Dr. Sherman

their very existence is a cause of war.

End of quote. Now, she goes on to point out that the abode of Islam, abode of peace dichotomy, double Islam, double haram dichotomy, is a religious prescription for Muslims. That is to say that Muslims prescriptively divide the world into an abode of Islam and an abode of war.

Muslims can live in an abode of Islam, but the only action that is legitimate for Muslims to assume vis- a-vis an abode of war is one of hostility. Now, what I want to do, and by the way, the implication of this, of course, is that Muslims who come to live in a non-Muslim polity can only adjust to their reality by relaxing their commitment to true Islam. And this is one of the ideas that, then some pretense to the idea that when Muslims speak about peace, about tolerance, about pluralism, about coexistence, this is really nothing more than a tactical maneuver.

It's designed sort of by time and to the point that society sort of falls asleep and wakes up one morning to find themselves in front of this grand Muslim power that is then going to show its real face. Now, by the way, these are very serious people who are writing this. This is not popular literature, as it were.

Historical Analysis of Islamic Legal Tradition

This comes from the highest echelons of the academy. Now what I want to do is call attention to the fact that there are many aspects of the Islamic religious tradition that are the result of history and non-religion. And this becomes a very difficult theme for many of us to get our minds around.

And at times I wonder, you know, how much of this is indebted to the sort of Enlightenment or post- Enlightenment attitude that we had towards religion in the context of which Islam becomes sort of the quintessential pre-Enlightenment religion, the religion in which people sort of still believe in that stuff, still really believe literally in the dictates of revelation. And for that reason, religion is the explanation virtually of everything that they do. All right? I don't know how... I've heard this from credible sources.

Someone told me that right after 7-7 happened in... 7-7? I'm trying to be hidden. Okay. 7-7, the bombing in London, Prime Minister Tony Blair said to someone, go out and get me a copy of the Quran.

Of course, this is supposed to explain why 7-7 happened. And what I'm suggesting here is that part of this may be indebted to the idea that for sort of pre-Enlightenment religion, religion is the answer for everything. So if you want to know why Muslims are doing what they do, or why they believe what they believe, you need consult nothing more than their scriptures.

Well, this idea I want to challenge, and I want to challenge a fundamental. And I want to do so through a reading of one of the most authoritative jurists, Muslim jurist, from the classical Muslim tradition. This is a man by the name of Al-Mawardi.

Al-Mawardi's Historical Analysis

Al-Mawardi. Al-Mawardi was a jurist of the Shari'a school of law, and he wrote a big 14-volume opus on Islamic law. He was a major authority in the field, and his books are still held in esteem and revered with authority today.

In this book, Al-Mawardi is clear that the designation of both of Islam, of both of peace, is not a religious prescription, but rather a historical description. That is to say, it is not a prescription for how Muslims should look at the world. It is a description of how Muslims found the world to be.

That is to say, that Muslims basically look out at the world and discover that the only places where they can live as communities in peace are places of which they have political authority. When they find themselves as minorities in non-Muslim lands, they find it very difficult. And by the way, this is a pre-Mohammed world now.

They find it very difficult to survive as communities. Now, that is where the distinction of both of Islam, of both of peace, comes from. And the proof of this is that Al-Mawardi is explicit in stating that any time a Muslim finds himself in a country where he or she is able to preserve their religion and practice the basic rudiments of their religion, even if they are not able to spread their religion, by persuasion or by the sword, the mere fact that they are able to practice the rudiments of their religion renders that country an abode of Islam.

Renders that country an abode of Islam. And Al-Mawardi goes on to say, basically, that if a Muslim should find himself in such a situation, in a non-Muslim polity, where they are able to practice the fundamental tenets of their religion, then that Muslim should not migrate from that country. And Al- Mawardi gives the implication that the reason for this is that if he's able or she's able to practice their religion, by leaving that country, that country would be less likely then to be guided to Islam.

Application to the American Context

Now, we don't need to over-indulge some of the sort of medieval connotations of Al-Mawardi's thought here, but the real point for us to recognize is that clearly, the whole notion of an abode of Islam, an abode of peace, is based on historical reality, not on religious prescription. And therefore, if Muslims should find themselves, in a general sense, in a position or in a historical circumstance or context, where in which it is possible for them to practice their religion, then certainly, if we apply Al- Mawardi's logic, that would render the place where they live an abode of Islam. Now, Muslims here in America have constitutional guarantees, freedom of religion, and, yeah, yeah, right.

