeared to the religious-minded [the orthodox - M.G.] to be a form of gross humanism, an imposition upon God of what a certain number of men regard as truth and justice" (Islamic Methodology, 62.).
12. Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual Tradition (University of Chicago Press, 1994 [1980]), 8. Ijtihad, of course, precedes Gadamer by over a millennium; it is Rahman's understanding of ijtihad that is indebted to Gadamer.
13. For my characterization of an exception, see the discussion in "Kemal A. Faruki: An Islamist, a Modernist," Muslim World, forthcoming.
14. Rahman also comments as follows: "[E]arly schools sometimes went too far in using this freedom [ijtihad]. For this reason in the late eighth century C.E. al-Shafi'i successfully fought for the general acceptance of 'traditions from the Prophet' as a basis for interpretation instead of ijtihad or qiyas. Yet the real solution lay only in understanding the Qur'anic injunctions strictly in their context and background and trying to extrapolate the principles or values that lay behind the injunctions of the Qur'an and the Prophetic Sunna. But this line was never developed systematically, at least by Muslim jurists" (Islam and Modernity, 18). See, more generally, his Islamic Methodology.
15. Rahman does suggest the necessity of problematizing conventional understandings of Hadith. See Islamic Methodology.
16. It is, of course, true that Dworkin represents one position among many, and, I have argued elsewhere, a position that is problematic in many respects. Even so, in this brief discussion, I will use him to make certain points that I take to be exemplary of constitutional adjudication.
17. Ronald Dworkin, Law's Empire (Harvard University Press, 1986), 90.
18. Social values define what is morally obligatory and desirable for a system as a whole and, ideally, for all of its members, not what is desired, preferred, by individuals.
19. A partial exception is found when courts interpret statutes.
20. Charles Howard McIlwain, The High Court of Parliament and Its Supremacy (Yale University Press, 1910).
21. For the institutional origins of this understanding in the English Revolutions of the Seventeenth Century, see my Revolution in the Development of Capitalism (University of California Press, 1987).
22. See my "Kemal A. Faruki: An Islamist, a Modernist," Muslim World, where I argue that Faruki provides the rudiments of a characterization of Islam that would facilitate this incorporation.
23. In this context, we may ignore the Arab particularism that infects some forms of Islam.
24. Christianity is also universalistic in the sense that all who accept Jesus as their savior may become Christians. Significant here, however, is its role in the constitution of universal values that transcend any particular denomination and the capacity of multiple Christian and non-Christian denominations to live reciprocally under those shared values.
25. While I am, of course, taking the term "double consciousness" from W.E.B. Du Bois, I use it in a different sense. As Mahmoud Sadri pointed out in his commentary at the American Sociological Association Annual Meeting where an earlier version of this paper was delivered, Du Bois was at best ambivalent about this notion. Du Bois wrote, "It is a peculiar sensation, this double-consciousness, this sense of always looking at one's self through the eyes of others, of measuring one's soul by the tape of a world that looks on in amused contempt and pity. One ever feels his two-ness, - an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder." W.E.B. Du Bois, The Souls of Black Folk (A.C. McClurg & Co. 1903), available at http://www.bartleby.com/114/1.html (accessed May 18, 2008). In contrast, I characterize "double consciousness" without this ambivalence, as the positive affirmation of both one's own creed and the more general set of principles, a civil religion, that might be generalized from one's own and from other creeds, one identity that is particular and one that is universal, each compatible with the other. At the same time, I recognize, as a number of African-American and Muslim friends have commented to me, currently this ambivalence is often present phenomenologically for both Muslims and African-Americans."
26. I do not discuss Europe in this paper because the social conditions for the full inclusion of Muslims, their dispersion across class and status lines, and the tradition of "hyphenated Americans," a double consciousness without Du Bois's negative connotations, are absent. Thus the question of the possibility of inclusion is both different and more difficult.
27. I discuss this process of inclusion a bit more thoroughly in my "Double Consciousness: Full Inclusion for the Muslim American!" Islamica Magazine, forthcoming.