Islam, Liberalism, and Ontology: A Critical Re-evaluation 9780367539856, 9780367534110, 9781003083979

Table of contents :
Cover
Endorsement Page
Half Title
Series Page
Title Page
Copyright Page
Dedication
Table of Contents
Note on transliterations, Qurʾān referencing, and ṣalawāt
Acknowledgements
Chapter 1 Introduction
Chapter 2 Setting the table: Liberalism and its enlightenment origins
Chapter 3 “Liberalisms”: Exploring the deep familial relationship between comprehensive liberalism and political liberalism
Chapter 4 “Islams”: Rethinking the question “what is Islam?” and rearticulating it as a coherent discursive tradition despite the multiplicity of local traditions
Chapter 5 Comparing the liberal and Islamic approaches to moral epistemology and human rights
Chapter 6 Comparing the liberal and Islamic approaches to the role of religion in the public sphere
Chapter 7 Comparing the Liberal and Islamic approaches to law
Chapter 8 A communitarian alternative for modern Islamic societies?
Chapter 9 Conclusion
Index

Citation preview

In this engaging book, Kaminski argues that there are serious ontological incompatibilities between Islam and liberalism and that communitarian modes of thought are more consistent with the Islamic worldview. The author competently opens up new doors of scholarly inquiry regarding one of the most important topics confronting the Muslim world today. This book is necessary reading for anyone interested in the issue of Islam and the role of religion in the public sphere, and it warrants a serious audience and thoughtful debate. —Khaled Abou El Fadl, Distinguished Professor of Law at the UCLA School of Law, USA Kaminski’s ref lective engagement with the fundamental ontological assumptions and claims of both Islam and liberalism as discourses offers the reader both a critical and impartial take on subject. In doing so, Kaminski provides both specialists and general readers alike the benefit of a ref lective lens that is successful offering a rethinking of the relationship between Islam and Liberalism. —Dalia Fahmy, Associate Professor of Political Science at Long Island University, USA

ISLAM, LIBERALISM, AND ONTOLOGY

This book offers comparative ontologies of both Islam and liberalism as discourses more broadly construed. The author argues that, despite recent efforts to speak of overlapping consensuses and discursive congruence, the fundamental categories that constitute “Islam” and “Liberalism” remain very different, and that these differences should be taken seriously. Thus far, no recent scholarly works have explicitly or meticulously broken down where these differences lie. The author rigorously explores questions related to rights, moral epistemologies, the role of religion in the public sphere, and more general approaches to legal discourse, via primary and canonical sources constitutive of both Islam and liberalism. He then goes on to articulate why communitarian modes of thought are better suited for engaging with Islam and contemporary socio-political modes of organization than liberalism is. This book will be of great interest to students and scholars of politics and international relations, Islam, liberalism, and communitarianism. Joseph J. Kaminski is Associate Professor and Chair of the Department of International Relations at the International University of Sarajevo, Bosnia and Herzegovina. Current research interests include: Religion and Politics, Comparative Political Theory, and New Approaches to Islamic Public Reason. He is the author of The Contemporary Islamic Governed State:A Reconceptualization (2017).

Routledge Studies in Religion and Politics Edited by Jeffrey Haynes, London Metropolitan University, UK

This series aims to publish high quality works on the topic of the resurgence of political forms of religion in both national and international contexts. This trend has been especially noticeable in the post-cold war era (that is, since the late 1980s). It has affected all the “world religions” (including, Buddhism, Christianity, Hinduism, Islam, and Judaism) in various parts of the world (such as the Americas, Europe, the Middle East and North Africa, South and Southeast Asia, and sub-Saharan Africa). The series welcomes books that use a variety of approaches to the subject, drawing on scholarship from political science, international relations, security studies, and contemporary history. Books in the series explore these religions, regions and topics both within and beyond the conventional domain of “church–state” relations to include the impact of religion on politics, conf lict and development, including the late Samuel Huntington’s controversial—yet inf luential—thesis about “clashing civilisations.” In sum, the overall purpose of the book series is to provide a comprehensive survey of what is currently happening in relation to the interaction of religion and politics, both domestically and internationally, in relation to a variety of issues. Faith Based Organisations in Development Discourses and Practice Edited by Andreas Heuser and Jens Köhrsen Religion, Confict and Post-Secular Politics Jeffrey Haynes Democratization in Christian Orthodox Europe Comparing Greece, Serbia and Russia Marko Veković Islam, Liberalism, and Ontology A Critical Re-evaluation Joseph J. Kaminski Religion, Law and the Politics of Ethical Diversity Conscientious Objection and Contestation of Civil Norms Edited by Claude Proeschel, David Koussens and Francesco Piraino For more information about this series, please visit: https://www.routledge.com /Routledge-Studies-in-Religion-and-Politics/book-series/RSRP

ISLAM, LIBERALISM, AND ONTOLOGY A Critical Re-evaluation

Joseph J. Kaminski

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Joseph J. Kaminski The right of Joseph J. Kaminski to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-53985-6 (hbk) ISBN: 978-0-367-53411-0 (pbk) ISBN: 978-1-003-08397-9 (ebk) Typeset in Bembo by Deanta Global Publishing Services, Chennai, India

This book is dedicated to the memories of my dear beloved mother, Debbie Kaminski, and my saintly grandmother, Suzanne Penrod. Mom bravely battled multiple myeloma and leukemia for almost ten years before returning to her creator on March 29, 2020 and grandma returned to her creator shortly after on April 30, 2020. Mom and grandma were inseparable in this world and both left it at the height of the COVID-19 pandemic. Therefore, due to closed borders, I was unable to leave Sarajevo, and I could not be with either of them as they were laid to rest. The sadness and regret that fills my heart for how this all transpired will remain with me until I too depart this world. I just want both of you to know that every day I pray for each of you to be granted everlasting life and happiness in the hereafter. You both were my anchors and strongest supporters in this world; nothing will ever replace either of you. My only comfort throughout this time of global tragedy is my unwavering confidence that Allah’s mercy and magnanimity will allow for all of us to embrace once again in the hereafter; a most blessed and triumphant day that will be!

CONTENTS

Note on transliterations, Qurʾān referencing, and ṣalawāt Acknowledgements 1 Introduction

x xii 1

2 Setting the table: Liberalism and its enlightenment origins

25

3 “Liberalisms”: Exploring the deep familial relationship between comprehensive liberalism and political liberalism

51

4 “Islams”: Rethinking the question “what is Islam?” and rearticulating it as a coherent discursive tradition despite the multiplicity of local traditions

75

5 Comparing the liberal and Islamic approaches to moral epistemology and human rights

91

6 Comparing the liberal and Islamic approaches to the role of religion in the public sphere

112

7 Comparing the liberal and Islamic approaches to law

138

8 A communitarian alternative for modern Islamic societies?

161

9 Conclusion

179

Index

195

NOTE ON TRANSLITERATIONS, QURʾĀN REFERENCING, AND ṢALAWĀT

This work will generally follow the International Journal of Middle East Studies transliteration format. There will be a distinction made between all technical terms and proper names. All fully transliterated words will be italicized except proper names and the words “Qurʾā n” and “Shar īʿa.” The names of writers whose works are being referenced either directly in Arabic or translated from Arabic sources will be transliterated while the names of figures whose works originally appeared in English or are being mentioned in passing with no reference to any specific text will not. Tāʾ marbūṭa and all anglicized Arabic terms (i.e. words like “Qurʾanic”) will not be transliterated. The letters ālif (except for definite articles) and ālif maqṣūra are transliterated with “ā.” All dates mentioned will be given in Common Era (C.E.) or Before Common Era (B.C.E.) format unless specifically noted. In such cases, both C.E. and A.H. (“after hijra” or “in the era of the hijr ī calendar” [at-taqw īm al-hijr ī]) will appear, for example: “Bennabi (d. 1973 C.E./1393 A.H.).” This work will utilize the Yusuf Ali, Qurʾān translation titled, The Meaning of the Holy Qurʾan, 10th Edition (Beltsville, MD: Amana Publications, 2004) for all English translated quotations taken directly from the Qurʾān unless otherwise noted. This is widely considered one of the more authoritative English translations and has previously been officially endorsed by the Saudi Arabian government. However, in order to maintain maximum fidelity to all Qurʾanic text since no translation is without its shortcomings, all Qurʾān verses cited will also be included in their original Arabic in the endnotes of each chapter. This way the reader with sufficient Arabic knowledge will be able to judge for themselves how accurate the translations reflect the actual Arabic meaning of the text since there still exists much debate about proper translations of the essential early primary sources. Finally, I would like to let the reader know that in keeping with wellestablished traditional Islamic custom and manners, I will be using the ṣalaw āt

Note on transliterations, Qurʾa¯n referencing, and ṣalawa¯t xi

‫ ﷺ‬in parentheses each time I mention the Prophet Muhammad’s (‫ )ﷺ‬name in this work. This phrase is commonly is translated simply as “peace be upon him” in the English language. I firmly believe that scholars who identify as Muslim should not seek to hide their identity when writing for a more general audience.

ACKNOWLEDGEMENTS

This project was a much more demanding and difficult endeavor than my previous work. I lacked many of the resources I took for granted while at Purdue writing my dissertation, which eventually morphed into my first book, including my late dissertation adviser, the brilliant Michael A. Weinstein. However, what I lacked in resources was made up for with the kindness of many wonderful people that I am honored to call colleagues and friends. I can, without hesitation, comment that this work would never have been completed without the help and guidance I received from a litany of scholars. First, I must thank my four main life mentors: my aforementioned dissertation adviser, Michael A. Weinstein, my late M.A. adviser, Marshall Berman, my B.A. mentor, Stephen Eric Bronner, and of course, my beloved late grandfather, John V. Penrod. None of this would have even been possible without all the wisdom you each imparted upon me over the years. The most important intellectual contributors that helped make this particular project come into fruition include Andrew March—whose regular interactions with me via social media really helped me rethink certain things—along with very helpful online interactions with Ovamir Anjum, Mohammad Fadel, Samy Ayoub, Jonathan Quong, Ivan Ejub Kostić, and Mustafa Salama. I would like to extend a special thank you to brother Bassam Zawadi for meticulously reading over large parts of this work while it was in its draft phase. I take great pride in the fact that thinkers ranging from staunch liberals to stanch Muslim traditionalists all facilitated in the creation of this work. I would also like to once again thank my “new” family for their unwavering moral support. First, I must express my deepest appreciation to my wife, Maryam, for all that she has done for me. Writing a book is an alienating experience, and your patience with me during the long hours at night that often stretched into the early morning while I was writing in the living room did not go unnoticed.

Acknowledgements

xiii

I also thank my mother-in-law, my father-in-law, and my sister-in-law. You have all been indelible sources of wisdom and guidance in my life over these past five years; words cannot properly express the gratitude I feel for you all. Finally, of course, none of this would have been possible without the support of my “old” family that includes my late grandparents, my late mother, my father, my sister, and my cousins Eric and Lindsay. I miss you all tremendously and hope you appreciate the efforts I have made to bring pride and honor to our family.

1 INTRODUCTION

In 2017, Mustafa Akyol and Shadi Hamid participated in a CATO roundtable discussion on the topic of liberalism and Islam.1 Akyol, a prominent Turkish neoliberal journalist and a well-known proponent of Islamic liberalism, argued that Muslims could come to embrace liberalism under certain conditions. He posited that so long as progressive interpretations of Islamic doctrine and texts were offered, liberalism could eventually come to take root. For him this reality was true regarding all religions, and he gave the examples of the late eighteenth-century Jewish Enlightenment, also known as the haskala [‫]השכלה‬, and the thought of Moses Mendelssohn along with references to earlier reform-minded groups within Islam such as the Muʿtazila and the Murjiʾa as demonstrative of alternative interpretations of mainstream orthodoxy. He then moved more into the language of contemporary political science, most specifcally the language of democratization and its prerequisites, echoing many of the points originally made around half a century earlier by the likes of Seymour Lipset (1959) who emphasized the need for certain levels of economic development, along with pre-existing institutions, and socio-political stability for liberal democracy to succeed, noting that much of this is still missing throughout the Muslim world. Following Akyol’s brief talk, Shadi Hamid, a senior fellow with the Brookings Institution and expert on Middle Eastern affairs, offered his rebuttal, arguing that while he is sympathetic to Akyol’s more liberal understanding of Islam, he is nonetheless much more pessimistic on the prospects of an enduring “Islamic liberalism” emerging anytime soon. He speaks from his own personal experience, arguing that most Muslims do not want to risk their spiritual well-being and embrace liberal or non-traditional positions. He then brief ly goes on to discuss his argument in Islamic Exceptionalism: How the Struggle Over Islam Is Reshaping the World (St. Martin’s Press, 2016), which posits that Islam is exceptional compared to Christianity, especially regarding law, politics, and governance. Unlike

2

Introduction

Jesus Christ, the Prophet Muhammad (‫ )ﷺ‬was also a statesman and formalized laws were essential in Islam’s early formation. One of the ways faith is expressed within Islam is by observing divine law or the Shar īʿa. Law within Islam, according to Hamid, always has some punitive dimension which very well may stand in opposition to more liberal understandings of the function of law. Hamid’s claim here was perhaps the only real allusion to the higher-order conf licts between Islam and liberalism in the entire seminar, and it was not really elaborated upon in a systematic manner. He ended his talk by arguing that we would be amiss to argue that liberalism is the natural human disposition. He references Francis Fukuyama in The Origins of Political Order (Farrar, Straus and Giroux, 2011), which contends that Western Enlightenment institutions themselves resocialize people against their more natural communal instincts and help foster a type of individualistic liberalism. Hamid agrees with Fukuyama and contends that we are more inclined toward illiberal ideas, especially in places dominated by illiberal norms and institutions. What was missing from this timely, yet intellectually underwhelming and incomplete, roundtable discussion was any type of deeper ref lective engagement with the fundamental ontological assumptions and claims of both Islam and liberalism as discourses more broadly construed. This often seems to be the case today regarding many scholarly and popular media discussions about Islam and its relationship to liberalism. In the aforementioned case, Akyol’s argument hinged upon unorthodox [sh ādhdh] (re)interpretations and political development while Hamid’s primarily focused upon individuals being averse to embracing unorthodox views and possessing a natural predisposition, exacerbated by dysfunctional institutions and rampant corruption, toward illiberal ideals.

What this work offers This manuscript offers a thorough investigation of the relationship between Islam and liberalism at a conceptual level. Devji and Kazmi (2017, p. 1) argue that as a historical and variable phenomenon, liberalism does not in fact possess a normative definition but constitutes a family of shifting and overlapping ideas having to do with the freedoms of property and contract, speech and movement, or of rights and representation. While liberalism may not possess a universally assented to normative definition it certainly has a normative dimension that can be drawn out from the ideas of its most prominent thinkers. Arguing against the likes of John Rawls and more in line with Charles Taylor, Alasdair MacIntyre, and Bhikhu Parekh, I argue that one cannot deny the normative dimension or the constellation of basic general assumptions that permeates liberalism as both an Enlightenment phenomenon and as a political phenomenon.2

Introduction

3

The main argument pushed forth throughout this manuscript is that liberalism—Enlightenment or political—and Islam operate on fundamentally different baseline assumptions about the nature of reality itself. The stark differences regarding the overarching ontology of both discourses make reconciling them very problematic. Generalized lower-order similarities between Islam and liberalism should be seen primarily as incidental to rather than indicative of any deeper discursive congruence. This work also seeks to open the door to more serious scholarly inquiry regarding an alternative discursive framework—namely what widely falls under the umbrella of communitarianism—to help modern policy-makers and theorists frame future social and political debates that will transpire in Muslimmajority countries, especially those transitioning out of autocracy and/or civil war. Arguing that Islam and liberalism are not reconcilable at a higher-order level is not necessarily a contentious claim to make; this work is not trying sell itself as offering a controversial and radically new argument on this matter. Other scholars have made this basic point before even though more recently, as noted above, some scholars have sought to challenge this position. The provocative late Bernard Lewis (2010, p. 63) frankly, yet reasonably, argued that the question is not “whether liberal democracy is compatible with Islamic fundamentalism— clearly it is not—but whether it is compatible with Islam itself,” and further notes that “[l]iberal democracy, however far it may have traveled, however much it may have been transformed, is in its origins a product of the West.” What differentiates this work from others that have alluded to Lewis’s point here is that this project offers a rigorous critical analysis and deep investigation of the basic categories and constructs that comprise “Islam” and “liberalism” via a clearly defined methodological mode of inquiry. Rather than just making this basic point via a spattering of references and anecdotes, this book seeks to address it in a meticulous and measured manner via primary and canonical sources that comprise each discourse. It ultimately hopes to serve as a useful asset for those studying comparative political theory or the relationship between international politics and religion.

Reconciling liberal thought with Islam—a brief overview The first real efforts to reconcile what one could call modern “Western” or liberal thought with Islam occurred during the twilight years of the Ottoman Empire. Regarding what came to be known as the Islamic modernist movement, Charles Kurzman (2002, p. 4) contends: One defining characteristic of this movement was the self-conscious adoption of “modern” values—that is, values that authors explicitly associated with the modern world, especially rationality, science, constitutionalism, and certain forms of human equality. Thus this movement was not simply “modern” (a feature of modernity) but also “modernist” (a proponent of modernity).

4

Introduction

The notion of modernity and a definitive answer to what the modern mindset looks like is an issue that is still hotly debated and remains unresolved. The contemporary Canadian political theorist Nikolas Kompridis (2006, p. 38) offers a useful intervention contending that the modern or modernist worldview is one that is open “to the novelty of the future [that] keeps perpetually open the possibility of a future different from the past, a possibility that contains the promise of a break with the past, and the promise of a new beginning.” It is important to point out that by their very nature, almost all religious movements—at least within the Abrahamic tradition—will never be fully modern vis-à-vis the characterization of the modern mindset offered by Kompridis. A complete break with the past is not even possible for a religion like Islam for a litany of reasons that will be discussed in the forthcoming chapters.3 Despite the fact that Islam will never be fully “modern” under Kompridis’s characterization, breaks with the past and new beginnings—to one degree or another—were all common themes in the thought of later nineteenth- and early twentieth-century reformist scholars such as Mu ḥammad ʿAbduh (d. 1905 C.E./1323 A.H.), Jamā l al-Dī n al-Afghā n ī (d. 1897 C.E./1314 A.H.), and Mu ḥammad Rash īd Riḍā (d. 1935 C.E./1354 A.H.). These reform-minded scholars sought to offer new ways for the rapidly declining Muslim world to keep pace with the rising West. They emphasized rationalism and moderation in both thought and practice. Qurʾā n (2004) 13:11 nicely encapsulates their understanding of man’s relationship with the Creator: “Verily never will Allah change the condition of a people until they change it themselves.”4 Muslims could not just simply wait around until divine intervention arrived to save the day. They all believed that Muslims had to take heed of their own worldly affairs; otherwise Allah would leave them heedless. ʿAbduh emphasized the importance of free thought and dissenting opinion. He argued that both helped propel the West to global domination. Noting the Muslim world’s decline over the centuries due to rampant corruption and socioeconomic stagnation, much of ʿAbduh’s writings called for major reforms [i ṣlāḥ] and theological renewal [tajdīd]. Al-Afghā n ī was also critical of the many injustices that plagued the Muslim world during his time. He argued that Muslims needed to re-embrace the notion of shūrā or consultation as it was practiced during the Prophet Muhammad’s (‫ )ﷺ‬time except in a manner befitting modern conditions. He felt that when properly operationalized, shūrā would serve as an essential tool for combating tyranny and despotism. Riḍā, like ʿAbduh and Al-Afghā n ī, also called for Muslims to reject taqlīd which he understood primarily as uncritical, blind obedience to earlier rulings. Instead he encouraged Muslims to think critically and to read and evaluate primary Islamic sources themselves. Like Al-Afghā n ī, Riḍā also sought to engage in a mode of democratic Islamic politics that rested on consultation rather than on autocratic whims. Another prominent reformist scholar of this era was Khayr al-Dī n al-Tū nisī. Al-Tū nisī (also known as Khayr al-Dī n al-Pasha) was the Grand Vizier [Sadrazam] under Sultan Abdü lhamit II. His most important work, The Surest

Introduction

5

Path to Knowledge Regarding the Condition of Countries [Aqwam al-Masālik fī Ma’rifat Aḥwāl al-Mamālik], which was published in 1867 C.E./1299 A.H.,5 argued that the Muslim world must look toward the more successful European states for guidance regarding how to handle administrative affairs. The two main tasks he sought to highlight were the need to modernize and improve the condition of the community of Muslim believers and the need to stop denigrating and ignoring contributions from non-Muslim societies simply because they were not Muslim.6 Al-Tū nisī (2002[1867], p. 42) posits that the “basic requirement” for Muslim societies to move forward “is good government, from which is born that security, hope, and proficiency in work to be seen in the European kingdoms.” Regarding the second proposition, he unequivocally comments: There is no reason to reject or ignore something which is correct and demonstrable simply because it comes from others, especially if we had formerly possessed it and it had been taken from us. On the contrary, there is an obligation to restore it and put it to use. Anyone devoted to religion should not be deterred from initiating the commendable actions related to worldly interests of one religiously misguided. This is what the French have done. By ceaselessly emulating what they deem good in the work of others, they have attained the sound organization of their affairs in this world to be witnessed by all. Discriminating critics must sift out the truth by a probing examination of the thing concerned whether it be word or deed. Such ideas would be inspirational for later North African thinkers like the Algerian intellectual Malek Bennabi (d. 1973 C.E./1393 A.H.) and the founder of Tunisia’s Ennahda Movement, Rā shid al-Ghannūsh ī.7 Al-Tū nisī did not seek to blindly imitate European governing models; rather he sought to draw from what made them successful and apply them to a uniquely regional Islamic context. He was perhaps most interested in how European states were able to harness the power of liberty at both a metaphysical and practical level to develop their societies; societies that completely stif le liberty subsequently stif le innovation and development as well. Efforts to reconcile Islam and liberalism have gone through different stages in more recent times as well. Two of the more important mid- to mid-late twentieth-century works related to this topic were Albert Hourani’s Arabic Thought in the Liberal Age (Cambridge University Press, 1983[1962]) and Leonard Binder’s Islamic Liberalism: A Critique of Development Ideologies (University of Chicago, 1988). Both drew from the rationalist modernism of earlier reformers such as ʿAbduh, Al-Afghā n ī, and Riḍā to show the continuities between an Islamic and a liberal order. Hourani and Binder were in many ways more interested in a broader discursive reconstructive project than merely waxing poetic about past Islamic reformers or defending Islam against its detractors. The mantra of both was that the reformist thought of late nineteenth/early twentieth centuries (and

6

Introduction

more recently as well for that matter) hardly transpired in a vacuum. Hourani (1983[1962], p. 344) argues that the reformism of ʿAbduh and Riḍā took place under the stimulus of European liberal thought, and led to a gradual reinterpretation of Islamic concepts so as to make them equivalent to the guiding principles of European thought of the time: Ibn Khaldun’s ʿumran gradually turned into Guizot’s “civilization,” the maslaha of the Maliki jurists and Ibn Taymiyya into the “utility” of John Stuart Mill, the ijmaʿ of Islamic jurisprudence into the “public opinion” of democratic theory, and “those who bind and loose” into members of parliament. Binder as well understood that the transformations occurring in the modern Muslim world could not be understood in a decontextualized manner. While recognizing some of the inherent tensions between Islamic doctrine and liberalism, he nonetheless focuses his argument upon the socio-economic factors at play in the Middle East that he posits as the real culprits holding back liberal democracy. Binder (1988, pp. 358–359) emphasizes the difficulties the middle class has faced with regard to fostering any type of genuinely bourgeoise culture in Middle Eastern societies due to the preponderance of illiberal values that are exacerbated by the traditional and ignorant masses: The situation is not hopeless, but neither is the time quite right. It is enormously difficult to develop liberalism outside a sustaining bourgeoise culture in which a high value is placed upon liberal education, individual dignity, the rule of law, freedom of the press, freedom of artistic expression and criticism, not to mention life itself, health, privacy, leisure, quiet, and even space. It is impossible to isolate the middle classes from the impoverished, traditional and ignorant masses whom they depend for vital and daily services. The culture of Middle Eastern societies is profoundly affected by the constant need to communicate with the illiterate and poorest classes. There are no cultural enclaves or social settings which are truly insulated from this interdependence. Binder frames much of his case study and more general argument on the negative role authoritarianism and colonialism has had on Islamic societies. Moving into the 1990s and especially after September 11, 2001, the focus and level of analysis seem to shift. The larger hermeneutical project of (re)constructing “an Islamic liberalism” has been largely abandoned. In more recent times there has been a dearth in what Andrew March (2009b, p. 532) would refer to as “engaged comparative political theory” when it comes to Islam and liberalism or liberal themes more generally.8 The 1990s and beyond have seen a plethora of works on Islamic radicalism—some more scholarly than others—along with numerous apologetics aimed at defending Islam against its critics.

Introduction

7

Another body of scholarship in this area, primarily coming from Western educated academicians, has been aimed at actively promoting “moderate” Islam.9 These works are generally much narrower in scope than the larger scale reconstructive projects that characterized Hourani’s and Binder’s efforts. One can think of Mustafa Akyol’s Islam without Extremes: A Case for Muslim Liberty (W.W. Norton & Company, 2013), Omid Safi’s edited volume titled Progressive Muslims: On Justice, Gender, and Pluralism (Oneworld, 2003), M.A. Muqtedar Khan’s edited volumes titled Islamic Democratic Discourse (Lexington Press, 2006) and Debating Moderate Islam: The Geopolitics of Islam and the West (University of Utah, 2007), and Khaled Abou El Fadl’s The Great Theft: Wrestling Islam from the Extremists (HarperCollins, 2007) as being representative of this more recent class of scholarship. Most of these more recent works are invaluable efforts that offer many worthwhile points to consider by scholars whose names very much speak for themselves. However, none of these projects in my opinion adequately connects the dots between the two comprehensive doctrines of Islam and liberalism to show if they really are compatible in any meaningful way or not. It is often simply assumed that they are compatible from the start, with each author’s more specific argument developing from that assumed premise. This seems to be especially the case in more recent scholarship that pushes normative arguments in favor of “moderate” Islam.

Antifoundationalism and liberal hegemony In a world of competing discourses for hegemony—at least in terms of being seen as the appropriate mode of political inquiry by policy-makers, political actors, and academics alike—liberalism and antifoundationalism (or postfoundationalism) to varying degrees have all but won out in recent times. Fred Dallmayr (2004, p. 254) postulates that “political liberalism has achieved virtual canonical status, edging out of the way nearly all competing ideologies and perspectives.” Similar to Dallmayr, Lucas Swaine (2018, p. 303) more recently argued that “many liberals have grown complacent within their philosophical frameworks, even when confronted with serious challenges from alternative approaches,” which results in their being “less likely to scrutinize or to be receptive to improving the values and institutions that they affirm.”10 Therefore, the canonization of political liberalism has far greater-reaching implications than merely facilitating the preservation of the most obvious manifestations of imperialism and global domination. At this point, instead of preserving its élan, liberalism’s original critique or mode of critical questioning is in danger of turning in to a fixed answer or unquestioned dogma itself. To put it another way, liberty is changing from a liberating promise into a vested status or privileged possession. (Dallmayr, 2004, p. 254)

8

Introduction

Dallmayr and Swaine both seem to be suggesting that liberalism has become its own exclusive club: an entrenched ideology taken as a fully realized and perfected axiom rather than merely another option or possibility for social organization. It has become exactly what it was critical of in the first place—another iteration of unref lective deference to tradition, albeit a new one that has replaced earlier traditions. One here is reminded of Fukuyama’s (1989, p. 4) brash and undeniably Eurocentric suggestion, pushed forth in his immensely popular work, The End of History and the Last Man (Free Press, 1992),11 that we “have reached the end point of mankind’s ideological evolution” which will ultimately result in “the universalization of Western liberal democracy as the final form of human government.” Dallmayr (2004, p. 254) contends that “this danger of congealment” can only be addressed via the “kindling of questioning along temporal and cross-cultural lines.” Alternative paradigms, to draw from the title of Ahmet Davutoğlu’s popular work, need to be offered to counter the mantle of historical inevitability that liberalism has bestowed upon itself.12 Claims such as Fukuyama’s prove to be especially problematic for discourses that have many endogenous qualities that put it at odds with many of liberalism’s core assumptions, most specifically its antifoundationalist underpinnings. Basing her observations not only on liberal thinkers such as Rawls, but also on people like Foucault, Gadamer, and Habermas who do not so neatly fit into this characterization, Roxanne Euben (1999, p. 3) argues that contemporary political theory is embedded in what could be called an antifoundationalist discourse; within the parameters of this discourse, the particular problematic of political theory is how to construct a just society without the transcendent foundations thought to have previously sustained it. She goes on to note the paradoxical nature of this enterprise that seems to be increasingly disconnected from contemporary reality. For Euben (1999, p. 3), “these attempts to theorize community without recourse to metaphysical truths take place in a world where political practice is increasingly dominated by those who take such truths as a given.” How seriously many states actually take these metaphysical assumptions when crafting specific day-to-day policies remains an open question; however, it would be hard to deny that such assumptions play an important role in shaping the more general debate. Without even considering Muslim societies, one needs only to look at places like Poland, Hungary, and the United States to see the re-emergence of a mode of political discourse that is often entrenched in foundationalist (Christian in these particular cases) metaphysical truth claims steeped in ethno-nationalism to see the veracity of Euben’s claim—a claim that was made two years prior to the September 11, 2001 terrorist attacks on the United States. On March 14, 2014, the Hungarian President Viktor Orbán, the same person who in his earlier life

Introduction

9

was a devoted member of the Hungarian Communist Party [Magyar Kommunista Ifjúsági Szövetség] and had little interest in religious themes, in one of his usual grandstanding speeches commented that “I am led by the firm conviction that only on the basis of these traditions—these national, Christian and European traditions—can a strong and successful Hungary be built” (Orbán, quoted in Noack, 2015, para. 6). Similar rhetoric can even be seen today scattered about in some of the bastions of “cosmopolitan progressivism” like Germany and Austria as well. For people like Euben and many others, the now highly controversial secularization thesis offered by the likes of C. Wright Mills (1959) and the earlier writings of Peter Berger (1967) never really held its own weight.13 One can see the clear connection between the prevalence of Mills’s secularization thesis offered in the late 1950s and the following decades of political theorizing detached from any serious engagement with metaphysical truth claims. Many other scholars have also made it clear in their writings that there are serious issues to consider when offering a model of liberal democratic governance within an authentically Islamic socio-political discourse; one that is undeniably foundationalist (Abou El Fadl, 2004; Allawi, 2009; Esposito, 1987, 2010; Voll, 1997). Previously, I (Kaminski, 2017, p. 74) argued that a few doctrinal changes—or the abrogation of a few āyāt of the Qurʾā n that are unsavory to the liberal palate—are [not] enough to make a society grounded in Islamic values compatible with liberal democracy. Stylistic changes to certain specific religious practices and beliefs are only the tip of the iceberg when considering the deep incompatibilities between Islam and liberalism. This work will dig deeper into that iceberg by looking at the ideas of essential thinkers within the Western tradition of liberalism, beginning with earlier thinkers like Hobbes, Locke, and Mill, and then addressing modern interpretations of liberalism offered by more contemporary scholars with an emphasis on John Rawls.

Ontology, ontologies, and domain-specifc modes of discourse Ontology is one of those concepts frequently used in academia that often go undefined. This seems to be especially true in political philosophy and political theory. Much like its cousin, epistemology, it is almost as if this complex term with multiple modalities and applications simply speaks for itself.14 In its most barebones definition, ontology simply refers to the study of being or what actually exists. However, it gets much more complicated and technical than this. Ontology was first explored by Parmenides in the fifth century B.C.E. (ca. 475 B.C.E.) in the recovered fragments from his poem that has come to be known by the title, On Nature. Aristotle (d. 322 B.C.E.) further developed

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ontology looking for ways a being or entity may come to be understood. One here is reminded of Aristotle’s (2001: Categories, 1b25) famous ten-fold division that includes “Expressions which are in no way composite [and that] signify substance, quantity, quality, relation, place, time, position, state, action, or affection.” All these properties to varying degrees help explain a thing; however, as noted in Metaphysics (see 998b23 and 1059b31), there is no single highest category. Contrary to what might be one’s intuition, being (or existence) is not the highest category for Aristotle due to the logical inconsistency it would entail. While ontology was first studied as a meta-phenomenon, more recently it has been explored in a more domain-specific context. There are two senses in which the term “ontology” has generally been used. The first relates to the larger project of Aristotle that studies being and/or existence as a meta-category. The second way the term has been used is related to a domain-specific “set of assumptions made about the nature, essence, and characteristics (in short, the reality) of an object or set of objects of analytical inquiry” (Hay, 2011, p. 462). Modern and contemporary and political scientists have explored ontology as a political phenomenon. This area of inquiry is known as political ontology. Norman Blaikie (1993, p. 6 and cited in Hay, 2011, p. 462) argues that political ontology refers to the claims or assumptions that a particular approach to social [or, by extension, political] enquiry makes about the nature of social [or political] reality—claims about what exists, what it looks like, what units make it up and how these units interact with one another. The person engaging in political ontological-based research explores questions related to what exists within a particular discourse. Discourse, like ontology, can also be understood as a meta-category or in a more restricted, domainspecific sense (i.e., “Ontology” versus “ontologies” and “Discourse” versus “discourses”). Lessa (2006, p. 285) succinctly defines “discourses” as “systems of thoughts composed of ideas, attitudes, courses of action, beliefs and practices that systematically construct the subjects and the worlds of which they speak.” Michel Foucault and Ernesto Laclau are perhaps the two most obvious examples of thinkers who both engage with “discourse” at very different levels. Foucault was more interested in the “little d” iteration of discourse; he was interested in questions related to the social and structures of politics, whereas Laclau was more interested in the “big D” iteration of discourse that explored discourse as a more general ontological (in the “big O” sense of the term) phenomenon (Hansen and Sonnichsen, 2014; Kaminski, 2017). For the purposes of this work, I will be engaging with the more domain-specific understanding of ontologies and discourses. Ontologies help establish discourses since all discourses are dependent upon a certain shared understanding of particular concepts that constitute a specific discourse. At the same time, however, within the social sciences and within the construction of political and religious ideas, it seems clear that discourses also have the capacity to shape and shift ontologies.

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The next questions one can pose here are: how does one create an ontology of a certain political concept or set of political concepts? and, more specifically for the purposes of this work, how does one properly offer an ontology of liberalism or Islam? There should be some clear guidelines to constructing an ontology of political concepts or religious constructs. One’s ontology cannot just be a hodgepodge of anecdotes and questionable assumptions. Rather there must be a coherent methodology for including something within a domain-specific ontology. Giovani Sartori (1970, p. 1053) famously warned that, “[i]ntolerably blunted conceptual tools are conducive, on the one hand, to wasteful if not misleading research, and, on the other hand, to a meaningless togetherness based on pseudo-equivalences,” and instead called for “a disciplined use of terms and procedures of comparison.” Insights coming from the fields of computer science and artificial intelligence are useful for us to consider here for creating disciplined terms and modes of comparison. Some of their own constructs and rules when creating ontologies can most certainly can be applied to the social sciences as well. The seminal work of Uschold and Gruninger (1996, p. 96) offered a useful characterization of ontology related to domain-specific understandings that is also applicable to this project:15 “Ontology” is the term used to refer to the shared understanding of some domain of interest which may be used as a unifying framework […]. An ontology necessarily entails or embodies some sort of world view with respect to a given domain. The world view is often conceived as a set of concepts (e.g. entities, attributes, processes), their definitions and their inter-relationships. They refer to these inter-relationships as a conceptualization. Gruber (1995, p. 908) defines a conceptualization as “an abstract, simplified view of the world that we wish to represent for some purpose.” Studer et al. (1999, p. 25) similarly comments that: “A ‘conceptualization’ refers to an abstract model of some phenomenon in the world by having identified the relevant concepts of that phenomenon.” Conceptualizations must come prior to quantification or operationalization because without adequate concepts, such efforts are not only meaningless but ultimately misleading (Sartori, 1970). Conceptualizations explicitly define and constrain the concepts used, are formal in the sense that they exclude natural language, and should be what computer scientists call “machine readable” in the sense that they consist of standardized language and terms. They also should capture consensual knowledge that is widely accepted by others who work within the same discourse (Gruber, 1995; Studer et al., 1999). At the same time, ontologies are not limited to what Gruber (1995, p. 908) calls “conservative definitions” that are static, only introducing new terminology that does not really “add any knowledge about the world.” Ontologies are meant to be dynamic and generative. An effective ontology ought to be capable of opening the doors to new domains of exploration.16 Further developing

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Gruber’s earlier thought, Feilmayr and Wöß (2016, p. 3) contend that ontologies can be understood as an “explicit specification of a shared conceptualization that is characterized by high semantic expressiveness required for increased complexity.” Ontologies welcome complexity and by definition are meant to exhibit a certain degree of pliability. About fifteen years after Gruber, Had žić et al. (2009, pp. 37–39) offered their own definition of ontology and ontologies: Ontology explains the nature and essential properties and relations between all beings. […] Ontologies are used to describe and represent the domain knowledge. Ontology represents a shared understanding of domain knowledge and consists of concepts used to describe the domain knowledge and the relationships between those concepts. Ontologies must adhere to certain baseline design criteria to maintain any meaningful standard for evaluation. This definition resonates with Gruber and Uschold’s, as well as Gruninger’s, earlier efforts. Gruber (1995) offered five main design criteria when constructing ontologies:17 1. Clarity or effective communication with minimal ambiguities. 2. Coherence or internal consistency among the defining axioms. 3. Extensibility or the ability to develop new concepts and vocabularies based upon the existing vocabularies in use. 4. Minimal Ontological Commitment or the avoidance of making too many axiomatic truth claims that leave little possibility for further development or elaboration. 5. Minimal Encoding Bias or avoiding the use of terms merely for convenience without a reason (for our purposes, one can also understand minimal encoding bias as reading a text as close to the original author’s anticipated meaning, i.e. doing justice to a text). A similar characterization of ontologies can be applied to cases or domains within the social sciences as well. Gruber’s characterization resonates with Gerring’s (1999, p. 384) eight criteria for conceptual legitimacy in the social sciences which include “familiarity, resonance, parsimony, coherence, differentiation, depth, theoretical utility, and field utility.” Domains of all types consist of multiple different components. Slimani (2014, p. 887) argues that within computer science and artificial intelligence, all knowledge contained within ontologies can be formalized via six different components: “classes, instances, relations, functions, axioms and instances.” A similar formalization can be applied to the social sciences as well. It is important to point out that ontologies should not be understood as being the same as taxonomies, though taxonomies may be a type of ontology. Rather, ontologies differ from taxonomies primarily in terms of scope. Kimbrough et al.

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(2012, p. 208), argue that a taxonomy constitutes “perhaps a minimal form of ontology” but should not be seen as an equivalent term. Taxonomical knowledge is only one type of ontological knowledge among many others; taxonomies can be understood as the tree, while ontologies can be understood as the forest. While it is easier to definitively describe the specific elements that constitute “a tree,” the task becomes much more cumbersome, if not impossible altogether, when describing the forest. Forests are large and have many hidden and undetected areas. The physical dimensions of a tree are much easier to definitively calculate than a forest. Often the beginnings and endings of a forest are not as obvious; sometimes the frontier areas of a forest morph or merge into a residential area or some other physical space. Offering a taxonomy of expansive discourses such as Islam or liberalism is not feasible in my opinion since a taxonomy is more definitive and pertains primarily to a more restricted domain. It would be an injustice to offer a “taxonomy” of Islam and liberalism; rather one should try to uncover a more complex web of familial relations and a constellation of conceptions, i.e. an ontology, with full upfront disclosure that one’s ontology may not be (and almost certainly is not) definitive and final. In a similar vein regarding concept types, Gerring (1999, p. 387) points out that although they “offer a useful shorthand way of talking about certain issues in concept formation, they do not offer a comprehensive explanation of that process,” and instead they are “best understood as a matter of prioritization, a sacrifice of certain conceptual virtues for the more firm possession of others. There are, in short, no pure types.” An effective ontology of liberalism for example first ought to make efforts to clearly define which elements and processes are prioritized as being at the crux of liberalism more broadly construed. It must also, via examples and other evidence, justify why it is appropriate to prioritize certain “conceptual virtues” over others. Despite the near impossibility of fully describing a forest, one can try to offer a general portrayal of a forest that is comprehensible to others by focusing upon certain essential elements and processes that make the forest a forest. In the absence of a basic working understanding of the constituent concepts that make up a more general discourse, meaningful discussion and critique are nearly impossible. If one is using terms in a way that the other responding to the term does not adequately understand, not only is meaningful dialogue impossible, but via misunderstandings of key terms and concepts, even greater conf lict is possible. This work will follow the preceding guidelines as it offers an ontology of Islam and liberalism.

Engaging with canons, comparative political theory, and Andrew March’s method of conjecture As mentioned in the previous section, this work will primarily offer a comparative analysis of Islam and liberalism as understood via their most widely assented

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to canonical sources and interpretations. Canons themselves are often quite controversial as anyone familiar with the so-called “canon wars” that dominated the humanities in the late 1980s and early 1990s would tell you. Those critical of the Western literary canon rightfully have asserted: who is it exactly that determines the canon? This discussion is also relevant for discussion about who determines the philosophical canon. Paul Lauter (1991, p. 23) argues that Obviously, no conclave of cultural cardinals establishes a literary canon, but for all that it exercises substantial inf luence. For it encodes a set of social norms and values; and these, by virtue of its cultural standing, it helps endow with force and continuity. Even the contemporary “canon apologist” Harold Bloom (1994, p. 38) himself accepts that “[n]o one has the authority to tell us what the Western Canon is, certainly not from about 1800 to the present day.” Despite this fact, most scholars are nonetheless generally in agreement regarding who/what the canon includes, more or less, in their respective subfields. While no specific individual or even set of readily identifiable individuals possesses the authority to set the canon, clearly there exists some type of nebulous institutional gatekeepers that serve this function. Canons can be understood therefore as “a means by which culture validates social power” (Lauter, 1991, p. 23). Post-Structuralists, feminists, and Marxists alike have argued that literary canons are often representative of the narrative of the dominant hegemonic actors and by their very nature are exclusionary.18 The debate surrounding canons and their merits remains hotly contested to this day and has spread beyond literature departments. In more recent times, scholars have begun to seriously rethink the philosophical canon as well (Park, 2014; Van Norden, 2017a, b). In a provocative essay published in Aeon promoting his most recent book, Taking Back Philosophy: A Multicultural Manifesto (Columbia University Press, 2017a), Bryan Van Norden argued that the philosophical canon, much like the literary canon, over time has become increasingly exclusionary, xenophobic, and racist. He traces the beginnings of this new-found chauvinism to the times of Immanuel Kant (d. 1804 C.E.) contending that the exclusion of non-Western philosophy was a conscious decision rather than an unfortunate accident and noting that during this time “European intellectuals increasingly accepted and systematised views of white racial superiority” and that this decision was “based not on a reasoned argument, but rather on polemical considerations involving the pro-Kantian faction in European philosophy, as well as views about race that are both scientifically unsound and morally heinous” (2017b, para. 8). In Taking Back Philosophy, Van Norden goes into greater detail, explicating Kant’s (quoted in Van Norden, 2017a, p. 22) racial hierarchies that place “whites” at the top—the race that “contains all talents and motives in itself ”—followed by East Indians and Chinese, with “Negroes” below them, and finally with Indigenous Americans at the bottom. On Indigenous Americans, Kant argues

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that they “are uneducable for they lack affect and passion. They are not amorous, and so are not fertile. They hardly speak at all, […] care for nothing and are lazy.”19 One can also look at Hegel’s (d. 1831 C.E.) later sentiments regarding “oriental philosophy,” which he (quoted in Park, 2014, p. 113) noted does not enter into the body of the whole presentation; it is only something preliminary, of which we speak in order to account for why we do not occupy ourselves with it further and what relation it has to thought, to true philosophy[,] as being further indicative of the cultural arrogance and exclusive nature of Western academics after the Enlightenment who determined what is and is not worth reading.20 Certainly one can find a litany of other Western scholars who echo Kant and Hegel’s positions on non-Western philosophy either implicitly or explicitly. While I am certainly sympathetic to some of Park’s and Van Norden’s claims, I still believe that in order to move forward in our thinking—whether it be literary, political, theological, philosophical, or even scientific—we must confront those ideas and thinkers that helped establish the discourse we seek to further develop, transform, or even abandon in the first place. Despite these entirely valid aforementioned critiques of canons as being restrictive and exclusionary, Bloom (1994, p. 30) reminds us that canons are necessary “because we are mortal and also rather belated,” further commenting that: “There is only so much time, and time must have a stop, while there is more to read than there ever was before.” Even if this is not a sufficient justification of canons or why certain works are or are not a part of them, it remains a worthwhile point to consider. Canons do serve as nodal points for evaluating and situating any discourse. For Bloom: “Cognition cannot proceed without memory, and the Canon is the true art of memory, the authentic foundation for cultural thinking” (1994, p. 35). As it does with any good Straussian, tradition plays a rudimentary role in the thought of Bloom.21 Despite my own deep reservations regarding the Straussian method, I do concur that tradition is inescapable—this means that whether we “like” certain elements that are constitutive of the canon or not, these elements are simply too essential, too widely referenced to not be taken on their own terms. Opening the canon and rethinking/expanding the canon does not necessitate throwing out the old canon. Liberalism is driven by the likes of Locke, Mill, and Rawls—to not engage with these thinkers is to not engage with liberalism in any meaningful way. Islam is driven by the Qurʾā n, the Sunna of the Prophet (‫)ﷺ‬, and the numerous classically trained Islamic theologians and thinkers who offer expert exegesis and analysis on these sources—to not engage with these “canonical figures” and texts is to not engage with Islam in any meaningful way. This point is echoed by Talal Asad who argues that despite the multiplicity of local Islamic traditions, there nonetheless remains a core set of principles that is present within all of them. He

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suggests to his readers that they “should begin, as Muslims do, from the concept of a discursive tradition that includes and relates itself to the founding texts of the Quran and Hadith” (2009, p. 20; cited in Sulaiman, 2018, p. 142). For Asad, these sets of texts are largely responsible for why Islam can be explored and analyzed as a unified discursive tradition. This work will also be an exercise in comparative political theory, a subfield within the larger field of political theory that is still developing. On the comparative political theory method, March (2009b, p. 537) contends that: “Comparison must be, in the first place, a method, not just an expedient term vaguely suggesting the focus of one’s research interests (e.g., non-Western texts) or substantive concerns and commitments (e.g., critiquing Western hegemony).” It is a way to critically engage in an honest and fair manner with traditions that on the surface may seem disconnected or fundamentally different. Nobody can ever possibly claim to exhaustively discuss all the possibilities contained within liberalism, Islam, or any other expansive discourse—however, one can try and offer an honest and fair portrayal of some of the dominant themes between discourses that follows a consistent methodology. At the heart of the comparative political theory enterprise is what March describes as “principled value-conf lict.” Exploring its normative implications “is an appropriate task of engaged political theory and could be made the centerpiece of the comparative political theory project” (March, 2009b, p. 560). He describes comparative political theory as a “justificatory” exercise that “differs from the traditional concerns of hermeneutics, discourse analysis, genealogy, or intellectual history to the extent that it is concerned with a particular form of normative argumentation, or justification” (2009a, p. 19). For March, comparative political theory (which he also refers to as “conjecture”) “does not pretend to be disinterested or value-neutral. It is openly concerned with justifying certain normative principles from different philosophical, ethical, or religious foundations” (2009a, p. 19). His iteration of comparative political theory does not aim to avoid normative conf lict or to argue from Thomas Nagel’s (1986) “view from nowhere”—rather it welcomes normative interventions and even genuine disagreement so long as these interventions and/or disagreements are properly justified via a particular discourse’s ontological and epistemological foundations.22 It is the task of the researcher to make sure they do justice in articulating each discourse in the question’s core assumptions. March’s method is meant to move beyond mere navel gazing and offer realworld ways to reconcile competing discourses. I asked him what he (2009b, p. 560) meant by “examining thoroughly what first-order implication the normative dispute has,” which appeared in a later paragraph of his article. In his prompt and very helpful email to my question, he commented that I definitely meant something like “to connect the normative dispute to something in a more real world, practical sense.” For example, there are normative disputes about the scope of rights (like free speech or bodily

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autonomy) that are approached differently from different traditions but are a common object of concern or dispute. One role for comparative political theory is to explore what it would mean to justify one resolution or another from within alternative traditions. (cited in Kaminski, 2016b, p. 199) With this in mind, the next question one should ask is: what if some of these normative disputes cannot be adequately reconciled when considered at their second-order levels? While one can find overlap in just about any set of ideologies on certain core principles, there must come a point in certain cases where the deep incompatibilities between discourses becomes so apparent that one realizes no major breakthroughs are to be had—a Rawlsian-style overlapping consensus regarding certain elements between two unique comprehensive doctrines should not be seen as being equivalent to genuine discursive compatibility and congruence.23 Certain specific doctrines within differing discourses may be congruent, but this hardly means the more general discourses themselves are as well. Despite the strong claims made in the last paragraph, this work is not trying to offer a final answer or conclusion to anything beyond the point that there are serious higher-order issues to consider when trying to reconcile Islam and liberalism and that perhaps it is time to start trying to understand Islam and its incumbent approach to socio-political organization within a communitarian framework instead. Comparative political theory ought not be concerned with definitively proving truths—one would be hard-pressed to claim that comparative political theory is positivist in its orientation. Meysam Badamchi (2017, p. 44) nicely articulates March’s basic position, arguing that one of his main contentions is that “conjecture or justificatory political theory does not aim to prove the truth of the alternative interpretation proposed but to show its ‘plausibility.’” This work seeks to show that the most plausible argument regarding Islam and liberalism is that they are more different than similar and that these differences should be taken seriously. March’s (2009a) own method of conjecture involves three fundamental premises—1) arguing from the more orthodox sources first and then moving on to the less orthodox ones, 2) engaging in transparency and restraint when making arguments or claims, and finally 3) showing sympathy for the text in question being analyzed. I find a great deal of merit with this approach. It makes no sense to base one’s argument about liberalism or Islam on sources widely seen as overly reformist or outside the mainstream. This often means first engaging with more conservative/traditional positions. This does not mean simply dismissing reformist or unorthodox positions, but it does mean recognizing that these positions ought not be the ones used to articulate the more general ontological claims of a particular discourse—when discussing the theological and eschatological foundations of Judaism, for example, does one begin their argument via reference to Moishe Rosen’s Jews for Jesus movement which was founded in 1973 and posits Jesus Christ as the promised Messiah of the Jewish people or Maimonides?