While we may differ on our understandings or interpretation of how that is often concretized, certainly the idea of overt religious persecution is not one that sits well in the context of the American constitutional order. And here again, we run into a problem that is oftentimes confronted when thinking about Islam. When we think about Muslim communities in non-Muslim politics, the tendency is to assume the historical reality of pre-modernism, in which religious persecution would probably be the norm, rather than think about modern reality, a modern reality such as that of the United States, when that is not the case.

And part of what I'm trying to get us to do is to ground our understandings and our thoughts about Islam in the concrete reality of the United States. Now, in sum, there are many in the academy who would locate Islam in a particular time and place and a particular mindset, and then imply from there that this mindset binds all Muslims to that particular understanding. And on that particular understanding, Muslims who live in modern politics like America can only do so if they're not really, really, really committed to Islam.

The Concept of Hakimiyyah

But now, I want to go on and be fair here, because this is not simply a tendency that we find in non- Muslims. Muslims are also known to carry these kinds of ideas. And one of the major ideas in this regard that I think does a lot to impede Muslim ability to come to terms with their reality in the modern West is this idea of an haqqimiyah, an idea called haqqimiyah.

I'm going to explain that in just a second. This is a very, very well-known idea in sort of Muslim activist circles. It was popularized by the Egyptian ideologue, Sayyid Qutb, and a little before him, the Pakistani, Abu al-A'la al-Mahmoud.

Now, basically, the idea of al-haqqimiyah says the following, that part of what the Muslim testimony of faith entails is that God and God alone is the repository of all fundamental rights and obligations. In that context, anyone who recognizes man-made rights and obligations basically challenges God's rightful monopoly over the hanging down of law. In other words, to the extent that Muslims recognize man-made law and man-made policies, they are guilty of violating Islamic monotheism by attributing to someone other than God the right to make laws, to confer rights, and impose obligations.

Now, Qutb and Maududi and those who subscribe to this notion are in a sense aided by the fact that there was an extent, I mean the whole idea of God being the repository of ultimate value, that is central to the religions of Islam. And there's no justifiable cause for attacking Qutb or Maududi on that score. But to move from there to the idea that any man-made law, to recognize any man-made law is to be guilty of violating Islamic monotheism, that is a stretch.

Classical Islamic Law and Discretionary Powers

And I want to establish that by the following. In classical Islamic law, classical jurists always recognized a certain amount of legal discretion that was recognized to the ruler. The ruler can make laws that govern all kinds of things, from licensing medical doctors to requiring meat cutters to certify their meats, to issuing licenses for people who are going to teach in madrassas, etc.

I mean, all of these things were aspects of laws and rules that Muslim rulers could hand down. And this was universally recognized as being a part of the ruler's discretion. Now, while these were man- made laws, the only criterion that they had to fit was that they not in any way fundamentally violate the law of Islam.

Outside of that, however, they were recognized not only as being legitimate, but perfectly necessary, because Islamic law is not a law that has every single solitary detail of what we need to regulate life. In other words, you're not going to find speed limits in the Qur'an. They're not there.

And of course, the ruler would have to come forth and implement some kind of rule that would regulate that reality. This was a part of classical Islam, man-made to be sure. But in no way a violation of God's rightful monopoly over law.

In fact, there were jurists who actually championed the idea that what we need is to promote greater, greater discretionary powers to the ruler. Not in order to undermine the law, but actually to add to the efficacy of the law. And here we're talking about not so-called sort of liberal thinkers.

We're talking about jurists who are at the heart of the very Islamic legal tradition. In fact, some people whom we habitually think of today as being puritanical. Ibn Taymiyyah, for example, and his student, Ibn al-Qayyim al-Tawziyyah, championed the idea of giving discretionary powers to the ruler in order to add to the efficacy of Islamic law.

Examples of Discretionary Justice

And in order to be able to realize justice in instances where the actual dictates of the manuals of Islamic law seem to fall short. So to give you an example of what I'm talking about, Ibn al-Qayyim al- Tawziyyah says that, this is rather disturbing, so just hold on to your seats, but it's his example, not mine. If a man mutilates his wife's genitals, we're not talking about circumcision here, but if a man mutilates his wife's genitals, then it becomes illegal for him to divorce her. And if he should divorce her, either because he wants to or because she wants to, then he remains financially responsible for her up until her death. Now this was clearly a violation of the letter of the law that you would find in any manual of Islamic law. Ibn al-Qayyim al-Tawziyyah, however, insisted that the ruler be given this kind of discretionary power in order to be able to affect justice in those instances whereby a literal application of the law would lead to injustice.

