Probing The Islamic Secular by Professor Sherman Jackson

boundaries and encompasses the entirety of human life. Schacht famously described Islamic law as, and I quote, an all-embracing body of religious duties, the totality of God's commands that regulate the life of every Muslim in all its aspects, end of quote. In a similar vein, where Al-Halaq depicts Sharia as, and I quote, a representation of God's sovereign will that regulates the entire range of the human order, end of quote.

Again, as we saw in Al-Ataas and Azami above, this view is not unique to Western scholars, and it would seem, given the caliber and sheer number of scholars who embrace this view, that there must be some basic truth about Islam that this understanding succeeds in capturing. That truth, I wish to argue, is that Islam is an all-embracing construct that covers the entire range of human activity. But Islam, and here is where I differ with these scholars, is not coterminous with Sharia.

Rather, Sharia, again, even as recognized by classical Muslim jurists themselves, is a bounded rather than an unbounded discourse.

Al-Qarafi on the Horizontal Boundaries of Sharia

The idea that Muslims imputed jurisdictional limits to Sharia goes back to my days as a graduate student and my work, back in the last century, and my work on the great Egyptian Maliki jurist, Shihab al-Din al-Qarafi. Al-Qarafi makes it clear that the authority of Sharia is bounded, both horizontally and vertically.

For example, he states that such pursuits as mathematics, geometry, knowledge of prevailing customs, sense perception, and the like are not Sharia forms of knowledge, but fall outside the jurisdiction of Sharia. In other words, Sharia's authority does not extend horizontally far enough to be the authoritative basis for adjudicating the substance of these fields. As al-Qarafi put it, and I quote, knowledge of none of these things reverts to scriptural sources.

In fact, even assessing the practical dimensions of the good, al-hassan, may take one outside the realm of Sharia, strictly speaking. For as he put it, and I quote again, good, as a category, is broader than the legal ruling. Al-hassan a'mu min al-hukm al-shara'i.

In other words, good can mean either morally good or practically good. And in our efforts to make determinations about what is practically good, we must often go beyond the boundaries of Sharia.

Legal Jurisdiction versus Factual Jurisdiction

Meanwhile, there is a matter of the empirical verification of facts, including legally relevant facts.

Al-Qarafi clearly separates legal jurisdiction from factual jurisdiction, and limits the authority of Sharia discourse to the determination of law. He notes that while the sources of law, which include the Quran, Sunnah, Ijma' and the like, are limited, the sources for determining facts are unlimited and

constantly evolving. Based on this division, Muslim jurists only have jurisdiction of law because they are only experts in interpreting the sources of law.

They do not have jurisdiction of fact. As such, it is only legitimate to follow the ulama or the doctors of the law by way of taqlid on questions of law, not on questions of fact. This is neatly summed up in the somewhat controversial statement by al-Qarafi, which I will read now.

There is a difference between Maddock's statement, engaging in homosexual relations necessitates punishment, and so-and-so actually committed a homosexual act. We may perform taqlid, or follow Maddock, in his first statement, but not in the second. Rather, the second statement falls into the category of testimony.

If three other upright witnesses testify along with Maddock, the rule is applied. If not, it is not. And in this regard, the testimony of any other upright witness would be absolutely equal to that of Maddock.

His status as a mujtahid, or independent interpreter of the law, is of absolutely no consequence in this regard. Neither is the status of any of the other mujtahids. In sum, numerous fields of inquiry, such as mathematics or geometry, or the concrete determination of empirical facts, are explicitly recognized as falling outside the horizontal boundaries of sharia.

In these areas, it is not the doctors of the law, but other experts and finders of fact who are authoritative. And this is the very definition of what I have been referring to as differentiation.

The Vertical Limits of Sharia's Jurisdiction

As for what I refer to as the vertical limits of sharia's jurisdiction, what I am trying to get at here is that even when an idea or action falls within the horizontal parameters of Islamic law, the question of determining its concrete instantiation or substantive quality will not be dictated or determined by sharia.

Rather, one must drill down beneath the surface of legal rulings to other repositories of expertise. It is one thing, in other words, to know on the basis of sharia that wealth creation or military preparedness is obligatory or wadjet. It is quite another thing, however, to know in concrete practical terms how to bring wealth creation about, or what military preparedness actually looks like.

The Mubah Category and Sharia's Limits

This particular insight into what I am calling here the vertical limits of sharia is particularly relevant when considering that class of issues that fall into the neutral or mubah category of Islamic law. For some might argue that the well-known presumption that everything is neutral until proven otherwise, al-asr fil-ashya al-ibaha, calls into question the very notion of sharia having limits. In other words, this

principle seems to imply that nothing escapes sharia's judgment, certainly in the sense that everything falls into at least one of its legal categories.