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I will add my own twist to March’s approach at times by engaging with ideas or thinkers who are seen as reformist and showing how their reformist positions can still be seen as being in accordance with the more universal ontology and epistemology of the mainstream positions. This means, for example, looking at a particular Islamic reformer’s legal position in relation to a specific issue and showing that while their position on that particular issue may be unorthodox, the supervening ontology it is situated within remains coherent with the more traditional metanarrative. If I can succeed in this effort, I will be able to offer a more comprehensive account of my more general claims. This work will first give a brief outline of the historical development of liberalism and its Enlightenment origins. It will then look more closely at the inextricability of Enlightenment liberalism from political liberalism. This is an essential connection to make in order to fully codify one of the main arguments being pushed in this work, namely that no matter how one frames liberalism, it is inescapable from a certain larger Weltanschauung or comprehensive doctrine. If this is the case as I intend to show, then no matter what level one seeks to postulate liberalism at, it remains intimately connected to a unique comprehensive doctrine that differs markedly from Islam. I will then address the question of how one can speak of Islam as a unified subject of inquiry despite a multiplicity of local traditions drawing heavily from the work of Talal Asad and prototype theory. The concluding chapters will begin the more explicit comparative analysis looking at how Islam and liberalism as discourses more broadly construed differ on questions related to human rights, moral epistemologies, the role of religion in the public sphere, and more general approaches to legal discourse. These differences will be rigorously explored via primary and canonical sources constitutive of both Islam and liberalism. The concluding section of the book will articulate why communitarian modes of thought offer more promise than liberalism for meaningful engagement with Islam and contemporary socio-political modes of organization.

Notes 1 This roundtable talk “Islamic Liberalism: Real of False Hope?” was held at the Hayek Auditorium at the CATO Institute in Washington, D.C., and can be found at https:/ /www.cato.org/events/islamic-liberalism-real-or-false-hope. 2 The notion of constellations was first utilized by Walter Benjamin and was later integrated into the writings of Theodor Adorno. Martin Jay (1984, pp. 14–15) argued that a constellation can be thought of as “a juxtaposed rather than integrated cluster of changing elements that resist reduction to a common denominator, essential core, or generative first principle.” Such an approach, often understood as “negative dialectics” within critical theory, sought to avoid positing categorical understandings of certain terms and concepts. Constellations embrace the often contradictory and irreconcilable differences in the various parts that make up a somewhat undefined whole. Such an approach accepts that certain concepts, due to their inherent depth and complexity, simply cannot ever hope to be neatly compartmentalized or essentialized in an appropriate manner. As a result, such concepts and terms will always be contingent upon history, culture, and time and should not be seen as being terminally defined.

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3 For example, all the Abrahamic faiths draw heavily from iconic Prophetic figures and stories from the past for guidance. This is the case for all movements within these traditions whether they are progressive, traditionally conservative, or fundamentalist. One can understand the difference between progressive, traditionally conservative, and fundamentalist movements in terms of degree. The more fundamentalist a movement is, the more it seeks a literal return to the past. Groups like al Qaeda and ISIS “are not looking for a future different from the past,” but rather “both groups seek a return to it,” often in the most literal sense, not just in terms of cardinal values but in terms of day-to-day social interactions (Kaminski, 2016a, p. 199). 4 ‫ِإَّن َّ َللا َل يُ غَ ِيّ ُر َم ا ِب قَ ْوٍم َح ت َّ ٰى يُ غَ ِيّ ُروا َم ا ِب أ َْن فُ ِس ِه ْم‬ 5 For original, see, Aqwam al-masālik fī maʻrifat a ḥwāl al-mamālik. (Tū nis: Maṭbaʾat alDawlah al-Tū nisīyah, 1868). 6 Even conservatives like Sayyid Quṭb discussed the importance of borrowing certain ideas from the West, especially as they related to science. On learning science from the West, Quṭb (2007, p. 109) comments that “it is permitted from a Muslim to learn them from a Muslim or non-Muslim and to gain experience under his direction, without any distinction of religion.” However, it must be noted that he did not think it was acceptable for Muslims to draw from the West regarding other areas, specifically those related to economics, religion, and metaphysics. 7 Ghannū sh ī’s most important work, Al-Ḥurr īyāt Al-’āmmah f īd Al-dawlah alIsl āmīyyah (1993), drew heavily from Bennabi and al-Tū nisī’s calls for reform and modernization. 8 March is a good example of a contemporary thinker who fits this exception. His most recent book, The Caliphate of Man: Popular Sovereignty in Islamic Thought (Harvard University Press, 2019), is representative of engaged comparative political theorizing related to Islam and liberal themes and eloquently grapples with Islam and the notion of popular sovereignty. However, I feel that his first book, Islam and Liberal Citizenship: The Search for an Overlapping Consensus (Oxford University Press, 2009b), is an even better example of a more recent, larger hermeneutic reconstructive project that grapples with themes related to Islam and liberalism even though this particular work focused on Muslims living in liberal societies rather than the possibilities of liberalism existing in Muslim societies. Mohammed Fadel and Raja Bahlul have also produced many rigorous and original works that can be readily identified as engaged comparative political theorizing on topics related to Islam and liberal thought. 9 For more on this discussion regarding the trajectory of post-9/11 scholarship that Zaheer Kazmi (2014) argues has focused on “an abstracted liberalism” that permeates discourses surrounding moderate and “brand” Islam, I recommend his brief essay that appeared online in the Los Angeles Review of Books titled “The Limits of Muslim Liberalism” (https://lareviewof books.org/article/limits-muslimliberalism/). 10 Swaine believes that liberalism can actually learn from Islam and offers what he calls a “transformative interaction” model that suggests that Islam and liberalism both have the capacity to reshape each other. 11 See page one. In an interview with Nathan Gardels that appeared in the Huffington Post 20 years after the fall of the Berlin Wall, Fukuyama not only reiterated his point about the ultimate prevail of liberal democracy, but even doubled down on it suggesting that few will ever believe that “higher forms of civilization” are possible than what the West offers. “The basic point—that liberal democracy is the final form of government—is still basically right. Obviously there are alternatives out there, like the Islamic Republic of Iran or Chinese authoritarianism. But I don’t think that all that many people are persuaded these are higher forms of civilization than what exists in Europe, the United States, Japan or other developed democracies; societies that provide their citizens with a higher level of prosperity and personal freedom” (Fukuyama, cited in Gardels, 2009: online).

20 Introduction

12 See Ahmet Davutoğlu, Alternative Paradigms: The Impact of Islamic and Western Weltanschauungs on Political Theory (Lanham, MD: University Press of America, 1993) for a more critical engagement with the categories that are constitutive of Western and Islamic political theory and where they converge and depart. 13 C. Wright Mills (1959, p. 32–33) famously claimed that “After the Reformation and the Renaissance, the forces of modernization swept across the globe and secularization, a corollary historical process, loosened the dominance of the sacred. In due course, the sacred shall disappear altogether except, possibly, in the private realm.” More recently scholars such as Rodney Stark and Roger Finke, and the later work of Peter Berger (1999, p. 2), have come to realize that the world “is as furiously religious as it ever was” (Berger, 1999, p.2). Berger (1999, p. 2) concludes that this thesis “is essentially mistaken,” while Stark and Finke (2000, p. 79) even more emphatically argue that “it seems time to carry the secularization doctrine to the graveyard of failed theories.” 14 Colin Hay (2011, p. 464) offers a succinct example regarding how to differentiate between what ontologists and epistemologists explore: “if the ontologist asks ‘what exists to be known?’, then the epistemologist asks ‘what are the conditions of acquiring knowledge of that which exists?’” 15 As of July 2020, this particular article has been cited over 5,400 times according to Google Scholar. 16 Finding a balance between precision and extensibility was also something that Sartori called for when developing concepts. He sought for future concept formation and theorization “to maneuver, both up-wards and downwards, along a ladder of abstraction in such a way as to bring together assimilation and differentiation, a relatively high explanatory power and a relatively precise descriptive content, macro-theory and empirical testing” (1970, p. 1053). In essence Sartori sought to define concepts in ways that would maximize Pareto optimality between precision and extensibility. 17 Also see Uschold & Grunninger, 1996, p. 105. 18 On the exclusionary character of the Western literary canon specifically, Lauter (1991, p. 23) comments that “in the 1920s processes were set in motion that virtually eliminated black, white female, and all working-class writers from the canon. Institutional as well as theoretical and historiographic factors were involved in that exclusion.” One can assuredly make a similar type of general claim regarding canonical works in the social sciences as well; institutional and historiographic factors most certainly placed certain scholars of certain ethnic/cultural background “in” the canon, while simultaneously keeping others “out” for the very same reasons. 19 Van Norden quotes from xxv.2 1187–1188 of Kant’s (1900–) Gesammelte Schriften, originally cited in Mark Larrimore (1999) “Sublime Waste: Kant on the Destiny of the ‘Races.’” Canadian Journal of Philosophy. 25, 111–112. 20 Robert Bernasconi (1998) also argued that Hegel regularly portrayed non-Western societies as barbaric, backward, and better off under European enslavement. Hegel saw Africans as uniquely backward. In his Philosophy of History, he comments: “The Negro, as already observed, exhibits the natural man in his completely wild and untamed state. We must lay aside all thought of reverence and morality—all that we call feeling—if we would rightly comprehend him; there is nothing harmonious with humanity to be found in this type of character” (2007[1837], p. 93). It ought not be surprising then that Hegel also excluded the philosophical and intellectual contributions of African peoples from the mosaic of human civilization as well. Africa was “the Unhistorical, Undeveloped Spirit, still involved in the conditions of mere nature” that existed “only as on the threshold of the World’s History” (2007 [1837], p. 99). For Hegel, the people of Africa were hardly distinguishable from primates. 21 Bloom (quoted in Smith, 1991, p. 75) once referred to Leo Strauss as a “political philosopher and Hebraic sage.” 22 Nagel (1986, p. 5) understood the truly objective perspective as “the view from nowhere”—a view free from all subjective biases which “allows us to transcend our

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particular viewpoint and develop an expanded consciousness that takes in the world more fully.” However, others like Gadamer (2004) and even Nagel himself have commented that this might not be possible nor even always desirable in the social sciences for many well-founded reasons. 23 Rawls’s (1997, p. 801) famous notion of “an overlapping consensus” suggested that supporters of differing, yet reasonable, comprehensive doctrines (i.e. religion or morality-based) can still find common ground on certain principles of justice so long as each comprehensive doctrine shared similar concerns as an authentic part of their original value systems (i.e. not a modus vivendi), and “support a political conception of justice underwriting a constitutional democratic society whose principles, ideals, and standards satisfy the criterion of reciprocity.”

References Abou El Fadl, K. (2004). Islam and the challenge of democracy. In K. Abou El Fadl (Ed.), Islam and the Challenge of Democracy (pp. 3–46). Princeton, NJ: Princeton University Press. Abou El Fadl, K. (2007). The Great Theft: Wrestling Islam from the Extremists. New York, NY: HarperCollins. Akyol, M. (2013). Islam without Extremes: A Case for Muslim Liberty. New York, NY: W.W. Norton & Company. Allawi, A. (2009). The Crisis of Islamic Civilization. New Haven, CT: Yale University Press. Al-Tū nisī, K. (1868). Aqwam al-masālik fī maʻrifat a ḥwāl al-mamālik. Tū nis: Maṭbaʾat al-Dawlah al-Tū nisīyah. Al-Tū nisī, K. (2002[1867]). The surest path. In C. Kurzman (Ed.), Modernist Islam 1840– 1940: A Sourcebook (pp. 40–49). New York, NY: Oxford University Press. Aristotle. (2001). The Basic Works of Aristotle. J. McKeon (Ed.), New York, NY: The Modern Library. Asad, T. (2009). The idea of an anthropology of Islam. Qui Parle, 17(2), 1–30. Badamchi, M. (2017). Post-Islamist Political Theory: Iranian Intellectuals and Political Liberalism in Dialogue. Cham, Switzerland: Springer. Berger, P. (1967). The Sacred Canopy. Garden City, NY: Doubleday. Berger, P. (1999). The desecularization of the world: An overview. In P. Berger (Ed.), The Desecularization of the World: Resurgent Religion and World Politics (pp. 1–18). Washington, DC: Ethics and Public Policy Center. Bernasconi, R. (1998). Hegel at the court of the Ashanti. In S. Barnett (Ed.), Hegel after Derrida (pp. 41–63). London, UK: Routledge. Binder, L. (1988). Islamic Liberalism: A Critique of Development Ideologies. Chicago, IL: University of Chicago Press. Blaikie, N. (1993). Approaches to Social Enquiry. Cambridge, UK: Polity. Bloom, H. (1994). The Western Canon: The Books and School of the Ages. New York, NY: Harcourt Brace & Company. Dallmayr, F. (2004). Beyond monologue: For a comparative political theory. Perspectives on Politics, 2(2), 249–257. Davutoğlu, A. (1993). Alternative Paradigms: The Impact of Islamic and Western Weltanschauungs on Political Theory. Lanham, MD: University Press of America. Devji, F. and Kazmi, Z. (2017). Introduction. In F. Devji & Z. Kazmi (Eds.), Islam and Liberalism (pp. 1–14). London, UK: Hurst. Esposito, J. (1987). Islam and Politics. 2nd ed. Syracuse, NY: Syracuse University Press. Esposito, J. (2010). The Future of Islam. New York, NY: Oxford University Press.

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Euben, R. (1999). Enemy in the Mirror: Islamic Fundamentalism and the Limits of Modern Rationalism. Princeton, NJ: Princeton University Press. Feilmayr, C. & Wöß, W. (2016). An analysis of ontologies and their success factors for application to business. Data & Knowledge Engineering, 101, 1–23. Fukuyama, F. (1989). The end of history? The National Interest, 16, 3–18. Fukuyama, F. (1992). The End of History and the Last Man. New York, NY: Free Press. Fukuyama, F. (2011). Origins of Political Order: From Prehuman Times to the French Revolution. New York, NY: Farrar, Straus and Giroux. Gadamer, H. (2004). Philosophical Hermeneutics. Edited by D. Linge. Berkeley, CA: University of California Press. Gardels, N. (2009). The end of history 20 years later [online]. Huffington Post. [Viewed 4 January 2018]. Available from: https://www.huffingtonpost.com/nathan-gardels/ the-end-of-history----20_b_341078.html. Gerring, J. (1999). What makes a concept good? A criterial framework for understanding concept formation in the social sciences. Polity, 31(3), 357–393. Ghannū sh ī, R. (1993). Al-Ḥurriyyāt al-ʿāmma fi′l-dawla al-Islāmiyya. Beirut, Lebanon: Markaz Dir ā sāt al-Wi ḥda al-ʿArabiyya. Gruber, T. (1995). Toward principles for the design of ontologies used for knowledge sharing. International Journal of Human-Computer Studies, 43(5–6), 907–928. Had ž ić, M., Wongthongtham, P., Dillon, T., and Chang, E. (2009). Ontology-Based Multi-Agent Systems. New York, NY: Palgrave. Hamid, S. (2016). Islamic Exceptionalism: How the Struggle Over Islam is Reshaping the World. New York, NY: St. Martin's Press. Hansen, A.D., and Sonnichsen, A. (2014). Discourse, the political and the ontological dimension: an interview with Ernesto Laclau. Distinktion: Scandinavian Journal of Social Theory, 15(3), 255–262. Hay, C. (2011). Political ontology. In R.E. Goodin (Ed.), The Oxford Handbook of Political Science (pp. 460–477). Oxford, UK: Oxford University Press. Hegel, G.F.W. (2007[1837]). The Philosophy of History. Translated by J. Sibree. New York, NY: Cosmos Classics. Hourani, A. (1983[1962]). Arabic Thought in the Liberal Age. 1798–1939. New York, NY: Cambridge University Press. Jay, M. (1984). Adorno. Cambridge, MA: Harvard University Press. Kaminski, J.J. (2016a). Beyond capitalism: Exploring the limitations and weaknesses in Max Weber’s general understanding of the Islamic discourse. Intellectual Discourse, 24(1), 35–58. Kaminski, J.J. (2016b). The Islamic fundamentalist that could have been?—Parallels between the rhetoric of Joseph de Maistre and contemporary Islamic fundamentalist movements. Marmara Universitesi Siyasal Bilimler Dergisi, 4(1), 195–216. Kaminski, J.J. (2017). The Contemporary Islamic Governed State: A Reconceptualization. New York, NY: Palgrave. Kazmi, Z. (2014). The limits of Muslim liberalism. Los Angeles Review of Books [online]. 4 April. [Viewed 1 April 2018]. Available from: https://lareviewof books.org/article/ limits-muslim-liberalism/ Khan, M.A.M. ed. (2006). Islamic Democratic Discourse. Lanham, MD: Lexington Books. Khan, M.A.M. ed. (2007). Debating Moderate Islam: The Geopolitics of Islam and the West. Salt Lake City, UT: University of Utah Press. Kimbrough, S.O., Lee, T.Y., and Oktem, U. (2012). On deriving indicators from texts. In D. Dolk and J. Granat (Eds.), Modeling for Decision Support in Network-Based

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Services: The Application of Quantitative Modeling to Service Science (pp. 196–225). Berlin, Germany: Springer. Kompridis, N. (2006). The idea of a new beginning: A romantic source of normativity and freedom. In N. Kompridis (Ed.), Philosophical Romanticism (pp. 32–59). New York, NY: Routledge. Kurzman, C. (2002). Introduction. In C. Kurzman (Ed.), Modernist Islam 1840–1940: A Sourcebook (pp. 3–27). New York, NY: Oxford University Press. Lauter, P. (1991). Canons and Context. New York, NY: Oxford University Press. Lessa, I. (2006). Discursive struggles within social welfare: Restaging teen motherhood. The British Journal of Social Work, 36(2), 283–298. Lewis, B. (2010). Faith and Power: Religion and Politics in the Middle East. Oxford, UK: Oxford University Press. Lipset, S. (1959). Some social requisites of democracy: Economic development and political legitimacy. American Political Science Review, 53(1), 69–105. March, A. (2009a). Islam and Liberal Citizenship: The Search for an Overlapping Consensus. New York, NY: Oxford University Press. March, A. (2009b). What is comparative political theory? The Review of Politics, 71(4), 531–565. March, A. (2019). The Caliphate of Man: Popular Sovereignty in Islamic Thought. Cambridge, MA: Harvard University Press. Mills, C.W. (1959). The Sociological Imagination. Oxford, UK: Oxford University Press. Nagel, T. (1986). The View from Nowhere. London, UK: Oxford University Press. Noack, R. (2015). Muslims threaten Europe’s Christian identity, Hungary’s leader says. Washington Post [online]. September 3. [Viewed March 13, 2018]. Available from: https ://www.washingtonpost.com/news/worldviews/wp/2015/09/03/muslims-threaten -europes-christian-identity-hungarys-leader-says/?utm_term=.3e0101eebdb1 Park, P. (2014). Africa, Asia, and the History of Philosophy: Racism in the Formation of the Philosophical Canon, 1780–1830. Albany, NY: SUNY Press. Qur’ā n. (2004). The Meaning of the Holy Qurʾan. Translated by A.Y. Ali. 10th ed. Beltsville, MD: Amana Publications. Qutb, S. (2007). Milestones. Damascus: Kazi Publishers. Rawls, J. (1997). The idea of public reason revisited. University of Chicago Law Review, 64(3), 765–807. Safi, O. (Ed.) (2003). Progressive Muslims: On Justice, Gender, and Pluralism. Oxford, UK: Oneworld. Sartori, G. (1970). Concept misinformation in comparative politics. American Political Science Review, 64(4), 1033–1053. Slimani, T. (2014). A study investigating typical concepts and guidelines for ontology building. Journal of Emerging Trends in Computing and Information Sciences, 5(12), 886–893. Smith, S.B. (1991). Leo Strauss: Between Athens and Jerusalem. The Review of Politics, 53(1), 75–99. Stark, R., and Finke, R. (2000). Acts of Faith: Explaining the Human Side of Religion. Berkeley, CA: University of California Press. Studer, R., Benjamins, V.R., and Fensel, D. (1998). Knowledge engineering: Principles and methods. IEEE Transactions on Data and Knowledge Engineering, 25(1–2), 161–197. Sulaiman, M. (2018). Between text and discourse: Re-theorizing Islamic orthodoxy. ReOrient, 3(2), 140–162. Swaine, L. (2018). Can Islam transform liberalism? Politics, Religion & Ideology, 19(3), 285–304.

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Uschold, M., and Gruninger, M. (1996). Ontologies: Principles, methods and applications. Knowledge Engineering Review, 11(2), 93–136. Van Norden, B. (2017a). Taking Back Philosophy: A Multicultural Manifesto. New York, NY: Columbia University Press. Van Norden, B. (2017b). Western philosophy is racist. Aeon [online]. 31 October. [Viewed 26 April 2020]. Available from: https://aeon.co/essays/why-the-western-p hilosophical-canon-is-xenophobic-and-racist. Voll, J. (1997). Sultans, saints, and presidents: The Islamic community and the state in North Africa. In J. Entilis et al. (ed.), Islam, Democracy, and the State in North Africa (pp. 1–17). Bloomington, IN: Indiana University Press.

2 SETTING THE TABLE Liberalism and its enlightenment origins

Modern liberalism’s origins undeniably lie within the European Enlightenment and the Western intellectual tradition more generally. The phrase “the Enlightenment” was actually a creation of later historians; those figures who actually lived during this time never used such a term to describe their own era even though they did regularly employ metaphors that refer to light such as lumière, lume, and Aufklärung in their writings to describe their enterprises. Pocock (1999, p. 7) argues that the Enlightenment can be conceived of in two different ways that are both related to the fundamental restructuring of the relationship between religion and society: Enlightenment may be characterised in two ways: first, as the emergence of a system of states, founded in civil and commercial society and culture, which might enable Europe to escape from the wars of religion without falling under the hegemony of a single monarchy; second, as a series of programmes for reducing the power of either churches or congregations to disturb the peace of civil society by challenging its authority. There is no definitive agreed upon date as to when “the Enlightenment” began, hence why often it is referred to as the Age of Enlightenment. The Enlightenment is better understood as a process rather than an event that started at a fixed point in space and time like some type of sporting event. Some trace the Enlightenment’s origins back to the early and mid-seventeenth century during what has come to be known as the era of the scientific revolution which included the publication of Galileo’s Dialogue Concerning the Two Chief World Systems in 1632 C.E. and Isaac Newton’s Principia published in 1687 C.E., whereas others such as Peter Gay (1969) and Isaiah Berlin (1979) saw it as more of an eighteenth-century

26 Setting the table

phenomenon directly related to republican, anti-clerical French intellectuals critical of the ancien régime.1 Gay (1969, p. 1) famously argued that during the first years of the Enlightenment “educated Europeans awoke to a new sense of life.” Certain processes were transpiring throughout Europe during the seventeenth century that helped bring about this awakening. Samuel Fleischacker (2013, p. 2) commented: By the mid-seventeenth century, three processes were under way that would eventually transform Europe from a society of religious people, living in small, static, tightly knit communities that answered, ultimately, to an absolute monarch, into a set of highly individualistic, dynamic, and open societies, favoring liberal democracy over monarchy in theory if not always in practice, and fostering a secular science that has had stunning success in explaining and controlling nature. The first of the three processes Fleischacker refers to was connected to the cooling down of religious wars that plagued much of Europe, beginning with the Knights’ Revolt [Die Sickingische Fehde]—also known as the Poor Barons’ Rebellion—led by the Protestant reformers Franz von Sickingen and Ulrich von Hutten against the Roman Catholic Church in 1522, and the subsequent German Peasants’ Revolt [Deutscher Bauernkrieg] in 1524. Sporadic violence plagued much of Europe for the next 120 years until the 1648 Peace of Westphalia [Westfälischer Friede] which recognized Roman Catholicism, Lutheranism, and Calvinism as distinct Christian traditions within the Holy Roman Empire. The second and third processes alluded to by Fleischacker (2013, p. 3) were the rise in scientific thinking that was based on empirical observation rather than blind deference to church authorities, and the recognition of the “value in the details of quotidian human life” emphasized by Protestant Puritans and Catholic Jansenists that helped upend the rigid social hierarchies that characterized earlier times. One could find value in one’s own daily life and activities rather than merely relying upon authorities or religious elites to provide guidance. Earlier Enlightenment liberalism was in many ways a refutation of church dogma in the place of a new secular Zeitgeist that offered an account of morality and the good life in its own terms without the need for gods or a God to define it. One is reminded of Voltaire’s (d. 1778 C.E.) sarcastic quip in his Traité de metaphysiqué: “All men are born with a nose and five fingers, and none is born with the knowledge of God”2 (1837[1734], p. 5). Voltaire believed that “the knowledge of God” is foisted upon man by the church; if left to his own devices, he would likely not seek it out. This stands in opposition to the standard Islamic notion of fiṭra which posits that all normal mentally functioning human beings are born with—at minimum—a natural inclination to seek knowledge of God. The Enlightenment—especially much of its earlier beginnings—should not, however, be seen as synonymous with liberalism. A great deal of Enlightenment thought is actually quite illiberal by today’s standards. One of the precursors to

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the Enlightenment was the Protestant Reformation led by Martin Luther (d. 1546 C.E.) and his “Ninety-five Theses” or Disputation on the Power of Indulgences [Disputation zur Klärung der Kraft der Ablässe] which were distributed to the Archbishop of Maniz and may have been nailed by Luther himself to the doors of the All Saints’ Church [Schlosskirche] in Wittenberg in 1517. Luther was hardly a democrat or a liberal. His politics were undeniably authoritarian, and his antiSemitism was notorious even in his own time (Hillerbrand, 2006). Luther went as far as to openly advocate for the destruction of Jewish homes and synagogues.3 Luther’s “two governments” doctrine was a modification of St. Augustine’s “two cities” and argued explicitly for the separation of church and state. Luther strongly sided with secular state power while remaining a staunch opponent of the Catholic Church. He railed against the peasant rebels who partook in the 1524 German Peasants’ Revolt in his aptly titled work, Against the Murderous, Thieving Hordes of Peasants [Wider die Mordischen und Reubischen Rotten der Bawren].4 Luther made it quite explicit throughout his writings that the state had full authority to use violence to maintain order and subdue wrongdoers. In Secular Authority: To What Extent It Should Be Obeyed, published in 1523, just prior to the Peasants’ Revolt, Luther comments that non-Christians basically should be ruled by the sword: All who are not Christians belong to the kingdom of the world and are under the law. Since few believe and still fewer live a Christian life, do not resist the evil, and themselves do no evil, God has provided for nonChristians a different government outside the Christian estate and God’s kingdom, and has subjected them to the sword, so that, even though they would do so, they cannot practice their wickedness, and that if they do, they may not do it without fear nor in peace and prosperity. Even so a wild, savage beast is fastened with chains and bands, do that it cannot bite and tear as is its wont, although it gladly would do so […]. (cited in Dillenberger, ed., 1961, p. 370) Despite Luther’s colorful language and fire-and-brimstone approach toward the wicked, his primary concerns for our purposes were chief ly related to the secularization of knowledge and the division between the worldly and otherworldly realms. These concerns most certainly had an instrumental component as they undoubtedly weakened the yoke of the Catholic Church and set the table for later Enlightenment developments and the rise of Protestantism. Luther’s secular approach to politics and his separation of church and state are perhaps his most significant contributions to later Enlightenment thought. We can also note ideas that would inf luence later liberal Enlightenment thought in the works of international law scholars like Hugo Grotius (d. 1645 C.E.) and Emmerich de Vattel (d. 1767 C.E.). Grotius is often seen as the father of modern international law and one of the earliest advocates of human rights that were derived from certain inalienable individual rights (Haakonssen, 1985;

28 Setting the table

Thompson, 1994). Grotius’ The Law of War and Peace [De Jure Belli ac Pacis] was published in 1625 C.E. and posited that the law of nations ought not be based on any particular set of Christian or theological bases. Rather, for Grotius, legal obligations were based on rights. Grotius modified the concept of ius, or rights, as it was understood in Roman law and by Aquinas. For the Romans, ius was something that citizens (civis) had in accordance with their citizenship (civitas). According to Knud Haakonssen (1985, p. 240): Instead of [ius] being something that an action or state of affairs or a category of these is when it is in accordance with the law (in casu, natural law), ius is seen by Grotius as something that a person has. The concept becomes “subjectivized,” centered on the person: It is a power that the person has, as such it is also called a moral quality of the person. Furthermore, the international order was not just a collection of abstract, impersonal states; rather it was a larger society of humankind. For Grotius, natural law implied the right to self-preservation and was unalterable; even by God himself. Regarding the Law of Nature, he unequivocally declares that it “is so unalterable, that God himself cannot change it” (2005[1625], p. 155). Grotius saw the precepts of the Law of Nature as being axiomatic and a type of logical truism that if violated would result in a logical contradiction: For tho’ the Power of God be infinite, yet we may say, that there are some Things to which this infinite Power does not extend, because they cannot be expressed by Propositions that contain any Sense, but manifestly imply a Contradiction. For Instance then, as God himself cannot effect, that twice two should not be four; so neither can he, that what is intrinsically Evil should not be Evil. (2005[1625], p. 155) However, despite Grotius’s emphasis on certain inalienable rights, it would be a stretch to recognize his doctrine as liberal. Throughout his writings he seemed to downplay the notion of individual rights in practice and was himself quite indifferent to nationality in comparison to some of the later liberal writers that he inspired; maintaining public order was the overall aim of international law (and law more generally) in Grotius’s eyes. The issue of state sovereignty, however, is where we can see the clearest parallels between Hobbesian and Grotian thought. The state had the right to self-preservation even if that meant restricting certain rights and sometimes even worse. Rabkin contends that Grotius “is quite ready to acknowledge that a conqueror may own a people, much as he owns land or gold or a title to kingship in his own country” (1997, p. 300). In order for peace to be achieved, states had to have a special status even if that meant allowing them to act oppressively at times.5 Emmerich de Vattel was another international legal figure who focused on the rights and obligations of both states and citizens. Heavily inf luenced by

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Grotius and Leibniz (d. 1716 C.E.), Vattel’s The Law of Nations [Le Droit des Gens] was highly inf luential on later Just War Theory. Vattel’s work was published into English in 1760 C.E., nearly 70 years after Locke’s Essay Concerning Human Understanding (1690), and was very inf luential on the thought of the founding fathers of the United States.6 He prioritized the importance of national self-determination, arguing emphatically that each state had an obligation to safeguard its own independence while at the same time arguing that states ought not to interfere in the affairs of other states. Vattel was deeply inf luenced by Leibniz’s understanding of perfection and claimed that states have an obligation to help other states develop and improve as best they could so long as this did not cause harm to their own interests (Rabkin, 1997; Glanville, 2017). States were also obliged to assert their own right to being treated equally and reciprocate this favor onto other states. Such a duty clearly resonates with liberal understandings of the international order and Leibniz’s understanding of harmony, which is inextricable from his notion of metaphysical perfection.7 The entire modern liberal international order is predicated on the possibility of states coexisting in harmony. Vattel’s writings were a clear step toward the more modern liberal understanding of nationalism and national identity that was largely absent from the earlier works of Grotius. There certainly are many more nationalist constructs inherent with his generally liberal framework than in Grotius’. Like Grotius, Vattel’s understanding of the state did not presuppose any specific religious identity as being its unifying glue. Nationality for him was not a timeless enterprise. There is nothing mystical or timeless in this [Grotius’] view of nationality. A nation is a people willing to defend their independence in common. It is not necessary for such a people to be of one religion, since the aim of their common effort is not, in any direct way, religious. Certainly, it is not necessary to be ethnically or racially homogeneous—even supposing that such terms have any clear meaning, which in Locke’s framework (and most other political contexts) they do not. (Rabkin, 1997, p. 318) What made a nation viable was the willingness of its citizens to act in common and fight for a common cause that may or may not be connected to ethnicity, race, or religion. As a matter of fact, such factors may ultimately serve as divisive in multiethnic/multireligious states and contribute to the fractionalization and ultimate downfall of a state.

Secularism—a fundamental Enlightenment liberal value Secularism is perhaps the most salient break between Enlightenment thought and other epochs in history. The word “secular” derives from that Latin term “saeculum” which relates to a fixed period of time, or a hundred years or so (i.e.

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not eternal). “The saeculum was not defined in contrast to any sacred concerns and had a freestanding usage in Latin” (Zuckerman and Shook, 2017, p. 4). It simply was a way to distinguish between the worldly and the eternal. Only later did the term acquire what some see as the implicit normative connotations that it has today. While notions of secularism could be found in the ideas of Epicurus (d. 270 B.C.E.) and Marcus Aurelius (d. 180 C.E.), along with numerous earlier Enlightenment thinkers, the term “secularism” was not actually coined until 1851 by George Jacob Holyoake (d. 1906 C.E.). In a work published at the very end of the nineteenth century, Holyoake (1896, p. 41) writes: Secularism is a code of duty pertaining to this life, founded on considerations purely human, and intended mainly for those who find theology indefinite or inadequate, unreliable or unbelievable. Its essential principles are three: (1) The improvement of this life by material means. (2) That science is the available Providence of man. (3) That it is good to do good. Whether there be other good or not, the good of the present life is good, and it is good to seek that good. Holyoake’s notion of secularism takes on a far more expansive meaning. His iteration imbued secularism with a deeply normative character—a code of duty as he calls it—that is intimately connected to widely held nineteenth-century idealist notions of progress and goodness. We can immediately see the intimate link between Enlightenment and secularism. Secularism was understood by Harvey Cox (1966, p. 17) as “the liberation of man from religious and metaphysical tutelage, the turning of his attention away from other worlds and toward this one.” Of course, Cox is hardly the first person to use such language. Immanuel Kant (1784, p. 481), in the first two sentences of his iconic essay, “Answering the Question: What is Enlightenment?” [Beantwortung der Frage: Was ist Aufklärung?], argues that: “Enlightenment is man’s release from his self-incurred tutelage. Tutelage is man’s inability to make use of his understanding without direction from another.”8 Kant’s concerns, while addressed in a more general matter regarding blind obedience to authority, were primarily aimed at calling out the perils of blind religious obedience and the uncritical reliance on authority for understanding religious doctrine.9 It is important to point out here that secularism is not necessarily “atheistic” or completely divorced from any type of religious connotations. In Inventing the Individual: The Origins of Western Liberalism, Larry Siedentop (2014, p. 361) poses the question, What is the crux of secularism? and answers: It is that belief in an underlying or moral equality of humans implies that there is a sphere in which each should be free to make his or her own decisions, a sphere of conscience and free action. That belief is summarized in the central value of classical liberalism: the commitment to “equal liberty.”

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He argues throughout his work that secularism, classical liberalism, and European Christianity are all intimately connected; modern secularism is a fundamental Enlightenment and liberal value that nonetheless remains rooted in the Christian ethos. These three discourses operate in tandem to shape the modern world. One cannot understand secularism in isolation from the historical and intellectual developments that transpired within the classical liberal and European Christian traditions. He even goes as far as to posit that secular liberalism is “the embodiment of Christian moral intuitions” (2014, p. 362). Unlike most other scholars who see secularism as its own unique tradition representing a break with Christian religious doctrine, Siedentop sees secularism as a larger part of the developmental process of European Christianity. Despite Siedentop’s contentions, however, secularism in the modern era is generally understood simply as “the withering of religious practice and belief on the part of individuals and populations” (Starrett, 2010, p. 628). While this may be true at some level, it is not a sufficient way to understand secularism. It can also be understood as a way in which one lives in the world—the way one situates their own understandings of personal freedom and liberty in relation to religious constraints and restrictions (Starrett, 2010; Asad, 2003). Secularism is not necessarily linked to any specific preordained political practices, policies, or iterations of laïcisme, nor to any other hard moral epistemological claims, although it can be.

Secularism versus secularization It is important here to brief ly distinguish between secularism and secularization. Secularism is more of a belief, way of thinking, or ideology, whereas secularization is an enduring process that dislocates both immaterial ideas and material beings. José Casanova (1994, p. 6) further develops this definition of secularization as an enduring process when he argued that the secularization thesis hinged upon “the differentiation and emancipation of the secular spheres from religious institutions and norms.”10 Secularization therefore can be understood as an enduring process in which secular spheres are continuously carved out of areas that were once well within the purview of religious institutions, morality, and values. The permissibility of homosexuality, for example, in more recent times, is no longer deliberated in the Western public sphere via appeals to Leviticus 18 and 20; rather it is now primarily understood within the entirely secular context of universal human rights and free expression. Similar arguments can be made regarding women’s rights as well; rarely in liberal societies today does one hear debates surrounding women’s rights framed within the parameters set forth for women in Deuteronomy or Ecclesiastes; rather such discussions are almost always framed within a secular, rights-based discourse. One can also look toward the dislocation of people and objects as being emblematic of the secularization process. Priests and other clerical figures no longer have the same authority they did in the past—their power and authority

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have been severely diminished in relation to the modern nation state and national ideology. The reification and commodification of certain religious imagery and artifacts would be another example of the dislocation of physical items from the religious sphere into the secular sphere. Whereas at one time wearing certain religious symbols (crucifixes, prayer beads, etc.) would be seen solely as devotional acts, today often such items are worn with little reverence and primarily as fashion statements. The crucifix pendant that at one time was painstakingly handcrafted by a highly skilled artisan is now sold en masse at popular clothing and jewelry stores in shopping malls. The commodification and reification of Christianity have undeniably helped to lead some to go as far as claiming that crucifixes are no longer religious symbols at all. This was one of the points made by the late United States Supreme Court Justice Antonin Scalia in Salazar v. Buono (2010). American Civil Liberties Union attorney Peter Eliasberg queried Scalia as to whether or not the eight-foot metal Christian crucifix at a national park (i.e. public property) in California amounted to the state promoting Christianity, thus representing a violation of the Establishment Clause of the First Amendment. Following Eliasberg’s seemingly innocuous and obviously reasonable question, a bemused Scalia—in the words of Bruce Allen Murphy—“pounced from the bench,” and replied: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of— of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star? (Scalia, quoted in Murphy, 2014, pp. 402–403) In October 2018, like Scalia, Quebec’s Premier, François Legault, commented to reporters in Armenia that the crucifix should not be seen as a religious symbol. Legault argued that the crucifix only represents Christian values and Canadian history: not Christianity as a religious tradition. He contended that “We have to understand our past,” and “In our past we had Protestants and Catholics. They built the values we have in Quebec. We have to recognize that and not mix that with religious signs” (“Crucifix Represents Christian,” 2018, para. 3 & 5).11 Peter Berger (1967) primarily sought to understand the process of secularization as opposed to secularism which he saw as merely a socio-political category. Secularization for Berger was an empirically observable process that can be understood via sociological and historical analysis that need not be connected to any normative emotive claims. He defined secularization as “the process by which sectors of society and culture are removed from the domination of religious institutions and symbols” (1967, p. 107). Secularization in Berger’s earlier writings was perceived as a global phenomenon. While secularization manifested itself differently across the world, no modern society could fully escape its powerful grip.

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Indeed, for the early Berger, secularization went far beyond merely the separation of church and state; such a separation does not necessarily imply a change in religious consciousness. One can look at secular dictatorships in the Middle East or current states in the former Soviet Union, especially in Russia today, to see that a secular state does not always imply a secular society. As alluded to above, secularization is an on-going process that weaves its way painstakingly through nearly every aspect of the modern individual’s life. When we speak of culture and symbols, however, we imply that secularization is more than a social-structural process. It affects the totality of cultural life and of ideation, and may be observed in the decline of religious contents in the arts, in philosophy, in literature and, most important of all, in the rise of science as an autonomous, thoroughly secular perspective on the world. (Berger, 1967, p. 107) Secularization involves a change in religious consciousness. It involves modern man re-positioning himself in relation to the cosmos—a prioritization of the individual psyche over the collective and a new way to understand science and causality. Charles Taylor (2007, p. 3) understands secularism primarily as a situation that manifests within a society where believing in God “is no longer axiomatic.” The secular society possesses countless alternative possibilities to the belief in God that are seen as legitimate and reasonable by most individuals and society as a whole. Taylor (2007, pp. 25–26) has argued that in medieval Europe the denial of God or a higher power was inconceivable for three reasons: (1) The natural world they lived in, which had its place in the cosmos they imagined, testified to divine purpose and action; and not just in the obvious way which we can still understand and (at least many of us) appreciate today, that its order and design bespeaks creation; but also because the great events in this natural order, storms, droughts, f loods, plagues, as well as years of exceptional fertility and f lourishing, were seen as acts of God, as the now dead metaphor of our legal language still bears witness. (2) God was also implicated in the very existence of society (but not described as such—this is a modern term—rather as polis, kingdom, church, or whatever). A kingdom could only be conceived as grounded in something higher than mere human action in secular time. And beyond that, the life of the various associations which made up society, parishes, boroughs, guilds, and so on, were interwoven with ritual and worship, as I mentioned in the previous chapter. One could not but encounter God everywhere. (3) People lived in an “enchanted” world. This is perhaps not the best expression; it seems to evoke light and fairies. But I am invoking here its negation, Weber’s expression “disenchantment” as a description of our modern

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condition. This term has achieved such wide currency in our discussion of these matters, that I’m going to use its antonym to describe a crucial feature of the pre-modern condition. The enchanted world in this sense is the world of spirits, demons, and moral forces which our ancestors lived in. One can distill all three of Taylor’s reasons for his final point related to the “enchantment” of the world. The premodern world was clearly viewed by most people living in it as something deeply connected to some higher source—experiences were intermediated via supernatural forces that never really left an individual completely free and autonomous to pursue their own ends. On the other hand, at least for Max Weber, “[i]n a disenchanted world everything becomes understandable and tameable, even if not, for the moment, understood and tamed. Increasingly the world becomes human-centered and the universe—only apparently paradoxically—more impersonal” ( Jenkins, 2000, p. 12). For Weber, a new human-centered universe meant the creation of a new set of social institutions; along with a more “tameable” world came bureaucratization, secular laws, and rational policy-making. Weber’s position, however, should not erroneously be seen as one in which he blindly revels in such impersonal rationalization and bureaucratization—for Weber called the bureaucratization of social order a stahlhartes Gehäuse which was famously translated by Talcott Parsons as the “iron-cage.”12 Weber (1994, p. xvi) referred to this condition as “the polar night of icy darkness.”13 Drawing from Weber’s earlier ideas, Theodor Adorno and Max Horkheimer (2002[1944], p. 3) emphatically declared in Dialectic of Enlightenment that “the Enlightenment was the disenchantment of the world; the dissolution of myths and the substitution of knowledge for fancy.” They go on to reference the seventeenth-century English statesman and philosopher Sir Francis Bacon (d. 1626 C.E.), who attested: Therefore, no doubt, the sovereignty of man lieth hid in knowledge; wherein many things are reserved, which kings, with their treasure cannot buy, nor with their force command; their spials and intelligencers can give no news of them, their seamen and discoverers cannot sail where they go: now we govern nature in opinions but we are thrall unto her in necessity but if we would be led by her in invention, we should commanded her by action. (quoted in Horkheimer and Adorno, 2002[1944], pp. 3–4) Bacon’s attitude toward knowledge was emblematic of the new scientific attitude toward inquiry; a mode of inquiry that rejected blind deference to authority or superstition, be it revealed or man-made. Indeed, Bacon even laid out a clear vision of the modern research university in his posthumously published The New Atlantis (2007[1627], p. 51) that was

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founded upon “the knowledge of causes, and secret motion of things and the enlarging of the bounds of human empire, to the effecting of all things possible.” Bacon did not reject religion; at least on paper, he saw the possibility for the two to co-exist. Stephen A. McKnight (2005) for example argued that Bacon took Judeo-Christian meta-values seriously and sought to implement them in their pure and uncorrupted gospel form in his utopian island of Bensalem which he contrasted with the corrupted European appropriations of Christianity. However, most scholars of Bacon have taken the position that he instrumentalized religion and never actually took it that seriously (Lampert, 1993; Paterson, 1987; 1989; Faulkner, 1993; Weinberger, 1976).14 A similar claim has been levied by some against John Locke as well. Figures like Bacon and John Locke (d. 1704 C.E.) lived during times where overt criticisms and opposition to official Christian doctrine could not only marginalize them but result in their imprisonment and even death. Timothy Paterson (1989, p. 422) claimed that Bacon’s position on religion “was a blend of scepticism, hostility, and indifference and that he expected a decisive diminution of the independent political role of religion as a result of scientific progress.” Laurence Lampert (1993, p. 68) even more forcefully posits that Bacon’s real mission was to covertly promote “the warfare of science against religion that tamed sovereign religion.” For Bacon scientific knowledge was based on empirical observations and the scientific method and not revelation. The material/rational ought not to be deciphered via the immaterial/supernatural. Like science, politics was also meant to be rational. It should not be dependent upon revelation or the supernatural. More recently, as noted in the introduction, scholars have increasingly questioned the secularization thesis offered by the likes of Berger and C. Wright Mills, including the later Berger himself (Rosenau, 1992; Berger, 1999; Cuneo, 2001; Bader, et al. 2010; Josephson-Storm, 2017). By the end of the twentieth century, there simply were too many readily available counterexamples to ignore. This led Berger (1999, pp. 2–3) to conclude “that the assumption that we live in a secularized world is false. The world today, with some exceptions […] is as furiously religious as it ever was, and in some places more so than ever” and that “secularization on the societal level is not necessarily linked to secularization on the level of individual consciousness.” Berger did not see this general reality not changing anytime soon either. It has often been assumed that the rise of postmodernity is directly linked to a decline in religious belief or belief in the supernatural more generally. However, this also is not necessarily accurate. Pauline Rosenau (1992) has convincingly shown that the rise of postmodernism has led to a rise in new age religions and occult beliefs. The dislocation of established religious orthodoxies does not necessarily entail the dislocation of belief in the supernatural altogether. On the contrary, postmodernity has opened the doors to new modes of understanding and conceptualizing the supernatural. This line of argumentation parallels the more recent work of Jason Josephson-Storm (2017) that analyzed empirical

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evidence from numerous large-n sociological surveys of attitudes toward the supernatural and supernatural beliefs in the United States and Europe. He found that while traditional religiosity and formal church attendance may be declining, people today nonetheless still believe in the paranormal, spirits, and other forms of magic: Roughly an amazing three-quarters of Americans hold at least one supernatural belief. Sure, we have plenty of skeptics, and one might hazard the guess that more of them are housed in the academy than elsewhere; still, evidence suggests that higher education merely opens one up to some paranormal beliefs rather than others. In most respects it would appear these skeptics are in the minority. ( Josephson-Storm, 2017, p. 34) So while beliefs in what one would consider falling neatly under the rubric of “traditional Christian” supernatural beliefs and eschatology may be shifting, overall beliefs in the supernatural more broadly construed remain strong. While the specific content of these beliefs may have changed, the general form has not. Postmodernity has not ushered at the end of belief in the supernatural; rather it has opened new doors and types of belief that simply are different than before. Talal Asad (2003) explored the ways modern man navigates the often choppy waters between the domains of the material/rational and the immaterial/supernatural in a disenchanted world. He traces the political success of secularism back to the nineteenth century where the material/rational and immaterial/supernatural were subsumed as definitive, binary truth claims—the material/rational became identified with “truth” while the immaterial/supernatural was homologous with “error” or falsehood. According to Asad (2003, p. 23): the word “myth” that moderns have inherited from antiquity feeds into a number of familiar oppositions—belief and knowledge, reason and imagination, history and fiction, symbol and allegory, natural and supernatural, sacred and profane—binaries that pervade the modern secular discourse, especially in its polemical mode. While the success of secularism as a political ideology can be traced back to the nineteenth century, its roots were planted much earlier by artists and intellectuals who located the origins of artistic and intellectual creativity within the artist and not within any transcendental external force or power.15 Asad brings up another very interesting point related to the relationship between secularism and—not tolerance, but rather—intolerance. The secular doctrine itself is in many ways inextricable from the uniquely modern phenomenon of nationalism and nation states. One of the hallmarks of the modern nation state in the West involves the shelving of religious identities that are obviously harder to control in lieu of a more uniform national identity. National identities are

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reinforced via physical imagery (symbols, f lags, and even maps) along with the media, items the state readily has access to shaping and controlling. One need only look brief ly at Herman and Chomsky’s (1988) propaganda model of media to understand how the media filters information through the lens of elites who themselves are often deeply entrenched within the state itself. Often without even recognizing it, the media reinforces the dominant hegemonic narrative which for Herman and Chomsky is driven by lionizing the free market and antiCommunism.16 However, secularism is an undeniable subplot in the whole story as well. As a result of all of this, rather than secularism avoiding religious tensions, it exacerbates religious tensions between often denatured dominant religious discourses (e.g. Christianity in Western Europe) that are already a part of the state’s secular machinery and minority ones (e.g. Islam in Western Europe) that are not. “A secular state does not guarantee toleration; it puts into play different structures of ambition and fear” (Asad, 2003, p. 8). Somewhat counterintuitively, when first simply looking at the numbers of followers, secularism is most aggressive against minority religious attitudes. The dominant religious discourse proudly carries the mantle of being the acceptable status quo; it is still allowed to freely operate within the secular state without much scrutiny so long as it does not overstep its bounds. One can simply look at the lack of sweeping indictments of Christianity or Christian doctrine anytime a Christian goes on a mass shooting rampage in the United States as indicative of this privilege. Following the September 11, 2001, terror attacks, in the popular media and in the public’s collective imagination, Arabs and Islam—both historically “others” in Western culture anyways—were identified with terrorism, backwardness, and intolerance more than ever. This sentiment rang so loudly that serious public discourse on this very complex topic was often sidelined in favor of a much more comfortable public consensus regarding who the bad guys really are. Muslim mass shooters or terrorists never simply act on their own behalf—they are always connected to some wider nefarious plot, and the blame is always pinned directly on the religion itself rather than the individual. “This absence of public debate in a liberal democratic society must be explained in terms of the mediating representations that define its national personality and identify the discourses that seem to threaten it” (Asad, 2003, p. 8). For Asad secularism is primarily tolerant of those discourses that do not threaten it, and almost by definition, religion—especially minority ones when perceived to be taken seriously by their adherents—does pose the greatest threat to a secular state’s hegemony. In an era of rising ethno-nationalism, dominant religious discourses are actually freer than they have been in a long time in many places. In the 1990s, Casanova offered his “deprivitization thesis” which contested the dominant narrative of the 1960s and ’70s that religion was increasingly being relegated into the private sphere:

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Religions throughout the world are entering the public sphere and the arena of political contestation not only to defend their traditional turf, as they have done in the past, but also to participate in the very struggles to define and set the modern boundaries between the private and public spheres. (Casanova, 1994, p. 5) He held that by the 1980s, it was clear that the old arguments needed rethinking. He looked at Catholic and Protestant movements in Spain, Poland, Brazil, and the United States and found that the various modes of religious expression in these respective societies were actually quite diverse (i.e. not always reactionary and repressive as they are often portrayed by their secular detractors). Robust modes of religious expression sometimes even facilitate greater empowerment and popular participation. Casanova like Habermas recognized the multiple levels of society. Similar to Habermas, Casanova “distinguishes between the state, political society, and civil society but asserts that a public role for religion is desirable only on the last level where it does not endanger the differentiated structures of the modern polity” (Pohl, 2009, p. 48). Even if religious attitudes are not able to fully breach the limits placed upon them by secular social and political institutions, nonetheless, they will continue to contest these boundaries in their own innovative and unique ways. If religious discourses cannot capture state institutions directly, they still have the capacity to shape policy debates and frame the terms of engagement. Religious discourses have been somewhat successful in doing this in recent times. One can look at the relative success Christian conservatives in the United States have had in terms of shaping the “pro-life” vs. “pro-choice” debates surrounding abortion. The process of secularization is not linear and uniform. Despite the ebbs and f lows of secularization, the process of secularization and secularism more generally seem inextricable at doctrinal levels from the liberal project—liberalism is dependent upon some level of secularization in order to maintain the differentiated spheres of discourse.