In fact, he and his teacher, Ibn al-Qayyim al-Tawziyyah, are explicit in stating that any place we find justice, that is to be considered an application of Islamic law. Now my point here is not to argue for the substance of these deductions on the part of these jurists. It's simply to question, however, the whole idea that any time that Muslims recognize a man-made law or a man-made injunction, they are somehow guilty of engaging in acts of shirk or violations of Muslim monotheism.

Post-Colonial Context and Modern Misunderstandings

Now there are all kinds of other examples of this that we could point to. Muslims, and this is another problem that we find in words such as those of, say, Qutb and others, is the following. There's a fundamental difference because what we have to consider here is the time period in which we happen to exist.

And we happen to be on the sort of tail end of a development in the Muslim world that sees a lot of Islamic thought come out of the post-colonial mode of thinking. That is to say, where Muslims were trying to sort of reposition themselves in such a way that they could reclaim rights and positions that they felt had been lost to them. And part of that was to attack and to criticize the prevailing order.

And what you'll find in all these works is a very virulent attack on Muslim rulers who refuse to apply Islamic law. And that in itself is fair enough. And I mean, just think about how we feel when the government presents not to apply the Constitution.

It's the same sort of sentiment. The problem, however, is that oftentimes these books are read with a sort of a false transferability in them. That is to say that we assume that that which applies or could theoretically be applied to a Muslim polity that does not apply Islamic law applies equally to a non- Muslim polity that does not apply Islamic law.

And the same way that Muslims should oppose a Muslim polity that does not apply Islamic law, they should oppose a non-Muslim polity that does not apply Islamic law. This is very problematic. And this was never the opinion or the attitude of pre-modern jurists.

Pre-Modern Recognition of Non-Muslim Polities

Pre-modern jurists recognized non-Muslim polities as legitimate and the laws of non-Muslim polities as legitimate. And to make a very long story short, this is very easily identified in the principle of what is called extraterritoriality. And without getting too technical here, extraterritoriality produced institutions and Islamic law that are standard features in the manuals of Islamic law that granted, for example, merchants from non-Muslim countries who were traveling in Islamic lands, exemptions from Islamic law, all right, and allowed for them to have their cases tried according to the law of their own land.

So if you were a Venetian merchant and you ended up in Cairo and you got into a dispute with a Genoan merchant, right, Islamic law would allow Italian law to adjudicate the dispute between the two of you as opposed to impose Islamic law. All right, I mean, this was the attitude. Clearly they understood that that is their law, that is a legitimate law, and we will simply act as bailiff in this particular incident.

And the point that I'm making here, again, is the idea that a Muslim's attitude toward a Muslim state that flunked or violates God's law is not transferable to a non-Muslim state that does not have Islamic law. In fact, I want to sort of backtrack in a sense and locate what is really at the heart of this sort of exaggerated opposition to everything that can be identified as man-made law. Because in the modern Muslim psyche, man-made law has come to sort of constitute an anathema.

The Modern Muslim Reaction to Man-Made Law

When you hear that, there's a very sort of sharp, visceral reaction because it's understood to be not only a violation of, but a flaunting of God's law. Well, part of the reason for that is this. As I said, in

HEADING

pre-modern times, Muslims were quite comfortable with a modicum of discretionary powers in the hands of a man.

What happened is that when modern Muslim states came into being, the state assumed a monopoly over the law. And with that monopoly over the law, it sort of, from a Muslim perspective, from the perspective of Muslim activists, it abused that legal authority in an effort to supplant Islamic law with laws of foreign origin. It's in that context that man-made gets equated with a disregard for, a contempt for God's law.

In pre-modern times, man-made did not have that connotation. And this is part of what we must be very careful about when we're trying to talk about Islam. Because if we're not careful about the space in which we happen to be, we can equate man-made, for example, with contempt for Islamic law, even in a place like America, where that is, I hope, clearly a Nazi implication.

All right? Now, this raises another very important issue, and there are only a few others that I want to get to, that I think is very important to understand. And that is this. We tend to think of Islamic law as purely a matter of Muslim interpretation of Islamic scripture.

The Nature of Islamic Law and Legitimacy

And therefore, what renders something Islamic is whether or not we can find some prescription or injunction that urges or requires of Muslims that they pursue a certain thing. In other words, if we want to know about the compatibility between Islam and democracy, for example, what we look for is, well, where does the Qur'an require Muslims to establish democracy? And if Muslims are sort of unable to show where the Qur'an dictates democracy, or where a spontaneous reading of the Qur'an would lead to support for democracy, then the attitude is that, you see, Islam doesn't really support democracy. And when Muslims say that, they're just telling you what you want to hear.