But we should be clear about what is really going on here. First, mubah is a, or neutral, is a constituent of sharia's horizontal boundaries. As such, the fact that a thing might fall into this category does not negate the possibility of it falling outside or beneath sharia's vertical boundary.

In other words, how to prepare militarily in concrete terms, for example, whether and how to develop this missile system or that missile system is not a sharia determination, even if both systems may be declared mubah. Second, the intended meaning of the principle, al-asr fil-ashya al-ibaha, can only be that everything that is already presumed to fall within sharia's authority is presumed to be neutral rather than some other status. Otherwise, it would make no sense to say four times four equals 16 is mubah, or that it is mubah for an isosceles triangle to have two equal sides, or that the effectiveness of a particular economic policy or missile system can be measured in terms of its status as permissible.

Four times four equals 16 is a mathematical judgment, not a sharia one, and it is mathematically correct, not legally permissible, any more or less permissible than it would be to say that four times four equals 15. In other words, even if mathematics as a subject falls within the horizontal boundaries of sharia, the actual substance of mathematics falls outside the vertical boundary, and perhaps outside the horizontal boundaries of sharia as well. Of course, the whole point of recognizing that there are boundaries to sharia is to be able to call attention to the fact that there are categories of assessment, such as mathematically correct, economically effective, safe for consumption, et cetera, that are not sharia categories.

And this, once again, is precisely the meaning of what I have been referring to as differentiation.

Beyond Al-Qarafi: The Prophet and Al-Ghazali

Those who are familiar with my work know of my longstanding relationship with Shihab al-Din al- Qarafi, but this should not induce them into thinking that the idea that sharia has limits is unique to him. In my article, The Islamic Secular, I cite several scholars who reflect this recognition, and I give examples going all the way back to the time of the Prophet Muhammad himself.

For example, when he advised a group of farmers on pollinating their trees, and the trees failed, they approached him to complain. In response, the Prophet is reported to have said, quote, do not hold me accountable for mere non-revelational ideas, but when I inform you of something on the authority of God, take it, for I will never invent lies against God, end of quote. Clearly, the Prophet here is recognizing two different realms of authority.

In the period immediately following the Prophet's death, this distinction gets somewhat blurred, but it is not long before it re-emerges with even greater clarity. A good example of this is found in the famous al-Ghazali, who in his biographical work, al-Munkad min al-Dalal, complains about ignorant

friends of Islam, al-Siddiq al-Jahid. These were people who negated that the validity of science is deemed to be of non-Muslim origin.

For example, astronomy, geometry, and the natural sciences, because these were not derived from Sharia. In fact, because these sciences were not derived from Sharia, these critics condemned them as being in violation of Sharia. Al-Ghazali's response was that these sciences are neither anti-Islamic, un- Islamic, nor against the religious law.

On the contrary, he insists, and I quote, the religious law has nothing to say about these sciences, either positively or negatively. Well, laysa fi shar' ta'arra' li haidhi al-ulum la bi'l-nafi wa la bi'l-ithbat. In other words, in terms of their actual substance, these sciences simply fell outside, or perhaps below the boundaries of the religious law, a clear recognition of differentiation.

Modern Recognition: Sheikh Yusuf Al-Qaradawi

Again, we should be clear here that this recognition was not limited to the lives of al-Ghazali, al- Qarafi, or other pre-modern jurists. In fact, as we shall see, modern jurists, for example, Qatar's own Sheikh Yusuf al-Qaradawi, also appear to signal their recognition of an extra-Sharia differentiated realm. It is critical at this juncture, however, to point out that just because the secular, in the form of differentiation, is by definition non-Sharia, does not mean that it is by definition non-religious, let alone anti-religious.

Indeed, it is precisely the function of the Islamic side of the Islamic secular to preserve the religious dimension of the differentiated secular in Islam.

Part Three: Defining Islamic in Islamic Secular

Of course, like the term secular, the term Islamic is also fraught with ambiguity. And the task of clarifying its meaning has been further complicated by a recent book by the late Shihab Ahmed entitled What Is Islam? The Importance of Being Islamic.

In the aftermath of Professor Ahmed's project, no serious academic articulation of the meaning of Islamic could dispense with engaging his view on the matter. It is precisely through such an engagement, however, that I hope my own use of the word Islamic will be thrown into bolder relief.