Codifying the Western liberal identity—Islam as Europe and European liberalism’s natural foil? While secularism and cultural Christianity obviously are major components of the modern Anglo-European identity, one can also argue that the modern European identity—along with European liberalism more generally—has also been forged via its opposition to Islam. As we learned from Laclau and Mouffe (2001): (1) identities and discourses are shaped by both endogenous and exogenous actors along with other discourses and power structures; and (2) discourses themselves are exclusionary by their very nature. Even though a particular discourse may seek to exclude certain elements, that excluded element may nonetheless be a key item in helping codify that same discourse more broadly construed. In response

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to Larry Siedentop’s claims about the secularism’s “Christian heritage,” Asad (2018, p. 14) asks: “Why is it important for self-described secularists to claim a Christian heritage?” and concludes that “the effect of such a claim is the political exclusion of all those who cannot claim that heritage.” It is another way to reinforce the us versus them binary. One can look back at Carl Schmitt (2007[1932]) to see how this works in the realm of the political. The final section of this chapter will offer further support to the argument that Islam is inextricable from modern European identity. Many have argued that the entire construct of Europe is inextricable from its inherent othering of Islam even though Islam has been a part of Europe for well over 1,000 years (Massad, 2015; Dainotto, 2007; Said, 1978; Pirenne, 1959). Giorgio Conneti, for example, comments that “Islam is not separate from European history, with which it is interwoven. On the contrary, it is an essential component of the history of Europe” (2000, p. 200). This is the basic argument of Joseph Massad (2015, p. 1) who forcefully argues that Islam was one of the “conditions” of the European identity and that Islam “resides inside liberalism, defining its identity and its very claims of difference. It is an internal constituent of liberalism, not merely an external other, though liberalism often projects it as the latter.” He goes on to argue: “Europe” as a transcendental idea, composed of a set of Enlightened ideals differentiated from a prior historical moment that this nascent Europe would call “the dark ages,” and as a unified and separate geography differentiated from “dark” lands and continents lying outside it. […] This geographic demarcation would become essential for the European project that would in the nineteenth century be called “civilization” and “culture.” (2015, p. 15) Massad’s concluding comments about civilization and culture should be looked at a little further here. Raymond Williams (1985, p. 58) argued that by the eighteenth century the term “civilization” seemed to take on a normative character even if this was never consciously the intent, and it was widely understood as a specific combination of the ideas of a process and an achieved condition. It has behind it the general spirit of the Enlightenment, with its emphasis on secular and progressive human self-development. Civilization expressed this sense of historical process, but also celebrated the associated sense of modernity: an achieved condition of refinement and order. The notion of “European civilization”—a concept that was very popular during the nineteenth century, waned somewhat during the twentieth century, and has been making its way back into the political vernacular in more recent times—has an inherently progressive character. Asad (2002, p. 216) argues that the story of European civilization is “a story that can be narrated in terms of improvement

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and accumulation.” Much of this improvement and accumulation has been understood relative to other civilizations, including Islamic civilization, which have been less successful in these regards over the past few centuries. Another thing about civilization is that, like culture, it should be understood as a process that it is separate and distinct from other civilizations and cultures. However, in the case of European civilization it is clear that this separation and distinction between Islamic civilization is hardly absolute. The overlap between Islamic and European civilization is so obvious and has been so well-researched that at this point there is no real need to offer any new arguments to justify this claim. For centuries, European poetry, art, and prose were deeply intertwined with Arabic culture even if this relationship at times has been antagonistic. Arabic and Spanish share many noticeable linguistic similarities. Buhl and Pittman (n.d., para. 2) points out that: In many ways, the Spanish language was shaped by Arabic. In fact, about 4,000 Spanish words (or 8% of the language) come directly from Arabic. The majority of these words are nouns and, as is the same for Spanish words, are preceded by the article “the” or “a” and “al” in Arabic. For this reason many of the Spanish words that come from Arabic begin with this “a” or “al.” Therefore, when one is saying “la almohada” (pillow), in a way, he or she is saying “the pillow.” Other surprisingly similar words include aceituna from ‫( زي ت ون‬zaytun) meaning olive, café from ‫( ق ه وة‬qahua) or coffee, pantalones from ‫( ب نط ل ون‬bantalun) meaning pants, camisa from ‫( ق م ي ص‬qamis) meaning shirt, hasta from ‫( حت ى‬hataa) meaning until, mascara from ‫ال م س ك رة‬ (almuskara) meaning mask, azucar from ‫( ال س ك ر‬alsukar) meaning sugar, and taza from ‫( ت ازة‬taza) meaning cup. Along with language, European literature was also inf luenced by Arabic language and culture. This inf luence went far beyond obscure regional works as well. María Rosa Menocal argued that Dante Alighieri’s iconic Comedìa, one of the medieval Europe’s all-time great literary works, was deeply inf luenced by the prevailing Averroism that he was deeply opposed to and that dominated the region which he was from: It is not hard to imagine that Dante, a very conservative Christian, strongly opposed to Averroism (with its belief that reason must precede and support faith rather than the other way around), and seeing many of the best minds of his generation seduced by such a philosophy, would have been inspired to write what is, for many of us, the greatest Christian apologia. (Menocal, 1985, p. 74) Ribera’s student, Miguel Asín Palacios (1919), argued in his well-respected work La Escatologia Musulmana en la Divina Comedia that Dante’s Comedìa was heavily inf luenced Islam’s al-ʾIsrāʾ wal-Miʿrāj story which posited that the Prophet

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Muhammad (‫ )ﷺ‬visited multiple otherworldly realms in which he had direct access to the divine.17 Massad’s impressive work also references the work of Henri Pirenne (1959) that originally was published in French in 1937 and has since been republished multiple times in English.18 Pirenne was an early twentieth-century Belgian historian famous for his historical research on how medieval cities emerged. He believed that the decline of Roman civilization was primarily due to Arab/ Muslim incursions in the Mediterranean region by the eighth century C.E. These Islamic incursions disrupted earlier trade routes and modes of commerce thus resulting in a return to more primitive agricultural modes of production—a return to subsistence farming—and new modes of commerce that were less efficient and profitable for Europeans. Pirenne controversially also argued that Islam’s willingness to allow for Christianity to co-exist within lands conquered by Muslims was, in reality, even more infuriating and demoralizing for Christians than if the Muslims simply sought to completely vanquish their religion altogether. On this matter he comments: It was this that the infidel [European Christians] found so intolerable and demoralizing. His faith was not attacked; it was simply ignored; and this was the most effective means to detaching him from it and leading him to Allah, who would not only restore his human dignity, but would open him to the gates of the Muslman State. It was because his religion compelled the conscientious Muslman to treat the infidel as a subject that the infidel came to him, and in coming to him broke with his country and his people. (1959, p. 152) The “silent treatment” so to speak along with trade and commerce with Arabs facilitated an increasing passivity in regular Christians. This led many of them— if not accepting Islam outright—to at least tolerate its existence in their lands and accept living under its suzerainty. By the mid-ninth century C.E., “Islam had shattered the Mediterranean unity which the Germanic invasion had left intact” (1959, p. 164). Pirenne contends that this was the greatest upheaval in European history since the Punic Wars, which transpired some 200 years prior to the birth of Jesus Christ. It also signaled the end of the classical period and ushered in the Middle Ages which he further argues was happening right as Europe “was on the way to becoming Byantinized” (1959, p. 164). The psychological impact of Islam’s toleration made it unbearable to eighth- and ninth-century political and church leaders who sought to maintain Christianity’s hold on the hearts and minds of Europeans. Charlemagne’s (d. 814 C.E.) success was contingent upon Islam as his foil— without the Islamic conquests of Spain and Africa, the Frankish King and eventual Holy Roman Emperor would never have been able to consolidate his power as the undisputed leader of the Christian West. Indeed, Islam helped provide

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Charlemagne with the opportunity to become the first emperor in Western Europe since the collapse of the Roman Empire a few centuries earlier (Pirenne, 1959; Becher, 2005). Later European Christendom would further consolidate during the various Crusades that were obviously galvanized by an undeniable proto-Schmittian us versus them distinction even though the emergence of the nation-state model was still hundreds of years away. Schmitt’s concept of the political hinged upon the friend–enemy distinction—a distinction that is essentially a public, not private, affair. This distinction “denotes the utmost degree of intensity of a union or separation, of an association or dissociation” (2007[1932], p. 26). It was not reducible to any timeless substantive trait (language, culture, religion, race, geography, etc.). The basis of the substantive trait is more of a matter of timing than anything else. According to Schmitt (2007[1932], p. 27): The political enemy need not be morally evil or aesthetically ugly; he need not appear as an economic competitor, and it may even be advantageous to engage with him in business transactions. But he is, nevertheless, the other, the stranger; and it is sufficient for his nature that he is, in a specially intense way, existentially something different and alien, so that in the extreme case conf licts with him are possible. These can neither be decided by a previously determined general norm nor by the judgment of a disinterested and therefore neutral third party. The particular distinction a group of people at a given time determine as the defining trait of their collective identity is f luid of course: for today that defining collective trait can be a race; tomorrow, religion; and the next day, perhaps, language. When that particular defining identity distinction de jour is perceived to be under threat or attack, the possibility for war and violence becomes preeminent. Prior to the nation-state model, in earlier times dominated by tribal-religious distinctions, it seems natural that Christian Europe would choose Islam as its natural other.19 Earlier in this chapter, I quoted Martin Luther’s comments about “the Turks”—a constant headache for the European heartland—as being the antichrist. While this might sound very “unchristian” and hardly like something that would come from the mouth of the namesake of what would eventually become a major global religious reformation movement, Murad Idris argues that the popular notion of “love thy enemy” that can explicitly be found in the Bible (Matthew 5:44 and Luke 6:27) never applied to public enemies like “the Turks.” Carl Schmitt contended that “[n]ever in the thousand-year struggle between Christianity and Islam did it occur to a Christian that one must, out of love toward the Saracens or the Turks, surrender Europe to Islam rather than defend it” (cited in Idris, 2018, p. 29). This antagonism between the Turk and the rest of Europe would always remain omnipresent, and therefore one could expect the way things were a thousand years ago to remain relatively similar to the way they will be a thousand years from now; that is, unless the Turk somehow embraced Christianity. Loving

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thy enemy is a wholly private affair for Schmitt (2007[1932], p. 29] because “in the private sphere only does it make sense to love one’s enemy.” In Idris’s (2018, p. 132) words: “Love of the enemy applies only to ‘private’ enemies, but more generally, this love is of Christians, by Christians, and for Christians, who are, apparently, European.” Here we can even see how Islam serves as a useful tool to “speed up” the process of loving and forgiving one’s fellow Christian neighbor. As the centrality of the nation-state wanes, we notice a return to old tropes positing Islam as an existential threat—the uncontrollable “other” that is both an enemy at Europe’s borders as well as within them (Asad, 2002). A 2018 tweet from the British theologian John Milbank calling out the Grammy Awardwinning Irish song-writer Sinéad O’Connor’s (who now goes by the name Shuhadaʾ Davitt) conversion to Islam perfectly captures this reality. In this tweet which had well over one thousand “likes” when I originally viewed it, Milbank first refers to Michel Houellebecq’s fantastical piece of Islamophobic fiction, Soumission (2016), as providing the theoretical framework to explain O’Connor’s conversion to Islam. He then went on to describe her as a “civilizational traitress” (Milbank quoted in Hellyer, 2018, para. 1).20 Milbank here reminds us that civilizations are defined by borders—both real and imagined—and that O’Connor’s conversion from Catholicism to Islam placed her outside the fold of European civilization. Her status as a well-known public figure with a large following makes her conversion all the more treacherous. Finally, brief ly returning to the notion of borders and the excluded other, as noted in an earlier Massad quote, eighteenth- and nineteenth-century Europe also forged its identity via its geographic distinction from “dark” lands as well. The racial component to the European identity is unavoidable, codified via its brown-skinned, Abrahamic other. All of this led him to conclude that “Whatever point of origin is chosen for the story of Europe to begin, ‘Islam’ seems to have a foundational role at every turn” (2015, p. 16). Without Islam, neither the European nor liberal identity would be what they are today. The empathy and toleration liberalism credits itself with, in actuality, is reserved only for moral claims and lifestyle choices made within its limits—this point will be explored in much greater detail in the forthcoming chapters. This led Hallaq (2018, p. 3) to conclude that the Western liberal project is inextricable from violence, both epistemic and physical: secular humanism, like liberalism, is not only anthropocentric, structurally intertwined with violence, and incapable of sympathy with the nonsecular Other, but it is also anchored, per force, in a structure of thought wholly defined by modes of sovereign domination. Secular humanism is not just a name for a particular type of discourse, of “analyzing” the world; it is the psychoepistemic substantiation of a particular subject who articulates the world wholly through disenchanted modern categories that are inherently incapable of appreciating intellectually, and much less sympathizing spiritually with, non-secular-humanist phenomena.

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By its very nature, secular humanism and liberalism possess an inextricable intolerance for what Hallaq refers to as “the nonsecular Other.” Ramón Grosfoguel (2012, p. 97) similarly notes that the Western liberal model is the only one accepted and that as a result “[f ]orms of democratic alterity are rejected a priori.” This intolerance of democratic alterity noted by Hallaq and Grosfoguel is rooted in the fundamental moorings of the liberal discourse.21 This point will be further dissected when looking at what Gerald Gaus (2012) notes as the sectarianism inherent within Jonathon Quong’s (2011) internal characterization of political liberalism. Paradoxically, exclusion is an integral part of universalization.

Conclusion Obviously, a complete survey of the relationship between the Enlightenment and liberalism in one chapter is not possible. However, this chapter did set some of the necessary groundwork for argumentation that will transpire in the forthcoming chapters. Liberalism is deeply rooted in the Enlightenment ethos—a Western, not Islamic, phenomenon. While early Enlightenment thinkers were not necessarily liberal, one does see a steady move toward liberalism during the eighteenth century and into the era of the French and American Revolutions. During this time, one sees the emergence of newly constructed concerns with universal human rights and national rights as we move further along in the development of international legal scholarship. Secularism is a development that is connected to the rejection of the Church’s authority over worldly affairs and the rise of modern scientific inquiry. In the words of the prolific British Historian Eric Hobsbawm (1996, p. 21): A secular, rationalist and progressive individualism dominated “enlightened” thought. To set the individual free from the shackles which fettered him was its chief object: from the ignorant traditionalism of the Middle Ages, which still threw their shadow across the world, from the superstition of the churches (as distinct from “natural” or “rational” religion), from the irrationality which divided men into a hierarchy of higher and lower ranks according to birth or some other irrelevant criterion. Indeed, the Church itself often sought to retard scientific development—often through threat and force—thus setting the table for later claims that religion and science were irreconcilable opposites in the Western intellectual milieu. The secularization of society and the internalization of secular beliefs should not be understood as one in the same. A good deal of evidence shows that the vast majority of people today still hold strong beliefs in the paranormal and supernatural. This discrepancy between societal norms and individual beliefs has caused tension and uneasiness amongst many people. While the process of secularization is not uniform and linear, it is something that liberalism is dependent upon. Finally, centuries before nation states were ever created, Islam not only

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was a part of Europe, but also served as Europe’s necessary “other,” a development that many social theorists have argued is necessary for the formation of a group identity. While it might not be easy for the average European or American to say what Europeans or Americans are—it is much easier to say what they are not, and for the vast majority of these people, what they are not are Muslim.

Notes 1 There are many different arguments regarding the Enlightenment’s proper contextualization. Obviously French intellectual thought is a rudimentary element of the Enlightenment discourse. However, it is important to remember that many other intellectual traditions also constituted the more general phenomenon that was “the Enlightenment.” For example, Porter and Teich (1981) offered a look at the essential role eighteenth-century thought from places like Greece, Russia, Scotland, and Portugal played in constructing the more general Enlightenment tradition, while John Robertson (2005) compared and contrasted Enlightenment thought between Scotland and Naples and showed that thinkers in both cases shared similar political concerns and engaged with similar thinkers which resulted in a similar output that focused on mitigating radical religious inf luences and promoting engagement with sustainable economic and political reforms. 2 Tous les hommes naissent avec un nez et cinq doigts, et aucun ne naît avec la connaissance de Dieu. 3 It is important to keep in mind that Luther was not a fan of Islam or the Turks either, acerbically commenting that “we condemn both the Pope and the Turk as the very antichrist” (1965, p. 181). 4 Frederick Engels’ famous work on the 1524 German Peasants’ Revolt noted that Luther, on the one hand, gave the plebeian movement a great weapon in a translated Bible, while on the other hand, he used that same weapon against them. Engels (1926[1850], p. 34) comments that Luther “extract[ed] from the Bible a veritable hymn to the authorities ordained by God—a feat hardly exceeded by any lackey of absolute monarchy. Princedom by the grace of God, passive resistance, even serfdom, were being sanctioned by the Bible. Thus Luther repudiated not only the peasant insurrection but even his own revolt against religious and lay authority. He not only betrayed the popular movement to the princes, but the middleclass movement as well.” 5 Grotian political theology draws heavily from Aristotle. Martin Harvey (2006, p. 32) reminds us that Grotius “refers to the state as a perfect association [italics mine],” and that political society for him was “not only an expression of our natural sociability but in some sense essential to our humanity.” 6 In a July 29, 2011, press release prior to the commemoration of Switzerland’s National Day, Secretary of State Hillary Clinton commented that: “America’s Founders were inspired by the ideas and values of early Swiss philosophers like Jean-Jacques Burlamaqui and Emer de Vattel, and the 1848 Swiss Constitution was inf luenced by our own U.S. Constitution” (US Secretary of State Press Release: online). Benjamin Franklin (d. 1790 C.E.) also noted the importance of Vattel’s work in shaping the United States and a copy The Law of Nations was said to be in George Washington’s possession as early as 1789. 7 Leibniz noted that reality consisted of varying degrees of perfection, with God being the only entity that is absolutely perfect. Worldly perfection for Leibniz was related to harmony. In a May 8, 1715, correspondence with the rationalist German philosopher Christian Wolff (d. 1754 C.E.) regarding perfection, Leibniz comments: “Perfection is the harmony of things, or the state where everything is worthy of being observed, that is, the state of agreement [consensus] or identity in variety; you can even say that

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it is the degree of contemplatibility [considerabilitas]. Indeed, order, regularity, and harmony come to the same thing” (1989, pp. 233–234). Harmony is related to a multitude of different things being ordered in accordance with general principles and laws in which the end result is a type of enduring pleasure or happiness. Auf klärung ist der Ausgang des Menschen aus seiner selbstver-schuldeten Unmündigkeit. Unmündigkeit ist das Unvermögen, sich seines Verstandes ohne Leitung eines anderen zu bedienen. Kant (cited in Kramnick, 1995, p. 6) comments: “I have placed the main point of enlightenment—the escape of men from their self-incurred tutelage—chief ly in matters of religion because our rulers have no interest in playing the guardian with respect to the arts and sciences and also because religious incompetence is not only the most harmful but also the most degrading of all.” Casanova (1994, p. 13) further argues that since the Protestant Reformation, “secularization has come to designate the ‘passage,’ transfer, or relocation of persons, things, functions, meanings, and so forth, from their traditional location in the religious sphere to the secular spheres.” Secularization therefore is more than just a change in immaterial ideas; it also involves the transformation and dislocation of material persons and things. Legault’s perplexing comments on this matter appeared not only to be misguided but also hypocritical since they came shortly after he announced his support of a ban on civil servants displaying religious symbols in public places. Most observers saw Legault’s comments as a dog-whistle to his base signaling that Christian religious symbols are acceptable in public spaces while non-Christian ones are not. Some people have incorrectly understood Weber as being entirely optimistic on the prospects of bureaucratic modernity; however, one must remember that Weber was also very concerned about what the growth of impersonal relationships could mean for society. According to Jason Josephson-Storm (2017, p. 286), “To be sure, a few old-fashioned Whig Weberians may think of him reveling in the triumph of rationalization, but it seems like quite a stretch to impose on a thinker whose characterization of modernity is so evocative of loss.” Polarnacht von eisiger Finsternis und Härte. Suzanne Smith (2008, p. 102) takes an intermediate position, arguing that: “While I cannot agree that Bacon's Utopia ref lects sincere religious convictions, the alternative suggestion that Bacon should be viewed simply as attacking religion in order to further the cause of science, while not wholly inaccurate, is reductive at best. At the same time as Bacon represents the scientist as something tantamount to a savior of humankind, and science as institutionalized benevolence, he presents a clear-eyed critique of the assumptions embodied.” According to Starrett (2010, p. 631): “By the late eighteenth century, European intellectuals and artists had begun to push back the horizons of the transcendent, the sublime, and the miraculous. They had begun, for example, to trace the origins of artistic creativity to the inner life of the artist rather than to imagine it in the form of the divine muse. At the same time Hegel and his followers developed the idea of History as shaper of human events, replacing the activity of the living God in human experience with a force that was metaphysical but not divine.” Fawaz Gerges (1999, p. 24) argues that for the old cold warriors, “Islam has replaced Communism as the principal strategic threat of the post-Cold War era.” He then references the well-known cold warrior and US foreign policy hawk, Daniel Pipes, who comments that “The new threat is as evil as the old Evil Empire,” and that “fundamentalists challenge the West more profoundly than Communists did and do. The latter disagree with our policies but not with our whole view of the world, including the way we dress, mate, and pray” (Pipes cited in Gerges, 1999, p. 24). Those who understand how Pipes argues will be aware that the term “fundamentalists” is employed merely as a euphemism, and what he really means is “Islam” and “Muslims” more generally.

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17 It is important to note that some scholars have been more skeptical of Palacios’ claims. For example, Francesco Gabrieli (1954, p. 68) takes umbrage with Palacios’ account, yet nonetheless acquiesces that “certain Islamic philosophical and ethical concepts, especially eschatological ones, seem to have filtered through to Dante quite independently of the Liber Scalae.” 18 The French original version is titled, Mahomet et Charlemagne, 3rd ed. (Paris: Librairie Félix Alcan, 1937). 19 In the words of Talal Asad (2002, p. 2009), even today, “Muslims are present in Europe and yet absent from it.” 20 Milbank’s controversial tweet which was originally cited by Hellyer has since been deleted. 21 Also similar to Hallaq, Grosfoguel (2012, p. 97) contends that forced transformations of “the other” are inherent within the modern Western colonial system: “During the last 520 years of the ‘European/Euro-North-American capitalist/patriarchal modern/colonial world system’ we went from ‘convert to Christianity or I’ll kill you’ in the 16th century, to ‘civilize or I’ll kill you’ in the 18th and 19th centuries, to ‘develop or I’ll kill you’ in the 20th century, and more recently, the ‘democratize or I’ll kill you’ at the beginning of the 21st century.”

References Asad, T. (2002). Muslims and European identity: Can Europe represent Islam? In A. Pagden (Ed.), The Idea of Europe: From Antiquity to the European Union (pp. 209–277). Cambridge, UK: Cambridge University Press. Asad, T. (2003). Formations of the Secular: Christianity, Islam, and Modernity. Stanford, CA: Stanford University Press. Asad, T. (2018). Secular Translations: Nation State, Modern Self, and Calculative Reason. New York, NY: Columbia University Press. Bacon, F. (2007[1627]). The New Atlantis. Auckland, NZ: The Floating Press. Bader, C., Mencken, F.C., and Baker J. (2010). Paranormal America: Ghost Encounters, UFO Sightings, Big foot Hunts, and Other Curiosities in Religion and Culture. New York, NY: New York University Press. Becher, M. (2005). Charlemagne. New Haven, CT: Yale University Press. Berger, P. (1967). The Sacred Canopy. Garden City, NY: Doubleday. Berger, P. (1999). The desecularization of the world: An overview. In: Peter Berger (Ed.), The Desecularization of the World: Resurgent Religion and World Politics (pp. 1–18). Washington, DC: Ethics and Public Policy Center. Berlin, I. (1979). Against the Current: Essays in the History of Ideas. London, UK: Pimlico. Buhl, A. and Pittman, C. (n.d.) Spanish and Arabic and their striking similarities [online]. Omniglot: The Online Encyclopedia of Writing Systems & Languages. [Viewed 26 April 2020]. Available from: https://www.omniglot.com/language/articles/spanisharabi csimilarities.htm. Casanova, J. (1994). Public Religions in the Modern World. Chicago, IL: University of Chicago Press. Conetti, G. (2000). Concluding remarks. In S. Ferraro and A. Bradney (Eds.), Islam and European Legal Systems (pp. 199–203). Burlington, VT: Ashgate Publishing Company. Cox, H. (1966). The Secular City: Secularization and the Urbanization in Theological Perspective. New York, NY: MacMillan. Crucifix represents Christian values but isn’t a religious symbol, Quebec’s incoming premier says. (2018). CBC News [online]. October 11. [Viewed April 26, 2020]. Available from: https://www.cbc.ca/news/canada/montreal/crucifix-repres

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ents-christian-values-but-is-not-a-religious-symbol-fran%C3%A7ois-legault-says-1 .4858757. Cuneo, M. (2001). American Exorcism: Expelling Demons in the Land of Plenty. New York, NY: Doubleday. Dainotto, R. (2007). Europe (in Theory). Durham, NC: Duke University Press. Engels, F. (1926[1850]). The Peasant War in Germany [online]. Translated by M.J. Olgin. [Viewed 26 April 2020]. Available from: https://www.marxists.org/archive/marx/ works/download/pdf/peasant-war-germany.pdf. Faulkner, R.K. (1993). Francis Bacon and the Project of Progress. Lanham, MD: Rowman & Littlefield. Fleischacker, S. (2013). What is Enlightenment? Abingdon, UK: Routledge. Gabrieli, F. (1954). New light on Dante and Islam. Diogenes, 2(6), 61–73. Gaus, G. (2012). Sectarianism without perfection? Quong’s political liberalism. Philosophy and Public Issues, 2(1), 7–15. Gay, P. (1969). The Enlightenment: An Interpretation (Vol. 2). New York, NY: Alfred Knopf. Gerges, F. (1999). America and Political Islam: Clash of Cultures or Clash of Interests? Cambridge, UK: Cambridge University Press. Glanville, L. (2017). Responsibility to perfect: Vattel’s conception of duties beyond borders. International Studies Quarterly, 61(2), 385–395. Grosfoguel, R. (2012). Decolonizing Western uni-versalisms: Decolonial pluri-versalism from Aimé Césaire to the Zapatistas. Transmodernity: Journal of Peripheral Cultural Production of the LusoHispanic World, 1(3), 88–104. Grotius, H. (2005[1625]). The Rights of War and Peace (Vol. 3). Edited by J. Barbeyrac and R. Tuck. Indianapolis, IN: Liberty Fund. Haakonssen, K. (1985). Hugo Grotius and the history of political thought. Political Theory, 13(2), 239–265. Hallaq, W. (2018). Restating Orientalism: A Critique of Modern Knowledge. New York, NY: Columbia University Press. Harvey, M. (2006). Grotius and Hobbes. British Journal for the History of Philosophy, 14(1), 27–50. Hellyer, H.A. (2018). Muslims of the west: Civilisational traitors? ABC Religion & Ethics [online]. 29 October (updated 30 October). [viewed 7 October 2020]. Available from: https://www.abc.net.au/religion/muslims-of-the-west-civilisational-traitors /10443052. Herman, E.S., and Chomsky, N. (1988). Manufacturing Consent: The Political Economy of the Mass Media. New York, NY: Pantheon Books. Hillerbrand, H. (2006). The legacy of Martin Luther. In D.K. McKim (Ed.), The Cambridge Companion to Luther (pp. 227–239). Cambridge, UK: Cambridge University Press. Hobsbawm, E. (1996). The Age of Revolution: 1789–1848. New York, NY: Vintage Books. Holyoake, G.J. (1896). The Origin and Nature of Secularism: Showing that Where Freethought Commonly Ends Secularism Begins. New York, NY: Watts. Horkheimer, M., and Adorno, T.W. (2002[1944]). Dialectic of Enlightenment. New York, NY: Continuum. Houellebecq, M. (2016). Soumission. Paris: Flammarion. Idris, M. (2018). War for Peace: Genealogies of a Violent Ideal in Western and Islamic Thought. New York, NY: Oxford University Press. Jenkins, R. (2000). Disenchantment, enchantment and re-enchantment: Max Weber at the millennium. Max Weber Studies, 1(1), 11–32.

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Josephson-Storm, J. (2017). The Myth of Disenchantment: Magic, Modernity, and the Birth of the Human Sciences. Chicago, IL: University of Chicago Press. Kant, I. (1784). Beantwortung der Frage: Was it Auf klärung? Berlinische Monatsschrift, Dezember Ausgabe, pp. 481–494. Kant, I. (1995[1784]). What is enlightenment? In I. Kramnick (Ed.), The Enlightenment Reader (pp. 1–7). New York, NY: Penguin Books. Laclau, E., and Mouffe, C. (2001). Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (2nd ed.). New York, NY: Verso. Lampert, L. (1993). Nietzsche and Modern Times: A Study of Bacon, Descartes, and Nietzsche. New Haven, CT: Yale University Press. Leibniz, G.W. (1989). Philosophical Essays. Translated by R. Ariew and D. Garber. Indianapolis, IN: Hackett Publishing Company. Luther, M. (1961[1523]). Secular authority: To what extent should it be obeyed. In J. Dillenberger (Ed.), Martin Luther: Selections from His Writings (pp. 363–402). Garden City, NY: Anchor Books—Doubleday and Co., Inc. Luther, M. (1965). Luther’s Works (American ed., Vol. 2/55). Edited by J. Pelikan and H.T. Lehmann. Philadelphia, PA: Fortress. Massad, J. (2015). Islam in Liberalism. Chicago, IL: University of Chicago Press. McKnight, S.A. (2005). The Religious Foundation of Francis Bacon’s Thought. Columbia, MO: University of Missouri Press. Menocal, M.R. (1985). Pride and prejudice in medieval studies: European and Oriental. Hispanic Review, 53(1), 61–78. Murphy, B.A. (2014). Scalia: A Court of One. New York, NY: Simon & Schuster Paperbacks. Palacios, M.A. (1919). La escatologia musulmana en la divina comedia. Madrid, Spain: Imprenta de Estanislao Maestre. Paterson, T.H. (1987). On the role of Christianity in the political philosophy of Francis Bacon. Polity, 19(3), 419–442. Paterson, T.H. (1989). The secular control of scientific power in the political philosophy of Francis Bacon. Polity, 21(3), 457–480. Pirenne, H. (1937). Mahomet et Charlemagne. Paris: Librairie Félix Alcan. Pirenne, H. (1959). Mohammed and Charlemagne (3rd ed.). Translated by B. Miall. New York: Meridian Books. Pocock, J.G.A. (1999). Barbarism and Religion: Volume One: The Enlightenments of Edward Gibbon, 1737–1764. Cambridge, UK: Cambridge University Press. Pohl, F. (2009). Islamic Education in the Public Sphere: Today’s Pesantren in Indonesia. Berlin: Waxmann Verlag. Porter, R., and Teich, M. (Eds.). (1981). The Enlightenment in National Context. Cambridge, UK: Cambridge University Press. Quong, J. (2011). Liberalism without Perfection. New York, NY: Oxford University Press. Rabkin, J. (1997). Grotius, Vattel, and Locke: An older view of liberalism and nationality. The Review of Politics, 59(2), 293–322. Robertson, J. (2005). Case for the Enlightenment: Scotland and Naples 1680–1760. Cambridge, UK: Cambridge University Press. Rosenau, P. (1992). Post-Modernism and the Social Sciences: Insights, Inroads, and Intrusions. Princeton, NJ: Princeton University Press. Said, E. (1978). Orientalism. New York, NY: Random House. Salazar v. Buono, 559 U.S. 700 (2010). Schmitt, C. (2007[1932]). The Concept of the Political (Expanded ed.). Translated by G. Schwab. Chicago, IL: University of Chicago Press.

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Siedentop, L. (2014). Inventing the Individual: The Origins of Western Liberalism. Cambridge, MA: Harvard University Press. Smith, S. (2008). The new Atlantis: Francis Bacon’s theological-political utopia? Harvard Theological Review, 101(1), 97–125. Starrett, G. (2010). The varieties of secular experience. Comparative Studies in Society and History, 52(3), 626–651. Taylor, C. (2007). A Secular Age. Cambridge, MA: Harvard University Press. Thompson, K. (1994). Fathers of International Thought: The Legacy of Political Theory. Baton Rouge, LA: Louisiana State University Press. US Secretary of State Press Release. (2011). Statement on the occasion of Switzerland’s National Day [PRN 2011/1259]. [Viewed 11 March 2018]. Viewed from: https://20 09-2017.state.gov/secretary/20092013clinton/rm/2011/07/169371.htm. Voltaire. (1837[1734]). Traité de metaphysiqué. In Oeuvres complètes de Voltaire: Philosophie. Dialogues (pp. 3–22). Paris: Chez Furne, Libraire Éditeur. Weber, M. (1994). Introduction. In P. Lassman (Ed.), Weber: Political Writings (pp. vvi– xxv). Translated by R. Speirs. Cambridge, UK: Cambridge University Press. Weinberger, J. (1976). Science and rule in Bacon's utopia: An introduction to the reading of the new Atlantis. American Political Science Review, 70(3), 865–885. Williams, R. (1985). Keywords: A Vocabulary of Culture and Society (Revised ed.). New York, NY: Oxford, University Press. Zuckerman, P., and Shook, J. (2017). Introduction: The study of secularism. In P. Zuckerman and J. Shook (Eds.), The Oxford Handbook of Secularism (pp. 1–20). New York, NY: Oxford Press.

3 “LIBERALISMS” Exploring the deep familial relationship between comprehensive liberalism and political liberalism

Liberalism today is generally divided into two main categories: comprehensive (or Enlightenment) and political. This chapter will further explore the deep familial relation between the two iterations. It will first define comprehensive liberalism and its more extreme iteration widely known as perfectionist liberalism. It will then show how each is deeply rooted in Enlightenment thought. Finally, this chapter will show that it simply is not possible to decouple comprehensive liberalism from political liberalism as political liberals would like to do. Before further analyzing and differentiating between the different liberalisms, I think it is important to be clear on the key commitment that I feel is present in each. Some contemporary scholars such as Jonathan Quong (2011, p. 2) have argued that “pluralism or disagreement regarding what makes a life good, or valuable, or worthwhile” is what truly characterizes a liberal society and that “[d]isagreement about the nature of human f lourishing is a deep and permanent feature of free societies.” Based on this, he concludes that governments should not craft public policy based on any “particular conception of what makes for a valuable, f lourishing, or worthwhile life” (2011, p. 2). His approach to liberalism prioritizes pluralism and how it handles disagreement as its undergirding principle.1 This is certainly worth considering and will be addressed later. However, I contend that liberty is the defining feature of both forms of liberalism. While pluralism and liberty most certainly are connected, I believe that liberty must come first, for one cannot have a robust notion of pluralism and disagreement without some prior notion of liberty that allows for pluralism and disagreement. Liberty and political freedom—to one degree or another—are essential to all liberal discourses. Judith Shklar (1989, p. 21) argued that liberalism’s main commitment is related to securing “the political conditions that are necessary for the exercise of personal freedom.” Much of Shklar’s (1982; 1989) oeuvre focused on

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combating injustice and cruelty; she was not interested in offering any particular conceptualization of the good. She did not believe that liberalism should be understood as a philosophical doctrine or a way of life; rather it was primarily an instrumental doctrine aimed at mitigating the state’s capacity to inf lict cruelty upon its people. In Shklar’s (1989, p. 23) own words: liberalism’s deepest grounding is […] in the conviction of the earliest defenders of toleration, born in horror, that cruelty is an absolute evil, an offense against God or humanity. It is out of that tradition that the political liberalism of fear arose and continues amid the terror of our time to have relevance. Such comments have led more recent scholars such as Jacob Levy (2018, para. 7) to conclude that her liberalism “was a liberalism motivated not by a summum bonum, an ultimate good, but by a summum malum, an ultimate evil, something to be avoided.” In the words of Robert Meister (2002, p. 119), Shklar’s liberalism is rooted in a “fear of fear itself.”2 Liberalism’s main appeal has been its enjoyed status as the most dependable bulwark against ideologies that promote and facilitate political tyranny and despotism.3 Considering her background and the times she lived through such a deep skepticism of state power seems only natural. Charles Larmore (1996) has argued that liberalism hinges upon two basic premises: 1) the importance of mitigating a government’s ability to arbitrarily exercise power over people in the name of raison d’etat; and 2) the recognition that a multitude of different conceptions of the good will continue to be constitutive of modernity more generally. We can see here how Larmore’s depiction of liberalism accommodates both Shklar’s and Quong’s conceptions; his two premises are deeply connected to both liberty and pluralism. For Larmore (1996, p. 122), one of the hallmarks of modernity more generally lies in “the increasing awareness that reasonable people tend naturally to differ and disagree about the nature of the good life.” This understanding of modernity also necessitates a certain prioritizing of liberty as being not only a cardinal virtue of liberalism but of modernity as well. Therefore, it seems that, in general, many of liberalism’s defenders and critics recognize the primacy of liberty to the liberal project.

Defning comprehensive doctrines and comprehensive liberalism Comprehensive doctrines can be essentialized as a set of commonly held beliefs that are related to a wide range of values and moral commitments—both metaphysical and religious. They concern themselves with beliefs about personal virtues and normative political goals related to the ideal organization of society. According to Quong (2011, p. 29):

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Comprehensive doctrines will have a complete and determinate ordering of judgements. To simplify, we can suppose that for all issues a–z, a comprehensive doctrine will take a position (e.g. either a or -a) and rank these judgements in order of priority. Comprehensive doctrines will thus necessarily conf lict or else they will be identical. It seems like Quong is conf lating partially comprehensive doctrines with fully comprehensive doctrines, but he is correct in the sense that comprehensive doctrines—both partial or full—will generally, at some level, prioritize and rank certain commitments over others. Comprehensive liberalism more specifically refers to a “philosophical position, complete with an ordering of values, that supports liberal political principles” (Hedrick, 2015, p. 445). Comprehensive liberalisms are unique conceptions of the good that, like any other conception of the good, excludes other conceptions that lie outside its ethical parameters and epistemological assumptions. Mill and Kant are often seen as examples of thinkers that offered their own comprehensive liberalisms. Kant’s iteration of liberalism prioritized autonomy, whereas Mill’s prioritized individualism. March (2007, p. 400) argues that comprehensive liberalism “is a way of life, a theory of value, and an epistemology” and that its followers “value rational autonomy, critical scrutiny of tradition, skepticism, and experimentation,” though it is not clear if this is the order of priority in which he ranks each value. Perhaps even more relevant for our purposes is March’s (2007, p. 400) next sentence which notes that comprehensive liberalism(s) offer(s) “truth claims for these values and do not seek to disguise their incompatibility with ways of life based on heteronomous deference to established authority.” We will later come to see in more detail how this rejection of the deference to established authority poses serious problems for those individuals or societies operating within a revelation-based discursive framework, especially one like Islam.4 In Political Liberalism (Columbia University Press, 1996), John Rawls differentiates between comprehensive liberalism and political liberalism arguing that the former ought to be understood as being distinct from the latter. This really is the crux of his entire project. If he can succeed in decoupling comprehensive liberalism from political liberalism then the possibility exists for genuine congruence between political liberalism and other comprehensive doctrines or comprehensive ethical systems. Regarding political liberalism specifically, Rawls’s basic argument posits that political liberalism is, by nature, more tolerant than comprehensive liberalism which itself carries certain truth claims and/or appeals to comprehensive doctrines that are absent from the former. Rawls (1996, p. 13) describes comprehensive doctrines in general (not just comprehensive liberal doctrines) as conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational

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relationships, and much else that is to inform our conduct, and in the limit to our life as a whole. He then differentiates between fully comprehensive and partially comprehensive doctrines, noting: A conception is fully comprehensive if it covers all recognized values and virtues within one rather precisely articulated system; whereas a conception is only partially comprehensive when it comprises a number of, but by no means all, nonpolitical values and virtues and is rather loosely articulated. Many religious and philosophical doctrines aspire to be both general and comprehensive. (1996, p. 13) It seems readily apparent that Islam is an excellent example of a religious doctrine that meets Rawls’s criterion for being both fully comprehensive and general at the same time.5 We will also see how Islam is not only an example of a comprehensive doctrine but a perfectionist one as well.

Defning perfectionist liberalism Advocates of the most extreme version of comprehensive liberalism today called perfectionist liberalism argue that political principles must be based upon a certain conception of the good life. One simply cannot create coherent and meaningful political principles without some minimal conception of what is constitutive of the good life. Martha Nussbaum (2011, p. 5) credited Larmore with first conceptualizing perfectionist liberalism and then offers her own definition, defining it as “a species of a genus of liberal views […] that base political principles on some comprehensive doctrine about human life that covers not only the political domain but also the domain of human conduct generally.”6 She goes on to argue that most iterations of comprehensive liberalism are in fact perfectionist; however, there do exist notable exceptions such as Lockean libertarianism and Ronald Dworkin’s (2000) earlier iteration of liberalism which he defends as comprehensive yet without any particular conception of what is constitutive of the good life. However, Nussbaum does note that Dworkin’s later work, Justice for Hedgehogs (Harvard University Press, 2011), does move more into the perfectionist direction. Joseph Raz is perhaps the most prominent contemporary figure identified with perfectionist liberalism. Drawing from Kant, Raz (1988, pp. 369–370), one of the legendary English legal philosopher H.L.A. Hart’s most famous students, forcefully argued that the paramount value that the good life hinged upon was personal autonomy: The ruling idea behind the ideal of personal autonomy is that people should make their own lives. The autonomous person is a (part) author of his own

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life. The ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives. It is an ideal particularly suited to the conditions of the industrial age and its aftermath with their fast changing technologies and free movement of labour. They call for an ability to cope with changing technological, economic and social conditions, for an ability to adjust, to acquire new skills, to move from one subculture to another, to come to terms with new scientific and moral views. Raz’s understanding of autonomy also drew from the late twentieth-century moral skeptic J.L. Mackie (1978), who argued that personal autonomy should not be understood as having a single unitary goal or a regimented life aimed at achieving that goal.7 Rather, the “autonomous person’s well-being consists in the successful pursuits of self-chosen goals and relationships” and that “Like all people’s, his will also be nested goals, with the more comprehensive ones being, other things being equal, the more important ones” (Raz, 1988, p. 370). Autonomy for Raz is an end in and of itself, even if its specific content and operationalization differ between people. Shklar (1989, p. 21) makes a similar claim, noting that “[e]very adult should be able to make as many effective decisions without fear or favor about as many aspects of her or his life as is compatible with the like freedom of every adult,” and she considers this “the original and only defensible meaning of liberalism.” Raz and Shklar would both agree that genuine autonomy contains the possibility for embracing completely new moral views, something that obviously would be, at minimum, problematic within a traditional Islamic moral epistemology. Raz (1988, p. 204) makes it clear that autonomy must be conceived of within a set of particular acceptable options: “[a] person is autonomous only if he has a variety of acceptable options available to him to choose from, and his life became as it is through his choice of some of these options.” Acceptable options are those aimed at the good as understood with Raz’s liberal moral epistemology.8 He argues that there is “no reason to provide, nor reason to protect, worthless let alone bad options” (1988, p. 411). Bad options for Raz include those that cause “harm” more broadly construed and seem to include those options that stand in opposition or conf lict with Western secular Enlightenment values, most specifically within his notion of autonomy. In such cases, it is acceptable “to use coercion in order to force [people] to take actions which are required to improve peoples’ options and opportunities” (1988, p. 416). Based on all of this, I would have to concur with Kevin Vallier’s (2014, p. 176) conclusion that the type of liberal perfectionism offered by Raz and those of his ilk “is sectarian and authoritarian because it permits the state to force reasonable people to comply with ‘true’ moral values they nonetheless reasonably reject.”9 For example, regarding minorities living in liberal societies, Raz (1988, p. 424) brazenly contends that “people are justified in taking action to assimilate the minority group, at the cost of letting its culture die or at least be

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considerably changed by absorption.” He makes clear in the next few sentences that generally toleration is appropriate, though gradual transformations are also a viable option.10 Raz’s view is clearly emblematic of the universalizing tendency of liberalism that Hallaq speaks about throughout The Impossible State (Columbia University Press, 2013). On this tendency, the former Defense Minister of the Iraqi transitional government, Ali Allawi (2009, p. 172), astutely commented that “the prized tolerance of these [Western] societies has an obverse side in the form of an intolerance or disregard for other civilizations, which may not subscribe to the ‘universal’ nature of western values.” It is important to note here that despite secularism’s intimate relationship with the Enlightenment and liberalism more generally, comprehensive and perfectionist liberalism do not necessarily have to be completely decoupled from all religious principles. Returning brief ly to Siedentop (2014, p. 361), it is hard to deny that there are clear parallels between certain understandings of what one may call “Christian secularism” and comprehensive/perfectionist liberalism: When placed against this background, secularism does not mean nonbelief or indifference. It is not without moral content. Certainly secularism is not a neutral or “value-free” framework, as the language of contemporary social scientists at times suggests. […] It provides the gateway to beliefs properly so called, making it possible to distinguish inner conviction from mere external conformity. Authentic beliefs derive from a comprehensive worldview of what the good or the good life entails, and for Christian secularists, this comprehensive worldview is rooted in the Christian moral tradition. Unlike most political liberals who avoid making such assertions, Siedentop without hesitation, as noted in the previous chapter, proclaims secular liberalism as the “embodiment” or operationalization of European Christian moral intuitions. Such an understanding of secular liberalism posits an inherent type of moral content and a comprehensive set of beliefs that prioritize equal liberty as a good in and of itself. Secular liberalism for Siedentop therefore cannot be understood in isolation simply referring to the separation of church and state in its most formalistic sense. Christian religious doctrines provide a certain conception of the good or the good life that can be readily translated into the secular language of public reason; secular liberalism is the logical next step in the intellectual development of Christianity.

