Thursday, April 17, 2014

Sharia against success

When the muezzin calls the faithful to prayer, part of his call is "come to success" (Hayya ʿala 'l-falāḥ, literally "hasten to success"). The idea is that Islam leads to success in this world and the next. For the key problem in Islam is ignorance, and the answer to ignorance is guidance; specifically, the instructions given to Allah's guide (Muhammad) by Allah. In Islam, a prophet is a guide of God and Muhammad is the final guide, the seal of the prophets (Khātam an-Nabiyyīn, a title used in the Qur'an to refer to Muhammad, understood as the Prophet bearing the final revelations).

Hayya ʿala 'l-falāḥ ("hasten to success").
Thus Islam is submission to (the instructions of) Allah; i.e. becoming a Muslim, so a whole person, complete in one's submission. One becomes a Muslim by uttering the declaration of faith, the Shahada (literally, the witness or testimony of faith): There is no god but God, Muhammad is the messenger of God.

The words, actions and life of Muhammad are the key to the Qur'an and to following the correct path, which is Sharia (literally, the path or way). Sharia is structured inference from the words (including the revelations recorded in the Qur'an), actions and life of Muhammad, the Sunnah. It is hardly possible to have a purely Quranic Islam, since the Qur'an is not structured chronologically (either in chapters or in verses within chapters) and later verses abrogate earlier ones--so the life of Muhammad puts the verses in their necessary sequence and context--while the Qur'an itself says to follow the example of the Messenger, the last Guide.

Sharia jacket
Which is what Sharia provides: the correct and informed path built on structured inference from the Prophet's example. Sharia is not merely law, it covers manners, ethics, what you eat and when, ritual life. All based on inference from the words, actions and life of Muhammad. The events of his life are the cases and Sharia works as inference from them. (If you are interested in more detail on any of this, talks by Dr Rev. Mark Durie--Arabic linguist and Anglican vicar--provide a very accessible online resource: he blogs here.)

Sharia is not without its virtues. It provided a common set of laws from Morocco to Northern India and into the Malay world. For much of its existence, it was probably a superior set of commercial laws than that available elsewhere--this was part of its appeal in the Malay world, for example. Even today, in some circumstances, a woman can be better off getting a Sharia divorce than under the laws of England and Wales where, due to the Christian presumption of no-divorce, pre-nuptial agreements are not recognised. But Sharia also has some severe limitations. In particular, it is a major constraint, even barrier, to effective social bargaining.

What Western Europe and Japan had
In evolving higher levels of social activity and ability to mobilise resources through social bargaining, Western Europe and Japan shared certain advantages. Both had universal ethics (Christianity, Buddhism) which facilitated social bargaining. In both law was an entirely human thing. (Canon law was partly grounded in revelation and natural law, but it could be changed--even natural law was something of a moveable feast, as changes in Church teachings on slavery indicate--and did not trump secular law.) In both, single heir systems developed promoting concentrated inherited wealth and limiting the value of kin connections in social cooperation. Both were mountainous with lots of water transport, promoting factor (labour, capital) mobility and competitive jurisdictions. Both were isolated from conquering steppe nomads, so did not have their institutions flattened periodically.

Daimyo procession--a personage to bargain with.
Daimyo procession--a personage to bargain with.
Europe produced effective, responsive states able to mobilise resources far more effectively than any other civilisation. The result were enormously successful societies, for good and ill (mostly good for its own peoples, rather more mixed for their colonial conquests). This highly successful evolution ultimately produced prosperous, free and democratic societies. It also brought 1000 years of Muslim aggression against surrounding civilisations and cultures to a halt by evolving into much more successful social predators. Hence, European states began to roll back the Ottoman Empire out of Europe and came to occupy and dominate the Middle East from the early C19th to the mid C20th.

Japan was the civilisation who was institutionally most like Europe. In particular, it was the civilisation with the next highest level of social bargaining. It is not therefore surprising that it was the civilisation which was most effective in responding to the Western challenge.

That Islam didn't
Islam had none of these advantages. The Islamic world from Morocco to Northern India was either accessible to steppe conquerors or to eruptions by its own pastoralists, or both, so there was a persistent tendency to institutional "flattening". (Islam itself was made dominant in the region by just such a wave of pastoralist conquest.) The geography was open to imperial unification and generally militated against stable states with long institutional learning processes.

Mirza Abu Taleb Khan
Mirza Abu Taleb Khan
While Islam looks like a universal ethic--and it is certainly universal in its purported coverage--it actually puts major divides between people. Men have superior legal standing to women, believers over non-believers. (A non-believer could not testify against a believer, for example.) Moreover, any social bargain not compatible with the life and example of Muhammad was incompatible with Islam. (And still is.) For, in Islam, law is not a human thing; it is a religious, a divine thing. This hugely constrains its ability to support or ratify social bargains, just as the differential treatment based on religiously allocated status undermines the very notion of social bargaining across such barriers. Even without the issues of permitted deception or taqiyya and kitman.