The Divine Gaze: My Definition of Islamic

My use of Islamic in the phrase Islamic secular simply refers to that sphere of activity outside the boundaries of Sharia that is intentionally thought, imagined, or executed in conscious recognition of the ubiquitous, adjudicative gaze of the God of Islam.

Maybe I should say that again. My use of Islamic in the phrase Islamic secular simply refers to that sphere of activity outside the boundaries of Sharia that is intentionally thought, imagined, or executed in conscious recognition of the ubiquitous, adjudicative divine gaze of the God of Islam. This divine gaze is adjudicative in that it is understood to view human activity through the calculus of divine pleasure, displeasure, or forgiveness.

It is ubiquitous, meanwhile, in that no human activity is understood to fall outside its purview. As for the substance or ethos of this divine gaze, this is intuitively extrapolated from the divine revelatory address. But this extrapolation differs fundamentally from the process by which the rules of Sharia are extrapolated.

Sharia is derived either directly or by analogy from God's concrete address directed to specific human actions. For example, sale, murder, fasting, and the like. Awareness of the divine gaze, on the other hand, emerges out of a more instinctive engagement with God's more general revelatory address.

In other words, a statement such as in the Quran, establish the prayer, or do not kill souls that God has rendered sacred, speak directly to concrete specific actions, that is, prayer and murder, respectively. However, Quranic statements such as, verily, God loves the patient, or is the reward of perfection anything other than perfect felicity? These statements speak more generally to God's character and the universe of expectations that this character might be intuitively understood to imply.

The Parent-Child Analogy

We might liken the difference between these two modes of knowing to the difference between two types of knowledge that a child might develop of his or her parents.

The first type, the child acquires through direct instructions received from the parents, such as, clean up your room, or don't tease your sister. Based on whether the child conforms or not with these instructions, he or she expects to earn the parent's pleasure or displeasure. The second type of knowledge, however, the child receives not through direct instructions, but by simply extrapolating from what he or she knows of the parent's character, given his or her engagement with the parent's direct and indirect indications over the years.

Based on this knowledge, while the parents may not give the child an explicit curfew, for example, the child will still make it his or her business always to come home at a decent hour. Now, the scope of the divine gaze is horizontally infinite in contradistinction to the scope of Sharia. On this difference, an actor idea can be secular in the sense of being differentiated from Sharia, while also remaining religious in the sense of falling firmly within the parameters of the divine gaze.

The Divine Gaze's Dependence on Revelation

And yet, this distinction between Sharia and the divine gaze should not be misunderstood. For while the divine gaze is horizontally broader than the scope of Sharia, it remains in its own way dependent upon Sharia, or perhaps I should say it remains dependent upon the same divine address from which Sharia is derived. In this context, ideas or acts undertaken under the watchful eye of the divine gaze can no more violate God's concrete address, that is, as represented by Sharia, than a child who is uninstructed in one area of endeavor can violate his parents' concrete instructions in another.

For example, the child cannot post embarrassing pictures of his or her sister online based on his or her good faith assumption that his or her parents would approve of posting pictures in general. For posting pictures that are embarrassing would violate the parents' direct command, do not tease your sister. It is here that a fundamental difference between myself and Professor Ahmed emerges.

Distinction from Professor Shahab Ahmed's Thesis

His is a highly sophisticated and intricate thesis, and I could hardly hope to do it justice in the time allotted here. But I think I am on solid ground in saying that what I have been referring to as the divine gaze basically corresponds to what Professor Ahmed refers to as the pretext and context of revelation, revelation itself being the text. Now, in the same way that an activity that is carried out with a conscious eye to the divine gaze is Islamic, according to my depiction, so is the activity that seeks to authenticate itself on the basis of the pretext or context Islamic, according to Professor Ahmed.

But unlike the case with my divine gaze, neither Professor Ahmed's pretext nor context is derived from or dependent upon the text. Rather, both are essentially independent of revelation. As such, actions that are deemed to be consistent with the pretext or context remain Islamic, even if these actions categorically contradict the text.

On my thesis, by contrast, even if an action is not based on the concrete dictates of revelation as articulated by Sharia, it cannot be Islamic if it categorically violates either revelation or Sharia. Professor Ahmed and I are in emphatic agreement that Islam is broader than Sharia. We emphatically disagree, however, on the substance and ethos of Islam beyond Sharia.

On my thesis, even if we allow for a pretext or a context, or what I have been referring to as a divine gaze, none of this acquires substantive content entirely independent of the text. For to allow this would be to run the risk of undermining the text. We can imagine in this regard, adopting as our independent pretext or context the binary system of math, while the meaning of our text is expressed entirely in the decimal system.