The Enlightenment roots of comprehensive and perfectionist liberalism Comprehensive and perfectionist liberalism—as the reader has probably already ascertained at this point due to how often it has been mentioned in tandem with the Enlightenment—traces its roots all the way back to the Enlightenment. Regarding the “comprehensiveness” of earlier Enlightenment liberalism, one

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need not look further than the writings of the Marquis de Condorcet. Despite his undeniably important contributions, Nicolas de Condorcet (d. 1794 C.E.) nonetheless remains one of the often less remembered Enlightenment figures in comparison to some of his contemporaries who remain household names to this day.11 Condorcet, often primarily remembered outside of the academy for his namesake vote tabulation method—the Condorcet Method—was perhaps the embodiment of Enlightenment ideals. He firmly believed that it was only matter of time before “the sun will shine only on free men who know no other master but their reason; when tyrants and slaves, priests and their stupid or hypocritical instruments will exist only in works of history and on the stage” (cited in Lukes and Urbanati, eds., 2012, p. 130). Condorcet strongly and openly advocated for liberal economies and railed against mercantilism. He also supported free public education, was a staunch supporter of constitutionalism, and, perhaps most radically, took very seriously the notion of equal rights for all, including women. Despite possessing many laudable views, he was in many ways emblematic of liberalism’s universalizing tendency that has been noted above. Condorcet recognized the evils of European colonization but at the same time clearly had some type of teleological view on the inevitable progress of Enlightenment liberal values; values that he clearly saw as universal: Can we doubt that either common sense or the senseless discords of European nations will add to the effects of the slow but inexorable progress of their colonies, and will soon bring about the independence of the New World? And then will not the European population in these colonies, spreading rapidly over that enormous land, either civilize [sic] or bring about the disappearance, even without conquest, of the savage nations who still inhabit vast tracts of its land? Survey the history of our settlements and commercial undertakings in Africa or in Asia, and you will see how our trade monopolies, our treachery, our murderous contempt for men of another colour or creed, the insolence of our usurpations, the intrigues or the exaggerated proselytising zeal of our priests, have destroyed the respect and goodwill that the superiority of our knowledge and the benefits of our commerce at first won for us in the eyes of the inhabitants. But doubtless the moment approaches when, no longer presenting ourselves as always either tyrants or corrupters, we shall become for them useful instruments or generous liberators. (Condorcet cited in Lukes and Urbanti, eds., 2012, pp. 127–128) His cringeworthy conclusion that the European Enlightenment ideals would ultimately render colonizers as “generous liberators” is further bolstered by his confidence that the liberal project would be easy for “uncivilized” peoples to follow since the Europeans had already laid out the “simple truths and infallible

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methods” after an extended period of trial and error—all these simple-minded folk need to do is follow the path. The progress of these peoples is likely to be more rapid and certain than our own because they can receive from us everything that we have had to find out for ourselves, and in order to understand those simple truths and infallible methods which we have acquired only after long error, all that they need to do is to follow the expositions and proofs that appear in our speeches and writings. (Condorcet cited in Lukes and Urbanati, eds., 2012, p. 129) The supreme confidence in the Enlightenment philosophical project as a universal project permeated much of seventeenth- and eighteenth-century Enlightenment thought. Eric Hobsbawm (1996, p. 21) eloquently summarizes the optimistic outlook of eighteenth-century Enlightenment thought, commenting: The reign of individual liberty could not but have the most beneficent consequences. The most extraordinary results could be looked for—could indeed already be observed to follow from—the unfettered exercise of individual talent in a world of reason. The passionate belief in progress of the typical “enlightened” thinker ref lected the visible increases in knowledge and technique, in wealth, welfare and civilization which he could see all round him, and which he ascribed with some justice to the growing advance of his ideas. The same motifs can be readily found in Kant’s writings as well—so long as man was able to free himself from the shackles of past dogmas progress was inevitable for all peoples.12 Moving into the nineteenth century little changed regarding attitudes that posited the Enlightenment philosophical project as a universal one. John Stuart Mill (d. 1873 C.E.) openly endorsed despotism and imperialism over those societies overridden by “barbarians” (Pitts, 2005; Mehta, 1999; Parekh, 1995). J.S. Mill’s father, James Mill (d. 1836 C.E.), prior to his son’s writings, made claims that in many ways paralleled and undoubtedly inf luenced John’s. For example, James saw those from the Indian subcontinent as backward and incapable of selfgovernance or rule. The only solution suitable for “these peoples” in his mind was “a hereditary emperorship of Hindustan, to govern with the help of British advisers” (Pitts, 2005, p. 126). The wider the circumference of the British dominion, the more extensive the reign of peace. Did it embrace the whole of the Peninsula, and were it supported with any tolerable degree of wisdom, a very considerable period

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of peace would probably be ensured, during which an incalculable progress might be made in happiness and civilization. (Mill, quoted in Pitts, 2005 p. 126) Echoing his father’s sentiment, in On Liberty, Mill (2001[1859], p. 14) comments:13 Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury. For the same reason, we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage. The early difficulties in the way of spontaneous progress are so great, that there is seldom any choice of means for overcoming them; and a ruler full of the spirit of improvement is warranted in the use of any expedients that will attain an end, perhaps otherwise unattainable. Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one. Liberty is only for the Enlightened; until Enlightenment is reached, imperial domination is the savage’s only hope. According to Pitts (2005, p. 139), Mill understands progressiveness as “the cardinal human quality” that nonetheless was also “the monopoly of a select group of societies.” It does not take too much imagination to guess which societies Mill had in mind. Perhaps there is no clearer invocation of the universalizing nature of liberalism’s moral truth claims than Mill’s (2006[1859], p. 259) famous quote regarding how “civilized” nations ought to engage with “barbarous” governments from A Few Words on NonIntervention: “To suppose that the same international customs, and the same rules of international morality, can obtain between one civilised nation and another, and between civilised nations and barbarians, is a grave error.” Interestingly enough, Mill generally opposes interventions into the affairs of “civilized” governments when conf licts arise among indigenous figures struggling for power.14 Mill (or actually “Mills” plural), much like Condorcet and countless other earlier liberal figures, possessed an undeniable white man’s burden attitude toward non-Western societies—an attitude that in many ways seems part and parcel of Enlightenment thinking itself. This is to suggest that there very well may be an intimate link between Enlightenment liberalism and “whiteness.” Edward Said (1980, p. 65) noted that J.S. Mill “believed that such ideas as liberty, representative government, and individual happiness must not be applied in the Orient for reasons that today we would call racist.” Mill, also much like Condorcet, believed that after the savage peoples learned the proper way to conduct themselves, they

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would be grateful for the wisdom imparted upon them by their occupier. Only then could then live on their own accord. Mill (2001[1859], p. 14) comments: But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in the direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others. Once again, echoing Condorcet, J.S. Mill lauds the advanced state his own civilization had reached with the paternalistic hope that soon others could reach similar lofty heights. Mill’s concluding sentence goes even beyond Condorcet. Even after the savages have learned their lessons, occupation and inquisition could still be justified if “the security of others” is threatened. This sounds awfully similar to the trajectory of twentieth- and twenty-first-century neoliberal Western foreign policy that continues to transpire in the Middle East today. Rawls himself undeniably took the superiority of political liberalism as a given, even though I would also contend that he probably felt similar regarding the superiority of liberalism as a comprehensive doctrine in many ways as well. Even if one wishes to argue to the contrary, this is not an unreasonable claim to make especially regarding Rawls’s views on political liberalism. As a matter of fact, this is how some of his contemporaries who personally knew him felt. One of Rawls’s colleagues at Harvard, the renowned philosopher of mathematics, Burton Dreben (2003, p. 323), concluded that Rawls saw the larger debate about the merits of liberal constitutional democracy (i.e. political liberalism) as a done deal and that no “sensible person” today would even bother wasting their time to justify or defend: It is very important to understand that Rawls is a good enough thinker not to argue against those who do not believe in liberal constitutional democracy. Neither in A Theory of Justice, nor surely in Political Liberalism, nor in any of the other works, is he engaged in the kind of struggle that, say, Locke was engaged in. The outcome of that struggle he takes for granted, just as I think any sensible person should today. This further attests to the undeniable strand of universalism that weaves it ways throughout over 300 years of liberal thought. All the above examples in no way seek to insinuate that liberalism is universalizing while Islam is not. This is hardly the case. I think Fukuyama (1992, p. 45) is quite accurate when he comments: Islam constitutes a systematic and coherent ideology, just like liberalism and communism, with its own code of morality and doctrine of political

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and social justice. The appeal of Islam is potentially universal, reaching out to all men as men, and not just to members of a particular ethnic or national group.15 These last few sections have shown the universalizing tendency that can be found in perfectionist and comprehensive liberalism—both in theory and in practice. They also showed how at an abstract structural level, comprehensive and perfectionist liberalism are similar to Islam even though the actual content of what each values is not; this is to suggest both have their own version of “the good” that is meant to apply to all people and that aims to answer life’s more complicated questions. However, both have significantly different visions of what that good actually is and the mechanisms necessary to achieve it. The point is this: if comprehensive liberalism and Islam both have radically different outlooks on what constitutes the good life and other fundamental values, then one runs into great difficulty showing genuine congruence between two unique comprehensive doctrines that offer their own unique conceptions of the good and which are at odds with each other in so many ways. This is a point that most people have accepted; however, the next section will address a less settled issue: the relationship between political liberalism and Islam. It will explore some of the issues one faces when trying to square political liberalism with an Islamic understanding of the world and show how the universalizing tendency found in comprehensive liberalism, in practice, is also present in political iterations of liberalism even if at a theoretical level it makes great efforts to avoid doing this. This will help set up the argument that will transpire in forthcoming sections that will contend that political liberalism itself is hardly as distinct from comprehensive liberalism as Rawls and the other defenders of political liberalism make it out to be. If political liberalism is intimately linked to comprehensive liberalism, we will begin to see some serious issues that arise when trying to argue for the possibility of genuine discursive congruence between not only Islamic socio-political discourses and comprehensive liberalism, but political liberalism as well.

The comprehensive elements inherent within political liberalism In more recent times, liberalism has sought to free itself of its Enlightenment shackles. It was already noted above that Shklar (1989, p. 21) did not see liberalism as a philosophical doctrine at all; it was solely a political one in her assessment. In order to avoid the problems illustrated in the previous sections regarding the inevitable clashes between comprehensive liberalism and alternative comprehensive doctrines, contemporary scholars have sought to decouple comprehensive liberalism from political liberalism as much as possible. As a matter of fact, decoupling comprehensive liberalism and political liberalism has been one of the main projects of recent liberal political philosophers (Quong,

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2011; Larmore, 1996; Rawls, 1996; Shklar, 1989). While comprehensive liberalism generally concerns itself with deriving ethical claims about the good from secular (or secularized) Enlightenment-rooted philosophies, political liberalism avoids making ethical claims about the good in the first place. Larmore (1996, p. 123), whom I continue to reference because I feel that he is one of the clearest technical writers on liberalism, sounds a lot like Rawls (and Quong for that matter) when he posits a mode “of political association by means of a minimal moral conception”: To avoid the oppressive use of state power, the liberal goal has therefore been to define the common good of political association by means of a minimal moral conception. Political life has continued to be viewed as an undertaking guided by moral principle. But the terms of political association must now be less comprehensive than the views of the good life about which reasonable people disagree. More precisely, fundamental political principles must express a moral conception that citizens can affirm together, despite their inevitable differences about the worth of specific ways of life. To call this moral conception “minimal,” of course, means only that it serves as a common ground, and not that those who embrace it will live up to it without effort and without exception. Larmore’s minimal conception does not pretend that individuals will not have their own personal moral conceptions of political life. Like Rawls, Larmore simply seeks to mitigate the role these moral conceptions play when forming fundamental political principles.16 His concern lies primarily in finding ways that people can form meaningful and peaceful associational political relationships. Larmore’s position seems to imply the best way to go about doing this is to prioritize negative liberty, or the “freedom from,” as opposed to positive liberty, or “the freedom to,” which is more controversial in his eyes.17 Accommodation—at least at the level of ideal theory (with certain limits)—is one of political liberalism’s key values. Duncan Ivison (1995, p. 205) comments that, in addition to reining in coercive state power, political liberalism also seeks “a common political ground between irreconcilable and often violent differences in opinion of matters of ethical and moral values.” In order to do this, it eschews any specific metaphysical, epistemological, or faith-based doctrinal truth claims since disputes over such claims often are the most irreconcilable and enduring.18 In the words of Rawls (1996, p. 10), political liberalism “aims for a political conception of justice as a freestanding view.”19 Justice as a freestanding view can be simply understood as a political understanding of justice that is not contingent upon any particular comprehensive doctrine: “a political conception of justice is what I call freestanding when it is not presented as derived from, or as part of, a comprehensive doctrine” (Rawls, 1996, p. xlii). This resonates with Larmore (1996, p. 125) who argues that: “The principles of a liberal political order aim to be ‘neutral’ with respect to controversial ideas of the good.” Like Rawls,

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Larmore seeks to keep this awkward and divisive discussion of what is constitutive of the good life off the table when engaging in public reason. If—in contrast to perfectionist and comprehensive liberalism—political liberalism does in fact keep questions related to what is constitutive of the good life off the table, then this could allow for the possibility for deeper congruence between Islam and political liberalism. In his analysis of Rawlsian political liberalism, Fadel (2008) comments that at face value it is not a priori at odds with Islam. He accepts that comprehensive liberalism is not compatible with Islam; however, in his view political liberalism is a different matter altogether since political liberalism claims to only be concerned with institutions while remaining agnostic regarding metaphysics and what constitutes the good life. Rawls expressly disclaims that political liberalism has any ambition to displace other comprehensive theories of the good with liberal philosophy. Because the scope of political liberalism in Rawls’ view is limited to the basic political institutions of society, citizens of a politically liberal state are not required to affirm controversial metaphysical doctrines in order to participate as citizens in good faith. For these reasons, the philosophical incompatibility of Islam and liberalism should not on its face be problematic from the perspective either of a committed Muslim or a committed Rawlsian liberal. (Fadel, 2008, p. 8) Rawls’s conclusion that political liberalism does not concern itself with moral truth claims led Richard Rorty to the conclusion that “truth […] is simply not relevant to democratic politics” (1991, p. 192 and cited in Fortier, 2010, p. 1005). This is obviously a very controversial statement that many people will have a hard time accepting. Rawls (1996, p. 10), however, is careful to note: As an account of political values, a free standing political conception does not deny there being other values that apply, say, to the personal, the familial, and the associations; nor does it say that political values are separate from, or discontinuous with, other values. He is fully aware that comprehensive doctrines are an inescapable and even necessary reality and that we should not aim to create a society free of all comprehensive doctrines. Instead we should aim to create politically liberal societies that are not dependent upon any particular comprehensive doctrine. The larger problem with Rawls’s vision, as noted by Fortier (2010, p. 1012), is that political liberalism is actually dependent upon a multitude of liberal comprehensive doctrines, or as Fortier puts it, a consortium of comprehensive (i.e., metaphysical) doctrines, since one inevitably grapples with their own comprehensive doctrines in the private sphere before they enter into the public deliberative area:

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political liberalism is the product of an overlapping consensus which is itself the product of a consortium of comprehensive (i.e., metaphysical) doctrines. Moreover, the overlapping consensus cannot be composed of just any comprehensive doctrines, but only those that are “reasonable” (which is to say, at least compatible with liberalism). Thus, political liberalism’s professed separation of politics and metaphysics is to some degree artificial or impossible: for not only does Rawls expect that truth claims will underlie the outwardly neutral language of public reason, he also recognizes that those claims will sometimes have to be asserted or argued for. Public reason, in practice, does not transpire ex nihilo. Before engaging in public discursive dialogue, often one first evaluates the political conception of justice through the lens of their own comprehensive doctrines; one evaluates the political conception of justice via what Rawls (1996, p. 11) calls “the exercise of their liberty of thought and conscience, and [by] looking to their comprehensive doctrines.” Rawls himself also is aware that an overlapping consensus emerges only after one first considers their own comprehensive doctrines which means that certain truth claims lie latent within the supposedly neutral public conception of justice. This all works out fine so long as one’s comprehensive doctrine operates in a way that supports public reason. On the other hand, if one’s comprehensive doctrine does not operate in a way that supports public reason as Rawls understands it, one is forced into one of those situations in which there is a discrepancy “between the true [i.e., comprehensive] doctrine and a reasonable conception of justice” (Rawls cited in Jackson 2015, p. 184). Rawls fully accepts that political and non-political values may not always actually line up. Timothy Jackson (2015, p. 184) contended that in such cases where a discrepancy emerges, for Rawls, “public reason […] trumps ‘the whole truth’ [and] the ties of civility have priority over individual conscious.” Let us brief ly further explore how Rawls understands what he calls the duty of civility in public reason. The duty of civility is a critically important obligation that helps define the boundaries for how one actually engages in public reason. It is best understood as a non-legal moral duty that calls upon us to engage with one another on fundamental questions [regarding] how the principles and policies [we] advocate and vote for can be supported by the political values of public reason. This duty also involves a willingness to listen to others and a fairmindedness in deciding when accommodations to their view should reasonably be made. (Rawls 1996, p. 217) At first glance, the duty of civility sounds like a two-way street in which both parties are always obliged to fairly consider the other party’s position and make accommodations when possible. In practice, however, the duty of civility is only

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a two-way street if both parties are advocates for positions that can be supported via the political values of public reason. If one is arguing from a comprehensive doctrine that cannot be supported by the political values of public reason, then civility seems to be more of a one-way street since elsewhere Rawls comments that we are not obliged to engage with principles and values that stand in opposition to the political values of public reason. Rawls’s duty of civility is rooted in the notions of legitimacy and shared citizenship which Rawls sees as a normative ideal. Eric Brown (2003, p. 8) contends that “If we take the ideal of citizenship to be a normative ideal, then it must necessarily override other values for the citizen.” As a result, we find ourselves in a very problematic situation in which, according to Jackson (2015, p. 185), “the possibility of a ‘noble deception’ [is] at the core of public reason,” and as a result, it appears that Rawls, like Plato, allows “for a fundamental slippage between true theory and just practice.” Here we see a possible serious tension in Rawls’s thought: the exercise of public reason seems to be constrained by the ideal of citizenship. At the same time, however, the ideal of citizenship is realized through public reason. In order to keep things operating smoothly, the duty of civility places limits and restrictions upon how discourse and deliberation can transpire; always favoring the notion of shared citizenship over individual public reason. So we can conclude here that as long as political liberalism is dependent upon the notion of an overlapping consensus, and the notion of an overlapping consensus itself is dependent upon certain comprehensive doctrines—most specifically those found within Enlightenment liberalism—by way of modes pones, political liberalism is also dependent upon Enlightenment comprehensive doctrines to at least some degree. Rawls himself even argues that some of political liberalism’s key values specifically lie in the Reformation and its subsequent development, which, of course, itself is ultimately subsumed within the more general Enlightenment liberal tradition (El Amine, 2020).20 Bihkhu Parekh (2006), like Fortier and Taylor (2007), also argues that political liberalism is difficult to decouple from comprehensive liberalism. In Political Liberalism, Rawls (1996, p. 37) attempts to clarify that he is not of the position that in order for a society to be reasonable and just, it must be liberal and reject all illiberal comprehensive doctrines: Just as a citizen in a liberal society is to respect other persons’ comprehensive religious, philosophical, and moral doctrines, provided they are pursued in accordance with a reasonable political conception of justice, so a liberal society is to respect other societies organized by comprehensive doctrines, provided their political and social institutions meet certain conditions that lead the society to adhere to a reasonable law of peoples. However, Parekh believed that Rawls’s entire approach is ultimately dependent upon those living in liberal societies who hold non-liberal comprehensive doctrines ultimately changing, at minimum, the specifically illiberal parts of them.

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There is no reason to assume things would be any different when trying to operationalize political liberalism in an Islamic society as well. For Parekh, Rawls’s vision basically entailed a gradual yet steady transformation of non-liberal comprehensive doctrines. You are allowed to possess them at the beginning of the political process; however, such doctrines would ultimately be overpowered by both politically liberal and ultimately comprehensive liberal acculturation. Since liberal values are embodied in the basic structure of [liberal] society and enjoy enormous power and prestige, Rawls hopes that all, or at least most, comprehensive doctrines would over time adjust to and be informed by political liberalism. Since the latter is grounded in comprehensive liberalism, this would mean the dominance of the latter over other comprehensive doctrines. Rawls’s political liberalism is, or could be seen by some as, not a principled and self-limiting moral position but a political device with a large hidden agenda. (Parekh, 2006, p. 88) I find Parekh’s claim here to be powerful and convincing. In practice, the operationalization of public reason and the duty of civility necessitates that one only engages with certain elements contained within their broader comprehensive doctrine—specifically the elements that nicely jibe with public reason. At the same time, one basically must abandon those that do not. We can see here how this leads to a slippery slope in which over time public reason gradually transforms a comprehensive doctrine into one that is increasingly liberal. An ample amount of evidence has been provided above to demonstrate the plausibility of viewing political liberalism as “not a principled and self-limiting moral position.” So, while political liberalism consciously seeks to escape the shackles of comprehensive Enlightenment liberalism, nonetheless, it can never full exorcise itself from it. Political liberalism still shares the same transformative tendencies as comprehensive liberalism even if they are less readily apparent. This perhaps makes political liberalism even more of a threat to non-liberal comprehensive doctrines such as Islam than comprehensive liberalism where the threat is more obvious. Another useful example to illustrate the points made above is Karl Popper’s (1947, p. 226) famous paradox of toleration which appeared in the notes (note 4 in chapter 7) of volume 1 of The Open Society and its Enemies: If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be most unwise. But we should claim the right

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even to suppress them, for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to anything as deceptive as rational argument, and teach them to answer arguments by the use of their fists. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. For Popper, being that certain views are antithetical to a “free” (i.e. liberal) society, those particular views must ultimately be suppressed and limited in order to preserve the society more generally.21 Such intolerant views can be tolerated so long as they do not become powerful or a threat to the liberal society more broadly construed. When such views do become powerful and a threat to the liberal order, then suppression is necessary. Herbert Marcuse made a similar argument (although from a much different ideological starting point than Popper) when articulating his own notion of repressive toleration. In Repressive Tolerance, Marcuse (1965, p. 100) explained that in order to get back to the liberalist ideals of John Stuart Mill, one had to first “[withdraw the] toleration of speech and assembly from groups and movements” opposed to liberal progress in its purest form—liberal values untainted by instrumental rationality and domination. The capitalist mode of production ushered in a new, more oppressive mode of propaganda production and imagery that was predicated on the misuse and manipulation of language. As a result, Marcuse (1965, p. 111) argues that “efforts to counteract […] dehumanization must begin at the place of entrance, there where the false consciousness takes form (or rather: is systematically formed)—it must begin with stopping the words and images which feed this consciousness.” His overall conclusion was: the objective of tolerance would call for intolerance toward prevailing policies, attitudes, opinions, and the extension of tolerance to politics attitudes, and opinions which are outlawed or suppressed. In other words, today tolerance appears again as what it was in its origins, at the beginning of the modern period—a partisan goal, a subversive liberating notion and practice. (1965, p. 81) While repressing speech and ideas that were antithetical to human progress and liberation, Marcuse called for a type of liberating tolerance to take the place of repressive tolerance that would promote language and discourses conducive to freedom and liberation from capitalist modes of domination and oppression. All of this seems reasonable enough. Except for the most puritanical free speech libertarians, I think that most people today would accept that certain forms of mobilized speech—such as hate speech from neofascist groups seeking to harm minorities or religious extremists seeking to force a fundamentalist form of government on an unwilling populace—ought to be constrained at least to

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some degree in the name of public safety and national security. However, when getting to the root of what all of this means, one can see that this is an undeniable “truth claim” of sorts as to the type of society a liberal order presupposes and under what conditions other comprehensive doctrines (or at least illiberal views) can be excluded from public political discourse. Marcuse goes as far as admitting that toleration is “a partisan goal” connected to liberal values, while Rawls himself (1999, p. 193) even admits that when push comes to shove, self-preservation takes priority over toleration: While an intolerant sect does not itself have title to complain of intolerance, its freedom should be restricted only when the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger. While this might not be a moral truth claim proper, it certainly seems, at minimum, awfully close to one. This “intolerance of intolerance” certainly fits within the realm of prescriptions regarding “associational relationships” mentioned in Rawls’s account of comprehensive doctrines.

Conclusion This chapter sought to give further credence to Charles Taylor’s (1985) more general argument that liberalism, despite its claims to be a neutral arbiter, ultimately is nonetheless yet another conception of the good. Daniel Weinstock (2015, p. 121) nicely analyzed Taylor’s basic position, commenting that Taylor saw societies that protect “individual rights so that people can lead lives according to their own lights” as embodying, at minimum, “a partial, historically and culturally situated, conception of the good, rather than standing somehow ‘above’ such conceptions.” Most of liberalism’s contemporary critics have argued that liberalism is something that cannot be understood only in its limited political sense; any iteration of liberalism ultimately is in fact a transformative project. All forms of liberalism possess an undeniably transformative character that seeks to maximize autonomous individual agency which itself is the essential feature of Joseph Raz’s understanding of perfectionist liberalism. Raz does not definitively define what is constitutive of autonomous activity; however, others have made it clear that the proper liberal realization of autonomous activity involves maximizing individual liberty one way or another. While political and comprehensive liberalism most certainly are not identical, they do certainly share an undeniable familial relation. This chapter aimed to show that efforts to fully divorce the two are not feasible. If political liberalism— as Rawls suggests—genuinely is not at all contingent upon any particular comprehensive doctrine, then perhaps there is more room for malleability between political liberalism and Islam. On the other hand, if political liberalism, even if it seeks to claim otherwise, remains rooted within the standard Enlightenment

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liberal conception of the good life as this chapter aimed to show, then finding a genuine overlapping consensus between the two, beyond a tenuous modus vivdeni at best, becomes even more challenging.22 While pragmatic compromises of this nature have often been essential for the success of liberal toleration-oriented discourses and liberalism more generally, nonetheless, such accounts fail to account for the moral appeal of genuine toleration—something that liberalism supposedly takes seriously. After all, for Berlin, pluralism is not really pluralism if it operates merely as a means to an end. Such compromises based on practical exigencies by definition are not stable because they generally are contingent upon certain power dynamics that enabled them in the first place. Once those power dynamics shift, the pragmatic reasons for maintaining the compromise may no longer hold, thus potentially resulting in renewed conf lict. Inherent within Rawls’s iteration of political liberalism, there is a not-so-subtle recognition of what is and is not acceptable in terms of certain comprehensive doctrines. This ultimately presupposes a certain latent conception of the good, or at least a conception of the not good, which itself I do not believe can be properly understood or even articulated without some rudimentary conception of the good. Even if one tries to argue that this declaration is merely a condemnation of what is wrong rather than a positive affirmation of any particular comprehensive doctrine, Rawls’s claim that political liberalism is a neutral arbiter regarding competing conceptions of the good and metaphysical truth claims remains dubious. Rawls’s reasonableness corollary as a prerequisite for public discourse remains an unresolved and potentially problematic issue; it potentially excludes many lines of religious-rooted reasoning (or even certain religious discourses more generally) a priori. While Samuel Huntington may have made many objectionable points in his Clash of the Civilizations argument, one thing that does seem accurate is his depiction of the West’s continued misguided belief in the universality of its values and political systems regardless of one’s pre-existent religious beliefs or local customs. While in the Trump era, the West seems to have moved more toward supporting pliant authoritarian regimes rather than promoting democratization in the Middle East, Western nation-states—including the United States even under Trump—still seem quite interested in pushing their “universal” liberal social and economic norms. For Huntington this type of behavior will only further antagonize other civilizations and lead to more conf lict, and on this particular point, I think he is spot on.

Notes 1 In an email correspondence with Professor Quong (2018), he commented that he also agrees that, in general, liberals prioritize liberty as the sine qua non of liberalism but noted that the version of liberalism he prefers prioritizes pluralism. Isaiah Berlin (1991, p. 79) argued that pluralism assumes rationality and genuine tolerance, thus requiring us “To look upon life as affording a plurality of values, equally genuine, equally ultimate, above all equally objective; incapable, therefore, of being ordered

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4 5 6

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8 9 10

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in a timeless hierarchy, or judged in terms of some one absolute standard” (cited in Nussbaum, 2011, p. 8). As Nussbaum notes, pluralism therefore is an enduring truth statement regarding the objective status of values. It should not be understood as something one does not really believe in, but practices anyway in order to avoid conf lict; this does not constitute genuine pluralism. Meister (2002, p. 119) goes on to contend that Shklar’s liberalism of fear is a sharp contrast to other iterations of liberalism such as John Rawls liberalism of hope. The recognition of the importance of limiting arbitrary, unchecked power has been a hallmark of liberal thought for centuries. Benjamin Constant (d. 1830 C.E.) comments in the revised edition of his 1806 work Principes de politiques in 1815 that “No authority upon earth is unlimited, neither that of the people, nor that of the men who declare themselves their representatives, nor that of the kings, by whatever title they reign, nor, finally, that of the law, which, being merely the expression of the will of the people or of the prince, according to the form of government, must be circumscribed within the same limits as the authority from which it emanates” (cited in Vincent, 2011, p. 179). Vincent comments that for Constant, “Political sovereignty must be limited to leave as great a space as possible for the liberties of individuals, which must be protected” (2011, p. 179). This sentiment was also echoed by Constant’s contemporary and fellow intellectual collaborator, Madame de Staël (d. 1817 C.E.). For a more detailed discussion on the notions of autonomy and heteronomy and how people conceptualize their societies, see C. Castoriadis, L'Institution imaginaire de la société (Paris: Le Seuil, 1975). Regarding the notion of generality, Rawls (1996, p. 13) contends that “A moral conception is general if it applies to a wide range of subjects, and in the limit to all subjects universally.” According to Nussbaum, Larmore started this debate regarding perfectionist liberalism commenting that it can be understood “as a family of views that base political principles on ideals claiming to shape our overall conception of the good life, and not just our role as citizens”; elsewhere he says that these views involve controversial ideals of the good life, or views about “the ultimate nature of the human good” (2011, p.5). Nussbaum quotes Larmore’s, The Morals of Modernity (Cambridge: Cambridge Press, 1996). pp. 122, 132. Mackie, a staunch atheist, began his most important work, Ethics: Inventing Right and Wrong, by famously declaring: “There are no objective values” (1990, p. 15). He also believed that “in general people do not and cannot make an overall choice of a total plan of life” (1978, p. 355). One can see how such a vision would run into immediate problems within an Islamic moral epistemology. According to Quong (2011, p. 3), “Perfectionists endorse Raz's claim […] that political action should be directed toward helping individuals lead good lives, and discouraging individuals from leading bad or worthless lives.” More recently Vallier and Muldoon (2020, p. 2) have argued that even trying to “impose a political conception [of justice] on a reasonable person who rejects it […] would be similar to imposing a conception of the good on her that she rejects.” It seems that Raz recognizes the dangers of destroying a community and is more supportive of gradually transforming a community when possible. According to Raz (1988, p. 424): “Time and again I have emphasized that people can successfully enjoy an autonomous life only if they live in an environment which supports suitable social forms. By hypothesis members of the autonomy-rejecting group lack this support in their communities. Wrenching them out of their communities may well make it impossible for them to have any kind of normal rewarding life whatsoever because they have not built up any capacity for autonomy. Toleration is therefore the conclusion one must often reach. Gradual transformation of these minority communities is one thing, their precipitate disintegration is another.” Condorcet was not as original of a thinker as someone like Voltaire, Locke, or Rousseau. Rather he is often seen as the great synthesizer of his predecessors (Koyré,

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1948). This likely accounts for why he is less remembered than some of his contemporaries despite his own notable achievements. Nonetheless, he is read in just about any serious contemporary graduate level seminar on Enlightenment thought. Louis Dupré (1998, p. 813) notes that in the Critique of Pure Judgement, Kant makes it clear that over time, “our species was finally becoming more reasonable,” and that “the teleological principle [was] indispensable for any kind of methodological knowledge, though that principle itself remained beyond rational proof.” James and J.S. Mill’s positions on imperialism were unique in comparison to other figures of the Scottish Enlightenment and Jeremy Bentham. According to Pitts (2005, p. 133), “The younger Mill also retreated from the relatively subtle account of historical development elaborated by the Scots, in favor of a rough dichotomy between savage and civilized, and he too combined this historical argument with utilitarian ones to justify despotic, but civilizing, imperial rule.” According to J.S. Mill (2006[1859], pp. 261–262) on this matter: “When the contest [for power and control] is only with native rulers, and with such native strength as those rulers can enlist in their defence, the answer I should give to the question of the legitimacy of intervention is, as a general rule, No.” Fukuyama (1992, p. 46) goes further than just arguing that Islam is not congruent with liberalism; rather he contends that Islam poses a direct challenge to it: “And Islam has indeed defeated liberal democracy in many parts of the Islamic world, posing a grave threat to liberal practices even in countries where it has not achieved political power directly. The end of the cold war in Europe was followed immediately by a challenge to the west from Iraq, in which Islam was arguably a factor.” While this point is very debatable, it still is representative of a view that is held by several scholars, most notably Samuel Huntington (1996) whose Clash of the Civilizations, written partially in response to Fukuyama, made it clear that future conf licts would be rooted in deep-seated civilization differences primarily related to religion and culture more so than disagreements between nation-states over material resources alone. In Huntington’s analysis, Islamic civilization was the West’s most formidable foe. Larmore differs from Quong in the sense that he is not necessarily advocating for any type of pluralism either. Larmore (1996, p. 122) notes that: “This doctrine is itself an affirmation about the ultimate nature of the human good.” See, Isaiah Berlin (2002). Two Concepts of Liberty. In: H. Hardy, ed. Liberty: Incorporating Four Essays on Liberty. Oxford, UK: Oxford University Press. pp. 166– 217, for more on negative and positive liberty. An ample amount of evidence exists in the literature on conf lict resolution that empirically shows how both civil wars and international conf licts that hinge upon ethno-religious claims often are the most intractable and enduring of conf licts (Svensson, 2013; Basedau et al., 2011; Svensson, 2007; Telhami, 2005). Telhami (2005) for example has argued that as the Israeli–Palestinian conf lict has taken on more Messianic connotations in recent years, as opposed to how it was previously understood by the main belligerents—as a nationalistic dispute over land claims—it has become more polarizing and less likely to be peacefully resolved anytime soon. March (2007, p. 400) further develops Rawls’s claim regarding political liberalism by arguing that political liberalism “is purely a doctrine of social and political cooperation. It seeks to elaborate the most reasonable public conception of justice and citizenship for free and equal persons, given the existence of disagreement on the ultimate meaning of life and the epistemological foundation for discovering it.” Regarding the essential liberal ideal surrounding multiple value conceptions of the good, Rawls (1985, p. 249) comments that “the historical origin of this liberal supposition is the Reformation and its consequences.” Scheff ler (1994, p. 4) also notes the controversial nature of the pluralistic thesis and liberal toleration, noting that “liberalism’s professed toleration of differing conceptions of values turns out to depend on a more fundamental commitment to a particular conception of value, a conception which will be uncongenial or even abhorrent to

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some of the very evaluative outlooks that liberalism purports to tolerate, and which will not therefore, serve to recommend liberal institutions who share those outlooks.” 22 A modus vivdeni is basically the opposite of a genuine overlapping consensus. Sam Scheff ler (1994, p. 5) described a modus vivdeni as “a strategic compromise among contending social groups, none of whom is in a position to impose its preferred way of life on the others without intolerable cost, and each of whom therefore accepts a policy of mutual tolerance as the best that it can hope to achieve under the circumstances.”

References Allawi, A. (2009). The Crisis of Islamic Civilization. New Haven, CT: Yale University Press. Basedau, M., Strüver, M.G., Vüllers, J., and Wegenast, T. (2011). Do religious factors impact armed conf lict? Empirical evidence from Sub-Saharan Africa. Terrorism and Political Violence, 23(5), 752–779. Berlin, I. (1991). The Crooked Timber of Humanity: Chapters in the History of Ideas. New York, NY: Alfred A. Knopf, Inc. Berlin, I. (2002). Two concepts of liberty. In H. Hardy (Ed.), Liberty: Incorporating Four Essays on Liberty (pp. 166–217). Oxford, UK: Oxford University Press. Brown, E. (2003). Rawls and the duty of civility. In S. Gorman (Ed.), Locations of the Political (Vol. 15. pp. 1–18). Vienna: IWM Junior Visiting Fellows Conferences. Castoriadis, C. (1975). L'Institution imaginaire de la société. Paris: Le Seuil. Condorcet, N. (2012). Political Writings. Edited by S. Lukes and N. Urbanati. Cambridge, UK: Cambridge University Press. Dreben, B. (2003). On Rawls and political liberalism. In S. Freeman (Ed.), The Cambridge Companion to Rawls (pp. 316–346). Cambridge, UK: Cambridge University Press. Dupré, L. (1998). Kant’s theory of history and progress. Review of Metaphysics, 51(4), 813–828. Dworkin, R. (2000). Sovereign Virtue. Cambridge, MA: Harvard University Press. Dworkin, R. (2011). Justice for Hedgehogs. Cambridge, MA: Harvard University Press. El Amine, L. (2020). Political liberalism, western history, and the conjectural non-west. Political Theory, 1–25. doi: 10.1177/0090591720927802. Fadel, M. (2008). The true, the good and the reasonable: The theological and ethical roots of public reason in Islamic law. Canadian Journal of Law and Jurisprudence, 21(1), 5–69. Fortier, J. (2010). Can liberalism lose the enlightenment? Journal of Politics, 72(4), 1003–1013. Fukuyama, F. (1992). The End of History and the Last Man. New York, NY: Free Press. Hallaq, W. (2013). The Impossible State: Islam, Modernity, and Modernity’s Moral Predicament. New York, NY: Columbia University Press. Hedrick, T. (2015). Liberalism as a comprehensive doctrine. In J. Mandle and D. Reidy (Eds.), The Cambridge Rawls Lexicon (pp. 445–446). Cambridge, UK: Cambridge University Press. Hobsbawm, E. (1996). The Age of Revolution: 1789–1848. New York, NY: Vintage Books. Huntington, S. (1996). The Clash of Civilizations and the Remaking of World Order. New York, NY: Simon & Schuster. Ivison, D. (1995). The art of political liberalism. Canadian Journal of Political Science/Revue canadienne de science politique, 28(2), 203–226. Jackson, T. (2015). Political Agape: Christian Love and Liberal Democracy. Grand Rapids, MI: Wm. Eerdmans Co.

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Koyré, A. (1948). Condorcet. Journal of the History of Ideas, 9(2), 131–152. Larmore, C. (1996). The Morals of Modernity. Cambridge, UK: Cambridge Press. Levy, J. (2018). Who’s afraid of Judith Shklar? Foreign Policy [online] 16 July. [Viewed 11 August 2018] Available at: https://foreignpolicy.com/2018/07/16/whos-afraid-of -judith-shklar-liberalism/. Mackie, J.L. (1978). Can there be a right-based moral theory? Midwest Studies in Philosophy, 3(1), 350–359. Mackie, J.L. (1990). Ethics: Inventing Right and Wrong. New York, NY: Penguin Books. March, A. (2007). Reading Tariq Ramadan: Political liberalism, Islam, and “overlapping consensus.” Ethics & International Affairs, 21(4), 399–413. Marcuse, H. (1965). Repressive tolerance. In R.P. Wolff, B. Moore Jr., and H. Marcuse (Eds.), A Critique of Pure Tolerance (pp. 82–117). Boston, MA: Beacon Press. Mehta, U. (1999). Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought. Chicago, IL: University of Chicago Press. Meister, R. (2002). The liberalism of fear and the counterrevolutionary project. Ethics & International Affairs, 16(2), 118–123. Mill, J.S. (2001 [1859]). On Liberty. Kitchener, ON: Batoche Books Limited. Mill, J.S. (2006 [1859). A few words on non-intervention. New England Review, 27(3), 252–264. Nussbaum, M. (2011). Perfectionist liberalism and political liberalism. Philosophy & Public Affairs, 39(1), 3–45. Parekh, B. (1995). Liberalism and colonialism: A critique of Locke and Mill. In J.N. Pieterse and B. Parekh (Eds.), The Decolonization of Imagination: Culture, Knowledge and Power (pp. 81–98). London, UK: Zed Books. Parekh, B. (2006). Rethinking Multiculturalism: Cultural Diversity and Political Theory (2nd ed.) Cambridge, MA: Harvard University Press. Pitts, J. (2005). A Turn to Empire: The Rise of Imperial Liberalism in Britain and France. Princeton, NJ: Princeton University Press. Popper, K. (1947). The Open Society and Its Enemies: The Spell of Plato (Vol. 1). London, UK: Routledge. Quong, J. (2018). Email correspondence, 29 November. Quong, J. (2011). Liberalism without Perfection. New York, NY: Oxford University Press. Rawls, J. (1985). Justice as fairness: Political not metaphysical. Philosophy & Public Affairs, 14(3), 223–251. Rawls, J. (1996). Political Liberalism. New York, NY: Columbia University Press. Rawls, J. (1999). A Theory of Justice (Revised ed.). Cambridge, MA: Harvard University Press. Raz, J. (1988). The Morality of Freedom. New York, NY: Oxford University Press. Rorty, R. (1991). Objectivity, Relativism and Truth. Cambridge, UK: Cambridge University Press. Said, E. (1980). The Question of Palestine. New York, NY: Vintage Books. Scheff ler, S. (1994). The appeal of political liberalism. Ethics, 105(1), 4–22. Shklar, J. (1982). Putting cruelty first. Daedalus, 111(3), 17–27. Shklar, J. (1989). The liberalism of fear. In N. Rosenblum (Ed.), Liberalism and the Moral Life (pp. 21–38). Cambridge, MA: Harvard University Press. Siedentop, L. (2014). Inventing the Individual: The Origins of Western Liberalism. Cambridge, MA: Harvard University Press. Svensson, I. (2007). Fighting with faith: Religion and conf lict resolution in civil wars. The Journal of Conflict Resolution, 51(6), 930–949.

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Svensson, I. (2013). One God, many wars: Religious dimensions of armed conf lict in the Middle East and North Africa. Civil Wars, 15(4), 411–430. Taylor, C. (1985). Philosophical Papers. Vol. II: Philosophy and the Human Sciences. Cambridge, UK: Cambridge University Press. Taylor, C. (2007). A Secular Age. Cambridge, MA: Harvard University Press. Telhami, S. (2005). Beyond resolution? The Palestinian-Israeli conf lict. In C. Crocker, F.O. Hampson, and P. Aall (Eds.), Grasping the Nettle: Analyzing Cases of Intractable Conflict (pp. 357–374). Washington, DC: United States Institute of Peace. Press. Vallier, K. (2014). On Jonathan Quong’s sectarian political liberalism. Criminal Law and Philosophy, 11(1), 175–194. Vallier, K., and Muldoon, R. (2020). In public reason, diversity trump’s coherence. Journal of Political Philosophy, 1–20. Advanced online publication. doi: 10.1111/jopp.12227. Vincent, K.S. (2011). Benjamin Constant and the Birth of French Liberalism. New York, NY: Palgrave. Weinstock, D. (2015). Communitarianism. In J. Mandle and D. Reidy (Eds.), The Cambridge Rawls Lexicon (pp. 119–125). Cambridge, UK: Cambridge University Press.

4 “ISLAMS” Rethinking the question “what is Islam?” and rearticulating it as a coherent discursive tradition despite the multiplicity of local traditions

If we are to talk about liberalisms, then we are obliged to also engage in a discussion about Islams as well. The question of what is Islam? has become increasingly salient in recent decades (Sulaiman, 2018; Ahmed, 2015; Asad, (2009[1986]); Anjum, 2007; Gilsenan, 1982; El Zein, 1977). Can a conclusive, essentialized account of Islam as a unified, singular discursive meta-tradition be offered? I do not think it can; a multiplicity of interpretations, sects, and dogmas have emerged over the centuries that only the most rigid sectarian partisan would deny still fall somewhere within the broader umbrella that is Islam. As a matter of fact, a wide range of iconic Islamic scholars over the centuries including Imam Al-Shā fiʿī (d. 820 C.E./204 A.H), Ibn Qutayba (d. 889 C.E./276 A.H.), Al-Ghaz ā l ī (d. 1111 C.E./505 A.H.) and Ibn Taymiyya (d. 1328 C.E./728 A.H.) all understood scholarly disagreement or ikhtilāf as a mercy and blessing from Allah (Charnay, 1971). So then if a unified, single account of Islam is not feasible, is this entire project itself rendered incoherent? I do not think this is the case either. This chapter contends that while a unified, conclusive discursive account of “Islam” (with the capital “I”) may be difficult to provide, it is plausible to offer a coherent account of Islam (once again, with the capital “I”) that will be palatable to most readers. This is what the previous chapter sought to do in its discussion of liberalism. This seems to be the case with any expansive ideology or system of belief; while offering a conclusive account may not be possible, one still may be able to offer one that is coherent and plausible. Plausibility, however, does not speak for itself; it needs to be backed with sound argumentation. To help bolster the plausibility of my claims, this chapter will engage with Ludwig Wittgenstein’s (1988[1953]) notion of family resemblances and the idea of prototype theory which first emerged within the field of cognitive science a few decades ago. With this in mind, the burden of proof is much lower for demonstrating that a

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plausible and coherent ontology of Islam is possible as opposed to a “definitive” one where the bar is significantly higher, if not impossible to meet altogether.

Anthropology and Islam(s) One of the recurring themes in the work of Edward Said was the idea that Western societies regularly make efforts to transform “things Oriental into manageable parts” (1978, p. 72). This resonates with Hamid Dabashi’s (2012, p. 250) more recent contention regarding the malevolence of Western imperialism, an imperialism that has, in his words, “preempted our world by seeking to understand us,” further noting that it has done this “by digesting us in their own régime du savoir” in a manner that has been “world-devouring.”1 In order to digest and devour a complex tradition, however, much like an ornate multi-layered wedding cake, one must break down things into Said’s aforementioned manageable parts. This is done via the creation of false binaries which themselves are directly attributable to Enlightenment thinking and the rise of instrumental rationality.2 This has often been the Orientalist’s go-to solution when it comes to making sense of non-Western societies. Ironically, for Said, one of the West’s favorite essentializing binaries—constructs themselves that collapse intermediate zones of critical inquiry and questioning thus limiting dynamism and f lexibility—was related to how Western culture was the one that was dynamic and f lexible. The Orient, on the other hand, was unchanging, timeless, and rigid. This portrayal of “East versus West” is not just attributable to culture warriors and the media, either. Earlier Orientalist scholars who genuinely sought to take their subject matter seriously also often reduced Islam to only the words and sayings of a few canonical texts and heralded scholars of the past. Ernest Gellner (1981, p. 1), for example, contended that Islam offered a finished “blueprint for a social order” as if the believers themselves played almost no role in Islam’s trajectory. Such attitudes only further feed into Orientalist tropes regarding non-Western societies as being unchanging, timeless, and rigid. Many later twentieth-century anthropologists and sociologists, however, took Said’s claims seriously but, in many cases, seemed to throw the baby out with the bathwater. Some of these efforts to move beyond binaries and timeless metatraditions took place even prior to Said’s publication of Orientalism in the late 1970s. About a decade prior to Said’s groundbreaking work, Clifford Geertz (1968 offered his own somewhat groundbreaking anthropologically rooted hermeneutical analysis of localized Islamic cultural traditions in Indonesia and Morocco. His study was unique in that it largely ignored the actual theological content that permeates these societies. It was representative of a new class of anthropological studies in which, according to Bowen (1993, p. 5), “cultures and regions were placed in the forefront” while “the features of religious life that were more broadly distributed across Muslim societies remained in the background.” In Geertz’s work, “[r]ituals of regular worship, acts of prayer or

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sacrifice, or vernacular texts on law or history were by and large left to those specialists interested in the high culture, or ‘great tradition’” (Bowen, 1993, p. 5). Geertz was primarily interested in exploring the “little tradition” (or “little traditions”) in his work.3 As one would expect with comparative scholarship exploring “little traditions,” Geertz (1968, p. 2) focused primarily on symbols and social arrangements: Whatever the ultimate sources of the faith of a man or group of men may or may not be, it is indisputable that it is sustained in this world by symbolic forms and social arrangements. What a given religion is—its specific content—is embodied in the images and metaphors its adherents use to characterize reality. He concludes that the proper understanding of religion lies within understanding the numerous elements that lie outside text itself, and somewhat shockingly notes that most adherents of their religion do not even really understand what they are experiencing: even with the best will in the world an informant will have some difficulty in recapturing and formulating what religion amounts to for him, and indeed he is almost certain to render it in terms of commonsense stereotypes and rationalizations which are useful for understanding common sense but may be positively misleading if taken for veridical reports of what goes on in a ritual, the recital or hearing of a myth, the curing of a patient, or whatever. (Geertz, 1968, p. 109) He goes on to reference Sigmund Freud’s Die Traumdeutung [The Interpretation of Dreams] (1899), commenting that the follower of the religious experience is themselves similar to the person who just awoke from a dream: “For the dreamer too is absorbed in his experience while dreaming, takes it, for all its wild irrationality, as profoundly real and can report on it only after he awakes” (1967, p. 109). What Geertz seems to be implying is that the individual during a religious experience—like the person during a dream—lacks the capacity to properly articulate what is actually going on. They are trapped in some type of fugue state and even when awakening from it can only vaguely remember most of the details. Therefore, for Geertz, to properly understand religion, one must move beyond the text and theological tradition since the practitioner themselves does not even really fully understand what they are practicing. Surely this is a farfetched and misguided way to conceptualize a particular religion or the phenomenon of religion more generally. Geertz at least recognized the two different dimensions of religion: tradition and experience (El Zein, 1977; Anjum, 2007). He simply prioritizes experience in his analysis and downplays the theological aspect; he never comments that it

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does not exist or is totally incoherent. Abdul Hamid El Zein (1977, p. 252), on the other hand, posited that “[t]here are no privileged expressions of truth” and, ultimately, one could not speak of “Islam”; all one could actually do is speak of different “Islams.” Michael Gilsenan (1982), rooted in El Zein’s method, similarly posited that none of the various “Islams” could be dismissed and that Islam should be understood in a purely sociological sense as related to individuated practices, attitudes, and beliefs without any reference to a unified core set of beliefs or values. Talal Asad (2009[1986], p. 3) contends that such approaches ultimately result in the proposition “that Islam is simply what Muslims everywhere say it is.” He concludes that if this is the case, then it renders Islam as an incoherent category of analysis and anthropological inquiry. This also raises another question that Asad does not engage with that nonetheless is worth further considering: if Islam is simply what Muslims everywhere say it is, then why cannot Islam also be what non-Muslims everywhere say it is as well, since they too are embedded in a larger social structure that also interacts and engages with Islamic symbols and signs? The rendering of Islam as an incoherent category ultimately subjects its meaning to the whims of hostile hegemonic actors and brute force. If Muslims have no unifying textual/theological referent to fall back upon, someone else undoubtedly will fill that gap for them. If Samir the Muslim’s personal iteration of what Islam is “is Islam,” then why cannot Donald Trump’s personal iteration of what Islam is also “be Islam”? Under characterizations of Islam such as El Zein’s, there is no reason why only Muslims have the privilege of defining what Islam is. Approaches such as El Zein’s ultimately remove agency from Muslims—they are robbed of their ability to control how their own religious discourse is defined. The control of terms and meanings constitutive of a discursive tradition by actors situated outside of it—especially when those terms and meanings are ones that those within it would object to—is imperialism par excellence. The question of what is constitutive of Islam? is hardly novel but nonetheless has yet to be adequately settled. Shahab Ahmed argued that Islam was something that could not be understood as a singular phenomenon, reducible to laws [qawānīn] and revelation [waḥy] in his highly anticipated and controversial posthumously published work, What Is Islam? The Importance of Being Islamic (Princeton University Press, 2015). At the same time, though, he also rejects calls for the type of radical pluralism offered by the likes of El Zein and Gilsenan which he contends ultimately renders Islam as unapproachable. Like the earlier critique offered by Asad, Anjum (2007, p. 671) aptly notes that the problem with approaches such as El Zein’s is that they end “up negating the possibility of Islam as an object of anthropological study—thus leaving no option for the scholars but to study Muslim societies without any reference to Islam.” Ahmed, who also engages with El Zein, levies a similar critique against Bryan Turner who previously had argued that researchers must “abandon all reified notions of ‘Islam’ as a universal essence in order to allow us to study many ‘Islams’ in all their complexity and difference”

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(1989, p. 636; cited in Ahmed, 2015, p. 136). Ahmed notes that what “Turner does not tell us is how those ‘Islams’ are meaningfully to be conceptualized as the plurals of no singular” (2015, p. 136). This is a worthwhile point to further ref lect upon. Instead of taking either what he considers the extreme textually based/legalistic view or the radically decentralized and ultimately “incoherence of Islam” view, Ahmed (2015, pp. 303–304) calls for a multiplicity of sites of investigation for understanding the broader discursive project that is Islam: My point is not that “whatever Muslims say or do is Islam,” but that we should treat whatever Muslims say or do as a potential site or locus for the expression and articulation of being Muslim/Islam—and look at each of those statements with eyes wide open to how they are meaningfully formed and informed by the value of Islam/Islamic. Ahmed’s argument throughout his expansive and elegantly referenced work, which nonetheless has serious issues, is that scholars need to engage with what he calls the entire phenomenon and matrix of Revelation which involves critical hermeneutical engagement with three different levels of Revelation—the Prophet Muhammad (‫ )ﷺ‬as “Pre-Text, Text, and Con-Text.” By doing this, “we are able, once and for all, conceptually to account for, accommodate and understand the relationship between variety and unity in human and historical Islam—and thus to conceptualize Islam in terms of coherent contradiction” (Ahmed, 2015, p. 405). For Ahmed, Islam is best understood as a set of irreconcilable contradictions in which, paradoxically, difference rather than agreement tends to be the unifying feature of the discourse. However, I contend that arguing from difference is not an effective way to prove any type of meaningful discursive coherence. Without a certain metaphysical commitment to the nature of reality, one cannot offer any type of representation of Islam.