All right? Now, what I want to try and convey to you is the following. From its inception, Islamic law has always included a reflex that said that in society, that is, pre-Muslim society, there may be any number of ways of doing things, values and institutions, that are perfectly fine. And what we as Muslim jurists will do is process these on the data of scripture, and anything that we find that is compatible with that, that is to say does not violate that, we will then re-inscribe with Islamicity.

In other words, non-Muslim institutions can become Islamic ones by a simple act of inscribing them with Islamic legitimacy. And so, for example, if you take, the symbol of Muslim society is of course, I mean the visual symbol, is of course of the mosque, where you have your dome and your nice minaret. That does not come from a Qur'an.

It does not come from a practice of a prophet. They didn't have these kinds of things in Mecca or Medina where the prophet was. Muslims only found these in non-Muslim lands, and re-inscribed them with Islamicity.

And they did this time and time again with any number of legal institutions. All right? And so what we're looking at is that Muslims may come to America and they may find things in society that the Qur'an did not put there, that the practice of the prophet did not put there, but which can certainly, certainly be processed in a manner that they can be inscribed with Islamicity.

They can become Islamic, not necessarily in the sense of being completely normative or representative of an idea, but certainly acceptable from the point of view of one who wants to live a life that entails a serious commitment to religion.

The Structure of Classical Islamic Law

And so when we speak about Islamic, Islamic law is not simply the dictates of the Qur'an and the Sunnah. And providence, that is, place or time, has never been a source of Islamic law alone. And so when we talk about Islamic law in America, we should abandon this notion that what that entails is Muslims coming to America and simply superimposing, in other words, American society in and of itself, from the perspective of Islam, has no legitimacy.

And a really truly committed Muslim community will simply want to do what with the American order? Take the whole thing and wipe it? Wipe it out and replace it with an Islamic order. This is never the way Islamic law, never the way Islamic law has operated. And this is, again, Islam in its most authoritative classical expression.

And let me just give you one idea quickly that sort of underscores this fact. If you go to the tables of contents in any manual of Islamic law, classical Islamic law, you'll find all kinds of chapters. All right? Chapters on shurikeen, chapters on debt forgiveness, chapters on torts, liability, et cetera, et cetera.

You'll find all of these chapters. The fact of the matter is that these chapters are not reflective of either the dictates of the Quran or of the Sunnah. What they are reflective of is reality that was found in the lands into which the Muslims came.

All right? That produced dispute situations that the Muslims then institutionalized and they became Islamic law. So many of these institutions come from non-Muslim lands and non-Muslim backgrounds. Some of them are accepted in total.

Some of them only after a certain amount of modification or adjustment. All right? But this is the way typically that Islamic law grew. Not only that, this was at a time when Islam was a numerical minority in these lands.

Historical Context of Islamic Legal Development

In his book, Conversion to Islam in the Medieval Period, Professor Dick Bullock, Richard Bullock from Columbia University, makes the point that the central lands of Islam did not become majority Muslims for centuries after the conquests. All right? For centuries, Muslims were a political majority, that is to say, they held power, but a numerical minority. Societies of which they assumed rule were majority non-Muslim.

All right? Now, think about the fact that all of the founders of the schools of Islamic law died during a period when Islam was a minority. They all died in the third century of Islam, which according to Professor Bullock was before Muslim society became predominantly Muslim. And so what we're seeing here is an ability on the part of Islam to interact with non-Muslim society in a manner that recognizes that there may be any number of aspects of that social order, political order, economic order, that are perfectly legitimate from the perspective of Islam, and that can be adopted and inscribed with a legitimacy in Islam.

The Question of Loyalty

Now, let me move on to, very quickly, the issue of loyalty. And here, I've already alluded to the fact that we should not assume that whether or not Muslims are loyal to a polity like America is based solely on religion. And I think this is something that we need to pay special attention to, because what it does, in a sense, is that it puts all of the onus on the Muslim community and assumes an ideal order.

That is to say, it assumes that the American state is conducting itself in an ideal fashion, or that the American social order is an ideal social order. I want to give you a hypothetical that hopefully will aid us in how we think about this. Think about the following.

It's 10 p.m. No, no, no, don't say that. Almost feels like that, right? I won't be long. It's 10 p.m. You are a black American male, mid-30s.

You are driving on that road of anywhere USA. Your car breaks down. You do not have a cell phone.

Therefore, you don't have to get out of your car and knock on somebody's door to get help. You get out of your car. You come upon a patch of houses.

Half these houses have American flags hanging outside. The other half does not. Which of these houses do you not know? Now, the point that I'm being made here is, and whenever I ask this question to predominantly black American audiences, or even audiences of color, as it were, overwhelmingly, the one without the flag.