This would obliterate the authority and meaning of the entire range of numbers in our text from two through nine, since the binary system only recognizes the numbers zero and one. In sum, to use the language of the late Peter Berger, any pretext, context, or divine gaze that is invoked as the sacred canopy of Islam must serve and not degrade the plausibility structure through which the meaning, relevance, efficacy, and integrity of Islam's sacred text is sustained. This is the most fundamental difference between the way Professor Ahmed deploys the term Islamic and the way that I deploy it.

Part Four: Restating the Islamic Secular

Having defined my use of both secular and Islamic, we may now move to an abbreviated restatement of the concept of the Islamic secular. The Islamic secular converges with the Western secular in their mutual indebtedness to the principle of differentiation. The Islamic secular diverges from the Western secular, however, in at least three important ways.

First, whereas the Western secular is contrasted with the category religious, the Islamic secular is contrasted with the category Shari'i. In other words, while an act cannot be secular and religious according to the Western secular, it can be secular and religious, indeed Islamic, according to the Islamic secular inasmuch as it remains within the purview of the divine gaze. An act simply cannot be simultaneously secular and Shari'i according to the Islamic secular.

Second, inasmuch as Shari'i's boundaries are self-imposed, the Islamic secular emerges more or less as a benign religious complement to Shari'i, not a hostile, predatory, non-religious or anti-religious rival. Thus, unlike the Western secular, the Islamic secular does not play the role of policing or domesticating either Shari'i or Islam, for the boundaries of Shari'i remain absolutely as broad as the legal tradition itself deems them to be. It is simply the point beyond which the legal tradition lays down the boundaries of Shari'i that we enter into the realm of the Islamic secular.

Finally, whereas the Western secular reaches its ideal in the notion of proceeding as if God did not exist, this notion is entirely and emphatically alien to the Islamic secular.

Part Five: Implications and Applications

Let me move in the time I have remaining to some of the more salient implications of this thesis. As I see it, there are three basic responses to the concept of the secular among contemporary Muslims.

One, to reject the secular as un-Islamic and leave all the issues that would fall into this realm to chance and non-regulation. We see this in the general poverty of Muslim economic or political thought or the weakness of contemporary Muslim cultural production. Two, reject the secular, again, as un-Islamic, but this time by packing all its constituents into the Shari'i realm and trying to address all of these things through the rules and machinery of Shari'a.

We see this in some of the exaggerated powers attributed to Ijtihad, whereas in reality, what is often needed is laws, policies, or innovations that lay outside the boundaries of Shari'a. Three, embrace the secular, only now in its modern Western guise as the enemy, controller, and privatizer of religion. We see this increasingly as a response to Shari'a's perceived inability to speak effectively to legitimate human interests in the modern world.

Rejecting the Secular: Speed Limits and Healthcare

As for completely rejecting the secular in the first sense, the inadequacy of such an approach becomes clear upon considering such basic issues as speed limits, what a doctor should have to know to obtain a medical license, or what a national healthcare plan should actually look like. Clearly, these issues cannot be ignored or left to chance, yet they can also not be resolved on the basis of any concrete Shari'i sources, either directly or by analogy. Of course, one might argue that Islamic law does address such issues in a general way through such precepts as protection of life, hivz al-nafs, or protection of property, hivz al-mal, and the like.

But the question here is not whether speed limits, medical licenses, or healthcare can be brought under such precepts in a general way. The question is whether this particular speed limit, these particular professional requirements, or this particular health plan can be concretely determined on the basis of Shari'a. My argument is that rather than scripture or the instruments of Shari'a, the actual substance of such policies must recline upon non-Shari'i forms of knowledge, such as empirical observation, practical experience, public administration, medicine, actuarial sciences, and the like.

All of these policies, in other words, would fall under the Islamic secular, and they could be rendered Islamic not by virtue of their substance issuing from Shari'a or its scriptural sources, but by virtue of their being pursued with a conscious eye to the adjudicative gaze of the God of Islam. Again, with the proviso that they don't violate any of God's concrete commands or prohibitions.

Two Key Reasons This Matters

This is extremely important for at least two reasons.

First, it points to the potential vastness of the realm of the Islamic secular. For the same approach that we take to speed limits and medical licenses, we would take to such things as FAA regulations, monetary policy, building codes, education policy, zoning laws, tenure procedures, passport regulations, and a virtually endless list in the public domain. Second, while the Islamic secular requires that one be consciously aware of the divine gaze, the actual logic or methodology that one employs is not necessarily derived from nor dictated by Shari'a or Islamic scripture.