Introducing family resemblances and prototype theory to the study of Islam as a discursive concept As noted in this book’s introduction chapter, Asad (2009[1986]) has argued that there does in fact exist a way to begin trying to understand Islam as a unified phenomenon. This is done by first investigating its authenticated primary sources.4 Even someone critical of the idea of a unified, single Islam such as Ahmet Karamustafa (2010, p. 95) still concedes the point that the idea of a universal Muslim community “has always existed as an idea, or rather, as a cluster of visions of community since the beginning of Islamic history.” While universal agreement on all the fine details regarding the interpretation and understanding of these sources remains elusive (if not impossible), I contend that—like Asad and Anjum—a coherent set of basic principles can be drawn from “Islam” as a meta-category.

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For more insight into this, one can draw from Wittgenstein’s (1988[1953]) famous notion of family resemblances which basically posits that a thing widely believed to be connected by one essential common feature may in fact be connected by a series of overlapping similarities. Regarding certain games (he gives the example of the children’s game ring-a-ring-a roses), he comments: we see a complicated network of similarities overlapping and criss-crossing: sometimes overall similarities, sometimes similarities of detail. I can think of no better expression to characterize these similarities than “family resemblances”; for the various resemblances between members of a family: build, features, colour of eyes, gait, temperament, etc. etc. overlap and criss-cross in the same way. (1988[1953], §66–67) It is important to remember that in Wittgenstein’s characterization of family resemblances, no one feature is necessarily common to all the things being categorized. This does not quite work for the Islam example because it is being posited that there are multiple common features connected to “Islam” as a meta-category such as Divine Revelation, the Prophethood of Mohammed (‫)ﷺ‬, and the Qur’ā n among many others. Nonetheless it is a useful starting point for constructing a coherent Islam. Looking toward prototype theory, which developed out of Wittgenstein’s notion of family resemblances, proves much more useful. Earlier theories of concepts saw concept formation as definitional in the sense that any particular concept X was composed of certain necessary and sufficient conditions to be a member of X. Being a chair or “chairness” entails having legs, being elevated, and having an area to sit on. However, one can easily find other things, such as tables, that possess legs, are elevated, and have enough area to sit on. Does this mean chairs and tables are the same? Obviously, they are not. This simple example aptly illustrates the main shortcoming of the classical theory regarding concept formation; it seeks to offer clearly demarcated, final definitions of certain objects and concepts, but these definitions in and of themselves rarely are sufficient. “Chairness” and “tableness” in practice are often dependent upon how they are used and how they are understood by their human subjects. A table, in certain instances, may actually be more of a chair based on how it is being utilized, while a chair can easily be a table when utilized in a certain manner. The idea of meaning-as-use can be found in Wittgenstein’s Philosophical Investigations: “For a large class of cases—though not for all—in which we employ the word ‘meaning’ it can be defined thus: the meaning of a word is its use in the language” (1988[1953], §43). Much of Wittgenstein’s Philosophical investigations aims to show the insufficiency of meaning simply understood as mere definition. His work shows that meaning, even as definition, presupposes how we actually use a word, thing, or concept. We do not have to have a perfect definition of a

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thing to understand the general gist of it—we still are able to use and understand a thing or concept without an indisputable, universally assented to definition.5 Being a Muslim—at least as understood by most Muslims—has a few necessary conditions such as the belief in one God and the belief in the Prophet Muhammad (‫ )ﷺ‬as the final prophet [khātam an-nabīyīn] that God sent to the world before the Day of Resurrection as noted in Qur’ā n (2004: 33:40): “Muhammad (‫ )ﷺ‬is not the father of any of your men, but (he is) The Messenger of Allah, and the Seal of the Prophets.”6 However, the question as to whether holding these two beliefs alone are sufficient conditions for one to be categorized as “Muslim” remains less clear. What if you believe in one God and the Prophet Muhammad (‫ )ﷺ‬as being the seal of the prophets but deny the Day of Resurrection, or what if you do not believe in one of the five pillars of Islam such as paying the zak āt? Some scholars, such as Ibn Qud ā ma (1983) in his Al-Mughnī, have gone as far as arguing that those who belie the obligation of zak āt remove themselves from the fold of Islam altogether.7 His position is wellgrounded and is based in historical realities. Almost immediately following the death of the Prophet Muhammad (‫)ﷺ‬, certain Arab tribes declared that they still considered themselves Muslim, but would no longer pay zak āt to his successor, Abū Bakr a ṣ - Ṣidd īq. Most of these people held the opinion that zak āt was only payable to the prophet (‫ )ﷺ‬and since he was no longer alive this obligation no longer held. This caused great fitna within the early Islamic community. Despite the future Caliph ʿUmar ibn al-Khaṭṭāb’s initial reservations on making these tribes pay zak āt in the name of maintaining unity, the ruling Caliph, Abū Bakr a ṣ - Ṣidd īq, unequivocally told him: By Allah! I will fight those who differentiate between the prayer and the Zakat as Zakat is the compulsory right to be taken from the property (according to Allah’s orders) By Allah! If they refuse to pay me even a shekid which they used to pay at the time of Allah’s Messenger (‫)ﷺ‬. I would fight with them for withholding it.8 (Ṣaḥīḥ al-Bukhār ī, 2002, 2:24 [no. 1400], p. 279).9 This was one of the major events that ushered in the bloody Apostasy Wars [Ḥur ūb al-Ridda] that transpired between 632 and 633 C.E. (Shoufani, 1973; Donner, 1986). Since Muslims generally are not supposed to fight other Muslims and considering the actions taken by Abū Bakr during the Ridda Wars against those who did not give zakāt, it is clear—at least in the eyes of Abū Bakr—that this action makes one very deviant at minimum and possibly puts them outside the fold of Islam altogether. Otherwise, he would have been much more reticent to go-to war with these people in the manner that he did.10 Based on the above example alone, it seems apparent that being Muslim goes beyond just the mere utterance of l ā ʾ il āha ʾ ill ā ll āh muḥammadun rasūlull āh even though this utterance is at the core of the Islamic ritualistic-mimetic

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experience.11 Few would disagree with the proposition that the belief in one God and the belief in Muhammad (‫ )ﷺ‬as his final Messenger are essential Islamic beliefs. However, other beliefs differ dramatically between different Islamic schools of theology [ʿaqīda] related to predestiny [qadar] and God’s essential attributes [ṣifat al-dh āt]. There also exist significant differences on more worldly legal matters. Nonetheless, these less universally assented to categories of belief and law also are essential in constituting Islam as a comprehensible category. Here we can see how prototype theory can facilitate a comprehension of Islam as a meta-category. Prototype theory can be understood as a mode of graded categorization and has become prominent in cognitive science in recent decades. Prototype theory’s main argument is that some elements of a category are more central than others. According to Rosch and Mervis (1975, p. 602): The more prototypical a category member, the more attributes it has in common with other members of the category and the less attributes in common with contrasting categories. Thus, prototypes appear to be just those members of the category which most ref lect the redundancy structure of the category as a whole. In a similar vein, Fox (2011, p. 541) contends that prototype theory “decides membership in a category through possession of particular properties, but group membership does not require possession of all qualities—just enough for the fabric of the concept to hold together.” This gives a category or concept meaning without forcing excessive rigidity. It allows for f lexibility while maintaining meaning. “Membership in a category can be determined by resemblance to an ideal exemplar or by possession of a sufficient number of the typical features of the class,” and that “prototype anchors the ideational content of the concept, but does not exclude variants, nor does it deem difference as deviant” (Fox, 2011, pp. 153–154). We can see that there is f lexibility in this outlook, but still there ought to be some core or necessary fabric that holds everything together. The next section will explore possibilities for which core or necessary fabric can offer an account of Islam as a coherent, unified discourse.

So what then is Islam? Asad (2009[1986], p. 2) argues that the anthropological question of what is Islam? has been answered in three different ways by scholars in the field. The first approach posits that “there is no such theoretical object as Islam”; the second sees Islam as “the anthropologist’s label for a heterogeneous collection of items” created by “designated Islamic informants”; and the third claims that “Islam is a distinctive historical totality which organizes various aspects of social life.” Asad is critical of all three. Anjum (2007, p. 671) contends that Asad’s approach “calls for a balance between the agency of the interpreter as it operates within

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given material circumstances and the power of the discursive tradition itself.” It recognizes that “Islam” can be understood as both a lived, historical tradition and one that is heavily dependent upon discourses of power and revelation. The two operate in tandem to reinforce or negate each other. Mohammed Sulaiman (2018, p. 142) nicely explicates Asad’s general position by arguing that, for Asad, the study of Islam should be geared toward formulating a coherent conceptual framework to organize this empirical diversity by accounting for the relationship between Islam as a singular category, on one hand, the multiple local Islamic interpretations, beliefs, and practices embedded within various socio-historical contexts, on the other hand. Asad’s approach is quite similar to what is being offered in this work. He recognizes the multiplicity of beliefs and contexts that ultimately help define the broader Islamic discourse. Islam is therefore both text and practice. However, I posit that the main locus where practice can be traced back to is text. Sulaiman (2018, p. 144) cites Anjum’s (2007, p. 667) claim that Muslims all agree—to the extent that an agreement is possible in a complex world tradition—to begin somewhere, even if, the agreement ends there […] [Islam] is a relationship with certain foundational texts and a particular historical narrative of their origins. Sulaiman himself feels that the overly textual/legalistic approach to orthodoxy excludes too many currents, such as Sufism, from being “properly Islamic” since orthodoxy is ultimately rooted in power and exclusion. Instead he argues that “Divine Revelation,” which cannot be reduced to text, is best suited as the starting nodal point that all further Islamic discourse delineates from—it is something that ascetic Sufis, militant Salafis, and everything in between can all agree upon. Sulaiman’s point is deep and worth further considering; it is hard to disagree that Divine Revelation [waḥy] is indeed both the beginning of all Islamic discourses and subsequently the well-spring from which all further Islamic discourses develop. However, after Divine Revelation—when getting to more concrete, worldly [dunyāw ī[ realities—I still contend that greater weight ought to be placed on text and legal traditions over localized customs and practices [ʿurf ] when trying to conceptualize Islamic orthodoxy and come up with a coherent account of Islam as a more general discursive phenomenon even though both are reinforced and/or negated via practice. After all, it is the more universal textual/ legal traditions that primarily shape local practices and customs rather than the other way around even though I would assent to the fact that local customs and practices do—in practice—often shape Shar īʿa and textual based traditions as well even if not always for the better. So now we can turn to the question of what is constitutive of the necessary fabric to hold the concept of Islam together. I would contend that the necessary

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core that holds Islam together can be readily found within the five pillars of Islam [ārkān al-Islām], which are rooted in Shar īʿa and the Qur’ā n, along with the six articles of faith [ārkān al-ʾīmān] which include: belief in Allah, belief in the Angels, belief in the Holy Books, belief in the Prophets, belief in the Day of Judgement, and belief in predestination. The five pillars of Islam and six articles of faith are so universally present in almost all contemporary mainstream iterations of Islam that it would be impossible to not consider these as part of Islam’s necessary fabric. From the Balkans to Bengal, the five pillars of Islam along with the six articles of faith remain recognizable, unifying themes that hold Islam together even today. The reform-minded Khaled Abou El Fadl (2007) even argues that shah āda (the declaration that “There is no god but God; Muhammad (‫ )ﷺ‬is the Messenger of God”), ṣal āt (the five daily obligatory prayers), zak āt (stipulated annual alms-giving), ṣawm (fasting in Ramadan), and ḥajj (the pilgrimage to Mecca that all able-bodied and financially sufficient Muslims are obliged to make at least once during their lifetime), at least at a purely conceptual level, are all things that any practicing Muslim would agree are inextricable from being a Muslim. While Ahmed problematizes this, his position remains unorthodox and outside the mainstream.12 Even though certain doctrinally extremist [ ghul āt] sects may differ slightly on these five pillars or even add additional ones, overwhelmingly the majority of practicing (and even non-practicing) Muslims would agree that the belief in these elements is what makes a Muslim a Muslim.13 At minimum, we can agree that these pillars and articles are constitutive of Islamic orthodoxy. Following this inner core would be the litany of canonical Islamic scholarship that has emerged over the centuries along with how Muslims lived within the parameters of this necessary fabric. The second level accommodates both text and practice similarly to the first level, except text takes priority. While there may not be universal agreement on which specific secondary texts are inextricable from Islam, most Muslims would at least recognize the more general point that there are some canonical works and legal traditions that cannot be excluded from the corpus Islamicum. Fadel (2008, p. 15) argues that figuring out what should count as constitutive of Islamic comprehensive doctrine ought not be made unnecessarily complicated or controversial: despite the contestability of what should “count” as an Islamic comprehensive doctrine, the identification of majoritarian trends, inf luential scholars and authoritative texts ought not be controversial. An opinion can be identified as representative, for example, if one can corroborate that several authorities expressed the same or similar views. Similarly, a scholar may be fairly identified as inf luential or representative of Islam as a comprehensive theory of the good to the extent that a particular author is quoted by subsequent authors in the tradition.

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The broader Islamic legal tradition for example is largely defined by its most iconic and widely referenced jurists and scholars; one does not have M ālikī fiqh without Imam Mā lik’s (795 C.E./179 A.H.) Al-Muwaṭṭaʾ or Islamic jurisprudence at all for that matter without Imam al-Shā fiʿī’s Kitab ar-Risāla fī Uṣūl alFiqh. While these texts are not as rudimentary to Islam’s inner fabric as Islam’s five pillars, they certainly are inextricable from certain traditions of Islamic jurisprudence, which themselves are deeply connected to the more general Islamic tradition. Following this secondary level, you have tertiary commentaries and developments by later scholars on these aforementioned canonical discourse-setting works that as well are accompanied by certain practices. While these commentaries and developments are extremely valuable, nonetheless they are less rudimentary to the overall discourse than the texts that they analyzed. Then these tertiary commentaries have their own commentaries, and sets of practices that come with them, and so on and so forth; the web loosens the further down one goes. Nonetheless, just because these later works are situated more on the periphery of the web, this does not mean that they are not a part of the overall web. The point here is that if you remove these threads from further down the web, you do not necessarily destroy the web, but if you remove enough of these threads, the web becomes more inf lexible and exclusionary, and ultimately fails to capture the rich tapestry that is the broader Islamic tradition. These examples also resonate with prototype theory’s appeals to an ideal exemplar or by possession of a sufficient number of the typical features of the class alluded to by Fox. If enough of these cases can be brought to bear with a general sense of agreement amongst Muslims—texts and practices that are widely assented to be prototypical of Islam and a discursive tradition—one then has the necessary ingredients to explain a discourse such as Islam as a more generalizable meta-category that remains f lexible but nonetheless still has meaningful content and tangibility. When viewing things from this perspective, the real question becomes: how big of a web does one want to create? In my opinion, this is the real unresolved problem related to the more general question of Islam as a unified, coherent discursive tradition: a web that is too small fails to capture certain things that are very important to the tradition, while a web that is too big potentially waters it down to the point where it eventually becomes incoherent just as El Zein contends it is in the first place. Turning brief ly to the notion of orthodoxy: while we can all argue over what constitutes orthodoxy within Islam, it seems hard to argue that the more general notion of “orthodoxy” does not exist. For centuries scholars have been defining and redefining Islamic orthodoxy in various ways. In the end, Islamic orthodoxy is just another part—albeit an important part—of a larger discursive tradition. In the words of SherAli Tareen (2020, p. 13): “A discursive tradition presents a site of ceaseless contestation, never available for empirical or disciplinary canonization.”14 However, it is important to keep in mind that even though there are

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multiple orthodoxies contained within the larger Islamic discursive tradition, considering the different theological schools’ understanding of orthodoxy, it’s precisely because there were central tenets of Islam that were agreed upon—a meta-orthodoxy if you would like—that earlier scholars were able to distinguish between who was an innovator and who was an outright disbeliever. The very fact that they would label someone an “innovator” instead of a “disbeliever” demonstrates that there was some core to being Muslim that was widely recognized and that of this core, certain elements simply are more essential and inextricable (i.e. meta-orthodoxical) than others. Indeed, orthodoxy is subject to critical reevaluation and change, but to argue that the entire concept of orthodoxy within Islam is absent or cannot exist is a grave mistake. Finally, I would like to point out that if one conceives of Islam as a discursive tradition primarily rooted within texts and laws, then when engaging with categories constitutive of that tradition, it makes little sense to explore “unIslamic” behaviors and actions that transpired within what Marshall Hodgson (1974, p. 59) called “Islamicate culture” which he defined as the “social and cultural complex historically associated with Islam and the Muslims, both among Muslims themselves and even when found among non-Muslims.” For example, consuming alcohol was often a part of Islamicate culture, but unless you take the highly unorthodox position of someone like Shahab Ahmed, it could never be understood as a part of Islamic culture. Like Hodgson, I too hold the position that Islamic culture and Islamicate culture are not one in the same, nor should be investigated in the same manner using the same methodological tools. The rest of this work will primarily analyze texts and ideas rather than symbols and practices. Nonetheless, it remains cognizant of the fact that symbols and practices matter as well when trying to understand Islam as a unified, discursive tradition. I also fully recognize that one could compare liberalism and Islam as shared practices—much as the earlier anthropologists have done in the case of Islam—and come to a different conclusion than what is offered in this work. This perhaps could be a very useful book in the future for someone more ambitious than myself. However, I still think evaluating the textual bases/legalistic bases of each tradition is a worthwhile and necessary enterprise since I firmly hold that the practices and symbols ultimately are dependent upon the textual and theological aspects of Islam.

Conclusion When talking about religion, things always seem to get more complicated. However, let us brief ly look at another example that while not identical still illustrates the same basic point. Let us ask the question: what is America? Similar to Islam, America is also both physical and conceptual at the same time. Is America a set of laws and legal codes? A set of cultural practices? Lines demarcated on a map? For certain, “America” is a combination of all of these. Does this mean the more general concept of America has no meaning

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since we cannot precisely pinpoint what makes America America? Can we only talk about Americas with no singular point of reference or at least a group of closely connected points of reference? I do not believe this to be the case. As a matter of fact, the question of defining America is being hotly debated today throughout all levels of American society; few people would claim that this debate is completely vacuous. While we might never come to a consensus of what America is, most sensible people can offer some type of characterization of widely assented to symbols, signs, and practices that offer a coherent picture of America as an abstract and physical entity, even if they disagree with or are personally opposed to some of these symbols, signs, and practices. There is no reason the same cannot be done with Islam. The final question I will raise here is this: does Islam pass the Pictionary test? In my undergraduate lectures I always like to make the following point to my students: things that can easily be drawn by a typical person in a game of Pictionary such as cats, dogs, or buildings are generally far easier to reach a consensus on regarding meaning in contrast to abstract concepts or ideas. As one classic episode of the popular animated sit-com The Simpsons (1996) aptly pointed out, it is quite difficult to draw a picture of dignity.15 Therefore, one can say that dogs and cats are things that easily pass the Pictionary test (i.e. they are things that one can readily draw a visual depiction of in a matter of seconds that most people will easily be able to identify in a game of Pictionary), whereas dignity does not. Liberalism, I would contend, is a very difficult concept to draw in a game of Pictionary, perhaps not as impossible as drawing dignity, but certainly it represents a “difficult”-rated challenge. One can draw pictures of iconic liberal figures or pictures of constitutions or courtrooms with a very distinct possibility that their partner will never conclude that what is being depicted in the picture is in fact liberalism. I think that this is because liberalism is more abstract than Islam. On the other hand, I think the concept of “Islam”—and most major world religious traditions for that matter—would fare significantly better in this game than liberalism, communitarianism, or any other approach to social organization that does not have a ubiquitous figure such as Karl Marx or Adolph Hitler attached to it who are universally recognized as the figurehead of that ideology by almost all walks of life. At the very least, I would argue that one could figure out that “Islam” is being depicted in a game of Pictionary much quicker than “liberalism.” I am willing to confidently hypothesize that if one drew certain objects affiliated with Islam such as the Qur’ā n, or al-Masjid al-Ḥarām, or a picture of a man that looks like a typical Middle Eastern im ām, most people would blurt out something to the extent of “Islam, Islam; that is Islam!” in a matter of seconds. Why would this be the case? It is because Islam is both theoretical and practical; it is both abstract and concrete at the same time. Some iterations of liberalism such as Quong’s internal conception do not require the practice part. All mainstream traditional iterations of Islam require both. One cannot have Islam without both theory and practice. The physical performance of rituals essential to Islamic practice such

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as prayers, fasting, and alms-giving further give concreteness to the meta-category that is Islam. One can observe someone performing the Muslim prayer and understand that this act is connected to Islam without even knowing the actual content or reason why the person they are observing is performing those physical movements. Most people, even those who only know about Islam in passing, have a basic understanding of certain Islamic symbols and imagery—a set of concepts and signs—that fit within the family resemblance of concepts that constitute Islam. Certain concepts or signs associated with Islam are widely enough understood to signify the meta-category of Islam that few people would have a hard time knowing what these concepts or signs were signifying if they saw them. Even children with elementary understandings of their Islamic faith most certainly can identify a certain set of core principles or beliefs that are universal to all iterations of Islam—Sunnī, Shīʿa, and everything else in between.

Notes 1 Carool Kersten (2019, p. 83) comments that: “Dabashi is very critical of what he refers to as the ‘autonormativity’ of Western thinking, which is the result of its selfproclamation as the benchmark for all critical thinking and intellectual rigor.” This autonormativity can be found in the litany of references made in the previous chapter on Enlightenment liberalism’s self-congratulatory and self-sacralizing tendencies that can be found in writers ranging from Kant to Hegel and beyond. 2 See Max Horkheimer (1947) for more discussion about the trajectory of how Western philosophy came to understand reason over the centuries which over time has moved from an emphasis on objective reason and universal truths, to subjective reason which focuses on means in which the ends are usually related to self-advancement or preservation (i.e., not universal truths), and finally to instrumental reason in which the only real criterion of reason is its operational value; not only do sentimentality and intrinsic value no longer contribute to reason, rather they actually impinge upon reason in its instrumental form. For Horkheimer, this “eclipse of reason” is facilitated by increasingly oppressive modes of capitalist production and domination. The Enlightenment with its incumbent notions of universal history and teleological progress eventually becomes its own myth where cold and calculated scientific rationality—with its emphasis on efficiency and cost-savings—replaces free thought, critical reasoning, the arts, and eventually individual freedom altogether. Hence Adorno’s (1973, p. 320) classic quote from Negative Dialectics: “No universal history leads from savagery to humanitarianism, but there is one leading from the slingshot to the megaton bomb.” 3 Prior to Geertz’s research on localized Islamic traditions, Robert Redfield (1955, p. 14) differentiated between what he termed a “Little Tradition” which represented village folk-culture, and a “Great Tradition” which was largely a product of urban elites, intellectuals, and religious scholars. Redfield (1955, p. 17) notes that unlike the historian whose research is textual, the anthropologist’s research is “contextual: we relate some element of the great tradition—sacred book, story-element, teacher, ceremony or supernatural being—to the life of the ordinary people, in the context of daily life as in the village we see it happen.” 4 According to Anjum (2007, p. 666), Asad contends “that the scholars should pay attention to the Muslims’ discursive relationship to the foundational texts, because that is where all Muslims begin.” 5 The medieval Islamic polymath Ibn Taymiyya had a similar understanding of language and concept formation as Wittgenstein; meaning arises out of use. Both attacked Aristotle’s understanding of concept formation. According to Mustafa

“Islams” 89

6 7 8

9 10

11 12

13 14

15

(2018, p. 472), “Ibn Taymiyyah attacks categorical syllogisms for being incapable of imparting meaningful knowledge, arguing that knowledge arises from the consideration of specific cases and not the extra mental universals that are utilized in categorical syllogisms.” For more comparative analysis of the continuities between the thought of Ibn Taymiyya and Wittgenstein on language, I highly recommend Abdul Rahman Mustafa’s, “Ibn Taymiyya & Wittgenstein on Language,” The Muslim World, 108(3), pp. 465–491. ‫ع ِل ي ًم ا‬ َ ‫س وَل ٱل لَّ ـ ِه َوَخ ا ت َ َم ٱل نَّ ِب ِيّ ۧـ َن َو َك اَن ٱل لَّ ـ هُ ِب ُك ِّل‬ ُ ‫َّم ا َك اَن ُم َح َّم دٌ أ َبَ آ أ ََح ٍد ِ ّم ن ِ ّرَج ا ِل ُك ْم َولَ ٰـ ِك ن َّر‬ َ ‫ش ْىٍء‬ According to Ibn Qud ā mah, those who refuse to pay zak āt whilst still believing in its obligation are subject to ta’zīr, or a punishment left to the discretion of a qāḍī. َّ ‫َو‬ َّ ‫ َو‬،‫ فَ إِ َّن ال َّزَك اة َ َح ُّق اْل َم ا ِل‬،ِ‫ص الَِة َوال َّزَك اة‬ ‫ع نَ اقً ا َك انُ وا يُ َؤدُّونَ َه ا ِإلَ ى‬ َّ ‫للاِ أل ُقَ ا تِ لَ َّن َم ْن فَ َّرَق بَ ْي َن ال‬ َ ‫للاِ لَ ْو َم نَ عُ ونِ ي‬ .‫ع لَ ى َم ْن ِع َه ا‬ ُ ‫ َر‬The entire ḥadīth begins with ʿUmar quesَ ‫س وِل َِّللا ص ل ى هللا ع ل ي ه وس ل م لَ قَ ا ت َ ْل ت ُُه ْم‬ tioning Abū Bakr’s insistence of zak āt even if it means war based on a saying from the Prophet Muhammad (‫)ﷺ‬. ʿUmar asks Abū Bakr, “How can you fght with these people although Allah’s Messenger (‫ )ﷺ‬said, ‘I have been ordered (by Allah) to fght the people till they say: “None has the right to be worshipped but Allah, and whoever said it then he will save his life and property from me except on trespassing the law (rights and conditions for which he will be punished justly), and his accounts will be with Allah.”’?” Abū Bakr responds via the referenced quote, and the ḥadīth ends with ʿUmar recognizing that Abu Bakr was correct in his position. This ḥadīth was also found in at-Tirmidh ī and was rated by him as “ ḥasan” or good (Tuḥ fat Al-Aḥwadhi 6:390). There is a large amount of disagreement whether these people who refused to pay the zakāt were āhl al-bughat (rebels) or āhl al-kufr (disbelievers). While earlier Najdi scholars are pretty clear that these people are disbelievers many other scholarly groups hold that such people are rebellious and sinful, but still remain within the fold of Islam. ‫س ُول ِّللا‬ ُ ‫آل اِلَ هَ اِّل ُّللا ُم َح َّم دٌ َر‬ Recently, Khaled Abou El Fadl excoriates Ahmed’s line of argumentation, claiming that it is unacademic and completely against the grain of 1,400+ years of tradition which does place a central role on some type of orthodoxy and principles. He claims Ahmed’s position ultimately even denies the centrality of the belief in one God as inextricable from Islam. For more on Abou El Fadl’s critique, see “Usuli Institute Halaqa, Part 3 Q&A on Shahab Ahmed's ‘What Is Islam?’; ‘Satanic Verses,’ 8.25.18.” https://www.youtube.com/watch?v=aJooVgiqhQI. One can also look at the famous ḥadīth Jibr īl (Gabriel) that was reported in both Ṣa ḥīḥ al-Bukhār ī and the Ṣa ḥīḥ Muslim that outlines the basic parameters of belief. Tareen here is criticizing Shahab Ahmed in What is Islam? for offering an unfair and inaccurate assessment of Asad’s understanding of discursive traditions. Ahmed claims that Asad’s understanding is prescriptive and linear and that it creates binaries that privileges power and rigid hierarchies of orthodoxy at the expense of heterodoxy and contestation. Rather, in Tareen’s assessment, for Asad, discursive traditions, by nature, always involve contestation and contain a multiplicity of possibilities within themselves; discursive traditions for Asad are neither prescriptive nor are they linear. Episode 6 titled: “A Millhouse Divided.” Production code: 4F04.

References Abou El Fadl, K. (2007). The Great Theft: Wrestling Islam from the Extremists. New York, NY: Harper Collins. Adorno, T.W. (1973). Negative Dialectics. Translated by E.B. Ashton. London, UK: Routledge. Ahmed, S. (2015). What is Islam? The Importance of Being Islamic. Princeton, NJ: Princeton University Press.

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Al-Bukhā r ī, M. (2002). Ṣa ḥīḥ al-Bukhār ī (Vol. 2/9). Translated and edited by M. Matraji and F.A.Z. Matraji. New Delhi, India: Islamic Book Services. Anjum, O. (2007). Islam as a discursive tradition: Talal Asad and his interlocutors. Comparative Studies of South Asia, Africa and the Middle East, 27(3), 656–672. Asad, T. (2009[1986]). The idea of an anthropology of Islam. Qui Parle, 17(2), 1–30. Bowen, R. (1993). Muslims through Discourse: Religion and Ritual in Gayo Society. Princeton, NJ: Princeton University Press. Charnay, J.P. (1971). Islamic Culture and Socio-Economic Change. Leiden: Brill. Dabashi, H. (2012). The Arab Spring: The End of Postcolonialism. New York, NY: Zed Books. Donner, F. (1986). The Early Islamic Conquests. Princeton, NJ: Princeton University Press. El-Zein, A.H. (1977). Beyond ideology and theology: The search for an anthropology of Islam. Annual Review of Anthropology, 6, 227–254. Fadel, M. (2008). The true, the good and the reasonable: The theological and ethical roots of public reason in Islamic law. Canadian Journal of Law and Jurisprudence, 21(1), 5–69. Fox, M. (2011). Prototype theory: An alternative concept theory for categorizing sex and gender? In R.P. Smiraglia (Ed.), Proceedings from North American Symposium on Knowledge Organization (Vol. 3, pp. 151–159). Toronto, Canada. Freud, S. (1899). Die Traumdeutung. Leipzig, Germany: Franz Deuticke. Geertz, C. (1968). Islam Observed. Chicago, IL: University of Chicago Press. Gellner, E. (1981). Muslim Society. Cambridge, UK: Cambridge University Press. Gilsenan, M. (1982). Recognizing Islam. London, UK: Croom Helm. Hodgson, M. (1974). The Venture of Islam: Conscience and History in a World Civilization (1/3). Chicago, IL: University of Chicago Press. Horkheimer, M. (1947). Eclipse of Reason. New York: Oxford University Press. Ibn Qud ā ma, A.A. (1983). Al-mughnī (Vol. 12). Beirut, Lebanon: Dar al-Kitab al-ʿArabi. Karamustafa, A. (2010). Community. In J.J. Elias (Ed.), Key Themes for the Study of Islam (pp. 93–103). Oxford, UK: Oneworld. Kersten, C. (2019). Islam versus the West? Muslim challenges of a false binary. In K. Giesen, C. Kersten, and L. Škof (Eds.), The Poesis of Peace: Narratives, Cultures, and Philosophies (pp. 81–96). New York, NY: Routledge. Mustafa, A.R. (2018). Ibn Taymiyya & Wittgenstein on language. The Muslim World, 108(3), 465–491. Qur’ā n. (2004). The Meaning of the Holy Qurʾan (10th ed.). Translated by A.Y. Ali. Beltsville, MD: Amana Publications. Redfield, R. (1955). The social organization of tradition. The Far Eastern Quarterly, 15(1), 13–21. Rosch, E., and Mervis, B. (1975). Family resemblances: Studies in the internal structure of categories. Cognitive Psychology, 7(4), 573–605. Said, E. (1978). Orientalism. New York, NY: Random House Publishers. Shoufani, E. (1973). Al-riddah and the Muslim Conquest of Arabia. Toronto, ON: University of Toronto Press. Sulaiman, M. (2018). Between text and discourse: Re-theorizing Islamic orthodoxy. ReOrient, 3(2), 140–162. Tareen, S. (2020). Defining Muḥammad in Modernity. Notre Dame, IN: Notre Dame Press. The Simpsons. (1996). Twentieth Century Fox. 1st, December. Turner, B. (1989). From orientalism to global sociology. Sociology, 23(4), 629–638. Wittgenstein, L. (1988[1953]). Philosophical Investigations (3rd ed.). Translated by G.E.M. Anscombe. London, UK: Basil Blackwell.

5 COMPARING THE LIBERAL AND ISLAMIC APPROACHES TO MORAL EPISTEMOLOGY AND HUMAN RIGHTS

Conceptualizing rights is difficult terrain to traverse even when doing so within secular discourses: where do they come from, who grants them, and who ultimately is responsible for upholding them? Seyla Benhabib (2009, p. 696) comments that “human rights norms require interpretation, saturation, and vernacularization; they cannot just be imposed by legal elites and judges on recalcitrant peoples.” States—regardless of their religious dispositions—all possess their own unique cultural traditions and modes for understanding and reasoning that facilitate how they conceptualize their own iterations of the good. This project becomes even more perilous when adding the variable of religion to the mix. According to Michael Freeman (2004, p. 376), the question regarding “the possible conf lict between human rights principles and religions or philosophies has resided at the heart of human rights theory from the beginning.” The conf lict Freeman is referring to has only become exacerbated since he published his work a little more than fifteen years ago. Many states, including those in the EU and US, have begun to grapple with these themes more seriously in ways that have really put the idea of human rights theory to the test. This chapter will first engage with questions related to Islam and liberalism’s moral epistemologies. It will frame its argument around the thought of John Locke, which will serve as a fulcrum for comparative analysis. Questions will be explored, including (1) how do societies come to understand morality? and (2) which sources are engaged with when crafting localized and universal moralities? The second part of this chapter then looks at the foundations of universal human rights as understood within the liberal and Islamic moral universes and shows where the two discourses converge and depart, once again, with a heavy focus on Locke.

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Major moral epistemological departures Locke’s moral theory, as outlined in his Essay Concerning Human Understanding, presents many formidable challenges for even his most skilled readers. Catherine Wilson (2007, p. 381) eloquently lays out some of these problems: Depending on where in the Essay [Essay Concerning Human Understanding] one looks, the content of morality appears to depend on the Bible, or on the requisites of our fellows, or on our personal needs and interests. Our knowledge of moral principles seems in turn to depend on a priori ref lection, social learning, religious instruction, and the analysis of terms and sentences. Locke’s generous attempt to accommodate every moral intuition makes it difficult to characterize his doctrines in standard terms. Locke was a notoriously difficult thinker to pin down on many key issues, especially those related to moral law and natural rights. However, I will offer my own efforts at laying out a plausible portrayal of Locke’s basic moral epistemological positions. Locke sets out to explain how one comes to gain knowledge at the very beginning of his Essay Concerning Human Understanding: “The way shown how we come by any knowledge, sufficient to prove it not innate” (1823b, EH, v.1, ch.2 [§1], p. 13).1 The key word from this quote is any. At the core of Locke’s epistemology is the idea that all principles—speculative or practical—come to be learned. For Locke, understanding the certainty of moral principles could only be done via what he describes as reasoning and discourse: Those speculative maxims carry their own evidence with them: but moral principles require reasoning and discourse, and some exercise of the mind, to discover the certainty of their truth. They lie not open as natural characters engraven on the mind; which, if any such were, they must need be visible by themselves, and by their own light be certain and known to everybody. (1823b, EH, v.1, ch. 3[§1], p. 34) This is not to suggest that revealed texts such as the Bible cannot help to clarify things that one’s reason may be confused about—after all Locke readily concedes that our reasoning skills often are not up to par. Jeremy Waldron (2002, p. 12) for example notes: As a philosopher, Locke was intensely interested in Christian doctrine, and in the Reasonableness [of Christianity] he insisted that most men could not hope to understand the detailed requirements of the law of nature without the assistance of the teachings and example of Jesus. Nonetheless, I think it is impossible to claim that Biblical sources are the definitive source for understanding morality within Locke’s moral epistemological framework.

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Upon a closer reading of Locke, it is evident that morality ultimately even transcends God. In his Essay Concerning Human Understanding, he unequivocally posits that “God himself cannot choose what is not good,” and God’s being is “determined by what is best” (1823b, EH, v.1, ch. 21[§49], p. 269). Even though Locke does not want to readily admit this, his position basically implies that there exists a “best” that is independent of and above God himself. This was similar to the position of some of the earlier rationalist Muslim groups inf luenced by the ancient Greeks—specifically the Muʿtazila—and represents a view on God that is deemed as heretical by most Muslims and Muslim scholars today.2 In a nutshell: Muʿtazilī philosophy hinges upon the idea that “God’s being, the universe, and human nature are all rationally ordered and knowable to human reason” (Lapidus, 2002, p. 88). In George Hournai’s (1960, p. 270) assessment: “Most of the Muʿtazila asserted that there is a real good, which God wishes for the world, and a real justice which He upholds; and further that man can know what these are in specific instances by his reason.” This seems quite similar to what Locke has in mind regarding the rationally ordered world, though it is important to once again point out that Locke believed that man often behaved irrationally; rationality was not necessarily the default position of most human beings. Few Muslims today would ever make metaphysical claims that basically limit God’s omnipotence and places restraints on his will. The state of nature for Locke was pre-political, not pre-moral (Kaminski, 2017). Man, via his ability to use reason, was capable of understanding natural law or the Law of Nature even while still living in the state of nature. While the specific content and ultimate sources of the Law of Nature for him remain opaque and contested, one thing that is not is the method of acquisition regarding moral rules: via antecedent. Locke (1823b, EH, v.1, ch. 3[§4], p. 37) argued that “the truth of all these moral rules plainly depends upon some other antecedent to them, and from which they must be deduced; which could not be if either they were innate or so much as self-evident.” Locke makes clear that the Law of Nature, which was the basis of all morality for him, was inherent within the state of nature. On the Law of Nature, in The Two Treatises of Government, he comments: The state of nature has a law of nature to govern it, which obliges everyone: And reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions. For men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business, they are his property, whose workmanship they are, made to last during his, not one another’s pleasure. (1823c, TT, v.5, ch. 2[§6], p. 341) So long as one does not accept the skeptical reading of Locke on natural law offered by Leo Strauss (1953), it seems hard to deny that Locke, at least at some

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level (unless Strauss was right), does clearly believe that man is indeed a product of God’s creative hand. We can now see the link between God, the Law of Nature, and how the Law of Nature comes to be understood by man in Locke’s depiction of how we come to acquire ethical truths: God—who himself is constrained regarding certain moral truths which exist independent of his will—creates the Law of Nature with the aforementioned restraints in mind, and man eventually comes to understand this Law of Nature via reason. Such laws are understood via antecedent and never via innate imprint even though we all do possess certain hardwired instincts for other things such as base physiological drives and urges.3 Examples of these for Locke include desires for food, water, and the avoidance of pain. He also believed we have a natural inclination to seek knowledge and that we all possess the capacity to learn. This understanding is quite different from the most widely held positions within Islam on how individuals can come to understand morality. Within Islam, all knowledge is rooted in the fundamental notion of God’s oneness understood as tawḥīd; goodness does not exist outside Allah’s will nor is Allah constrained by anything independent of whatever restrictions he may so choose to place on himself which he of course always has the ability to lift. Even those few scholars today who still cling to certain aspects of Muʿtazilite rationalism rarely, if ever (at least publicly), promote their school’s earlier position which explicitly held that God’s will is constrained by external moral prerequisites.4 This is a position that lost its currency around one thousand years ago. The late-twentieth-century Palestinian-American philosopher and scholar of comparative religion Ismaʿil al-Faruqi (1992, p. 43) argued that tawḥīd rests on three core methodological principles: “first, the rejection of all that does not correspond with reality; second, denial of ultimate contradictions; third, openness to new and/or contrary evidence.” We can see that authentic taw ḥīd necessitated both rational, empirical observations along with the recognition of God’s divine unity; the two cannot be separated. Further developing al-Faruqi’s position, Fatih Malkawi (2015, p. 5) commented: Acknowledgment of God’s unity—tawḥīd—presupposes by necessity an acknowledgement of the unity of truth as well. As tawḥīd serves to confirm the absolute oneness of God Almighty, it likewise confirms the unity of sources of truth. God is the Creator of the natural world from which human beings derive knowledge. The object of knowledge consists of the things and events of nature, which are creations of God. It is a certainty that God knows these things and events, and it is equally certain that God is the source of revelation. Moreover, God gives human beings something of His vast, all-encompassing, perfect knowledge. There exists nothing prior to God’s unity—no moral truths and no independent, autonomous justice claims. He goes on to argue that the Islamic approach

Moral epistemology and human rights

95

recognizes the “integration and interdependence that exist between the divine revelation as embodied in nature, and in the written word” (2015, p. 6). Despite the differences between Ibn Rushd (d. 1198 C.E./595 A.H.), who argued that one could come to understand God via his creations, and al-Ghaz ā l ī, who argued that one could only properly understand the creations via the Qurʾā n and ʾaḥādīth, “they agreed on the need for the integration of knowledge with al-Ghaz ā l ī seeing such integration in the structure of knowledge itself (integrality), and Ibn Rushd seeing it in the various sciences’ need for one another (complementarity)” (Malkawi, 2015, p. 6). The key point here is this: revelation and reason cannot be fully divorced from each other within Islam’s moral epistemology—one cannot understand moral principles solely via antecedent or reason alone. In cases of the apparent contradiction between revelation and reason, Faruqi (1992, p. 44) comments that the contradiction is, in fact, only apparent and further consideration and investigation is needed when revelation and reason appear to be at odds: Where such is the case, Islam declares the contradiction not ultimate. It then refers the investigator either to review his understanding of the revelation, or his rational findings, or both. Having rejected the contradiction as ultimate, al tawḥīd as unity of truth requires us to return [to] the contradictory theses with the intention of looking into them once more. Faruqi’s dialectical approach posits that, when there are contradictions between revelation and reason, either one’s reason is incorrect or one is misinterpreting revelation. The proper operationalization of revelation and reason will result in a coherent unity between both reason and revelation in all cases. Faruqi’s point is interesting; he is not categorically declaring that when reason and revelation are in conf lict, the reason is always wrong. Instead he opens the possibility that our reason may be, in fact, working perfectly fine. In such cases the problem is that we are not properly understanding or interpreting revelation. This integrated knowledge approach calls for continual critical reevaluations of both reason and revelation.5 Locke’s position is different than Faruqi and Malkawi’s “integration of knowledge” approach or the position of Ibn Taymiyya, who is often seen as the standard-bearer of Islamic orthodoxy especially by conservatives within the Sunnī tradition. Ibn Taymiyya holds that all mankind is born in a state of purity and possesses an innate ability to recognize their creator: Human nature knows the Creator without these signs; that knowledge is inherent in it. Had it not known Him before these signs, it could not have known that they are His signs, for they are signs and proofs of God just as a name is a sign of the object named. One must have known the object

96 Moral epistemology and human rights

before one may know the name and know that it is the name of this particular object. (2000, p. 66) Most of the later ʿulamāʾ do not hold that we have innate “knowledge” of God as in propositional knowledge, but rather understand fiṭra as an inclination.6 The argument basically posits that in order to know that signs of Allah are in fact signs from Allah, one must have an innate ability to recognize and understand Allah in the first place. Al-Faruqi (1992, pp. 7–8) similarly commented that: “In fact, at birth he [mankind] is already above the zero point in that he has the revelation and his rational equipment ready for use, as well as a world too ready to receive his ethical deed.” This is the orthodox position within Islam today. Furthermore, regarding fiṭra, both Ayatollah Khomeini and Ibn Taymiyya— both in many ways the antithesis of each other at a theological level—argued that man was born into a state of natural goodness. According to Ibn Taymiyya: “Every human being is born in the nature of Islam. If this nature is not subsequently corrupted by the erroneous beliefs of the family and society, everyone will be able to see the truth of Islam and embrace it” (2000, p. 3). However, such an innate state of natural goodness inevitably was destined to be tarnished via interactions with the physical world; mankind’s “state of fiṭra soon turns into a state of fitna” (Kaminski, 2017, p. 78). Ibn Taymiyya’s position on this particular matter was actually similar to the claim offered by Plotinus (1930) (d. 270 C.E.)—someone who like Khomeini also shares little in common with Ibn Taymiyya other than when it comes to theological matters—who posited: “That Soul, then, in us, will in its nature stand apart from all that can cause any of the evils which man does or suffers; for all such evil, as we have seen, belongs only to the Animate, the Couplement” (Enneads I, 1:9). The prevalent view on the matter of man in the state of nature today has perhaps been best been articulated by Syed Mohammed Naquib al-Attas, who argues that man was neither innately good nor bad—“Forgetfulness is the cause of man’s disobedience, and this blameworthy nature inclines him towards injustice (ẓulm) and ignorance ( jahl) ([Qurʾā n] 33: 72)” (1993, p. 140). I think laziness [kasūl] can also be added to this explanation as well.

The 1948 Universal Declaration of Human Rights One of the crowning achievements of the post-World War II liberal international order was the 1948 Universal Declaration of Human Rights (UDHR). Hurst Hannum (1996, p. 290) argued that, entering into the twenty-first century, the UDHR “remains the primary source of global human rights standards, and its recognition as a source of rights and law by states throughout the world distinguished it from conventional obligations.” Little has changed in the past 25 years to challenge Hannum’s contention despite the rise in autocratic-minded populist political actors over the last decade in the EU and the United States. Often even

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these illiberal actors themselves will selectively invoke certain specific articles of the UDHR when trying to call out the bad behavior of others even if these same aforementioned illiberal actors are often guilty of the same violations that they accuse others of committing. The UDHR was created largely in response to the atrocities committed by the Nazis in World War II. It posited a radically progressive agenda for its time, offering 30 specific articles that were meant to serve as “a common standard of achievement for all peoples and all nations” (Preamble, UN General Assembly). Despite the non-binding nature of the UDHR, scholars have argued that due to how often many different countries have invoked it in their legal rulings, it has become an inextricable part of customary international law (Hannum, 1996; Steiner and Austin, 2000). Lowe (2013, p. 553) contends that previous court rulings in the US have argued that for a specific standard to be considered customary international law “it must be one adopted in writing or in practice by most or all civilized nations,” but goes on to note that “[s]tates need not, however, be universally effective in implementation of the principle.” 7 Even if the UDHR ultimately is not binding (at least in the United States) as was noted in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), it still represents perhaps the most coherent articulation of the contemporary liberal understanding of universal rights.8 The two main questions that still remain are: (1) is this “common standard of achievement for all peoples and all nations” something that can ever be followed by all peoples and all nations?; and (2) is this “common standard of achievement for all peoples and all nations” something that traditional-minded Muslims can be excepted to not only follow, but to openly and freely embrace? Some prominent Islamic scholars have argued that there is no reason why Muslims cannot embrace the UDHR. For example, Mustafa Cerić (2018, p. 7), the former Grand Mufti of Bosnia and Herzegovina, recently has contended that within “the core of it [the UDHR] is contained in the five necessary values of human life that must always be protected and upheld, as universally stipulated by Muslim scholars in their theories of Islamic law.” He further contends that Islam represents the middle path and upholding what he calls “the fundamental rights of all people and peoples is our right and our duty” (2018, p. 7). While Cerić’s first statement quoted above is worthy of debate and perhaps even an entire book on, his second statement is far more problematic especially considering that he never actually goes into details regarding what the actual “fundamental rights [are that] all people and peoples” are actually entitled to. Also just taking a first glance at the UDHR one can easily ascertain that certain universal human rights as declared by the UDHR simply cannot be reasonably reconciled with an authentically traditional Islamic worldview beyond a tenuous modus vivendi at best. The purpose here is not to show that Islam and liberalism are hopelessly incapable of reaching any similar outcomes under any conditions; I think Cerić has a valid point when noting that much of the UDHR does resonate with Ghaz ā l ī’s five ḍar ūriyyāt principles of maqāṣid al-Shar īʿa that he is alluding to in the article

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of his that was quoted above.9 However, the argument that will be made in this section is that the foundational principles of each discourse are very different and reaching similar outcomes with a genuine overlapping consensus from radically different premises may be an impossible task without a fundamental reconceptualization of either the outcomes or the underlying method or rationale for understanding rights and morality.