All right? And the point that I'm making is that why is this not taken into consideration in terms of gauging whatever levels of alienation that Muslims may have from the hospitality? In other words, why is religion the only ingredient that's ever pointed to as an explanation for why Muslims may feel a degree of alienation? All right? This is a point that really calls out for some consideration. Now, two more points, and then I'll start open for questions. The other point is this, and this, I think, has a lot to do with a certain culture.

Weak State vs. Strong State Traditions

And this is more so the case among immigrant Muslims, but there is an extent to which, sort of by osmosis or enculturation, even a number of indigenous Muslims have adopted this. And this is this.

Classical or pre-modern Islamic law emerges out of what political theorists refer to as a weak state tradition.

By weak state, I'm not talking about military power. All right? But I'm talking about states in which the state itself is not the focal point of people's primary identity. In other words, pre-modern states are sort of like youths.

Over here, you have sort of the primary sense of loyalty to family, tribe, et cetera. On the other hand, you have primary public loyalties to religion, sex, even maybe school of law. The state here is actually in the valley, and that's the lowest level of loyalty and sense of identity that people feel towards the outside, i.e. toward the state.

Modern states are the opposite. They're the opposite. All right? You have family here, family religion, and religion, maybe ethnic group or race here.

And then the maximum sort of sense of identity goes to the state. That's sort of what makes us all Americans. All right? Now, the point that I'm trying to make here is that in coming out of a weak state tradition, Muslims are still in a transitionary stage where a weak state culture informs their sensibilities about the degree of loyalty to give to any state, not simply the American state, but to any state.

All right? And I know that there are some here who say, well, wait a minute. That certainly can apply to the Muslim world, where Muslims seem to be very loyal to their states. Well, two things here.

I would say, don't believe everything you see first. And then secondly, Muslims identify with Muslim states primarily as impositories of cultural and ethnic identity. That is to say that to be an Egyptian or to be an Indian, for example, is a cultural historical identity that precedes the state and transcends the state.

All right? The state is held to be a sort of repository of that identity. And it's on that basis that they identify with the state. If that state goes away, they still identify as Egyptians, as Indians, et cetera.

It is part of their ethnic identity. And it's on that basis that they identify with the state. This is part of what you might want to call a certain gap that's going to take a matter of time before Muslims can sort of emerge out of this weak state sort of mentality into a more strong state one.

Questions About Religious Commitment and State Loyalty

But here I have just two little questions. First, one of the issues, and by the way, not only religious Muslims, but religious Christians in America have raised this point. Professor Stephen Carter, for example, makes the point that one of the issues that religion faces in America is that our thinking in America tends to begin with the state and the interest of the state and then to figure out sort of how religion can be brought into conformity with the interest of the state.

All right? Now, if that's the case, I think it's fair to ask the question, why religiously committed Muslims, or Christians for that matter, or Jews for that matter, should not reserve their deepest

religious commitments for something other than the state, given that the state is never going to prioritize a religion as a repository of values that inform and that provide a basis for life. The second issue that I want to raise is this. Let's suppose that Muslims emerge out of this weak state mentality and they arrive at a strong state political culture.

That is to say that they identify with the state and they go look to the state to provide it with and to oversee a social political order that is in conformity with their vision of the good. What would happen if Muslims in America, for example, were to say, you know what, American state, we want to push for full prosecution for adultery and fornication. Would that be looked upon as simply being purely a matter of Muslims pursuing legitimate interests? And by the way, if you look at this from the perspective of the black American community right now, for example, that's a community where upwards of 65% of children are born out of wedlock.

All right? Would that be recognized as a legitimate aim? Or would this sort of be looked at as some sort of stealthy fifth column attempt to sort of impose the dreaded Sharia on society? And so the point that I'm making here is that if Muslims are to come into a full identification with the American state, then there's some give and take that has to be made on both sides. All right?

Conclusion

Let me end by saying the following. I think that we are in a point in our history where we are in desperate need of open, intelligent, honest, and courageous discussions, debates, and exchanges about the possibilities of America and the possibilities of Islam in America.

It's my hope that we will not suffer from what the French intellectual Guy Lebourd refers to as the tyranny of the spectacle. The tyranny of the spectacle. And what he's referring to is the fact that we end up in a society in which the images that are produced about a particular group undermine our ability to actually encounter that group.

In other words, I am talking to you face to face. I'm touching you. I'm exchanging with you. But rather than hear me, the image that is produced about me comes between you and me so that you can hear me and you can trust me. And therefore, we cannot get beyond where we are right now. Of course, this is going to take a lot of courage and a lot of digging deep.

And I'm not making a political slogan here, but let me just end by saying, yes, we can.