In fact, the logic and methodology employed in these areas might be generically indistinguishable from that employed by non-Muslim experts or finders of fact. Again, with the proviso that the conclusions reached do not violate the divine address. This has potentially far-reaching political implications for the relationship between Muslims and non-Muslims seeking to negotiate various dimensions of the public domain.

Whether in a Muslim majority or minority context. For in theory at least, many of these issues can be negotiated on a level playing field between Muslims and non-Muslims while neither relying upon nor offending Shari'a.

Cultural Production and the Islamic Secular

As for the tendency to reject the secular by collapsing it into the Shari'a realm, there are several areas where the negative effects of this come to the fore. In the interest of time, however, I would like to focus on one, cultural production. This will also allow me to underscore another advantage of recognizing the Islamic secular. Namely, that it enables Muslims to locate religious, indeed, Islamic value in many activities that might otherwise be dismissed or neglected as secular in the non-religious or anti-religious sense.

This ability to find value in mundane activity is an important step towards unleashing the vast culture and other forms of talent and genius that exists in the Muslim community. And through the deployment of these talents, Muslims can move from being mere consumers or appropriators of culture, especially from the West, to being actual producers and shapers of culture on the global scale. Again, as a consciously Islamic activity.

Sheikh Yusuf Al-Qaradawi on Islamic Culture

This is clearly what Sheikh Yusuf Qaradawi seems to have in mind when he writes in his book, Thaqafatuna bain al-infitiha bain al-inqilaq, Our Culture Between Open-Mindedness and Closed-Mindedness, the following, quote, we mean by Islamic culture, I'm sorry, what we mean by Islamic culture is not simply religious culture, as some people think. Rather, that which is Islamic is much broader than that which is religious, based on the fact that Islam is both religious and secular, din wa dunya. Of course, by religious or dini here, Sheikh Yusuf is referring to what I have been calling shari'i, and his basic point is that cultural production goes beyond the strictly shari'i realm.

We already implicitly recognize this reality in such fields as Islamic art and Islamic architecture. The Islamic secular merely seeks to take this recognition to a broader, more explicitly conscious level. All too often, however, this recognition is only engaged agnostically.

Even when the problem is ultimately a cultural one, the solution is habitually sought in shari'a, generally in the form of louder and louder calls for ishtihad. Of course, ishtihad is the appropriate remedy for editing out cultural and other prejudices and presuppositions that pre-modern jurists may have handed down through the tradition of Islamic law. But we should be clear that ishtihad traffics exclusively in legal rulings, that is ahkan.

Marital Harmony: Beyond Legal Rulings

And when it comes to such matters as promoting marital harmony, to take just one prominent example and wake you all up, legal rulings will be simply very limited in what they can provide. For a husband or wife may be both pious and just, and they may both adhere assiduously to the dictates of the religious law. But none of this makes either of them a good conversationalist, a good cook, or maybe even a good kisser.

Nor can shari'a require of either of them, as a matter of law, a particular conversation, a particular meal, or a particular style of kissing, even if it might confirm the propriety of these things after the fact, that is after these have already been arrived at independent of shari'a. In short, these are cultural matters whose concrete substance lie outside the boundaries of shari'a and outside the competence of the jurist. Yet to ignore them as falling outside the purview of Islam is to ignore precisely the kinds of pursuits that promote healthy marriages, itself undoubtedly an important value in Islam.

Once again, we see the role and importance of the Islamic secular come to the fore.

Political Implications for Government

Of course, there are other important implications to this as well, including a clear political one. For if Islam is understood to consist in both shari'a and the Islamic secular, government in Islam can be more easily recognized as consisting of both a shari'a and a secular dimension.

And this opens the way to a number of important possibilities. First, Muslim governments might find a measure of insulation from inflated charges of violating Islam every time they propose or institute rules or policies such as a five-year economic plan or an immigration policy that are not based on strictly shari'a justifications. For again, not everything Islamic is necessarily directly derived from shari'a.

One can imagine how this understanding might temper some of the critiques directed at Muslim governments by so-called Muslim fundamentalists. Second, it can empower the community at large and its collective role as finders of fact and expert authorities in various professional fields to impose a modicum of accountability on government by holding such policies and rules to the standards of their stated goals in Islamic secular terms. Finally, such recognition can deny government decisions and policies that fall outside the boundaries of shari'a, the automatic unassailable authority of a hukum shari'i.

Clearly, this can go a long way in denying Muslim governments the ability to use religion as a tool of tyranny. All in all, there is much to be gained in the area of governance from an intelligent investment in the concept of the Islamic secular, including the question of whether it is possible to reconcile Islam itself with the modern state. This actually takes me to the third common sense response to the secular among modern Muslims.