Individual rights and antiquity The idea of “a right” as we think of it today was not present in earlier Western political thought. The Greeks of classical antiquity never saw themselves as having individual rights that existed prior to and independent of the laws in the city or territory in which they lived (Dover, 1974). In the end, whatever rights the individual enjoyed could always be taken away by the community since it was the community who was ultimately sovereign; not the individual. If we remember, this is one of the main reasons why Socrates rejected Crito’s suggestion that he go into exile to escape his death sentence handed down by the Athenian state after his famous trial. Socrates rhetorically contends to Crito that if he were to escape his punishment that the state could rightfully say: And because we think right to destroy you, do you think that you have any right to destroy us in return, and your country as far as in you lies? And will you, O professor of true virtue, say that you are justified in this? Has a philosopher like you failed to discover that our country is more to be valued and higher and holier far than mother or father or any ancestor, and more to be regarded in the eyes of the gods and of men of understanding? also to be soothed, and gently and reverently entreated when angry, even more than a father, and if not persuaded, obeyed? And when we are punished by her, whether with imprisonment or stripes, the punishment is to be endured in silence; and if she leads us to wounds or death in battle, thither we follow as is right; neither may anyone yield or retreat or leave his rank, but whether in battle or in a court of law, or in any other place, he must do what his city and his country order him. (cited in Plato, 1892, ‘The Address of the Laws’ in Crito, [51a–b]) Socrates’s sense of political obligation to the Athenian state prevented him from escaping his death sentence and going into exile even if the charges against him were bogus and he felt the verdict unfair. In his mind, greater damage would be done to Athenian society as a whole if he engaged in an action of this magnitude that undermined state authority. This was the prevailing understanding of the individual–state relationship throughout much of ancient Greek thought. The idea of modern individual rights was lacking within earlier Roman legal thought as well. The famous nineteenth-century British Whig comparative

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jurist and historian Sir Henry James Sumner Maine (1861) for example argued that Roman law never was rooted in individual rights; rather it was rooted in the maintenance and upkeep of social status relationships.10 Once again, just as for the Greeks, the Romans also held the community as sovereign to the individual even if the community is unjust. The modern concept of rights was likely first introduced in the medieval era by John Duns Scotus (d. 1308 C.E.), William of Ockham (d. 1347 C.E.), or perhaps Jean Gerson (d. 1429 C.E.), but even this is not for certain since none of the aforementioned names formally took credit in their writings for explicitly introducing this new concept into the legal or philosophical vernacular of their times (Edmundson, 2012). Alasdair MacIntyre (1997, p. 69) points out that from a purely linguistic perspective there exists no proper translation from any medieval languages of what we would consider a modern right today: “the concept lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400, let alone in Old English, or in Japanese even as late as the mid-nineteenth century.” A similar assessment regarding the lack of a concrete notion of human rights in antiquity was also expressed by Benjamin Constant, who believed one of the unique contributions of the French Revolution was its firm establishment of the idea of universal human rights in the minds of men; prior to La Révolution française no such concept was really taken seriously by most people. Despite the fact that most scholars accept that the modern notion of natural human rights was first introduced in medieval times, appeals for such did not really become widespread among the political classes until the mid-seventeenth century in England. Jack Donnelly (2013, p. 75) points out: Prior to the second half of the seventeenth century, the idea that all human beings, simply because they are human, have rights that they may exercise against the state and society received no substantial political endorsement anywhere in the world. Locke was one of the very first modern figures to explicitly promote that idea that all people have rights simply because they are human. He did this via his iteration of natural rights, which posited that all men are naturally free and equal. It is important to note that Locke’s call for “universal human rights” still fell woefully short of twentieth-century iterations of universal human rights; women still were seen primarily as property under Locke’s conception, and most men themselves lacked any meaningful rights in practice.

Connecting the discourse of universal human rights with moral epistemologies Despite his shortcomings, Locke undeniably paved the way for what would eventually become the version of universal liberal human rights articulated in the twentieth century. According to Locke (1823c, TT, v.5, ch. 2[§6] p. 341):

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The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that Iaw, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions. Much like his predecessor, Hugo Grotius, Locke’s iteration of natural rights was not dependent upon citizenship or any specific law of the state. These natural rights were also not necessarily limited to any particular ethnic, cultural, or religious group either; rather they were universal and derived from God since we were all created by the same God. For Locke, ultimately, we are all God’s property, and an affront to God’s property is an affront to God himself: For men being all the workmanship of one omnipotent and infinitely wise maker, all the servants of one sovereign master, sent into the world by his order and about his business, they are his property, whose workmanship they are, made to last during his, not one another’s pleasure. (1823c, TT, v.5, ch. 2[§6] p. 341) Locke’s position does not begin with rights, per se, but it does hinge upon the “obligation of everyone to obey the law of nature” because man represented the divine workmanship of God (Freeman, 2004, p. 388). This, of course, is a speculative argument that begs the question: where does God explicitly iterate these rights that Locke refers to? The answer is that God did not explicitly iterate these rights; he iterated certain laws to follow that can be derived from the Bible, but for Locke it appears that no such explicit textual/revealed source can be pointed to for rights. This is because natural rights derive from natural law which itself exists within nature and is readily recognizable by man via his own rational faculties. It is also important to note that, for Locke, divine law and natural law were not at odds. How was Locke able to ensure this? The answer is rather straightforward actually. Locke simply interpreted natural law in a way that was consistent with Biblical teachings. At the same, however, Locke also made Biblical teachings fit within a liberal understanding of the world. According to Parekh (2006, p. 88), Locke allowed for the liberal worldview to rearticulate Christianity “in standard liberal idioms” and he achieved this by turning “Christianity into a ‘reasonable’ doctrine by stripping it of its theological mysteries, reducing its highly complex ethic to a simplified morality of bourgeois reciprocity, and turning churches into voluntary associations.” In essence, Locke made his Biblical scriptural interpretations fit within his own iteration of natural law which Parekh understands as a “simplified morality of bourgeois reciprocity” with a heavy emphasis on property rights. This is what allowed for Locke’s theory to accommodate both divine law and natural law at the same time. Both revealed and unrevealed divine law were equally binding for Locke. A. John Simmons (1992, pp. 16–17) accepts Locke’s voluntarism (i.e., man had an obligation to obey God because he was the creator),11 and argues that, for Locke:

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When divine law is given to man by revelation, as in the Bible, it is positive moral law. When it is discovered by man without revelation through the use of reason (the “light of nature”), the divine law is the law of nature […]. But the content of divine law is in the two cases the same, as is its binding force. Locke’s method of induction regarding God’s law and scripture more generally differs in a significant way from how Muslims derive ethical principles from their own sources. It seems that for Locke law given by revelation—what he terms “positive moral law”—operates in relation with, but somewhat disjointed from, the divine law that comes to be understood from the Law of Nature. My reading of Locke leads me to conclude that one can come to understand natural law without really needing revelation at all. Locke himself believed that certain parts of the Bible and even the Ten Commandments were not applicable to Christians; they were only meant for the Jews. In his words, the Laws of Moses were “not obligatory to us Christians” because “[n]obody pretends that everything, generally, enjoined by the law of Moses, ought to be practised by Christians” (1823a, LT, v.6, p. 37). This is to suggest that coming to understand God’s will does not necessitate really being intimately familiar with revelation since one can eventually come to understand it via natural law. Simmons (1992, p. 23) goes on to note in a later paragraph that Locke’s method argues that we are bound to follow God’s will and that the form of the demonstration of morality is as follows: 1. Our senses (with reason) reveal the existence of God. 2. Our senses (with reason) reveal the existence of man (“ourselves, as understanding, rational creatures”) and that man was created by God. 3. The relation of God to man grounds a duty for many to do God’s will. 4. The nature of God and human nature together reveal the “principle” of God’s will for man […]. 5. From the principle of God’s will and the empirical conditions of human life (revealed by our sense), our specific moral duties follow. Primary Islamic texts also make multiple allusions to man’s ability to partially derive God’s existence via reason and nature: “Were they created of nothing, or were they themselves the creators?” and “Do they not ref lect in their own minds?” (Qurʾā n, 2004, 52:3512 and 30:813). However, other verses make this ability conditional in a way that Locke does not: “On the earth are signs for those of assured faith, as also in your own selves: will ye not then see?” (Qurʾā n, 2004, 51:21–22).14 According to the translator of this particular translation of the Qurʾā n being referenced, Yusuf Ali (2004, p. 1358), this verse is meant to show that: “The Signs and Evidence of Allah are in all nature and within the body and soul of man, if man has but the spiritual eyes to see.” A closer reading of the previous quote from Qurʾā n 51:21–22 makes it explicit that the signs on earth will only be properly recognized by those who have faith

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in Allah [lilmūqinīna]. Another verse makes this point as well: “It is the promise of Allah. Never does Allah depart from his promise: but most men understand not. They know the outer (things) in life, of this world: but of the End of things, they are heedless” (Qurʾā n, 2004, 30: 6–7).15 God’s promise is right there waiting to be discovered—it can be inferred via reason coupled with revelation. However, most men simply cannot see it due to weak faith [ʾīmān]. Fadel (2004, p. 82), who refutes Khaled Abou El Fadl’s (2004) claim that one can attain moral knowledge and knowledge of what is just and good based on reason alone, contends that, within an Islamic moral epistemological framework,16 knowledge of what is just and good requires revelation. This position was not necessarily an indictment of human reason, which could, according to these same theologians, be relied on to demonstrate the existence of God and distinguish truth from falsehood. Rather, it was a recognition that because the ultimate good is salvation and not justice (understood as a matter of how we interact with one another, and not as a matter of right conduct generally or of submitting oneself and one’s desires to the rule of reason), revelation has priority in issues of moral knowledge. In Simmons’ characterization of Locke’s account of moral duty, while revelation does provide the basis of the positive moral law, at the same time, the question of where moral duty really is rooted remains unclear, and nowhere in Locke’s writings do we see the need for the type of “assured faith” discussed in Qurʾā n 51:21–22 as a prerequisite for being able to infer God’s existence in nature (i.e., the natural law). Not only is assured faith in revelation not required for Locke, but, if anything, in Locke we see an admittance that assured faith is not even really possible for most people. According to Wilson (2007, p. 389): Faith, Locke tells us, is an epistemic state that is “beyond doubt” and that “perfectly excludes all wavering as our Knowledge itself.” But Locke denominates this state chief ly in order to warn his reader that it is possible to have “Faith and Assurance in what is not a divine Revelation.” And he frequently emphasizes that truths discovered through “Knowledge and Contemplation of our own Ideas, will always be certainer to us, than those which are conveyed to us by Traditional Revelation” (E IV.xviii.4: 690–691). The existence of an objective moral law thus seems to depend on conditions that we cannot know for certain to obtain. Under Wilson’s reading—which I also subscribe to—Locke clearly places greater weight on worldly knowledge and reason over revelation. He even calls into question whether objective moral law is even possible since its rests on something (revelation) that most people lack the certainty of in the first place; therefore one can argue that moral law for Locke is more a matter of convention and anything objective which feeds into the claims made by some that Locke merely

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instrumentalized religion and did not really take it that seriously in his moral and political outlook. One also would be hard-pressed to infer from Locke’s writings that the ultimate good in this world is salvation. Reason seems to play the preeminent role in Locke’s moral epistemology while revelation, while providing the basis for more positive moral law, nonetheless seems to be of less interest to him. Questions have also previously been raised regarding how seriously Locke even took natural law (Barducci, 2017; Kaminski, 2017; Strauss, 1953). Some have argued that, unlike most classical law theories, his version was rooted in a distinct notion of self-preservation and natural liberty rather than duty. For example, Marco Barducci (2017, pp. 148–149) argues: “For Locke and Grotius, men possess a natural right to defend themselves and to acquire things necessary for their preservation.” However, the person I really have in mind here is Leo Strauss, who went as far as to argue that Locke’s iteration of natural law was quite distinct from traditional natural law teachings and that Locke was, at minimum, confused regarding the Law of Nature. Strauss saw Locke as following Hobbes, “and that despite Locke’s admittedly numerous references to natural law as a declaration of the will of God, his real purpose was to dissociate that law from God altogether and to treat it as a fundamentally human product” (Oakley and Urdang, 1966, p. 93). On Hobbes, Strauss (1953, p. 170) comments: “His philosophy as a whole may be said to be the classic example of the typically modern combination of political idealism with a materialistic and atheistic view of the whole.” Under this view, Locke is Hobbesian in the sense that appeals to natural law were primarily a tool of self-preservation, a pragmatic myth of sorts invoked to mitigate the possibility of bellum omnium contra omnes rather than anything related to God or the divine.17 According to Strauss (1953, p. 181): Only the right of self-preservation is unconditional or absolute. By nature, there only exists a perfect right and no perfect duty. The law of nature, which formulates man’s natural duties, is not a law properly speaking. […] The state has the function, not of producing or promoting a virtuous life, but of safeguarding the natural right of each. Such a reading by Strauss is hardly surprising considering the preeminent role myth and “the noble lie” played in his own readings of Plato. Strauss’s position on Locke (and Plato for that matter) is obviously controversial and thus far has proved not to be very popular among mainstream scholars of Locke and Enlightenment thought.18 Nonetheless, one can see how Strauss could have come to this conclusion. Locke himself never really articulated any explicit ways to uncover God’s will, and his understanding of natural law was not as clear-cut as that of someone like Aquinas or some of his other contemporaries. Islam does offer a clear-cut way to uncover God’s will: via the Qurʾā n: “(This is) the revelation of the Book in which there is no doubt—from the Lord of the Worlds” (2004, 32:2).19 Locke’s ambiguous universalizing claim to “natural law”

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disjointed from revelation would never suffice within an Islamic moral and legal epistemology regarding the derivation of God’s law. In recent years there have been some serious critiques levied against liberal appeals to universal human rights. MacIntyre (1997, p. 69) offers a scathing critique of both the notion of universal rights and appeals to intuition, commenting: there are no such rights, and belief in them is one with belief in witches and in unicorns. The best reason for asserting so bluntly that there are no such rights is indeed of precisely the same type as the best reason which we possess for asserting that there are no witches and the best reason which we possess for asserting that there are no unicorns: every attempt to give good reasons for believing that there are such rights has failed. The eighteenthcentury philosophical defenders of natural rights sometimes suggest that the assertions which state that men possess them are self-evident truths; but we know that there are no self-evident truths. Twentieth-century moral philosophers have sometimes appealed to their and our intuitions; but one of the things that we ought to have learned from the history of moral philosophy is that the introduction of the word “intuition” by a moral philosopher is always a signal that something has gone badly wrong with an argument. In the United Nations declaration on human rights of 1949 what has since become the normal UN practice of not giving good reasons for any assertions whatsoever is followed with great rigor. Of course, one must remember that Locke argued that via reason, not pure intuition, we come to understand moral principles. However, it is clear that MacIntyre is critical of appeals to universal natural rights. In order to understand the moral or ethical actions of individuals, it is essential to analyze the belief system to which a shared language or discourse ultimately ref lects. “Reasons for action become meaningful only under a set of moral references that are not ‘ethical reasons’ for universal application, but of particular use” (Ramis-Barceló, 2013, p. 192). I feel that MacIntyre’s position resonates within an Islamic moral epistemology. MacIntyre’s moral epistemology posits God as “a guarantor of virtue, goodness and truth, [who] ensures that virtue has to be practised and that knowledge of the virtue of justice cannot be separated from the enforcement of law, which is consistent with virtue and goodness” (RamisBarceló, 2013, p. 192). All of this is consistent with Islam’s understanding of virtue and goodness and its intimate relationship with justice and the enforcement of law. Goodness, rights, and laws within Islam are rooted in its own tradition and foundational sources meant for a particular use; they are not anchored merely in intuition or ungrounded “ethical” reasons alone. For Muslims, the Qur’ā n, Sunna, and Shar īʿa explicitly offer ways to understand rights, duties, and obligations. Even the very progressive—often identified as liberal—An-Naʿim (2012, p. 56) unequivocally asserts:

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I also find it difficult to see how any conception of human rights can be “universal” by any definition of this term if it is inconsistent with the religious beliefs of Muslims at large. If universality is a normative claim that these rights ought to be universally accepted and applied, a believer will not voluntarily accept that claim if it is incompatible with her religious beliefs. To attempt to impose this notion on Muslims is not only imperialist, which is by definition a total negation of the concept of human rights itself, but also unsustainable in practice because it cannot be coercively enforced. Universality as an empirical assertion, that these human rights are actually accepted by the vast majority of people around the world, cannot be true if it is rejected by Muslims, an estimated quarter of humanity today. Rather than making sweeping ontological claims regarding universal human rights, An-Naʿim argues “the general subject of Islam and human rights should be about how to promote the practical application of human rights among Muslims” (2012, p. 57). The point of departure between progressives like An-Naʿim and those who hold more traditional/conservative Islamic views is regarding Shar īʿa interpretation and enforcement; there really is no disagreement when it comes to critiques of Western liberalism’s universalization of human rights.20 Islam and liberalism at one level are both concerned about the individual. However, the way in which these concerns are articulated differs radically. Kamali (2008, p. 28) asserts that Islam’s primary focus “is on the individual,” but “in the sense that it inspires the believer with faith and instills in him the qualities of being trustworthy and righteous.” This is to suggest that Islam is more deeply concerned with the individual’s soul and their spiritual well-being than it is with their worldly rights and freedoms. Abdelaziz Sachedina (2009, p. 85) reminds us that “the language of Islamic juridical tradition is primarily the language of responsibilities and obligations rather than rights or liberties.” Within the liberal discourse, the understanding of the individual is one steeped in a somewhat expansive notion of basic liberties and rights. Liberalism does not concern itself with intrinsic qualities such as trustworthiness and righteousness as moral ends in of themselves. This differs markedly from the liberal juridical and constitutional tradition which does prioritize rights and liberties. One of the central aims of earlier liberal thinkers was to avoid engaging with potentially controversial and divisive religious social norms in the name of civil peace. Their idea was that this civil peace would promote stability, development, and economic prosperity which in turn would further reinforce the idea of individual liberty—the idea that allowed for them to be prosperous in the first place. The pursuit of civil peace often was hindered by religious, social mores. This is one of the oft-cited reasons why the framers of the US constitution sought to create a republican form of government that did not explicitly prioritize any particular religious tradition. For many social contract theorists, civil peace was achieved via contractual bargaining and other similar legal agreements; it had

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little to do with deep-seated concerns regarding whether or not individuals possessed any particular notion of godliness [eusebeia].21 Locke made it clear that man did not have any inherent moral obligation to ever leave the state of nature; this was only incumbent following the introduction of private property. “The great and chief end therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property. To which in the state of nature there are many things wanting” (1823c, TT, v.5, ch. 9[§124], p. 412). Within Islam it is clear that man does have a moral obligation to create a state that operates within the ethical confines of Islam for reasons directly rooted in the religion itself. One’s individual Islamic identity is largely reinforced via ritualistic practices within the larger community. For example, the payment of zakāt for certain, and even the performance of hajj to a lesser extent, cannot be completed without some type of Islamic community. Males are also obliged to attend the Friday congregation prayer unless they have a very good excuse not to. One cannot attend a congregation prayer without a congregation. “This helps account for why so many scholars have argued as to the importance of migration to Dar-al-Islam, or lands in which Islam are freely and widely practiced” (Kaminski 2017, p. 82). If one has an opportunity to live in a Muslim society, and they live in a society where Islam is severely repressed or simply does not exist at all, then they are obliged to make efforts to do so.

Conclusion The prominent yet still underappreciated Iranian intellectual Abdolkarim Soroush has previously articulated the basic dilemma regarding the inherent tension between discourses of human rights and religious moral epistemologies. His line of argumentation implies that the root of the problem lies in the f luidity of what is constitutive of the definition of “humanity” since human rights rest on some type of generally assented to the definition of humanity. Soroush (2000, p. 126) contends: Changing human rights requires changing the definition of humanity, not a trivial and easy affair. One definition of humanity makes religion necessary and another dispensable. Therefore, religiosity is compatible only with a particular definition of humanity and its rights. The slightest breach in this definition will destroy the edifice of traditional religion—hence the understandable resistance of religious scholars and leaders to the new definitions of humanity and its rights. Whether one wants to admit it or not, Islamic definitions of humanity and other similar normatively oriented moral categories are undeniably more rigid and timeless than Western liberal portrayals which often are subject to radical transformations in very short periods of time. Just over 150 years ago slavery was legal and just 30 years ago the idea of same-sex marriage was unthinkable in

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most Western liberal democracies. As a matter of fact, Queen Beatrix of the Netherlands signed into law the first same-sex marriage bill in the world on December 21, 2000. While the Islamic understanding of what is constitutive of “humanity” as Soroush puts it is not necessarily entirely static, it is apparent that certain elements remain more fixed than others. Without trying to introduce a new debate here about the f lexibility of Islamic understandings of humanity, I think it is safe to assume that the standard liberal and Islamic understanding on the matter are quite far apart both in principle and in practice. I agree with Soroush’s argument that “liberalism is not the fount of all human rights, nor is religion their antithesis” (2000, p. 219). At the same time, I do not believe an Islamic iteration of human rights can be divorced from the “Islam” part which deeply shapes the discussion regarding this matter. Regarding rights, Ebrahim Moosa (2000, p. 187) contends that contemporary Muslims “may be able to produce a rights system […] that may be based on different ethical and moral premises but not dissimilar to secular human rights declarations in their outcomes.” I think this point would also resonate with other contemporary thinkers; while the starting premises may be different, the possibility exists to reach similar outcomes as noted in the UDHR and other liberal secular rights-based frameworks. However, Moosa’s next sentence (2000, p. 187) posits that “The success of a modem Islamic human rights theory depends on the extent to which modem Islamic thought would be open to a revisionist or reconstructionist approach in philosophy and ethical orientation.” Reforming or revising Islamic basic approaches to philosophy and ethics are incumbent in reaching similar outcomes. I do not think the revisions needed are insignificant either; the amount of reform and revision seems to be rather significant and such reforms and revision likely will not be well-received by Muslim societies or individuals more generally. While Islam certainly has deep-seated concerns with rights, roots or uṣūl behind how these rights are conceptualized remains radically different. It is hard to envision a way for such differing ethical and moral premises to result in outcomes as similar to liberal conceptions of rights as Moosa posits without fundamentally altering some of Islam’s original ethical and moral principles. This is to suggest there are certain undeniable preconditions to discourses on human rights that exist for most religious discourses that do not exist for secular ones. Further articulating precisely where these differences lie and how they are articulated via text and previous Islamic legal precedent is an essential task if genuine transformative dialogue is to be had between secular and religious understandings of this matter.

Notes 1 All references unless otherwise noted are to The Works of John Locke. 10 vols. London. Reprinted, Aalen: Scientia Verlag, 1963[1823]. References from Locke’s “An Essay Concerning Human Understanding” will be referred to as EH, references from “Two Treatises of Government” will be referred to as TT, and references from “A Letter Concerning Toleration” will be referred to as LT.

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2 For more information on different religious sects from an earlier medieval source, see the eleventh-century C.E. Persian religious historian Mu ḥammad al-Shahrast ā n ī’s (1923) Kitāb al-milal wa-al-niḥal. 3 According to Wilson (2007, p. 383), “Locke’s attack on innate ideas did not presuppose the view that human beings are entirely blank slates at birth. On the contrary, Locke thought of the infant as possessing native instincts and drives that education and culture needed to subdue.” 4 What was known as the Baghdad School [Baghdādiyyūn] of Muʿtazilī theology embraced what one would call a “moral objectivist” position which held that value has a real existence inherent within things and actions and this existence is independent of the wishes or desires of any other being, including God himself ( Jackson, 2009; Hourani, 1960). The position was perhaps best articulated by the medieval Persian Muʿtazilī theologian known as Al-Qāḍ i ʿAbd al-Jabbā r (d. 1025 C.E./415A.H.) in his Sharḥ u ṣūl al-khamsah (1965). His Al-mugnī fī abwāb al-taw ḥīd wa al-ʿadl (1960), which was not discovered until 1951 in Yemen, is one of the more important articulations of Muʿtazilī theology, specifically on the speech of Allah and the creation of the Qurʾā n ( Jackson, 2009). 5 Faruqi’s dynamic conceptualization of both reason and revelation fits nicely within Hallaq’s (2013, p. 51) more general characterization of Shar īʿa which he posits as: “a colossal project of building a moral-legal empire whose foundational and structural impulse is summed up in the ever-continuing attempt to discover God’s moral will.” 6 Ibn Taymiyya (2000, p. 3) described fiṭra as “the original nature of man, uncorrupted by subsequent beliefs and practices, ready to accept the true ideas of Islam.” Al-Faruqi (1992, p. 7) contrasts Islam’s soteriology with Christianity’s by commenting: “Islamic soteriology therefore is the diametrical opposition of that of traditional Christianity. Indeed, the term ‘salvation’ has no equivalent in the religious vocabulary of Islam. There is no savior and there is nothing from which to be saved. Man and world are either positively good or neutral, but not evil. Man begins his life ethically sane and sound, not weighed down by any original sin, however mild or Augustinian.” 7 The case Lowe references is Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d Cir. 2003). 8 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) at one point notes that the UDHR “does not of its own force impose obligations as a matter of international law” and that “although the Covenant [the UDHR] does bind the United States as a matter of international law, the United States ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts” (p. 734–735). Other countries have taken this position as well. However, Hannum (1996, p. 289) has argued that many of the UDHR’s “provisions also have become incorporated into customary international law, which is binding on all states.” Some of the provisions that one can argue have reached the status of customary international law include: Article 2 which prohibits systematic discrimination, Article 3 which prohibits genocide and mass killings, Article 4 which prohibits slavery, Article 5 which prohibits torture, and Articles 9–11 which relate to the prohibition of prolonged arbitrary imprisonment. Those who regularly and openly violate these articles undoubtedly will eventually face domestic or international sanctions or penalties one way or another. 9 Al-Ghaz ā l ī’s understanding of maqāṣid is “generally divided into three ‘levels of necessity.’ The levels include necessities (ḍar ūrāt), needs ( ḥājīyāt), and luxuries (ta ḥsīnīyāt). The realm of ḍar ūrāt is further subdivided into five levels. [He] ranked these levels as 1) religion/faith (dīn), 2) soul (nafs), 3) intellect (ʿaql), 4) lineage/progeny (nasl), and 5) property/wealth (māl)” (Kaminski, 2020, p. 135). 10 Maine (1861, p. 151) argued that, over time, legal systems and societies moved “from status to contract.”

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11 See Locke’s Essays on the Law of Nature: “for who will deny that the clay is subject to the potter’s will” (1965, p. 157). Since God created man, man was obliged to obey him without question. َ ‫أ َ ْم ُخ ِل قُ واْ ِم ْن‬ 12 ‫ش ْىٍء أ َْم ُه ُم ٱ ْل َٰخ ِل قُ وَن‬ َ ‫غ ْي ِر‬ 13 […] ‫أ ََولَ م يَ ت َفَ َّك روا ف ي أ َن فُ ِس ِه م‬ ٌ ‫ض آي ا‬ 14 ‫ص روَن‬ ِ ‫َوِف ي ا َألر‬ ِ ‫ َوف ي أَن فُ ِس ُك م ۚ أَفَ ال ت ُب‬.‫ت ِل ل م وقِ ن ي ن‬ َّ َ‫َوع د‬ َّ ‫ف‬ 15 ‫ع ِن اآلِخ َرِة ُه م‬ ُ ‫للاِ ۖ ل يُ خ ِل‬ َ ‫ نَ يَ ع لَ م وَن ظ اِه ًرا ِم َن ال َح ي اةِ ال دُّن ي ا َوُه م‬.‫للاُ َوع دَهُ َو ٰل ِك َّن أَك ث َ َر ال نّ اِس ل يَ ع لَ م و‬ ‫ون‬ َ ‫غ ا فِ ل‬ 16 The idea that one can come to understand both moral good and moral evil without Revelation, based solely on reason, dates back to the Muʿtazilites and was known as the doctrine of al-ḥusn wa al-qubḥ al-aqlīyān. There are also certain sects within Shi’ism that take this position even today ( Jones and Qasmi, eds., 2015). 17 According to Hobbes, “A Law Of Nature […] is a Precept, or generall [sic] Rule, found out by Reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same; and to omit, that, by which he thinketh it may be best preserved” (1994[1651] Leviathan, Ch. 14, para. 3). 18 John Yolton (1958) was very critical of Strauss’s esotericism when reading Locke and felt that Locke should be seen as most people have seen him—the Law of Nature was the product of God’s decree and not man’s as Strauss insinuates and that Locke does not differ that greatly from more traditional natural law theorists. More recently, Jeremy Waldron (2002) has been a strong advocate for the position that Locke was in fact a natural law theorist in the traditional sense. 19 ‫ب ال ع ا لَ م ي َن‬ ِ ّ ‫ب ف ي ِه ِم ن َر‬ ِ ‫ت َ ن زي ُل ال ِك ت ا‬ َ ‫ب ل َري‬ 20 An-Naʿim (2012, p. 58) calls for “a dual approach for promoting respect for human rights in Islamic societies and communities: challenging claims that Sharia can be enforced as state law, regardless of whether Muslims are the majority or minority of the population, while still striving to transform the social and personal understanding and practice of Sharia by Muslims outside the framework of state institutions.” 21 εὐσέβεια

References ʿAbd al-Jabbā r, Al-Qāḍ i. (1960). Al-mugnī fī abwāb al-taw ḥīd wa al-ʿadl (Vol. 7). Cairo: Al-Hai`ah Al-Mishriyyah Al-Ammah li Al-Kitab. ʿAbd al-Jabbā r, Al-Qāḍ i. (1965). Sharḥ u ṣūl al-khamsah. Cairo: Maktabah Wahbah. Abou El Fadl, K. (2004). Islam and the challenge of democracy. In K. Abou El Fadl (Ed.), Islam and the Challenge of Democracy (pp. 3–46). Princeton, NJ: Princeton University Press. Al-Attas, S.M.N. (1993). Islām and Secularism (2nd ed.). Kuala Lumpur, Malaysia: Art Printing Works Sdn. Bhd. An-Naʿim, A.A. (2012). Islam and human rights. In J. Witte Jr. and M.C. Green (Eds.), Religion & Human Rights: An Introduction (pp. 56–70). New York, NY: Oxford University Press. Barducci, M. (2017). Hugo Grotius and the Century of Revolution, 1613–1718: Transnational Reception in English Political Thought. New York, NY: Oxford University Press. Benhabib, S. (2009). Claiming rights across borders: International human rights and democratic sovereignty. American Political Science Review, 103(4), 691–704. Cerić, M. (2018). Introduction. In H.A. Hellyer (Ed.), The Islamic Tradition and the Discourse of Human Rights (pp. 6–7). Washington, DC: Atlantic Council–Rafik Harari Center for the Middle East. Donnelly, J. (2013). Universal Human Rights in Theory and Practice (3rd ed.). Ithaca, NY: Cornell University Press.

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Dover, K. (1974). Greek Popular Morality in the Time of Plato and Aristotle. Berkeley, CA: University of California Press. Edmundson, W. (2012). An Introduction to Rights (2nd ed.). New York, NY: Cambridge University Press. Fadel, M. (2004). Too far from tradition. In K. Abou El Fadl (Ed.), Islam and the Challenge of Democracy (pp. 81–86). Princeton, NJ: Princeton University Press. Faruqi, I.R. (1992). Al-taw ḥīd: Its Implications on Thought and Life (2nd ed.). Herndon, VA: International Institute of Islamic Thought. Flores v. S. Peru Copper Corp. (2d Cir. 2003). 414 F.3d 233, 248. Freeman, M. (2004). The problem of secularism in human rights theory. Human Rights Quarterly, 26(2), 375–400. Hallaq, W. (2013). The Impossible State: Islam, Modernity, and Modernity’s Moral Predicament. New York, NY: Columbia University Press. Hannum, H. (1996). The status of the universal declaration of human rights in national and International law. Georgia Journal of International and Comparative Law, 25, 287–397. Hobbes, T. (1994[1651]). Leviathan. Edited by Edwin Curley. Indianapolis, IN: Hackett. Hourani, G.F. (1960). Two theories of value in medieval Islam. Muslim World, 50(4), 269–278. Ibn Taymiyyah, T. (2000). Ibn Taymiyyah Expounds on Islam: Selected Writings of Shaykh al-Islam ad-din Ibn Taymiyyah on Islamic Faith, Life, and Society. Translated and edited by M. Ansari. Riyadh, KSA: Imam Muhammed bin Saud University. Jackson, S. (2009). Islam and the Problem of Black Suffering. New York, NY: Oxford University Press. Jones, J. and Qasmi, A.U. (2015). The Shiʿa in Modern South Asia. Delhi: Cambridge University Press. Kamali, M.H. (2008). Shariʾa Law: An Introduction. Oxford, UK: Oneworld. Kaminski, J.J. (2017). The Contemporary Islamic Governed State: A Reconceptualization. New York, NY: Palgrave. Kaminski, J.J. (2020). ‘And part not with my revelations for a trifling price’—Reconceptualizing Islam’s aniconism through the lenses of reification and representation as meaning making. Social Compass, 67(1), 120–137. Lapidus, I. (2002). A History of Islamic Societies. Cambridge, UK: Cambridge University Press. Locke, J. (1823a). A letter concerning toleration. In The Works of John Locke ( 6/10). London. Reprinted, Aalen: Scientia Verlag, 1963. Locke, J. (1823b). On human understanding. In The Works of John Locke (1/10). London. Reprinted, Aalen: Scientia Verlag, 1963. Locke, J. (1823c). Two treatises of government. In The Works of John Locke (5/10). London. Reprinted, Aalen: Scientia Verlag, 1963. Locke, J. (1965). Essays on the Law of Nature. Edited by W. Von Leyden. Oxford: Oxford University Press. Lowe, A. (2013). Customary international law and international human rights law: A proposal for the expansion of the alien tort statute. Indiana International & Comparative Law Review, 23(3), 523–553. MacIntyre, A. (1997). After Virtue: A Study in Moral Theory (3rd ed.). Notre Dame, IN: University of Notre Dame Press. Maine, H.J.S. (1861). Ancient Law, Its Connection with the Early History of Society, and Its Relation to Modern Ideas (1st ed.). London, UK: John Murray. Malkawi, F.H. (2015). Epistemological Integration: Essentials of an Islamic Methodology. Translated by N. Roberts. Herndon, VA: International Institute of Islamic Thought.

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Moosa, I. (2000). The dilemma of Islamic rights schemes. Journal of Law and Religion, 15(1/2), 185–215. Oakley, F. and Urdang, E. (1966). Locke, natural law, and God; note. Natural Law Forum. Paper no. 119. pp. 92–109. Parekh, B. (2006). Rethinking Multiculturalism: Cultural Diversity and Political Theory (2nd ed.) Cambridge, MA: Harvard University Press. Plato. (1892). Crito. In The Dialogues of Plato (3rd ed., Vol. 2). Translated by B. Jowett. London, UK: Oxford University Press. Plotinus. (1930). The Enneads. Translated by Stephen MacKenna. London, UK: Medici Society. Qur’ā n. (2004). The Meaning of the Holy Qurʾan (10th ed.). Translated by A.Y. Ali. Beltsville, MD: Amana Publications. Ramis-Barceló, R. (2013). Alasdair MacIntyre on natural law. In F.J. Contreras (Ed.), The Threads of Natural Law: Unravelling a Philosophical Tradition (pp. 191–210). New York, NY: Springer. Sachedina, A. (2009). Islam and the Challenge of Human Rights. Oxford, UK: Oxford University Press. Shahrast ā n ī, M. (1923). Kit āb al-milal wa-al-niḥal. In M. Cureton (Ed.), Book of Religious and Philosophical Sects (Vol. 2). Leipzig: Otto Harrassowitz. Simmons, A.J. (1992). The Lockean Theory of Rights. Princeton, NJ: Princeton University Press. Soroush, A. (2000). Reason, Freedom, and Democracy in Islam: The Essential Writings of Abdolkarim Soroush. Edited by M. Sadri and A. Sadri. New York, NY: Oxford University Press. Sosa v. Alvarez-Machain. (2004). 542 U.S. 692. Steiner, H. and Alston, P. (2000). International Human Rights in Context: Law, Politics, Morals (2nd ed.). Oxford, UK: Oxford University Press. Strauss, L. (1953). Natural Right and History. Chicago, IL: University of Chicago Press. UN General Assembly. (1948). Universal Declaration of Human Rights (217 [III] A). Paris: UN General Assembly. Waldron, J. (2002). God, Locke, and Equality: Christian Foundations in Locke’s Political Thought. Cambridge, UK: Cambridge University Press. Wilson, C. (2007). The moral epistemology of Locke’s Essay. In L. Newman (Ed.), The Cambridge Companion to Locke’s “Essay Concerning Human Understanding.” (pp. 381– 405). Cambridge, UK: Cambridge University Press. Yolton, J. (1958). Locke on the law of nature. Philosophical Review, 67(4), 477–498.

6 COMPARING THE LIBERAL AND ISLAMIC APPROACHES TO THE ROLE OF RELIGION IN THE PUBLIC SPHERE

Efforts to avoid directly challenging or engaging with religious doctrine have become implicit within the contemporary liberal project itself. Most twentyfirst-century liberal intellectual figures are not interested in parsing out the textual contradictions or logical inconsistencies within certain religious doctrines or discourses. They are also not interested in using science and empirical observation to show certain beliefs are wrong. Instead, as Jeremy Fortier (2010, p. 1003) notes, “liberals have become less inclined to challenge any particular religious doctrine, and more interested in demonstrating liberalism’s compatibility with a broad range of such doctrines.” This is to suggest that most serious liberal political philosophers do not draw inspiration from the likes of Sam Harris or Richard Dawkins’s “New Atheist” Movement even if they personally identify as agnostic or atheist.1 This resonates well with Habermas’s (2001; 2006) more recent contention that Europe has entered into a post-secular order and old answers to questions related to the role of religion in the public sphere need to be reevaluated. No longer can theorists of public reason simply ignore or sideline the realities of non-secular modes of thought and argumentation. Habermas (2007; 2008) contends that even highly secular societies must come to terms with and find some way to co-exist with religion and religiously oriented citizens. For example, he explicitly comments (2008, p. 113) that “Secular citizens, in their role as citizens, may neither deny that religious worldviews are in principle capable of truth nor question the right of their devout fellow citizens to couch their contributions to public discussions in religious language.” Appeals to comprehensive doctrines are not going away anytime soon, even in “secular” Europe; therefore new approaches or amendments to discourses on public reason need to be offered. Despite all of this, some have argued that the position of twentieth-century public reason liberals like Rawls and Habermas who make efforts to speak

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of public reason as a way to avoid engagements with more intractable metaphysical claims that certain comprehensive doctrines may promote is not really feasible in practice (Bahlul, 2003; Fortier, 2010). March (2009, p. 10) leaves no confusions regarding the intimate connection between public reason and secularism: Of course, political liberalism is committed to a certain form of secularism. This form holds that in modern conditions it is not reasonable to expect that all persons in a given society will be united around a religious foundation for public deliberation, never mind a single religious doctrine; because legitimate political power ought to justify itself to all persons subject to it, public deliberation ought to be conducted in terms of a “public reason” that is accessible to all persons regardless of their religious beliefs. In fact, for the earlier Rawls, public reason disallows explicit appeals to comprehensive doctrines, even though private comprehensive doctrines are what ultimately allow for the formulation of his notion of an overlapping consensus in the first place. This chapter will look at a few different approaches that are representative of the mainstream within the broader liberal public reason discourse. Specifically, it will engage critically with the arguments of Rawls, Habermas, and Quong. Some have argued that political liberalism thus far has only really sought to address liberal or fundamentalist religious actors and has paid insufficient attention to traditionalist religious actors, which make up a significant portion of believers across all religious discourses (Stoeckl, 2017). The main claim being promoted in this chapter is that appeals to liberal public reason run into some problems when it comes to satisfying the needs of traditionalist Muslim actors who seek to fully engage in the public discursive sphere.

The evolution of Rawls on comprehensive doctrines and public reason: the proviso In Political Liberalism Rawls changes course from his earlier position regarding comprehensive doctrines and public reason. He embraces what has come to be known as the “inclusive view” which allows for the introduction of comprehensive doctrines into the public sphere albeit with one important caveat. For Rawls (1996, p. 247), comprehensive doctrinal-based reasoning can be permitted in the public sphere so long as it is done in “ways that strengthen the ideal of public reason itself.” He assumes that one’s comprehensive doctrine(s)—if reasonable of course—ultimately will find congruence with the public political conception of justice. This can be done so long as citizens “view the political conception as derived from, or congruent with, or at least not in conf lict with, their other [comprehensive] values” (Rawls, 1996, p. 11).2 He then further qualifies this via the proviso.

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Rawls introduced his proviso in order to ameliorate his earlier position, which has often been criticized for being discriminatory against those who seek to have their comprehensive doctrines guide their moral decision-making processes. Rawls’s (1997, pp. 783–784) proviso ref lects the inclusive position on comprehensive doctrines and states that reasonable comprehensive doctrines, religious or nonreligious, may be introduced in public political discussion at any time, provided that in due course proper political reasons—and not reasons given solely by comprehensive doctrines—are presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support. Unreasonable comprehensive doctrines for Rawls are those that fail to meet the standard of reciprocity—a point that will need to be reconsidered later. Finlayson (2018, p. 3) comments that one of the benefits that Rawls saw in his proviso was that it allows for “the duty to pursue public justifications [to] be deferred and devolved to others.” Comprehensive doctrines therefore can be introduced into the public discourse so long as someone can eventually provide political or secular-based reasons for justifying what the doctrine supports when it comes time to head into the voting booth or enter into the policymaking arena. It is important to point out here that there exists some disagreement as to how far Rawls’s notion of public reason extends. According to Fadel (2020, p. 118), “Rawls is not always clear as to whether the idea of public reason applies only to ‘constitutional essentials and matters of basic justice’ or whether it applies also to ‘ordinary’ political decisions and ordinary citizens in the polling station.” There exists ample evidence in Rawls’s writings that illustrate his ambiguity on this matter. However, for the sake of argument and to avoid a lengthy digression, let us accept Loobuyck and Rummens (2011, p. 240) more restricted understanding of Rawls’s proviso which they contend only applies to questions related to “constitutional essentials and questions of basic justice.” Even when limiting Rawls’s proviso to constitutional essentials and questions of basic justice—within Islam’s general moral-legal epistemology—appeals to Islamic comprehensive doctrine often do extend to constitutional essentials and questions of basic justice.3 There are some other serious issues to consider when trying to apply Rawls’s proviso to the Islamic case. First it is important to remind the reader that some of Islam’s legal prescriptions simply cannot be justified via appeals to secular public reason. This is not to suggest that Islamic law is irrational; the vast majority of Shar īʿa is rooted in readily identifiable ma ṣlaḥa or public welfare. The higher goals or objectives of Shar īʿa [maqāṣid al-Shar īʿa] noted in the previous chapter are directly related to improving the practical aspects—or what the fourteenthcentury Andalusian legal scholar Abū Isḥāq Al-Shāṭ ibī (d. 790 A.H./1388 C.E.) called the five necessities—of worldly life for Muslims. Drawing from Al-Ghaz ā l ī’s earlier ideas, Al-Shāṭ ibī (2012, p. 6), commented:

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The entire Muslim nation (umma), in fact all nations, agreed that the Shar īʿa was laid down for the preservation of the five necessities, which are ʿaql (intellect), dīn (religion), nafs (life), nasl (progeny) and māl (wealth). The knowledge of these that is available to the umma is available by necessity. These necessities have not been established for us through a particular evidence nor are they supported by a particular principle that stands out as the point of recourse. Their compatibility with the Shar īʿa has become known through a body of evidences that do not pertain to a single category. At the same time, however, there also is an undeniable voluntarist undercurrent within Islam perhaps best illustrated by one of the more well-known verses of the Qurʾā n (2004, 2:216) related to fighting which reminds readers that “it is possible that ye dislike a thing which is good for you, and that ye love a thing which is bad for you. But Allah knoweth, and ye know not.”4 There simply are some things that one ought to obey even if they do not fully understand why. Categorical prohibitions on the consumption of pork and alcohol (except in exceedingly rare cases) along with requirements regarding when to fast, when to pray, when to make Ḥajj, and the maximum number of wives a Muslim male can legally have cannot be adequately justified via non-religious lines of argumentation, nor are they meant to be. While many of these rules clearly resonate with ma ṣlaḥa—for example, one of the reasons that Muslims are forbidden from consuming alcohol is because it leads to strife and depravity [ fasād]—in the end, obedience to God’s will has nothing to do with satisfying the standards of public reason. The majority opinion regarding the consumption of alcohol does not argue that so long as one consumes it in private and does not get intoxicated, their behavior becomes permissible. Most scholars have even argued that removing alcohol via chemical processes still does not make a drink permissible because of a ḥadith reported by Ibn ʿUmar that states: “Every intoxicant is Khamr and every intoxicant is Ḥarâm”5 (Sahīh Muslim, 2007, Vol. 5, no. 5219). The idea here is that once something is an intoxicant, it always remains within the class of intoxicants even if the actual intoxicating elements are removed. Surely such a ruling cannot be based on any rational, secular or scientific reasoning. Such prohibitions, as well as requirements to fast, pray, and make Ḥajj at only at a certain time every year, can be said to be tawqīfī (divinely inspired) and taʿabbudī (worship-related); in other words, they are not meant to be overly rationalized. While these aforementioned examples may not exactly fall within the categories of “constitutional essentials” proper, they most certainly are things that would be corollaries to what one could conceive of as constitutional essentials in a functioning Islamic governed state that operates with the limits prescribed by the Shar īʿa. An Islamic administered state that follows Shar īʿa for example could not alter prayer or fasting times on a whim nor could they openly promote and allow for the sale and consumption of alcohol to other Muslims; even the sale of such items to non-Muslims by Muslims—regardless of what level the Muslim may be in the overall distribution process—is a highly controversial fiqhī issue.