Between 1798 and 1803 the "Persian Prince", Mizra Abu Taleb Khan (1752-1806?), an Indian of Perso-Turkish background, travelled to Europe and wrote down his impressions in a travel memoir, which was translated in the early C19th in two volumes by Charles Stewart (1764-1837). In the second volume (published in 1814), Taleb Khan wrote:
Even the laws respecting culprits are abrogated or altered by Parliament; for the Christians, contrary to the systems of the Jews and Mohammedans, do not acknowledge to have received any laws respecting temporal matters from Heaven, but take upon themselves to make such regulations as the exigencies of the time require (p.81).
Taleb Khan admired much about British government (though the court system more in its theory than its practice), but he clearly finds this making laws rather strange. Earlier he wrote (and in both passages the touch of the translator can be discerned):
It is requisite to explain to Mohammedans that, in England, Law and Religion are distinct branches; and that the duty of the clergyman is limited to watching over the moral and spiritual conduct of his flock, to burying the dead, visiting the dying, uniting persons in marriage and christening children; for, according to their tenets, children are born without religion and, until christened, are not admitted to the pale of the Church (Pp63-64).
Sharia mandates division among heirs, undermining the development of powerful propertied families. In particular, in medieval Islam, the warrior elite was not given land (ownership) grants--which would have to be divided upon inheritance, and so become too small to support a (seriously expensive) mounted, armoured warrior--but tax grants (iqtatimartuyuljagir) which, as public functions, were not subject to Sharia inheritance provisions. (They are often described as "land grants", but that is misleading.) Such tax grants also greatly narrowed both the warrior elite's connection to the productivity of the land, including productive relations with the peasants, and the scope and motive for social bargaining. The different effects between land-owning warriors and tax-collecting warriors was observed by Muslim observer ibn Jubayr (1145-1217) as long ago as the C12th:
Upon leaving Tibin (near Tyre), we passed through an unbroken skein of farms and villages whose lands were efficiently cultivated. The inhabitants were all Muslims, but they live in comfort with the Franj [Franks, i.e. Crusaders]—may God preserve us from temptation! Their dwellings belong to them and all their property is unmolested. All the regions controlled by the Franj in Syria [Everything south of Anatolia and west of Mesopotamia up to Egypt] are subject to this same system: the landed domains, villages, and farms have remained in the hands of the Muslims. Now, doubt invests the heart of a great number of these men when they compare their lots to that of their brothers living in Muslim territory. Indeed, the latter suffer from the injustice of their coreligionists, whereas the Franj act with equity.
Centuries of such difference lead to very different social outcomes. That Western rulers had to bargain with powerful landed warrior dynasties and organised merchants made even more of a difference to social outcomes. There was no development of Parliamentarianism in Islam. Even if there had been reasons to engage in such bargaining assemblies, they would have had no competence to make legal changes.

It is possible to talk about Islam's inadvertent patterns precisely because Sharia has been such a powerful and consistent social constraint. Even when it is not the actual legal system in use (as it was for over a thousand years), and even though religious belief can be something of a moveable feastSharia powerfully influences enduring cultural patterns among Muslims, even to their social psychology.

Social bargains
There was nothing in Latin Christianity which blocked broad social bargains (at least among Christians) and much which facilitated it. The blocking of cousin marriage (see Fourth Lateran Council 1215, Canon 50 which cut it back to merely 4 degrees) undermined kin connections as tools for social cooperation, encouraging use of broader social bargains; the universal ethics facilitated broad social bargaining; and the view of law as a human thing permitted both legal experimentation and law reflecting and enforcing social bargains. Out of these processes of social bargaining (and intensely bellicose inter-state competition) emerged highly effective and socially responsive states.

No agreement reached here can change.
No agreement reached here can change the laws.
Conversely, Islam put up a wide range of blocks to broad social bargains. The permitting of cousin marriage encouraged reliance on kin connections for social cooperation rather than broader social bargaining; the requirement to divide property among heirs undermined creating powerful propertied interests as long-term social bargainers; the ethical structure deeply divided people by faith and gender; the notion of law as divine and based on the life of a single C7th religious-political figure blocked it being used for either legal experimentation or reflecting and enforcing social bargains. Shura, consultation has positive standing within Islam, but such assemblies had no competence to change the law. Islam was not going to (and did not) evolve Parliamentarism, that is a Western import.

So Islam fell behind and now confronts a world dominated by infidel success. Something that is a great source of Muslim rage, as (the greatest) success in this world and the next is the prerogative of those who submit to the guidance of Allah through His Prophet.

Democracy and Islam
On the other hand, polls suggest that Muslims strongly or even overwhelmingly wish to live in democratic societies, the most extensive of broad social bargaining polities. Muslims have proved them willing to, en masse, defy threats to participate in elections. But democracy both grew out of, and operates on the basis of, broad social bargaining. Islam sets up all sorts of barriers to such social bargains. And the more you go back to the source material, the more you bind yourself to the C7th example, the more that is so. Hence the jihadi claim that democracy is blasphemous.

The jihadis are would-be reformers of Islam at war with its modernisers, a pattern that goes right back to the early days of the Abbasid Caliphate and the struggle between the Mu'tzallites and the (victorious) Ash'arites. The long-term pattern of Islam is depressingly clear--the reformers always end up defeating the modernisers, with the source materials of Islam being much more on the side of the former.

Given that the logic of belief is not necessarily the logic of believers, it is much easier to have Muslims who choose to be democrats than a democratic Islam. That is a profound dilemma and the greatest delusion of all is to suggest that the dilemma is not real, is not powerful, is not a force in the world today and for the foreseeable future.

[Cross-posted at Skepticlawyer.]

1 comment:

  1. Very elegantly expressed, insightful and compelling in its argumentation.