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At the level of ideal theory, one can see how appeals to comprehensive doctrines and certain practices that relate to basic questions of justice and constitutional essentials would be a potentially irreconcilable problem for Islam meeting the requirements of Rawls’s proviso. Islam and the conditions set out in Rawls’s proviso meet other serious, potentially irreconcilable issues. Moving from ideal theory to practice, one first must consider the real basis in which important decisions are made. Further developing the point regarding people who possess strong religious convictions, Nicholas Wolterstorff (cited in Audi and Wolterstorff, 1997, p. 105) contends that a person with strong religious convictions, when, given the choice, will do “exactly the opposite of what Rawls lays down” in that “they will make their decisions about constitutional essentials and matters of basic justice on the basis of their religious convictions and make their decisions on more peripheral matters on other grounds.” The compartmentalization of individuals into public and private selves required by Rawlsian public reason leads to what Melissa Yates calls “the split-identity objection” to his position, most specifically to his “duty of civility” stipulation that was discussed in Chapter 3. According to Yates (2007, p. 883): the split-identity objection argues that the ideal of public reason places an unfair obligation on citizens to split themselves into non-public and public selves: the nine-to-five self speaks in public terms and keeps her or his religious commitments to him or herself, and only after hours can she or he fully express her or his true self. Echoing Yates’s claims regarding the split-identity objection in a specifically Islamic context, Raja Bahlul (2003, p. 54) critiques Rawls’s approach to public reason, commenting that, In Rawls’s system, believers are expected to bracket religious teachings and injunctions when they step into the public arena. They are to act as if religion does not matter to the way one relates to other citizens. But what kind of self is that which self-consistently can switch between two identities—at one moment thinking that religious beliefs and values are the most important things in life, the next moment acting as if they did not matter? Many of Rawls’s critics have pointed out that public justifications and duties of civility simply gloss over many of the religious/comprehensive doctrines that many citizens do take seriously in their daily lives; doctrines that may well be constitutive of their identity at a fundamental level (Weithman, 2002; Murphy, 1998; Carter, 1993; Perry, 1988). When looking at certain Islamic rules that cannot be adequately justified via public reason alone (such as the very specific rules of inheritance, the rules regarding marriage, and the rules regarding the consumption of pork and alcohol just to name a few), even if the devout Muslim tries to justify these rules with Rawls’s

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duty of civility in mind, they end up behaving similarly to devout Catholics who offer disingenuous secular science-based arguments to oppose abortion. When one does this, they are being dishonest about the ultimate rationale of their reasoning. They are engaging in the form of disingenuous discourse because one is entering a debate or discussion with no real intention to change their views even when provided with countervailing reasons to do so. Such an approach to argumentation violates the very fundamental principles upon which Habermasian communicative action hinges upon. For Habermas (1984, p. 22): Rationality is understood to be a disposition of speaking and acting subjects that is expressed in modes of behavior for which there are good reasons or grounds. This means that rational expressions admit of objective evaluation. This is true of all symbolic expressions that are, at least implicitly, connected with validity claims (or with claims that stand in internal relation to a criticizable validity claim). Any explicit examination of controversial validity claims requires an exacting form of communication satisfying the conditions of argumentation. Argumentation makes possible behavior that counts as rational in a specific sense, namely learning from explicit mistakes. Even when these conditions are met, Habermas contends that this only opens the possibility of genuine argumentation and other ways to learning. People are stubborn and will often continue to cling to a weak or disproven position (i.e., they are not willing to learn from explicit mistakes). Few sensible people today take seriously the veracity of secular science-based claims regarding the potential medical dangers of abortion from outspoken Catholic partisans because everyone knows that science is simply being instrumentalized and that no traditional Catholic partisan or priest who follows the directives of the Vatican would ever allow for alternative scientific evidence-based claims to change their position on abortion. In essence, the religious partisan is not engaging in genuine argumentation when masking the real rationale behind their arguments in secular science-based claims because even if proven wrong, the religious partisan is generally not willing to learn “from explicit mistakes.” Other theories or scientific studies will inevitably be invoked that give further credence to the religious partisan’s antiabortion stance. One would be hard-pressed to find any devout Catholic who admits to having been “proven wrong” about abortion even if mainstream science somehow managed to definitively do so. One generally will only see a radical change in one’s stance on this issue if the individual undergoes a more radical religious identity transformation. In other words, the idea of a pro-choice devout Catholic is an oxymoron; in the end, an individual can only be one or the other. This opens the door to a larger, more serious question: can there be genuine rational argumentation in the Habermasian sense at all when deep-seated moral claims are deliberated upon in the public sphere? It seems perhaps not if one holds firmly or

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dogmatically to those beliefs since Habermas (1984, p. 22) himself admits that “[o]ne behaves irrationally if one employs one’s own symbolic means of expression in a dogmatic way.” This issue of how Habermas treats dogmatic attachment to certain foundational religious beliefs will be explored in the next section. Before turning more directly to Habermas, though, I think it would be useful to brief ly revisit Rawls’s more general assumption undergirding his entire theory and approach to liberties more generally. The notion of freedom Rawls has in mind is heavily dependent upon the character and conditions people living in a certain society find themselves situated within. Ivison (1995, p. 211) notes: All of this is assumed to jibe nicely with the political (and especially legal) traditions of the United States, that it picks out the best interpretation of the “settled convictions” about the political liberties from the relevant events of that history. Rawls’s theory by his own admission is aimed at a certain audience situated within certain historical conditions. According to Sam Scheff ler (1994, p. 18), the societies Rawls has in mind are those that “have a tradition of democratic thought and constitutional interpretation.” Even those who are experts on Islamic law who themselves are committed to the liberal project recognize the difficulties more traditionalist Muslims may have accepting liberal conceptions of rights and justice. There is no doubt that a committed Muslim can find within Islamic legal doctrine plenty of grounds for rejecting liberal conceptions of justice. Muslims are enjoined to “command the right and forbid the wrong”; and a long tradition of juridical, political, and theological thought encourages Muslim communities to enforce Islamic morality in ways that manifestly violate modern liberal civil and human rights. (March, 2007, p. 402) The commanding the good and forbidding the wrong March is referring to, in Arabic commonly known as the doctrine of al ʿamr bi-l maʿr ūf wa-n nahy ʿan al munkar, is found in Qurʾā n (2004) 3:104: “Let there arise out of you a band of people inviting to all that is good, enjoining what is right, and forbidding what is wrong: They are the ones to attain felicity.”6 Ismāʿī l ibn Kath ī r (2003) (d. 1373 C.E./774 A.H.) in his canonical Tafsīr al-Qurʾān al-ʿAẓīm (on this āyah comments: “The objective of this Āyah is that there should be a segment of this Muslim Ummah fulfilling this task, even though it is also an obligation on every member of this Ummah, each according to his ability” (v.2, p. 233). This is connected to another very famous ḥadīth reported in Ṣaḥīḥ Muslim, narrated by the prolific narrator Abu Saʾīd al-Khudr ī, that states: I heard the Messenger of Allah (saw) say: “Whoever among you sees an evil action, let him change it with his hand (by taking action); if he cannot,

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then with his tongue (by speaking out); and if he cannot, then with his heart (by hating it and feeling it is wrong), and that is the weakest of faith.” (Ṣaḥīḥ Muslim, 1:20 [no. 177] 78-(49), p. 143)7 As March appropriately notes, within traditional conceptions of Islam, commanding the good and forbidding evil is mandated for Muslims. While the specific details regarding what this precisely means require much further explanation which I will not further delve into here, one can without much dispute argue that, at least at an abstract level, this means adhering to Islam’s revealed and Prophetic sources. Interestingly enough, Rawls’s engagement with Islamic sources is mostly limited to a controversial twentieth-century Islamic reformist scholar, Abdullahi Ahmed An-Naʿim, who was mentioned earlier as being an example of how Islamic doctrine can find an overlapping consensus with Rawlsian political liberalism.8 An-Naʿim was born in Sudan in 1946. After receiving his LL.B. from the University of Khartoum in 1970 he went on to finish the rest of his education in the UK. His thinking has been greatly inf luenced by the Anglo-European canon as well as the Sudanese religious thinker Mahmoud Mohamed Taha’s controversial Islamic reform movement which he joined in 1968 while a student living in the Sudan. Taha believed in the f lexibility of Shar īʿa and strongly promoted this position throughout his writings. He commented that the Qurʾā n verses revealed in Mecca represented the universal, uncorrupted version of Islam while the later verses revealed during the Medina period were only meant to engage with the specific circumstances of seventh-century Arabia. Taha’s argument, referred to by himself as the “Second Message of Islam,” was that in the modern age, Muslims should return to the earlier, more lenient Meccan revelations for guidance. His main contention was that the Medinan revelations, while valid at the time, no longer could suffice in the twentieth century:9 If a subsidiary verse [from the Qurʾā n], which used to overrule the primary verse in the seventh century, has served its purpose completely and become irrelevant for the new era, the twentieth century, then the time has come for it to be abrogated and for the primary verse to be enacted. In this way, primary verse has its turn as the operative text in the twentieth century and becomes the basis of the new legislation. This is what the evolution of Shariʿa means. (Taha, 1987, p. 40–41) This position represents a very small minority position that cuts against the grain of over fourteen hundred years of Islamic legal scholarship. Most Islamic scholars have addressed the apparent contradiction of the early Meccan surahs and the later Medinan surahs via the principle of naskh or abrogation which is mentioned directly in Qurʾā n (2004) 2:106, “None of Our revelations do We abrogate or

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cause to be forgone, But We substitute something better or similar: Knowest thou not that Allah Hath power over all things?”10 and in Qurʾā n (2004) 16:101, “When We substitute one revelation for another, and Allah knows best what He reveals (in stages), they say, ‘Thou art but a forger’: but most of them understand not.”11 The later Medinan verses abrogated some of the earlier Meccan verses. The theory of naskh is very complicated. Just to brief ly introduce this issue with a bit more detail to the reader who is not familiar with it so that they are aware of how it meticulously developed over many centuries within mainstream Islam—naskh had two meanings in earlier discussions amongst the ʿulamāʾ: change and specification [takh ṣīṣ]. Naskh is theorized at three different levels. Its earliest formulation was known as naskh al- ḥukm dūna al-tilāwa or supersession which involves the naskh or abrogation of the ruling only in which the words of the ruling remain present within the Qurʾā n or the Sunna. The second formulation was naskh al- ḥukm wa-’l-tilāwa or suppression which refers to the Qurʾā n and involves the naskh of wordings and rulings. The latest formulation was naskh al-tilāwa dūna al-ḥukm which also refers only to something present in the Qurʾā n and a wording. In the first two examples something from earlier—wording or rulings—are replaced by something new, whereas in the third example, “the omission of the wording has had no effect upon the continuing validity of the relevant ruling” (Burton, 1985, p. 452).12 Scholars at Al-Azhar University during the second half of the twentieth century began to reject naskh al-tilāwa, arguing that all verses in the Qurʾā n have a purpose but at the same time they are only operative in specific conditions which is basically a return back to the earlier understanding of naskh.13 There has been disagreement between madhāhib regarding abrogation between sources (e.g., Sunna abrogating Qurʾā n and vice versa) and these debates continue to this day. For example, the Shāfiʿīyya forbid the abrogation of the Qurʾā n by the Sunna, whereas the Ḥanaf īyya allow it. However, none of the schools allow for later scholars to, in essence, do ijtihād on what should and should not be abrogated from the Qurʾā n or Sunna based on historical exigencies or local custom. What made Taha’s position so controversial and unorthodox was that he rejected the standard position on how naskh actually operates and instead performed his own idiosyncratic naskh on the later Medinan surahs. There are no precedents within the history of Islamic legal exegesis for what Taha did; what he did was completely alien to all madhāhib. However, one can see how Taha’s efforts would resonate with someone like Rawls. An-Naʿim’s approach to Shar īʿa draws heavily from his mentor and has gained some traction in recent years primarily among Muslim reformists and Western scholars sympathetic to Islam’s liberalization (Tampio, 2013). In practice, An-Naʿim offers a strict separationist approach to law which “suggests that religious doctrines and beliefs are irrelevant to law” (Fadel, 2013, p. 1260).14 He sees religious law as something that ultimately will corrupt the institutions of the state and even goes as far as to argue that complying with Shar īʿa—or any religious laws more generally—never justifies disobeying secular state law.

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When push comes to shove, secular state law always must be followed at the expense of Shar īʿa. Such a position is obviously untenable within most Islamic modes of legal thinking. However, perhaps even more problematic from both a theological and legal perspective is his argument that Rawls references—namely that Muslims should abandon the later Medinan surahs and return to the earlier Meccan surahs. This is a completely anachronistic way to understand the Qurʾā n and there simply is no precedent in Islamic history for doing something like this. Rawls (1997, p. 783), in his footnote drawing from An-Naʿim, rather questionably ascertains that “In particular, the earlier Mecca interpretation of Shar īʿa supports equality of men and women, and complete freedom of choice in matters of faith and religion, both of which are in accordance with the constitutional principle of equality before the law.” This cursory commentary on the earlier Mecca interpretation of Shar īʿa is misleading and overly liberalized; women most certainly did not have the same rights as men in a Rawlsian sense and idolaters most certainly were not given complete freedom of choice in matters of faith and religion in the newly conquered Meccan state. Anyway, as noted above, the look to Mecca, not Medina position is held only by a handful of modernist reformers and does not represent an authoritative or realistic account of how Islamic law operates and is conceptualized for the vast majority of the world’s Muslims today.

Habermas’s contribution to the debate on the role of religion in the public sphere: the institutional translation proviso The thought of Habermas—himself a discourse theorist more than a traditional liberal—offers another useful intervention toward f leshing out a politically liberal understanding of the role of religion in the public sphere. His thought has evolved noticeably over the years. Fred Dallmayr (1987, p. 682) contended that 1980s Habermas posited “modernity not as a platform or doctrine but as a discourse or conversation” comprised of numerous voices spanning successive periods in history, and that, for Habermas, “modernity is intimately linked with the central aspirations of the Reformation and Enlightenment: the aspirations of cognitive rationality, moral autonomy, and social-political selfdetermination.” Habermas’s thought then took a major turn after the events of September 11, 2001. While his earlier works connected to ethics and social theory saw religion as antiquated and largely irrelevant to the modern project, his later works took religion up as a central concern. Rees (2018, p. 1) contends that one of the most interesting things about Habermas’s work after the 9/11 terror attacks has been “his unexpected and vociferous support for religion as an integral part of contemporary societies” which he now sees “as a source of precious ethical values, and as an equal partner in dialogue for philosophy.” The new Habermas saw an important role for religion in the public sphere, albeit with some important caveats. Post-9/11 Habermas argues that religious consciousness can be compatible

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with liberalism so long as some form of modernization takes place, specifically “in response to the challenges of religious pluralism, modern science, and positive law and profane morality” (Stoeckl, 2017, p. 36). One of the fundamental features of post-secular liberalism that Habermas notes is what he defines as the institutional translation proviso. Habermas’s proviso was meant to avoid falling prey to the critique often attributed to Rawls’s idea of public reason which was seen as being unfair to people who possessed strong religious belief systems (Boettcher, 2009). Habermas’s institutional translation proviso argues “that religious reasons can be introduced into the debate in the informal public sphere provided that, in the course of the debate, these religious reasons are adequately translated into secular reasons equally accessible to all” (Loobuyck and Rummens, 2011, p. 239). This entire argument hinges upon the idea that it is acceptable to utilize religious reasoning in the informal sphere, but at some point, religious lines of reasoning must be translated into secular reasoning when it crosses into the public sphere such as in parliamentary or policy debates. As Loobuyck and Rummens (2011, p. 239) note: “The proviso [of Habermas] thus operates as a necessary filter between the informal and the formal public sphere.” While this sounds similar to Rawls (and in some ways is), Yates (2007, p. 881) notes that Habermas differs from Rawls in the sense that Habermas “defends a procedural rather than substantive account of public reason” and that “he favors a conception of the public sphere that relies on fair procedures that guide public deliberation, but do not restrict citizens’ participation.”15 Nonetheless, this position puts Habermas at odds with other scholars of civil society and religion such as Paul Weithman or Nicholas Wolterstorff, who each argue that religious reasoning without secular reasoning as supporting justification should be permitted in the formal public sphere (Stoeckl, 2017; Baxter, 2011). It seems apparent that Habermas’s stipulation would not appeal to the more traditional practitioner of their religion. Habermas views dogmatic attachment to religious beliefs as obstructing the possibility for any sort of meaningful transformative dialogue. He contends that there are three epistemic stances that are necessary to successfully facilitate the modernization of religious consciousness which can be summarized as follows: [R1] They succeed to the degree that they self-ref lectively relate their religious beliefs to the statements of competing doctrines of salvation in such a way that they do not endanger their own exclusive claim to truth […] [R2] [T]hey can only succeed if from their religious viewpoint they conceive the relationship of dogmatic and secular beliefs in such a way that the autonomous progress in secular knowledge cannot come to contradict their faith […] [R3] [T]his can succeed only to the extent that they convincingly connect the egalitarian individualism and universalism of modern law and morality with

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the premises of their comprehensive doctrines. (Habermas, cited in Stoeckl, 2017, p. 3)16 Let us respond to Habermas’s claims specifically to the case of Islam. Stoeckl offers her own responses to Habermas’s three epistemic claims that are primarily rooted, by her own admission, in her previous research on the Russian Orthodox Church. However, I think much of what she says can also be applied to the Islamic case and her overall conclusions resonate with my own with a few caveats. Stoeckl posits that traditionalist religious actors do not publicly proclaim that their religion is superior, but rather they simply contend that their religion is the majority religion, and that therefore it has a majoritarian right to be recognized as such. Regarding the first response [R1], Stoeckl (2017, p. 4) comments: In debates on religious freedom and the visibility of religion in the public sphere, traditionalist actors often defend the privileged role and visibility of their religion at the expense of rights for minority religions or non-believers. They do so, however, not by publicly arguing that their belief is superior over the other, but by claiming that their belief is that of the majority. While at some level this may be true, I think she is neglecting the reality that many traditionalist actors do claim—and often rather forcefully—that their belief system is superior to other belief systems in public writings and scholarly writings as well as in sermons and speeches. First, regarding the case of Islam specifically, I would contend that traditionalist Muslims are capable of demonstrating some level of self-ref lexivity. All Muslims with any knowledge recognize that Islam’s truth claims are in some ways congruent with those of Judaism and Christianity. Multiple surahs of the Qurʾā n (nos. 10, 11, 12, 14, 48, and 71) are named after Prophetic figures that appear in both the Jewish and Christian traditions.17 I would contend, however, that there are limits to the degree of self-ref lexivity and the recognition of competing doctrines of salvation, as Habermas seems to understand it at least, for the case of Islam. Islam’s primary text makes clear that the Islamic belief system is superior to others. The Qurʾā n (2004, 5:3) unequivocally states: “This day have I perfected your religion for you and completed My favour unto you and have chosen for you as religion al-Islam.”18 In Ibn Kath ī r’s (2003, vol. 3, p. 93) commentary he comments that this verse calls for people to “accept Islā m for yourselves, for it is the religion that Allā h likes and which He chose for you.” It is unfathomable for a Muslim that Allah would choose a religion for people that was not superior to the rest. According to the well-known twentieth-century Pakistani Islamist thinker Sayyid Abu’l-A’la Mawdudi (2009, p. 92), Muslims accept “His guidance as supreme, and His injunctions as absolute law. They also undertake to accept, without question or doubt, His classification of good and evil, right and wrong,

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the permissible and prohibited.” This is about as categorical of an affirmation of the superiority of Islam and its requisite moral/legal codes over other religions’ that one can find. The belief in the superiority of one’s own religion is endemic to most any religious belief system. Claims of salvific exclusivity, by definition, imply an unreasonable doctrine via Habermas’s mode of thought because overlapping consensus is not really possible when different religions claim salvific exclusivity. After all, “[r]easonable religious doctrines […] are considered to be those views that are compatible with political liberalism inasmuch as they are conducive to an overlapping consensus” (Stoeckl, 2017, p. 3). I think Habermas’s call for genuine self-ref lexivity, which seems to necessitate being willing to potentially admit that your path to salvation is not the only one, runs into issues within any major religion’s orthodox traditions. Salvific exclusivity therefore is hardly exclusive to Islam. Is not “the truth” and final salvation what most religions claim to offer? Within Catholicism, for example, the Nicene Creed unequivocally declares that Catholics believe in “one holy catholic and apostolic church.”19 The Four Marks of the Church—the modifiers one, holy, catholic, and apostolic—describe the fundamental beliefs and rudimentary characteristics of the Christian church that were first formally articulated at the First Council of Constantinople in 381 C.E. These four marks remain the cornerstone of Catholicism today and are most certainly an affirmation of some type of truth claim; why dogmatically accept something otherwise? Let us also not forget Cyprian of Carthage’s (d. 258 C.E.) famous declaration, Salus extra ecclesiam non est (there is no salvation outside the church), which has been reiterated in various forms for centuries by Catholicism’s most prominent figures including St. Augustine (d. 430 C.E.) and St. Thomas Aquinas (d. 1274 C.E.). For example, St. Augustine’s Sermo ad Caesariensis Ecclesia plebem unequivocally contends: No man can find salvation except in the Catholic Church. Outside the Catholic Church one can have everything except salvation. One can have honor, one can have the sacraments, one can sing alleluia, one can answer amen, one can have faith in the name of the Father and of the Son and of the Holy Ghost, and preach it too, but never can one find salvation except in the Catholic Church. (St. Augustine cited in Cleenewerck, 2007, p. 127) While most Muslims do not impress their claims of salvific exclusivity upon non-Muslims—and some Muslims even leave the door slightly open regarding the possibility of other routes to final salvation—it is hard to envision this fundamental element of Islamic creed [ʿaqīda]—the superiority of Islam over all other religions—as not deeply impinging upon the content of more public statements that religious Muslims may make.20 So while Muslims may be able to relate their doctrines to certain other doctrines, it seems untenable for this to be done in a way that does not ultimately posit Islam as the superior doctrine. Claims

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of inherent superiority among competing religious doctrines are not things for which an overlapping consensus can be reached without endangering their own exclusive claim to truth. Turning to the second response [R2] to Habermas’s proviso, Stoeckl (2017, p. 4) posits that this can be met to some degree with some conditions: Most traditionalists do not dispute the independence of secular knowledge directly, but they advance claims that they borrow from the pluralism within scientific discourse, from a postmodern type of relativism, and even a postcolonial subaltern discourse, which questions the independence of knowledge and describes it as the product of power-structures. In Stoeckl’s assessment, traditionalists would question how knowledge is produced and whether or not it is inextricable from power structures—this sounds almost as if traditionalist religious actors are Foucauldian in their understanding of knowledge production. This is an interesting position for Stoeckl to take; however, I do not think she needs to go this far to articulate how traditionalists approach secular knowledge claims. I would argue that within Islam, there is no prima facie opposition to any particular secular knowledge claims, especially regarding the hard sciences. Accepting certain knowledge claims does not necessitate a deconstruction of power–knowledge discourses. Nidhal Guessom (2011, p. 53) argues that “the Qurʾan presents a complete worldview: a philosophy of knowledge, a philosophy of nature and perhaps (in the view of some) a philosophy of science as well.” Ibn Rushd (1983[1178]) claimed in his Fa ṣl al-maqāl fī-mā bayna al- ḥikmah wa-alshar īʿah min al-itti ṣāl that it was actually impossible for philosophy to be in conf lict with religion. Similar to what al-Faruqi would argue centuries later, for Ibn Rushd, there could never be any conf lict “between the word of God and the work of God” (Guessoum, 2011, p. 174). Islam has a long tradition of supporting rigorous scientific inquiry. It is widely accepted that Islamic scholars like Ḥasan ibn al Haytham (d. 1040 C.E./431 A.H.) and Abū Rayḥā n al-Bī r ū n ī (d. 1048 C.E./440 A.H.) were pioneers in the development of the modern scientific method of inquiry which prioritizes empirical results and systematic and rigorous hypothesis testing. As noted in the introduction, even contemporary Islamists, such as Sayyid Qutb (2007, p. 112), have argued that Muslims are “responsible for learning all the sciences.” Qutb even argued that it was a communal Muslim obligation or farḍ al-kifāya that Muslim societies produced a sufficient number of experts in the arts and sciences. This is to suggest that traditionalist Muslims are capable of accepting certain secular knowledge claims on their own merits without needing to first evaluate power–knowledge relations. Both Stoeckl and I would seem to agree that response three [R3] is untenable within most traditionalist religious frameworks. I think this is especially true within an authentically Islamic discursive framework. Stoeckl (2017, p. 4) contends on R3:

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religious traditionalists often argue that the egalitarian individualism and universalism of modern law and morality render a society amoral and doomed. In this point they differ from liberal religious actors (who recognize the priority of human rights and accept that their religious viewpoint represents a minority position in a larger, pluralistic society) and they agree with fundamentalist religious actors. Her point here is clear—egalitarian individualism and the universalism of modern law and morality simply are not compatible with traditional religious conceptualizations of society and law. She goes on to point out that the traditionalist position is closer to the fundamentalist position on this matter. However, she is careful to note that traditionalists and fundamentalists have vastly different approaches to society: Traditionalists do not retreat from society, nor do they endorse violent means of reversal; they rely on the conservative religious and political establishment in their respective countries, coopt political and civil society actors and forge transnational alliances, where fundamentalists generally remain at a distance from organized politics and clerical hierarchies. (2017, p. 4) Stoeckl is partially correct in asserting that traditionalist movements do not seek to retreat from society. I would argue that many traditionalist Muslim movements also have a praxeological dimension that involves engaging with the political establishment and co-opting political and civil society actors as Stoeckl claims, though there are also a significant number that do not.21 For example, it is hard to make a serious case that traditionalist actors in most of the contemporary GCC monarchies—especially in Saudi Arabia, Bahrain, and the United Arab Emirates where religious and political agendas disseminate from the top down— are co-opting anyone for their religious or political agendas in any meaningful way. The same can probably be said for ascetic Sufis who do their best to steer clear of worldly political engagement, and when they do—of late—have been uncritically siding with autocratic rulers. Overall, I think I am in general agreement with Stoeckl’s larger point regarding traditionalist religious perspectives and egalitarian individualism and universalism. Islam’s Shar īʿa legal system, which is inextricable from Islam itself, is not in any way concerned with its reception within human-made discourses about what Habermas calls (2006, p. 14) “egalitarian individualism and universalism of modern law and morality.” This is not to suggest that within the broader Islamic tradition Shar īʿa has ever been the only source of law. Indeed, as March (2013, p. 299) notes: “for centuries legitimate Islamic rule accommodated multiple sources of law, both the religious law of the jurists ( fiqh) derived from the textual sources of revelation and the ‘secular’ law of the rulers, often referred to as siyasa or qanun.” However, it is important to point out that siyāsa or qānūn

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always deferred to Shar īʿa when the two different sources of law were at odds. Shar īʿa does address many of the aforementioned Western socio-political concerns, but on its own terms within its own unique discursive ontological and epistemological frameworks.

What about Quong’s claims regarding pluralism? As noted in the previous chapter, Jonathan Quong offered an alternative take on liberalism’s defining feature—its understanding of pluralism. Liberalism without Perfection (Oxford University Press, 2011) argues firmly against Raz’s iteration of perfectionist liberalism and contends that the state ought not be in the business of defining the good life for its citizens. Quong’s main argument regarding political liberalism hinges upon the idea “that political principles must be publicly justifiable to reasonable people” (2011, p. 3). He further argues that: Laws that prohibit or restrict gambling, prostitution, pornography, or recreational drug use on the grounds that these activities are either immoral or disvaluable fail the test of public justification, and so cannot provide a legitimate basis for the exercise of state power. (2011, p. 4) Public justification for Quong, like most adherents of political liberalism, explicitly disallow reference to religious doctrines that cannot be justified via non-religious reasoning. This is obviously problematic from the very start when considering that any legitimately Islamic mode of argumentation will refer to Islamic religious doctrines. However, let us first further engage with Quong’s ideas. When considering the importance of publicly justifiable political principles to reasonable people, this begs the question: what is it then that makes a person unreasonable? Quong (2011, p. 291) answers this question in the final chapter of Liberalism without Perfection, commenting: Unreasonable citizens reject at least one, but usually several of the following: (a) that political society should be a fair system of social cooperation for mutual benefit, (b) that citizens are free and equal, and (c) the fact of reasonable pluralism. Similarly, one qualifies as unreasonable if one accepts these ideals, but fails to accord them deliberative priority in one’s practical reasoning. We can see exactly where Quong draws much of his inspiration for this definition. On the two things that make people reasonable according to Rawls (1997, p. 805): First, they stand ready to offer fair terms of social cooperation between equals, and they abide by these terms if others do also, even should it be to their advantage not to; second, reasonable persons recognize and accept

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the consequences of the burdens of judgment, which leads to the idea of reasonable toleration in a democratic society. Now with Quong’s definition of the unreasonable citizen at hand, let us brief ly look at whether the devout Muslim citizen who possesses conservative, yet mainstream, Islamic views qualifies as an “unreasonable citizen” under his characterization. As we did previously with Habermas, let us respond to Quong’s claims in relation to the case of Islam. There really are no deep-seeded qualms a traditional, conservative Muslim necessarily should have regarding Quong’s first proposition. Islamic political thought from its very beginnings has emphasized the importance of fairness and social cooperation for mutual benefit amongst Muslims. One of the more famous verses of the Qurʾā n (2004, 9:71) explicitly notes that: “The believers, men and women, are protectors, one of another: they enjoin what is just, and forbid what is evil.” 22 It is obvious that fairness and social cooperation for mutual benefit are obligatory for all Muslims toward other Muslims from other Qurʾanic verses (3:134; 4:36; and 4:135) as well. However, there is no reason to believe that anything within Islam limits the possibility of “a fair system of social cooperation for mutual benefit” for all people regardless of their particular religious views so long as they are not actively at war with Islam or are trying to overthrow the state. Qurʾā n (2004) 60:8 says: “Allah forbids you not, with regard to those who fight you not for (your) faith nor drive you out of your homes from dealing kindly and justly with them: For Allah loveth those who are just.”23 In a ḥadīth reported by Ṣafwā n b. Sulaym, the Prophet Muhammad (‫ )ﷺ‬said: “If anyone wrongs a Muʿāhid, detracts from his rights, burdens him with more work than he is able to do, or takes something from him without his consent, I will plead for him (the Muʿāhid) on the Day of Resurrection” (Sunan Ābū Dāw ūd, 2008, Vol. 3, No. 3052).24 A muʿāhid is a non-Muslim who has an agreement or treaty of protection with Muslims. In the modern context, any non-Muslim legally residing within a Muslim country and following all applicable local laws would qualify as a muʿāhid. Concerns for social welfare go all the way back to Islam’s very beginnings. Even orientalist scholars such as Patricia Crone (2005) have commented that the Rashidun Caliphate was one of the world’s first welfare states. During the rule of Sunnī Islam’s second Caliph, ʿUmar ibn Al-Khatt āb, modest living and accountability were expected of governors and other individuals in positions of authority. He was even believed to have been responsible for creating one of the world’s earliest welfare states that was meant to benefit everyone, not just those who were a part of his confessional community (Crone, 2005). The “everyone” noted here included non-Muslims who enjoyed the protection of the state or āhl ul-dhimma. Quong’s second proposition is a bit more problematic. Indeed, Qurʾā n 2:256 famously declares that there is no compulsion in religion [lā ikhrāha fī al-dīn].

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However, historically Shar īʿa has mandated a tax known as the jizya that nonMuslims are obliged to pay.25 This seems to, at least in principle, partially violate the notion of all citizens being free and equal. Most traditional scholars accept jizya as legitimate and religiously binding; however, there does not exist any formalized rate or amount this tax ought to be. It is well-known that the enforcement and rate of jiyza varied with different Islamic Empires. Some scholars have seen it more as a symbolic measure as opposed to something meant to be punitive. The prolific mutakallim Fakhr al-Dī n al-Rā zī (d. 1209 C.E/606 A.H.) for example saw jizya as a way to get non-Muslims more involved in Islamic civil society which he hoped would in turn encourage them to embrace Islam (McAuliffe, 1990). The famous nineteenth-century French scholar Gustave Le Bon (quoted in Sirry, 2014, p. 179) noted “that despite the fact that the incidence of taxation fell more heavily on a Muslim than a non-Muslim, the non-Muslim was free to enjoy equally well with every Muslim all the privilege afforded to the state.”26 It is also important to remember that non-Muslims were historically exempt from being conscripted for war, and therefore some have argued that this tax was compensation for this fact. On the other hand, if non-Muslims were exempt from being conscripted for war, while Muslims were not, is this not another example of unequal treatment? Another example where Islam does not necessarily offer fully equal rights in the liberal sense is regarding marriage. First, for a marriage to be considered valid, a walī or legal guardian—usually the father or the brother of the bride—must give his consent to the marriage. Permission from a walī for marriage is considered mandatory within all Sunnī schools of fiqh except the Ḥanīfīyyah. This ruling is based on very strong evidence [isnad] in a ḥadīth reported in Jāmi‘ at-Tirmidhī (v.2, no. 1101) that comments that no marriage is valid without the consent of a walī.27 According to a ḥadīth narrated by Abū Mūsā: “There is no marriage except with a walī.” Another ḥadīth in the same collection (v.2, no. 1102) reported by ‘Ā’ishah similarly comments, “Whichever woman marries without the permission of her Walī her marriage is invalid, her marriage is invalid, her marriage is invalid.”28 Interestingly enough, this is not a typo—in the original Arabic text of this ḥadīth, “her marriage is invalid” [ fanikāḥuhā bāṭilun] is in fact repeated three times in a row.29 Obviously seeking the permission of a male guardian for the right to marry is something that would be quite unpalatable to the liberal mindset. Regarding who is allowed to marry whom, the jumhūr or widely accepted majority position is that female Muslims are only allowed to marry Muslim men, whereas Muslim men have the option to marry those women who identify as Jewish and Christian [ahl al-kitāb].30 While some contemporary reformist scholars have issued fatāwā challenging this widely held position, overall this stipulation remains binding within all major schools of Islamic thought.31 Needless to say, this also limits marriage options for non-Muslims as well. Islam also does not provide for marital arrangements other than those between males and females. Little has been written in the way of gay marriage within Islam because the point is moot since it is well established that homosexual acts are fāḥisha or a sinful

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abomination in the first place.32 So perhaps Quong’s second point is not completely incompatible with mainstream Islam, but it certainly wades into a gray area and, in some cases, obviously is. Engaging with Quong’s third point requires first explaining what he means by reasonable pluralism. In all modern societies according to Rawls and Quong, deep disagreements will persist regarding moral and religious truths. As noted earlier in this book via a reference to Larmore (1996) along with a litany of other contemporary liberal thinkers, disagreement is an inextricable part of modernity. What makes disagreement reasonable for Quong (2011, p. 37) is if “it exists as a result of the sincere and reasonable efforts of rational people to consider ethical, religious, and philosophical questions.” Therefore, reasonable disagreement is not based upon egoism, vanity, or irrationality; it simply arises whenever reasonable and rational people live under liberal conditions. Reasonable disagreement also has the potential to be rooted in a more general political conception of justice that itself can become “the subject of an overlapping consensus between reasonable citizens all of whom are committed to the idea of public reason” (Quong, quoted in Vallier, 2014, pp. 177–178).33 One of Quong’s further developments of Rawls’s argument is his engagement with the internal and external conceptions of political liberalism. The external conception (or non-ideal theory) is dependent upon the actual beliefs held by the citizens whereas the internal conception (or ideal theory) is built around an idealized conceptualization of beliefs held by citizens. According to Kevin Vallier (2014, p. 179): To put it another way, the internal and external conceptions offer different interpretations of the construal of members of the public, those to whom justifications are owed. The internal conception holds, above all else, that political principles must only be justified to idealized persons who already affirm liberal values. All the distinctive features of the internal conception are built around this highly idealized justificatory constituency. For Quong (2011, p. 144), the internal conception “at no point depends on the beliefs of real people.” However, as noted by Vallier, this basically means that the internal conception is still restricted to only those individuals who already embrace liberal values. Gerald Gaus (2012) further contends that such a conception of political liberalism ultimately is unavoidably sectarian and is rooted in coercion—people are ultimately coerced into accepting liberal values since liberal values only value that which, in the end, counts toward public justification.34 Ultimately, Quong unwittingly articulates why political liberalism—even his own modified iteration—is not compatible with an Islamic worldview. Regarding perfectionist liberalism, he comments that if “you believe that the good life requires strict adherence to inherited cultural or religious traditions, then liberalism will hold little appeal as a political theory” (2011, p. 4). However, it is apparent that the same basic point applies even for Quong’s modified

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iteration of political liberalism. The famous exiled Egyptian clerical figure Yusuf al-Qaradawi commented that modern secularism was a form of atheism and a rejection of Islam in his Al-Ḥulūl al-Mustawradah wa-Kayfa Janat ʻalā Ummatinā (1971) and further commented: “God revealed His divine guidance to humanity, made certain things permissible and others prohibited, commanded people observe His injunctions and to judge according to them” (cited in March, 2011, p. 29). For certain, practicing Muslims—along with Christians and Jews—do believe in the importance of a specific inherited cultural or religious tradition. The Arabic term turāth refers to tradition or legacy. Massad (2007) argues that turāth is a modern concept that prior to the nineteenth century only referred to financial inheritance. However today it is popular among revivalists. On its modern usage he comments: The term turath refers today to the civilizational documents of knowledge, culture, and intellect that are said to have been passed down from the Arabs of the past to the Arabs of the present. It constitutes the living compendium of the past in the present. It is in a sense a time traveler. (2007, p. 17) This dovetails nicely with Hallaq’s (2013, p. 168) insistence that Muslims turn to their “historical moral resources” for bringing back to life their ossified and dysfunctional political structures.35 It is this turāth that modern Islamist thinkers and traditionalists alike seek to rediscover in the modern context. To some degree, all revealed religions are dependent upon prior tradition. All major world religions—especially the Abrahamic ones—have prophets and sages that their adherents ought to emulate in certain ways. The good practitioner of the religion aims to align themselves with and model their lives after certain practices and attitudes displayed by iconic figures of the past. “The ideal type of person in Islam is the one who most closely resembles the Prophet (‫ )ﷺ‬who was ascribed the honorific title of ‘al-Insān al-K āmil’ (the person who has reached perfection)” (Kaminski, 2016, p. 47). The Qurʾā n (2004, 33:21) unequivocally states: “Ye have indeed in the Messenger of Allah [Mohammed] a beautiful pattern (of conduct) for any one whose hope is in Allah and the Final Day, and who engages much in the praise of Allah.”36 Muslims are supposed to follow the sunna or customs and actions of the Prophet Muhammad (‫ )ﷺ‬in regard to his sayings [sunna qawlīyya], his actions [sunna fi’līyya], and his approval of the actions performed by other companions of his which could be understood either via his visible approval or silent tacit consent [sunna taqr īr īyya]. Such communal adherence is believed to strengthen both the individual believer and the larger community. One of the more widely referenced verses of the Qurʾā n (3:103) tells the believer to hold firmly to the rope of Allah and not become divided.37 The commentary of this verse offered in Ibn Kath ī r’s Tafsīr al-Qurʾān al-ʿAẓīm notes that “the rope of Allah” refers to Allah’s covenant (2003, vol. 2, p. 229). Holding firm to the rope of Allah cannot be done without

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holding firm to the revelations, thus necessitating adherence to Islam’s inherited cultural or religious tradition, some of which may be difficult to reconcile with political liberalism.

Conclusion While there has been a litany of scholarship on liberal approaches to public reason since Rawls’s work first came out in the 1970s, the opposite is true regarding non-liberal approaches to public reason. This chapter sought to engage with some of the limitations regarding what liberal public reason can offer those whose worldviews are rooted within an Islamic socio-political mindset. It did not aim to show that liberal and Islamic conceptions of public reason are hopelessly in conf lict at all times. Liberal public reason can potentially be operationalized within various domains within the broader Islamic socio-political discursive sphere within certain parameters. For example, Fadel (2020, p. 117) has recently argued that within the realm of non-ideal theory, specifically regarding how Islamic judges operationalize public reasoning when applying Islamic law, “Rawls’s idea of public reason can play an important role in guiding how public reason-minded judges should apply Islamic law when the rules of their legal system require them to do so.” I think this is accurate to a large extent. In certain cases, public reason-minded judges can find ways to creatively balance obligatory religious prerequisites with the basic standards of liberal public reason in a way that remains within the fold of Islamic legal thinking if done correctly. However, by Fadel’s own account, public reasonminded judges are only a type of judge; they are not necessarily the default or only “correct” type of judge. It is questionable as to whether or not most Islamic judges, in practice (since we are talking at the level of non-ideal theory still), operate in a Rawlsian public reason-minded manner when applying law. While public reason obviously plays a role in shaping a public reason-minded judge’s decision, there are undeniably other doctrinal factors that will tint any Islamic judge’s reasoning and decisionmaking process as well, and these reasons may very well run afoul of Rawlsian public reason. This same logic can be extended to understanding how individuals engage in public reason more generally. I feel Fadel downplays this reality in his analysis. In the end, it seems that his iteration of an overlapping consensus between Islam and non-ideal theory is still based upon a certain, idealized version of Islam and perhaps even an idealized version of non-ideal theory as well. The biggest problem with Fadel’s (2020, p. 117) claims is that they minimize the deeper problem posed by the fact that, by his own admission, there cannot be a political or legal place for Islamic law in a liberal democracy in Rawls’s ideal theory, except to the extent that Islam and Islamic law may play a legitimate role in the personal and associational lives of Muslim citizens of a well-ordered society.

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It is important to remember that non-ideal theory ultimately is rooted in an ideal theory, and that if—as according to Fadel— it “seems obvious” that Rawls’s ideal theory is not compatible with traditional Islamic values and beliefs, then one is already beginning with a shaky foundation for conceptualizing the compatibility of Islam with non-ideal theory as well. Fadel’s (2020, p. 117) own approach to this matter hinges upon Muslims endorsing “conceptions of Islam that are reasonable from a Rawlsian perspective” which is something this chapter has sought to show may be more problematic that it sounds when looking more closely at what counts as reasonable and how traditional interpretations of Islam fit within the standard liberal understanding of reasonableness.

Notes 1 “New Atheists” was a term popularized between 2006 and 2007 by Gary Wolf and Ronald Aronson. It refers to a new breed of atheist intellectuals whose discourses seek to use science and empirical observation to positively disprove all theistic beliefs. New Atheists are often known for their abrasive and confrontational rhetorical style. The broader New Atheist Movement also has an inherently normative political dimension. According to Davies (2011, p. 20), supporters of the movement generally want people to rid themselves “of religious belief (belief in God in particular) and to become active members of what we might call an ‘atheist liberation movement’ devoted to the extermination of religion, one which can be compared with movements active in promoting causes such as racial equality, feminism, and gay rights.” Such figures—similar to many of the religious fundamentalists they loathe—often dogmatically promote their brand even to those who do not want to hear their message. 2 On the Rawlsian notion of congruence, Andrew Lister (2015, p. 134) comments: “A conception of justice is congruent when, in a society organized according to that conception, having the appropriate sense of justice is in one’s interest according to this thin sense of goodness, which does not presuppose any commitment to justice.” 3 Appeals to comprehensive doctrines for basic questions of justice can be readily found within non-Islamic discourses as well. As Wolterstorff (cited in Audi and Wolterstorff, 1997, p. 105) notes, “It belongs to the religious convictions of a good many religious people in our society that they ought to base their decisions concerning fundamental issues of just on their religious convictions. They do not view it as an option whether or not to do so. […] Their religion is not, for them, about something other than their social and political experience; it is also about their social and political existence.” َّ ‫ش ٌّر لَّ ُك ْم َو‬ 4 ‫للاُ يَ ْع لَ ُم َوأَن ت ُْم َل‬ َ ‫ش ْي ئ ً ا َوُه َو‬ َ ‫س ٰى أَن ت ُِح بُّ وا‬ َ ‫س ٰى أ َن ت َ ْك َر ُه وا‬ َ ‫ش ْي ئ ً ا َوُه َو َخ ْي ٌر لَّ ُك ْم َو‬ َ ‫ع لَ ْي ُك ُم اْل ِق ت َ ا ُل َوُه َو ُك ْرهٌ لَّ ُك ْم َو‬ َ ‫ب‬ َ ‫ُك ِت‬ َ ‫ع‬ َ ‫ع‬ ‫ون‬ َ ‫ت َ ْع لَ ُم‬

5 ‫ُك ُّل ُم ْس ِك ٍر َخ ْم ٌر َوُك ُّل ُم ْس ِك ٍر َح َراٌم‬ 6 ‫ف َويَ ن َه وَن َع ِن ال ُم ن َك ِر ۚ َوأ ُو ٰل ئِ َك ُه ُم ال ُم ف ِل ح وَن‬ ِ ‫َول ت َ ُك ن ِم ن ُك م أ َُّم ةٌ يَ دع وَن ِإلَ ى ال َخ ي ِر َويَ أُم روَن ِب ا ل َم ع رو‬ 7 ‫ف اِإلي َم اِن‬ ْ َ ‫س انِ ِه فَ إِْن لَ ْم يَ ْس ت َ ِط ْع فَ ِب قَ ْل ِب ِه َوذَِل َك أ‬ ُ َ‫ض ع‬ َ ‫ َم ْن َرأَى ِم ْن ُك ْم ُم ْن َك ًرا فَ ْل يُ غَ ِيّ ْرهُ ِب يَ ِدِه فَ إِْن لَ ْم يَ ْس ت َ ِط ْع فَ ِب ِل‬This ḥadīth was also found in at-Tirmidh ī (2007) and was rated by him as “ḥasan” or good (Tuḥ fat Al-A ḥwadhi 6:390). 8 The work of An-Naʿim that Rawls is referencing is titled, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law, pp. 52–57 (Syracuse, NY: Syracuse University Press, 1990). 9 Taha’s unorthodox positions ended up getting him executed in 1985 at the behest of Sudan’s leader at the time, Gaafar Nimeiry. 10 ‫ت ِب َخ ْي ٍر ِ ّم ْن َه ا أ َ ْو ِم ثْ ِل َه ا ۗ أَلَ ْم ت َْع لَ ْم أ َ َّن ََّللا َع لَ ٰى ُك ِّل َش ْيٍء قَ ِدي ٌر‬ ِ ْ ‫س ْخ ِم ْن آيَ ٍة أ َ ْو نُ ن ِس َه ا نَ أ‬ َ ‫َم ا نَ ن‬

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11 ‫ت ُم ْف ت َ ٍر بَ ْل أ َ ْك ث َ ُرُه ْم َل يَ ْع لَ ُم وَن‬ َ ‫َوِإذَا بَ دَّْل نَ ا آيَ ةً َّم َك اَن آيَ ٍۙة َو َُّللا أ َ ْع لَ ُم ِب َم ا يُ نَ ِ ّزُل قَ ا لُ وا ِإنَّ َم ا أَن‬ 12 The ruling regarding stoning [rajm] of adulterers is the best-known example of naskh al-tilāwa dūna al- ḥukm. While nothing specifically in the Qurʾā n calls for this punishment, most scholars still accept its validity. The only disagreement among most scholars is whether or not this is rooted in the Qurʾā n or the Sunna. 13 I would like to thank Samy Ayoub for this helpful insight regarding twentieth-century reconsiderations of naskh at Al Azhar University. For a more advanced discussion of naskh written in English, see Louay Fatoohi’s excellent work, Abrogation in the Qurʾan and Islamic Law (New York: Routledge, 2013). 14 Fadel challenges An-Naʿim’s position on the grounds that it would be nearly impossible for Muslims to actually willingly accept and embrace the goals An-Naʿim has for reform since his position basically seeks to relegate Shar īʿa to metaphysical debates among scholars with no real-world operationalization. In response, Fadel (2013b, p. 1271) comments: “The challenge facing scholars of Islamic law, of course, is separating its underlying structural principles from the detailed historical application of those principles, and then articulating those principles in a manner consistent with a universalist and humanist conception of law, in contrast to Islamic law’s historical form when it was first and foremost a law for Muslims.” Fadel’s starting point seems much more tenable even if it also is a difficult, long-term project. 15 Loobuyck and Rummens (2011, p. 241) correctly point out that Habermas actually misunderstands Rawls’s understanding of the political public sphere which Habermas understands as “the ‘informal public sphere’ whereas, in fact, the ‘political public sphere’ as defined by Rawls basically corresponds to Habermas’s formal public sphere.” As a result of this misunderstanding on Habermas’s part, contrary to what he thinks, Rawls actually is the one who offers the more inclusivist position: “In the context of the formal public sphere, Habermas rejects all religious arguments. In contrast, Rawls allows them here on the condition that the proviso is met” (Loobuyck and Rummens 2011, p. 241). 16 Stoeckl quotes Jürgen Habermas, “Religion in the Public Sphere,” European Journal of Philosophy 14(1), p. 14. 17 In addition to this, Surah Maryam (no. 19) is named after Mary, Mother of Jesus, and Surah al-Ānbiyāʾ (no. 21) is named “The Prophets” which refers to many of the other prophets found within the older Abrahamic tradition. ُ ‫ضي‬ ُ ‫ت لَ ُك ْم ِد ي نَ ُك ْم َوأَتْ َم ْم‬ ُ ‫اْل يَ ْوَم أ َ ْك َم ْل‬ 18 ‫ت لَ ُك ْم ِاإلْس َال َم ِدي نً ا‬ َ ‫ت‬ ِ ‫ع لَ ْي ُك ْم ِن ْع َم ِت ي َوَر‬ 19 in unam catholicam atque apostolicam Ecclesiam. 20 Mohammed Fadel (2013a) notes in his research that a few modernist Egyptian theologians such as Muhammad Abu Zahra and Yusuf al-Qaradawi have questioned Islam’s salvic exclusivity; however, this is a minority opinion that is not widely held. 21 Traditionalist movements should be seen as different than fundamentalist movements in this regard. Previously I contended that “[a]ll forms of fundamentalism have a praxeological dimension” and that “such movements should not be understood a retreat into mysticism” (2016a, p. 200). The same cannot be said for all traditionalist movements. ُ ‫َواْل ُم ْؤِم نُ وَن َواْل ُم ْؤِم نَ ا‬ 22 َ ‫ص َالة َ َويُ ْؤت ُوَن ال َّزَك اة‬ ُ ‫ت بَ ْع‬ ِ ‫ض ۚ يَ أ ُْم ُروَن ِب ا ْل َم ْع ُرو‬ ٍ ‫ض ُه ْم أ َ ْوِل يَ اُء بَ ْع‬ َّ ‫ع ِن اْل ُم ن َك ِر َويُ ِق ي ُم وَن ال‬ َ ‫ف َويَ ْن َه ْوَن‬ ‫ع ِزي ٌز َح ِك ي ٌم‬ ُ ‫َويُ ِط ي عُ وَن ََّللا َوَر‬ َ ‫س يَ ْرَح ُم ُه ُم َُّللا ۗ ِإَّن ََّللا‬ َ ‫س ولَ هُ ۚ أ ُو ٰلَ ِئ َك‬

ُ ‫ع ِن ٱلَّ ِذ ي َن لَ ْم يُ ٰقَ ِت لُ وُك ْم ِف ى ٱل ِدّي ِن َولَ ْم يُ ْخ ِرُج وُك م ِ ّم ن ِد ٰيَ ِرُك ْم أَن ت َ بَ ُّروُه ْم َوت ُْق ِس‬ 23 ‫ب ٱْل ُم ْق ِس ِط ي َن‬ ُّ ‫ط ٓو۟ا ِإلَ ْي ِه ْم ۚ ِإَّن ٱََّلل يُ ِح‬ َ ‫َّل يَ ْن َه ٰى ُك ُم ٱ َُّلل‬ 24 This ḥadīth is graded as daʻīf, or weak, in Sunan Abī D āw ūd, but it is graded as Ṣa ḥīḥ or authentic by Nasiruddin al-Albani. Other a ḥādīth exist that make similar points regarding the rights of non-Muslims. 25 See Qurʾā n 9:29. 26 Le Bon’s observation further supports my argument that Islam meets the basic requirements of Quong’s first proposition. Other than the position of the Caliph, all other political positions were open to non-Muslims. It is well-known that many

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non-Muslims held many important positions in the state service of the various Islamic empires throughout history. 27 This ḥadīth is reported as Saḥīḥ in Jāmiʿ at-Tirmidhī. It is also reported by A ḥ mad b. Ḥanbal in his Musnad and in Sunan Ābū D āw ūd, among other places. 28 This ḥadīth is reported as Ḥasan in Jāmiʿ at-Tirmidhī. 29 ‫أَيُّ َم ا اْم َرأَةٍ نُ ِك َح ْت ِب غَ ْي ِر ِإْذِن َوِل ِيّ َه ا فَ ِن َك اُح َه ا بَ اِط ٌل فَ ِن َك اُح َه ا بَ اِط ٌل فَ ِن َك اُح َه ا بَ اِط ٌل‬ 30 See Qurʾā n 2:221 and 5:5. However, as Abou El Fadl (2016) notes, the majority of scholars historically have viewed it as abominable (makr ūh) if a Muslim man chooses to marry a non-Muslim kitabī if living in a non-Muslim land because of the mother’s ability to inf luence the child’s religious beliefs in such an environment. 31 For example, while Khaled Abou El Fadl (2016, online) issued his own fatwā contending that Muslim women marrying non-Muslim men—specifically Jewish or Christian men—was makr ūh rather than ḥarām, he nonetheless points out that to his surprise he could not find a single dissenting opinion on this matter “which is rather unusual for Islamic jurisprudence because Muslim jurists often disagreed on many issues, but this is not one of them.” 32 See Qurʾā n 54:37 and 7:80. 33 Items contained within the nested parentheses can be originally found in Quong, 2011, p. 37. 34 Gaus gives the following example of an illiberal sectarian doctrine: “B is an illiberal sectarian doctrine in population P if (1) B is held only by S, a proper subset of P, (2) the members of S justify moral and political regulations R for the entire P population (3) by appeal to B and (4) only B could justify R” (2012, p. 8, and cited in Vallier, 2014). 35 Hallaq comments that Islam’s “[h]istorical moral resources would provide a blueprint for a definition of what it means to engage with economics, education, private and public spheres and, most of all, the environment and the natural order” (2013, p. 168). 36 ‫لَ قَ ْد َك اَن لَ ُك ْم ِف ي َرُس وِل َِّللا أ ُ ْس َوة ٌ َح َس نَ ةٌ ِل َم ْن َك اَن يَ ْرُج و ََّللا َواْل يَ ْوَم اْآلِخ َر َوذََك َر ََّللا َك ِث ي ًرا‬ 37 ‫َواْع ت َ ِص ُم وا ِب َح ْب ِل ال لَّ ـ ِه َج ِم ي عً ا َوَل ت َفَ َّرقُ وا‬

References Abou El Fadl, K. (2016). FATWA: On Christian men marrying Muslim women (Updated) [blog post]. [Viewed on September 20, 2018]. Available from: https:// www.searchforbeauty.org/2016/05/01/on-christian-men-marrying-muslim-wome n-updated/. Abū Dāw ūd, S. (2008). Sunan Abū D āw ūd (Vol. 5). Translated and edited by A.T.A Zubair ‘Ali Za’i and N. al-Khattab. Houston, TX: Darussalam Publishers. Al-Shāṭ ibī, A.I. (2012). The Reconciliation of the Fundamentals of Islamic Law [Al-muwāfaqāt fī usūl al-shar īʿa] (Vol. 1). Translated by I.A. Nyazee. Reading, UK: Garnet Publishing. An-Naʿim, A.A. (1990). Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law. Syracuse, NY: Syracuse University Press. Audi, R., and Wolterstorff, N. (1997). Religion in the Public Square: The Place of Religious Convictions in Political Debate. Lanham, MD: Rowman & Littlefield. Bahlul, R. (2003). Toward and Islamic conception of democracy: Islam and the notion of public reason. Critique: Critical Middle Eastern Studies, 12(1), 43–60. Baxter, H. (2011). Habermas: The Discourse Theory of Law and Democracy. Palo Alto, CA: Stanford University Press. Boettcher, J. (2009). Habermas, religion and the ethics of citizenship. Philosophy & Social Criticism, 35(1), 215–238. Burton, J. (1985). The exegesis of Q. 2:106 and the Islamic theories of “naskh: m ā nansakh min āya aw nansahā na'ti bi khairin minhā aw mithlihā.” Bulletin of the School of Oriental and African Studies, University of London, 48(3), 452–469.

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Carter, S. (1993). The Culture of Disbelief. New York: Basic Books. Cleenewerck, L. (2007). His Broken Body: Understanding and Healing the Schism between the Roman Catholic and Eastern Orthodox Church (An Orthodox Perspective). Brussels: Euclid University Press. Crone, P. (2005). Medieval Islamic Political Thought. Edinburgh, UK: Edinburgh University Press. Dallmayr, F. (1987). The discourse of modernity: Hegel and Habermas. The Journal of Philosophy, 84(11), 682–692. Davies, B. (2011). The new atheism: Its virtues and its vices. New Blackfriars, 92(1037), 18–34. Fadel, M. (2013). Seeking an Islamic ref lective equilibrium: A response to Abdullahi A. An-Naʿim’s complementary, not competing, claims of law and religion: An Islamic perspective. Pepperdine Law Review, 39(5), 1257–1271. Fadel, M. (2020). The challenges of Islamic law adjudication in public reason. In S. Langvatn, M. Kumm, and W. Sadurski (Eds.), Public Reason and Courts (pp. 115–142). Cambridge, UK: Cambridge University Press. Fatoohi, L. (2013). Abrogation in the Qurʾan and Islamic Law: A Critical Study of the Concept of “naskh” and Its Impact. New York: Routledge. Finlayson, G.J. (2018). No proviso: Habermas on Rawls, religion and public reason. European Journal of Political Theory, 1–22. Advanced online publication. https://doi.org /10.1177/1474885118804797. Fortier, J. (2010). Can liberalism lose the enlightenment? Journal of Politics, 72(4), 1003–1013. Gaus, G. (2012). Sectarianism without perfection? Quong’s political liberalism. Philosophy and Public Issues, 2(1), 7–15. Guessoum, N. (2011). Islam’s Quantum Question: Reconciling Muslim Tradition and Modern Science. London, UK: I.B. Tauris. Habermas, J. (1984). The Theory of Communicative Action: Reason and the Rationalization of Society (Vol. 1). Boston, MA: Beacon Press. Habermas, J. (2001). Glauben und Wissen. Frankfurt am Main: Suhrkamp. Habermas, J. (2006). Religion in the public sphere. European Journal of Philosophy, 14(1), 1–25. Habermas, J. (2007). Replik auf Einwände, Reaktion auf Anregungen. In R. Langthaler and H. Nagl-Docekal (Eds.), Glauben und Wissen. Ein Symposium mit Jürgen Habermas (pp. 366–414). Wien/Berlin: Oldenburg Verlag, Akademie Verlag. Habermas, J. (2008). Between Naturalism and Religion. Cambridge, UK: Polity Press. Hallaq, W. (2013). The Impossible State: Islam, Modernity, and Modernity’s Moral Predicament. New York, NY: Columbia University Press. Ibn Kath ī r, I. (2003). Tafsīr al-Qurʾān al-ʿaẓīm (Abridged Vol. 1–10). Translated and edited by S. Mubarakpuri. Houston, TX: Dar-us-salaam. Ibn Muslim al-Ḥajjāj, A.H. (2007). Sahīh Muslim (Vol. 1–7). Translated and edited by A.T.A. ‘Ali Za’i. New York, NY: Darussalam. Ibn Rushd, A.W.M. (1983[1178]). Fa ṣl al-maqāl fī-mā bayna al- ḥikmah wa-al-shar īʿah min al-itti ṣāl. Cairo: Dā r al-Maʻā rif. Ivison, D. (1995). The art of political liberalism. Canadian Journal of Political Science/Revue canadienne de science politique, 28(2), 203–226. Kaminski, J.J. (2016). Beyond capitalism: Exploring the limitations and weaknesses in Max Weber’s general understanding of the Islamic discourse. Intellectual Discourse, 24(1), 35–58. Larmore, C. (1996). The Morals of Modernity. Cambridge, UK: Cambridge University Press. Lister, A. (2015). Congruence. In J. Mandle and D. Reidy (Eds.), The Cambridge Rawls Lexicon (pp. 133–138). Cambridge, UK: Cambridge University Press.

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Loobuyck, P., and Rummens, S.M.E. (2011). Religious arguments in the public sphere: Comparing Habermas with Rawls. In N. Brunsveld (Ed.), Religion in the Public Sphere (pp. 237–249). Utrecht, the Netherlands: Ars Disputandi. March, A. (2007). Reading Tariq Ramadan: Political liberalism, Islam, and “overlapping consensus”. Ethics & International Affairs, 21(4), 399–413. March, A. (2009). Islam and Liberal Citizenship: The Search for an Overlapping Consensus. New York, NY: Oxford University Press. March, A. (2011). Theocrats living under secular law: An external engagement with Islamic legal theory. Journal of Political Philosophy, 19(1), 28–51. March, A. (2013). Genealogies of sovereignty in Islamic political theology. Social Research: An International Quarterly, 80(1), 293–320. Massad, J. (2007). Desiring Arabs. Chicago, IL: University of Chicago Press. Mawdudi, S.A. (2009). The Islamic law. In R.L. Euben and M.Q. Zaman (Eds.), Princeton Readings in Islamist Thought (pp. 86–106). Princeton, NJ: Princeton University Press. McAuliffe, J.D. (1990). Fakhr al-Din al-Razi on ayat al-jizya and ayat al-sayf. In M. Gervers and R.J. Bikhazi (Eds.), Conversion and Continuity: Indigenous Christian Communities in Islamic Lands, Eight to Eighteenth Centuries (pp. 103–119). Toronto, ON: Pontifical Institute of Mediaeval Studies. Murphy, A. (1998). Rawls and the shrinking liberty of conscience. The Review of Politics, 60(2), 269–276. Perry, M.J. (1988). Morality, Politics, and Law: A Bicentennial Essay. New York: Oxford University Press. Qaraḍāw ī, Y. (1971). Al- ḥulūl al-mustawradah wa-kayfa janat ʻalā ummatin ā. Beirut, Lebanon: Mu‘assasat al-Risala. Quong, J. (2011). Liberalism without Perfection. New York, NY: Oxford University Press. Qurʾā n. (2004). The Meaning of the Holy Qurʾan (10th ed.). Translated by A.Y. Ali. Beltsville, MD: Amana Publications. Qutb, S. (2007). Milestones. Damascus: Kazi Publishers. Rawls, J. (1996). Political Liberalism. New York: Columbia University Press. Rawls, J. (1997). The idea of public reason revisited. University of Chicago Law Review, 64(3), 765–807. Rees, D.H. (2018). The Postsecular Political Philosophy of Jürgen Habermas: Translating the Sacred. Cardiff, UK: University of Wales Press. Scheff ler, S. (1994). The appeal of political liberalism. Ethics, 105(1), 4–22. Sirry, M. (2014). Scriptural Polemics: The Qurʾan and Other Religions. New York, NY: Oxford University Press. Stoeckl, K. (2017). Political liberalism and religious claims: 4 blind spots. Philosophy and Social Criticism, 43(1), 34–50. Taha, M.M. (1987). The Second Message of Islam. Syracuse, NY: Syracuse University Press. Tampio, N. (2013). Promoting critical Islam: Controversy, civil society, revolution. Politics & Religion, 6(4), 823–843. Tirmidh ī, A.I.M. (2007). Jāmi‘ at-Tirmidhī. Vol. 2: From Hadith No. 544 to 1244. Translated and edited by A.T.A. ‘Ali Za’i and A. Khalyil. Riyadh, KSA: Darussalam. Vallier, K. (2014). On Jonathan Quong’s sectarian political liberalism. Criminal Law and Philosophy, 11(1), 175–194. Weithman, P. (2002). Religion and the Obligations of Citizenship. Oxford, UK: Oxford University Press. Yates, M. (2007). Rawls and Habermas on religion in the public sphere. Philosophy & Social Criticism, 33(7), 880–891.

7 COMPARING THE LIBERAL AND ISLAMIC APPROACHES TO LAW

One of the most essential elements of liberal legalism is the notion of constitutionalism. Constitutionalism is primarily related to constraining state power and promoting the rule of law. It is often connected to the thought of John Locke, Thomas Hobbes, and the prominent nineteenth-century English legal theorist John Austin who is credited with being among the first legal scholars to develop the theory of legal positivism (Morison, 1982). While Enlightenment-and postEnlightenment-era liberal thinkers are often credited with first introducing the notion of constitutionalism, in reality, constitutions go back much further. The Charter of Medina [Ṣaḥīfat al-Madīnah] came into existence in 622 C.E./1 A.H., many hundreds of years before the first European constitutions. Despite vastly different experiences with constitution-making, there are in fact many general overlapping principles that can be found in both Western constitutionalism and Islamic Shar īʿa. Kamali (2012, p. 20) argues that these similarities include a shared “commitment to the rule of law, consultative government of civilian characteristics, a substantive separation of powers, and limited government,” and goes on to conclude that “[t]he substance of an elective constitutional government that is accountable to the people is thus agreeable with Islam.” Indeed, there are numerous historical examples of where the two discourses overlap. There are clear examples that can be readily cited demonstrating parallels and overlap between the Charter of Medina and the American Constitution which was drafted over a thousand years later (al-Hibri, 1999). However, I would argue that while each discourse may engage which similar machinery, the underlying methodology of how law is conceptualized, created, and engaged with remains quite different and that these differences ought to be taken seriously. This chapter will further explore the similarities and differences between Islamic and liberal conceptions of law. It will proceed by first offering a brief

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outline of how fatāwā function within substantive Islamic law touching upon the controversial idea of the “closing of the gates of ijtihād” popularized by later orientalist writers. It will then articulate how Western liberal legal discourses differ from Islamic legal discourses in terms of purpose and scope. Finally, it will explore similarities and differences between the American legal system and classical Islam legal thought regarding moral prerequisites for the admissibility of witness testimony in a court of law. The overarching argument that this chapter aims to promote is that liberal conceptualizations of law at one level are freer than Islamic law. This is because of the greater f lexibility that liberal legal conceptions have regarding their commitment to their own foundational sources: sources rooted in human reason(s), not revelation. However, at the same time, I contend that liberal legal theory is far more limited in scope and is less concerned with directly engaging with political and/or moral questions than Islamic law or that at least it seeks to address such questions in a different way via different means. This point about Islam’s wider scope of concerns was the basic argument of Coulson (1978, p. 83), who argued that Shar īʿa has in fact a much wider scope and purpose than a simple legal system in the Western sense of the term. Jurisprudence ( fiqh) not only regulates in meticulous detail the ritual practices of the faith and matters which could be classified as medical hygiene or social etiquette—legal treaties, indeed invariably deal with these topics first; it is also a composite science of law and morality, whose exponents ( fuqahāʾ, sing. faqīh) are the guardians of the Islamic conscience. Many of the questions liberal law seeks to punt back to other political actors and government bodies, Islamic law—at least in principle—seeks to directly confront via its Shar īʿa-rooted legal discursive framework.

A brief sketch of how Fata ¯wa¯ function within substantive Islamic law Following the death of the Prophet Muhammad (‫ )ﷺ‬in 632 C.E./11 A.H., there was no longer a definitive interpreter of the Qurʾā n nor an undisputed arbiter of Islamic laws. Therefore, out of necessity, there was a need for later jurists and scholars to come up with a coherent methodology to create, interpret, and administer legal decrees on a wide range of subjects that can be divided into two main categories: ritual [ʿibādāt] and transactional [muʿāmalāt]. This process of “creating Islamic law” did not happen overnight. Arabi et al. (2013, p. 1) contend that “Islamic law is the product of the contributions of individual jurists working in particular times and places” which began shortly after the Prophet’s (‫ )ﷺ‬death and which is still ongoing today. One of the most powerful and widely misunderstood tools in the Islamic legal arsenal is the fatwā (pl. fatāwā).

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Often people hear the word fatwā and assume that it is just another word for Shar īʿa or some other type of legally binding, universally accepted ruling or set of rulings within a particular school of Islamic jurisprudence. However, this is not at all the case. While fatāwā have played an essential role in the development of fur ūʿ or substantive Islamic law over the centuries, fat āwā in and of themselves are not substantive Islamic law (Powers, 1990; Hallaq, 1994). Fat āwā issued by an Islamic jurisconsultant or a muftī —past and/or present—are non-binding. One can note here some parallels between the Roman legal system and the Islamic legal system on this matter. Similar to the opinions of a muftī, opinions offered by Roman jurisconsults ( jurisprudentes)—opinions known as responsum prudentium—did not have binding force, nor were judges obliged to consider them as law proper. Rather the judges “only [had] a moral obligation to be guided by such interpretations” (Ion, 1908, p. 374). The more frequently prominent jurisconsultants’ opinions converged, the more difficult it was for Roman judges to decide in a matter contrary to these popular opinions. Therefore, one can argue that the responsum prudentium issued by the Roman jurisprudente corresponds with the fatwā issued by the muftī. Like his Roman equivalent, Ion (1908, p. 374) contended that muftī is an “expounder of the law when there exists a doubt as to its true meaning in order that the Cadi [qāḍī], or Judge, may be guided in his decision.” The administrative role and responsibilities of the qāḍī are different from that of the muftī even though ultimately both are responsible for preserving the Shar īʿa, albeit in their own unique ways. Just to brief ly summarize a very long topic in order to familiarize the reader: Islamic court decisions [qada] issued by a qāḍī —unlike fatāwā which are issued by a muftī —(1) apply only to a specific case rather than all cases that fit within the general premises of the original inquiry, (2) deal with matters in a narrower legal sense rather than a broader theological or philosophical sense, and (3), perhaps most importantly, are legally binding unlike fatāwā issued by a muftī.1 Despite the narrower scope of the qāḍī, the overall legitimacy of his decision is rooted in Shar īʿa-based concerns that shape the hue and tenor of a final court ruling on a specific matter. Similar to how rulings rendered by judges in common law legal systems often come with an opinion, fatāwā also are generally accompanied by details justifying the ruling. They are usually justified via the Qurʾā n, the Sunna, or prior legal precedents within a particular Islamic legal tradition. Compilations or collections [majmūʿa] of fatāwā contain what Hallaq (1994, p. 39) calls the “‘canonized’ version of the law” which in due time become orthodoxy and serve as the primary “reference for the legal profession.” The fatāwā that are generally considered the most authoritative are ones issued by great scholars of the past. All madhāhib within the Sunnī tradition generally trace their most authoritative fatāwā back to a handful of scholars from many hundreds of years ago. Once a particular mujtahid—a status only given to the great lawmakers of early Islam within the Sunnī tradition—becomes widely recognized over time as an important figure within a particular madhhab, Jackson (1996b, p. 169) notes that “it becomes difficult or even counterproductive for subsequent generations to

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dispense with the authority of the legal doctrines associated with his name,” and that later scholars of a particular madhhab generally will “circumvent or remove the problematic aspects of these doctrines [of the earlier mujtahid] while maintaining conspicuous links with the name and authority of the mujtahid-Imā m.” This is to suggest that fatāwā issued by earlier luminaries that may be problematic today hardly ever are just “tossed out” in their entirety for being outdated or irrelevant; defending the rulings of earlier iconic figures within the tradition is a key part of keeping the tradition alive. Partisans of a particular mujtahid or madhhab will often go to great lengths to justify or defend the honor of their preferred mujtahid or the rationale behind their madhhab’s ruling on a particular matter. Fatāwā historically have been issued in relation to a real-world situation; they are not created out of purely abstract speculative reasoning or out of hypothetical situations. Hallaq is highly critical of earlier Western scholars, perhaps most specifically Coulson, who argued that Islamic laws were “the result of a speculative attempt by pious scholars” (1957, p. 57 and cited in Hallaq 1994, p. 29). On the contrary, according to Hallaq, Islamic law emerged out of interconnected social and administrative practices that were found in the second century A.H.2 Fatāwā construction historically has followed a similar formula: “In its basic form, a fatwā consists of a question (suʾā l, istift āʾ) addressed to a jurisconsult (muftī), together with an answer ( jawāb) provided by that jurisconsult” (Hallaq, 1994, p. 31). Indeed, as Hallaq notes, if one looks at fatāwā —even to this day—they are often posed in a question/answer format. Fatāwā can be issued on a wide array of matters. Some fatāwā address seemingly trivial matters, while others address matters that are far more serious and complex. Today fatāwā are more accessible than ever; no longer are they confined to dense books stashed away in Islamic libraries. Islamic legal experts today sometimes will even issue fatāwā on popular television programs or online. Below is an example of a fatwā related to the slaughter of camel meat from the controversial yet widely respected twentieth-century Islamic legal scholar and former Grand Mufti of Saudi Arabia, ʿAbd al-ʿAzīz ibn Bā z: Q 5: It is the habit of some tribes to slaughter camels during their festivals. Does this violate the Islamic ʿAqidah (creed)? A: This requires a detailed explanation. If the camels are slaughtered out of hospitality for guest and to provide people with food, there is nothing wrong with this and it is permissible. However, if they slaughter them when meeting kings or dignitaries in order to glorify them, then this is an act of Shirk [disbelief ]; because these sacrifices are slaughtered to other than Allah (Exalted be He). This will say under the Saying of Allah (Exalted be he), (on which Allah’s Name has not been mentioned while slaughtering). Slaughtering animals at graves to commemorate the generosity and bounty of the dead is an act of Jahiliyyah (preIslamic time of Ignorance). This is unacceptable and impermissible because the Messenger of Allah (peace be upon him) said, “There is no slaughtering (at the graves) in Islam.” If the

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slaughtering is meant to draw close to the dwellers of the graves, then this is an act of Shirk and likewise if the slaughtering is done for Jinn and idols. All of these deeds are acts of major Shirk from which we ask Allah (Exalted be He) to safeguard us. (2001, p. 53) In this example the muftī is asked a very specific question which he then restates, leaving out irrelevant personal details. Traditionally the name of the individual asking the muftī the original question or the names of other individuals that are a part of the question are replaced with hypothetical names or are left out of the fatwā altogether as in this example ( Jennings, 1978). He then offers a detailed answer that is addressed in multiple parts—the answer is not a simple “yes” or “no.” The opinion on this particular case is justified via indirect references to the Qurʾā n (2:173; 15:116) and a partial direct quotation from a ḥadīth found in Sunan Abū Dāw ūd (2008, 3:69, 71 [no. 3222], p. 618).3 This particular fatwā is actually quite short in length. On certain matters, especially those that are more controversial or disputed, these opinions along with their rationale can be many pages long.4 One also will notice that the above ruling ended with a plea to Allah for protection from error; in this case, errors specifically related to possessing improper intent [niyya] when slaughtering a camel. Specific pleas directly related to the ruling being dispensed along with other more general pleas for Allah’s protection and guidance are commonly at the end of a fatwā. They literally are an admission that Allah knows best and that all the jurist and the individual Muslim can do is act in a manner that they ultimately believe is most pleasing to Allah. Humility and deference to Allah’s authority is integral to the Islamic legal tradition.

The closing of the gates of ijtihād… or not? The word ijtihād derives from the trilateral root jīm -hāʾ -dāl (which is the same root found in the word jihād) and in its literal translation refers to the exertion of mental or physical effort in a specific activity. In its legal definition, ijtihād refers to independent reasoning—an activity that requires mental exertion on the part of the jurist. The basic principles of ijtihād were first sketched out by Abū l-Ḥusayn al-Baṣrī (d. 1044 C.E./436 A.H.) in his al-Muʿtamad fī Uṣūl al-Fiqh. Al-Baṣrī’s basic principles were reaffirmed by later scholars like Abū Isḥāq al-Shīrāzī (d. 1083 C.E./476 A.H) and Al-Ghazālī with only slight moderations. According to Al-Baṣrī (1965), in order to perform ijtihād, one needs to have a deep knowledge of the Qurʾān, the Sunna, and the principles of inference [istidlāl] and qiyās which is a type of deductive analogy where hadiths are compared and contrasted with verses of the Qurʾān in order to apply a known and clear legal injunction [naṣṣ] to a new circumstance, thus creating a new injunction. In order to engage with qiyās one first needs to understand the cause or reason [ʿilla] of a rule.5 Qiyās has often been controversial because the cause of some

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rules is not always readily apparent (Shehaby, 1982). One also needs to possess a deep understanding of the Arabic language—specifically Qurʾanic Arabic [ fuṣḥā al-turāth]—since one needs to be capable of working closely and accurately with Arabic phrases and texts in order to determine when a statement is meant to apply only to something particular [khāṣṣ] or something more generally [ʿāmm].6 As we can see, ijtihād was never intended for novices or those with limited Arabic language abilities. Even experts in the Arabic language often disagree as to whether something is meant to apply only to a particular instance or more generally. Many early to mid-twentieth-century Western scholars argued that the gates of ijtihād were closed [insidād bāb al-ijtihād] by the end of the third century A.H. (Gibb, 1947; Schacht, 1964; Anderson, 1976; Coulson, 1978). However, more recent scholarship shows that this is not quite accurate and that ijtihād continued throughout the centuries even up to this day (Hallaq, 1984; 2009a, b; Khan and Ramadan, 2011; Abou El Fadl, 2013).7 Nonetheless, despite ongoing disagreements about whether the gates of ijtihād were ever actually closed, most scholars agree that later jurists relied more upon taqlīd or following previous decisions as the basis of rulemaking rather than ijtihād. Even how this is done is often misunderstood and essentialized. Jackson (1996b) for example contends that taqlīd in more recent times, in practice, amounts to scholars rooting their specific interpretations within the larger doctrine of an already established scholar, rather than mindlessly regurgitating an earlier fatwā.8 So this does not mean that, when engaging in taqlīd, one is merely cutting and pasting a previous fatwā from a renowned scholar as an answer to a current question. The well-trained jurist engaging in taqlīd simply is basing their arguments within the discursive parameters of an earlier thinker that shares their methodology rather than engaging in “free” or unrooted ijtihād. The orientalist perspective tends to view taqlīd in Islamic juristic decisionmaking processes as a sign of laziness or intellectual stagnation; however, taqlīd can be also understood as the triumph of the ideal of the rule of law. According to Fadel (1996, p. 197): The spread of taql īd at the expense of ijtihād should be viewed as ref lecting the triumph of the ideal of the rule of law over the ideal of judicial discretion, rather than as representing a qualitative decline in legal scholarship or a lack of originality. Because taql īd arose to satisfy a social need for uniformity in the law, it must be judged in light of its own social logic—its success in creating uniform rules. Taqlīd—at least in principle—for Fadel should be understood simply as a different way to derive legal norms rather than as any type of foreboding sign of imminent Islamic civilizational decline. After all, it is only natural that, as time goes on, legal scholarship would advance and become more formalized, and that certain procedures and orthodoxies would become more entrenched and therefore turned to for deriving legal decisions. The broader Islamic legal tradition

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has always been wary of hasty legal change, as this undoubtedly is destabilizing and dislocating for any society. Therefore, it instead generally opted for cautious and measured change. It seems to me—and I think both Fadel and Jackson would agree—that it would actually be much more problematic if jurists were constantly engaging in ungrounded ijtihād and regularly ignoring precedent. This would be a sign of a disorderly legal discourse that is not uniformly administered in which earlier ijtihād efforts were poorly handled by the leading Islamic jurists of the time. As Jackson (1996b, p. 168) succinctly comments: “it is the successful execution of ijtihād during the formative period that leads to the institutionalization of taqlīd in the post-formative era, which in turn sets the stage for legal scaffolding.” Today much of Islamic law is about “readjusting the scaffolding” when circumstance necessitates it.9 Modern Western liberal legal systems—especially those well-established ones—operate similarly in this regard; they too generally seek to avoid radical, disruptive change to their constitutional frameworks.10 Jackson compares institutionalized taqlīd in the post-formative era of Islamic law to the Western notion of stare decisis or legal precedent. While orientalists often decry taqlīd in the Islamic context, they seem to be almost uniformly silent when it comes to courts in places like the United States doing the functional equivalent of taqlīd on a constitution that is over two hundred years old to justify or oppose a particular ruling or legal principle. From a comparative legal perspective, then, later Islamic law can be said to be situated somewhere in between English Common Law and Roman-inspired civil law, whereas earlier Islamic law operated closer to codified English Common Law in practice (Shapiro, 1986; Fadel, 1996). John Makdisi (1999, p. 1639) convincingly argued that English Common Law itself was deeply inf luenced by Islamic institutions that were brought to England following the Norman conquest of the country since the Normans had earlier conquered the Islamic emirate in Sicily and obviously had a good deal of exposure to Islamic legal practices: “The royal English contract protected by the action of debt is identified with the Islamic ʿaqd, the English assize of novel disseisin is identified with the Islamic istihqaq, and the English jury is identified with the Islamic lafif.” Earlier Western scholars also noted the obvious inf luences of Islamic legal institutions on the English Common Law system (Cattan, 1955; Makdisi 1981; Udovitch, 1970; Thomas, 1949). In addition to what Makdisi noted, waq fs, teaching licenses, law schools, and the scholastic method itself also appear to have found their way into the English Common Law system via antecedent Islamic legal institutions. So in summation, we can conclude that fatāwā—like their earlier Roman equivalent—are legal opinions that—while often very powerful—nonetheless are not the functional equivalent to legally binding civil or criminal codes.11 The role of the qāḍī on the other hand is similar to the role of a regular criminal or civil court judge in the United States in terms of practical function. While the specific skill sets, training, and administrative responsibilities of the qāḍī and muftī

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are different, both are an integral part of Islam’s larger overarching jurisprudential machinery. The key thing to remember is that both operate under the same overarching umbrella—the Shar īʿa—and both are obliged to fulfil its commands in all decisions they render.

Understanding the limited nature of jurisprudence in the Western context As alluded to earlier, the general Islamic jurisprudential framework is significantly more expansive than its Western liberal counterpart. “Islamic law treats not only of what is legally right or wrong but also of what is morally good, better, and best” (Shapiro, 1986, p. 195). This point is echoed by Kamali (2003, p. 8) who contends that, unlike its Western counterpart, Islamic jurisprudence is not confined to commands and prohibitions, and far less to commands which originate in a court of law. Its scope is much wider, as it is concerned not only with what a man must do or must not do, but also with what he ought to do or ought not to do, and the much larger area where his decision to do or to avoid doing something is his own prerogative. Usul al-fiqh provides guidance in all these areas, most of which remain outside the scope of Western jurisprudence. One must remember that within the Islamic jurisprudential framework, there are not simply two categories of distinction (legal and illegal) for behaviors or actions. ʾĀḥkām refers to Islamic commandments that derive from religious jurisprudential resources, most specifically fiqh. The acts done by an individual Muslim fall into five distinct categories of ruling understood as the Akham Pentad or al-ʾĀḥkām al-khamsa. These categories include: 1. farḍ/wājib—Behaviors that are considered compulsory or obligatory. 2. mustaḥabb—Behaviors that are recommended, generally considered Sunna (also known as faḍīla or mandūb). 3. mubāḥ—Behaviors that are neither obligatory, recommended, disliked, nor sinful (i.e. neutral). 4. makr ūh—Behaviors that are disliked or abominable where abstaining is highly recommended. 5. ḥarām—Behaviors that are categorically forbidden or sinful where abstaining is obligatory. There even are further distinctions within these five aforementioned categories. If all of this has been a part of Islamic law for over a thousand years, why is it then that so many non-Muslims so frequently misunderstand the nature of Islamic law? Hallaq (2009a, p. 248) argues that these misunderstandings arise partially

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as a result of how European thinking has imposed its own categories upon other social and legal systems: In studying the role of the Qurʾā n in so-called Islamic law, we [the West] have imposed—among much else—our distinctly and distinctively modern notions and standards of law and morality, separating the inseparable and joining together that which cannot or never could be joined. Our scholarship has been tainted by conceptual categories, distinctions and binarisms that originated in modern Europe, mainly from the time of Kant, if not that of Hobbes. Western thought has often sought to compartmentalize Islamic law and the Islamic tradition more generally into categories and distinctions that are familiar to the Western mindset. This seems to be one of the points Hallaq is making regarding his critique of how Europeans have applied their own categories to the study of the Islamic legal tradition. Hence why not only non-experts, but even many earlier orientalist scholars, never were able to understand that Islamic law is not simply reducible revelation or forbidden/permitted; it is much easier to simply create a false binary between revelation and positive law rather than having to critically engage with deeply intertwined, non-mutually exclusive categories.12 The problem, however, is that these aforementioned categories are in fact deeply intertwined and they certainly are not mutually exclusive. As Fadel (2004, p. 82) reminds us: “Islamic law is not simply derived from revelation; nor is it merely scriptural exegesis. Much of Islamic law, as Muslim jurists understand it, is conventional.” The eleventh-century Persian ethical philosopher Ābū ʿAl ī A ḥ mad b. Mu ḥammad Miskawayh (d. 1030 C.E./421 A.H.) contended that Islamic courts and court legislators had a duty to uphold the ethical values rooted within the Shar īʿa which itself was an institution that “reforms the young, accustoms them to good deeds, and prepares their souls to receive wisdom, seek virtue, and attain human happiness through sound thinking and correct reasoning”13 (1968, p. 32 and cited in Quadri, 2019, p. 205). Through this statement we can see the real praxeological dimension to Shar īʿa; it involves both convention and the active reformation of human character toward the good. While revelation articulates certain examples for that which is good, it does not have a ready-made answer for every unique case. This seems especially true in an increasingly complex modern world. Fadel, like most contemporary Islamic legal experts, contends that revelation should be understood in tandem with social norms and conventions when establishing certain baseline principles. He gives polygamous marriage within Islam as an example illustrative of his point: Thus the Qurʾan provides that, as a religious matter, a man may marry up to four wives simultaneously. Viewed from the perspective of salvation, then, plural marriage is not sinful. But revelation does not answer the legal question of whether, as a default matter, men should have an entitlement

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to multiple marriages, and if so, whether such an entitlement should be alienable or inalienable. These matters depend on social convention. This approach to Islamic law mirrors two terms used by the Qurʾan for justice, ʿadl and maʾruf, the former denoting procedural justice and the latter meaning substantive justice. Significantly, the latter term literally means “that which is known” and thus suggests conventional (and hence) changing norms. (2004, p. 83) Fadel seems to be suggesting that one’s Qurʾanic entitlement to multiple wives does not necessarily always translate into worldly legal entitlement. This position is obviously quite controversial because it seems to suggest that social convention has the capacity to block a clearly articulated and universally assented to Shar īʿa and Qurʾanic principle. While I am not willing to endorse this particular position, I still recognize the more general point Fadel is getting at; one should keep in mind that just because from the perspective of salvation having multiple wives is not a sin, from a real-world perspective, having multiple wives is not necessarily always a good idea in every social context. Not only is it not a good idea in every context, but in some contexts it is far better to be avoided altogether. Merely because one is allowed to do something from a soteriological vantage point (i.e., doing such an action will not result in punishment by hellfire) does not imply that they should, nor that it is even desirable to do so, from a worldly one. The example of “triple ṭalāq” or the uniquely Islamic protocol that allows for a man to divorce his wife after uttering the word “ṭalāq” (often translated as “repudiation” or simply “divorce”) three times is such another such example of something that while generally seen as technically allowed, is nonetheless seen as something very undesirable. While most scholars accept the legality of this procedure if done in the proper manner, deriving their opinions from both the Qurʾā n (2:229-30) and hadiths, few would recommend men make a regular habit of invoking it. According to a well-known and often referenced Ḥad īth narrated by ʿAbdullah bin ʿUmar, the Prophet Muhammed (‫ )ﷺ‬stated that, “The most hated of permissible things to Allah is divorce”14 (Sunan Ibn Mājah, Vol. 3, no. 2007).15 Traditionally Islamic scholars have labeled that practice as makr ūh taḥr īmī or abominable (at best) when used frivolously and without good reason (Hallaq, 2009b). Such a categorization is meant to strongly dissuade people from engaging in this technically legal behavior. Different madhāhib have offered their own slightly varying discussions on the uniquely Islamic category of makr ūh. For example, Hanifities traditionally have divided makr ūh into two categories: makr ūh taḥr īmī and makr ūh tanzīhī.16 The great Ḥanafī jurist Mu ḥammad Am ī n Ibn ‘Ābid ī n (d. 1836 C.E./1238 A.H.) in his iconic Radd al-Muḥtār ʿalā al-Durr al-Mukhtār (1979[1855/6]) argues that makr ūh tanzīhī refers to things that one should avoid but are not as serious if they do not. A makr ūh tanzīhī action is considered to be closer to neutral [mubāḥ] than forbidden [ḥarām]. Two well-known examples that contemporary jurists

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reference that fit in this category are the consumption of horsemeat and not bathing prior to Friday congregational prayers [ṣalāt al-jumuʿa]. While one will generally be rewarded [thawāb] for avoiding makr ūh tanzīhī, one will not necessarily be punished if the deny or reject a makr ūh tanzīhī. Makr ūh taḥr īmī are things that a lawgiver has ordered the people to avoid based on dalīl ẓanni or non-categorical evidence, but which nonetheless ought to be taken very seriously. One of the widely utilized examples of something being makr ūh taḥr īmī is men wearing clothing made from silk. Denying a makr ūh taḥr īmī does not place one outside the fold of Islam as one would be if they denied the impermissibility of something that is widely accepted to be ḥarām. Nonetheless, denying a makr ūh taḥr īmī is a serious matter; this powerful designation should not be viewed as serving a similar function as a Western “sin tax” where in order to discourage a specific behavior, some type of inconvenient worldly tariff is assessed (such as price hikes on cigarettes and booze). Such taxes are meant to be a one-time penalty of minimal worldly significance with absolutely no spiritual significance attached. The same cannot be said of regularly indulging in makr ūh taḥr īmī behaviors. Regularly engaging in such behaviors can result in an individual being punished in hell [ jahannam]. Rarely can one think of examples in Western jurisprudence in which something that is determined to be lawful comes with serious moral “recommendations” basically commenting that one should avoid doing this even though it is legal. This simply is not how liberal positive law operates. In the end, liberal laws are resolved and justified solely via legal precedent. In practice: a just law is a legal law and questions related to “the good” are not considered. In the United States legal system, for example, it is the court’s job to apply the mandates of the constitution to the law, not to cast moral judgment on the law; the constitution created the courts, not the other way around. Once again, turning to MacIntyre (1988, p. 344), I agree with his overall conclusion that the essence of liberal positive law is more about keeping the debates alive rather than arriving at final conclusions: For the nature of the debate itself and not its outcome provides underpinning in a variety of ways […] at which appeals to justice may be heard in a liberal individualist order, that of the rules and procedures of the formal legal system. The function of that system is to enforce an order in which conf lict resolution takes place without invoking any overall theory of human good. To achieve this end almost any position taken in the philosophical debates of liberal jurisprudence may on occasion be invoked. And the mark of a liberal order is to refer its conf licts for the resolution, not to those debates, but to the verdicts of its legal system. The lawyers, not the philosophers, are the clergy of liberalism. For MacIntyre, the culmination of liberal positive law is a long cycle of legal filings, court cases, verdicts, and appeals based on evaluating whether or not a

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law or action is in fact legal rather than whether or not a law or action is morally justified or even logically sound. This reality was perhaps best illustrated most recently in the now infamous June 26, 2018 United States Supreme Court decision regarding Presidential Proclamation 9645 (often referred to as “the Muslim ban”). This Proclamation effectively levied an indefinite entry ban into the United States to many classes of citizens from several Muslim majority countries under Section 212(f ) of the Immigration and Nationality Act (INA). In the majority opinion that upheld the legality of the Proclamation, Chief Justice John Roberts wrote: the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim. (Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018), p. 38) Justice Roberts’s statement here literally absolves the court of all responsibility for evaluating whether or not Presidential Proclamation 9645 is morally right or even a good idea in the first place—the five–four majority decision was rooted solely in the fact that the Proclamation had a sufficient national security justification to survive rational basis review. In justifying the majority decision, Roberts writes, “The language of §1182(f ) is clear, and the Proclamation does not exceed any textual limit on the President’s authority” (Trump v. Hawaii, No. 17-965, 585 U.S.___(2018), pp. 14–15).17 This basically means that the Muslim ban should be permitted to go forth because there are no sufficient legal or procedural reasons that it should not. The court’s ruling did not even consider the question of public interest; rather it was only concerned with the technical legal standing of the Proclamation itself. Questions related to the soundness and morality of laws are often referred to as “political questions.” Political questions are issues that the court essentially refuses to rule on. The courts claim that such questions must be resolved by the “political” branches of the government instead.18 According to Graham Butler (2018, p. 329): A court of law undertaking an evaluation of the [political question] doctrine entertains the idea that it is a self-conscious actor, identifying its own role within a given polity. Therefore, it can be used as a means to dismiss a case from a court’s docket. Many international courts based on secular liberal legal principles such as the Court of Justice of the European Union, the International Court of Justice, and the East African Court of Justice also have their own versions of what has come be known as the political question doctrine (Odermatt, 2018). Procedural rules and

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technicalities are often subtly invoked to avoid politically sensitive debates or dilemmas. Turning to the Islamic case: within the classic Islamic legal system, appellate courts never existed in the same manner as they have in liberal legal systems. Martin Shapiro (1980) argued that one of the reasons for a lack of appellate courts within the broader Islamic legal tradition was due to the fact that differences of juristic opinion have historically been widely tolerated. At a more structural level, he contended that appeals themselves are instruments of hierarchical control and the Islamic legal discourse was never hierarchically organized. This led him to conclude that: “a peculiar institutional combination of dual legal systems and absence of hierarchy accounts for the absence of the institution of appeal present in almost all other legal systems” (1980, p. 381). Adjustments in law, from the beginnings of the ʿAbbā sid era to the end of the Ottoman Era, were most readily made within secular domains of Islamic administrative institutions. One such example was the administrative body that handled complaints on behalf of the Caliph known as the office of the ma ẓālim. Over time, the person in charge of this office, the ṣāḥib al-ma ẓālim, “emerged as a possible recourse against the judgment of qāḍīs, and as such, functioned as a court of appeal” (Tillier, 2009, p. 42). However, this position existed outside the religious domain of Islamic law and administration. Tillier (2009, p. 42) contends that “the ma ẓā lim provided rulers with a number of ways to regain control of justice, without the qāḍīs’ involvement.” The office of the ma ẓālim was commonly utilized during the early ʿAbbā sid era to augment the Caliph’s power and reaffirm his worldly authority. It was a useful tool for mobilizing against jurists and judges who rejected the Muʿtazila position that the Qur’ā n was created which was the official dogma of the early ʿAbbā sid Caliphs. It remained an important part of the Islamic administrative machinery in one form or another until the final collapse of the Ottoman Empire. Other scholars have even argued that, at a deeper theological level, appeals [murāfaʿa] are almost never valid within the Islamic legal tradition (Fyzee, 1974; Siddiqui, 1979). Kamali (1990, p. 227) points out that Islamic judicial decrees— unlike liberal judicial decrees which for MacIntyre are meant to keep debates going—are meant to put an end to debates and disputes: The basic norm of Shar īʿah in regard to judicial decrees issued by knowledgeable judges of upright character is that they are valid and enforceable without delay, because judicial decrees are designed to settle and bring to an end disputes among people. Once a decision is properly formulated and issued, the court is presumed to have fulfilled its duty. Judges are assumed to be acting in accordance with the Shar īʿa and therefore, in principle, there need be no automatic appeals: When the judge declares the ruling ( ḥukm) of God Most High to be applicable to a particular dispute, it must be implemented. It is incorrect, in

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principle, to set aside the ruling of the sacred Shar īʿah when a competent judge has verified its application.19 (Kamali, 1990, p. 217) According to David Powers, there are certain conditions such as making a grave mistake when doing ijtihād or rendering a decision that goes demonstrably against the Qur’ā n, the Sunna, and ijmāʿ under which a new judge may nullify a previous judge’s ruling. However, he also notes: “the general position of all the schools seems to have been that a judgment issued by a competent judge that is based on sound ijtihad may not be reversed under any circumstances” (1992, p. 322).20 Liberal legal discourses do not give this kind of power to judges; a judge’s verdict is almost always subject to appeal within another judge’s courtroom even if the judge made no technical/procedural mistakes during the trial. Under the Islamic system, if the judge is competent and is engaging in proper ijtihād, by definition he is taking seriously his obligation to tend to “the good” since Shar īʿacompliant rulings, by default, are considered to be “the good” in the sense that they are in compliance with Allah’s divine will. Defendants in the classical Islamic legal system historically have been permitted to appeal to a ruler or the ṣāḥib al-ma ẓālim after a verdict is issued by a qāḍī. Qāḍīs themselves have also been able to review their own decisions; however, defendants deemed to have pursued frivolous appeals were themselves subject to further punishment (Powers, 1992; Malekian, 2011). The types and levels of appeals courts found in the US and other similar systems is largely absent from the classical Islamic legal discourse. Even Powers (1992, p. 324), who defends the idea that within the Islamic system, Islamic successor reviews have always existed, nonetheless concedes that “Islamic successor review differs from Western systems of appeal in that it is not organized according to hierarchical principles.” This seems to provide some support for Shapiro’s position that the Islamic legal system, in general, was not hierarchically organized like Western liberal legal systems. So, in concluding this section, we can affirm that “judicial decisions which are based on sound ijtihād are not reviewable” within the Islamic legal tradition (Kamali 1990, p. 244). If one simply “does not like” a decision rendered by a qāḍī because it does not suit their interests, they are not allowed to seek out a more favorable ruling if there is no Islamically valid reason to do so. Islamically valid reasons to appeal a decision rendered by a qāḍī are limited to cases in which the judge’s decision on a matter is based on f lawed ijtihād that is demonstrably against the Qur’ā n and the Sunna of the Prophet (‫)ﷺ‬. When this does happen, in most cases, the defendant would first approach the ṣāḥib al-ma ẓālim who operates outside the religious Islamic legal framework and within the purview of the Caliph’s secular administrative institutions.

Witness testimony, moral character, and Islamic law Another important element within any legal system is witness testimony [shahada]. Most courts cannot operate without witnesses to verify or deny the

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accounts offered by plaintiffs or defendants. The Islamic and liberal understandings of law have notable differences in the character expectations required to be considered a valid witness in a court of law. Witnesses in Islamic court proceedings are expected to possess the following qualities in order for their testimony to be recognized: “maturity, reason, memory, speech and visual and audible perception, good character or justice (ʿadala), authenticity, manhood, and Islam” (Badawy, 2009, p. 289). One of the most difficult and controversial of these aforementioned qualities is the notion of “good character” which scholars historically have never been really able to pin down beyond following God’s commands and avoiding evil. Ethical habituation and concerns with the moral character [ʾākhlāq] of witnesses in court cases has always been an important element in substantive Islamic law and they have also been seen as important in the English Common Law system. However, the theorization of what makes a witness’s character good or poor never really developed in the same manner as it did within the more general Islamic legal discursive framework. In the US court system witnesses can be impeached under certain conditions. According to Paul Giannelli (2009, p. 265), “[i]mpeachment involves attempts to diminish or attack a witness’s credibility.” A witness can be impeached in the US Federal Court system via what is known as Federal Rules of Evidence (FRE) Rule no. 608—A Witness’s Character for Truthfulness or Untruthfulness, which stipulates that a witness’s character can be proven or disproven via: (a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. (b) Specifc Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. The “reputation or opinion” stipulation is vague and limited. Generally, in practice, witnesses are only impeached for prior felony criminal convictions or for dishonest or false statements (crimen falsi). FRE 609(a)(1) stipulates that a witness may be impeached “for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year,” while FRE 609(a)(2) stipulates that a witness may be impeached “if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” In practice, a judge generally will not permit the questioning of a witness’s moral character unless it is probative (tending to prove) in establishing whether or not a witness is telling the truth and there are even exceptions and limitations to this.

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Exceptions are often rooted in how a judge interprets FRE Rule no. 403 which stipulates: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Here we can see that even if evidence of character is probative, if it is outweighed by the aforementioned factors noted in the rule, then it is to be excluded. As Giannelli (2009) notes, judges are hesitant to allow for extended probing of a witness’s background, especially regarding expert or professional witnesses who are less likely to voluntarily offer their expertise if they know that each time they go on the witness stand they are likely to be grilled by an attorney about certain aspects of their personal lives. Ultimately, however, it is the jury who decides the credibility or incredibility of a witness based on their own personal reasoning. In Anderson v. Liberty Lobby (1986), the Supreme Court unambiguously declared: “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.” In the end, unless there is evidence of actual jury tampering or procedural fraud, the jury—not the judge—is the one who evaluates the moral character and credibility of a witness. There certainly are no rules that disqualify a witness from testifying before they have a chance to take the stand. The testimony of witnesses who are viewed as lacking in moral character is not valid within the Islamic legal discourse from the outset when it comes to serious crimes such as highway robbery [ḥirāba] or false accusations of illegal sexual intercourse [qadhf ] that involve the possibility of ḥadd punishments. Islam’s position on the matter of ascertaining a witness’s character is somewhat interesting. One of the debates within Islamic jurisprudence historically has been related to whether a judge was obliged to inquire about the moral character of a witness. Historically, Ḥanafī and Ẓāhir ī scholars argued judges were not; so long as the witness was not a person known by the community to be of poor moral character, their testimony was acceptable so long as the other criteria for being a witness were met. On the other hand, the other schools did posit that judges had an obligation to inquire about the character of witnesses. However, even modern Ḥanafī scholars have moved to the position the other schools have taken since it is believed that Muslims today are not as pious as they were during Islam’s formative centuries (Badawy, 2009). It is important to point out that actions deemed as undesirable but not necessarily ḥarām do not necessarily disqualify one from being a considered a witness whose testimony can be accepted. What historically has mattered has been persistence [i ṣrār] of a certain undesirable action or set of actions. According to Junaid Quadri (2019, p. 210): “Actions performed frequently enough that they may be said to be continual bear upon the agent’s moral standing; habit is constituent of character.” This is an important point. Occasionally engaging activities seen as socially undesirable within an Islamic Weltanschauung such as chess

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or backgammon generally is not a problem; however, when something becomes a habit—a behavior or action that one regularly engages in—then that person’s testimony is no longer valid in a court. Quadri goes on to show that occasionally engaging in behaviors that are even considered ḥarām does not necessarily invalidate one’s witness testimony. According to the Persian Ḥanafī jurist Mu ḥammad b. A ḥ mad Al-Sarakhsī (d. ca. 1096 C.E./490 A.H.), the apparentness of a major sin such as consuming alcohol is what ultimately causes one to lose their ʿadāla or good character which is necessary for the person to be a witness in cases that require upright witness (i.e., those that involve the possibility of ḥadd punishments): A person who is accused of drinking, but [his drinking] is not apparent, is not excluded from being ʿadl. His ʿadāla lapses only if [his drinking] becomes apparent, or if he emerges in a drunken state and the youth ridicule him. For, there is no dignity (mur ūʿa) in such a person and he will not typically be bothered by lying (lā yubālī min al-kidhb ʿādatan).21 (Al-Sarakhsī, (n.d.) cited in Quadri, 2019, p. 211) We can see from the above quote, even the accusation of drinking alcohol is a serious matter, but what ultimately matters is whether or not the individual has a verifiable reputation as being a drunkard who lacks dignity which therefore— according to this logic offered by Al-Sarakhsī—makes one readily susceptible to lying. The idea here is that once an individual decides to publicly embrace one shameful behavior, the door is now wide open for them to embrace other undesirable behaviors as well. Such a person has lost their ʿadāla and is no longer fit to be a witness in an Islamic courtroom regarding cases that require morally upright witnesses. Habituation once again is a determining factor in whether the testimony of a witness is acceptable. Historically Islam has recognized that everyone sins and that it would be unreasonable to disqualify anyone who ever sins because that would basically disqualify all human beings from being able to testify in a court. As a result, Islamic law historically has differentiated between the occasional minor sinner and the one who sins in persistence and openly f louts the laws and public standards of morality. The inf luential twelfth-century Ḥanafī jurist ʿAlāʾ al-Dī n al-K ā sā n ī (d. 1191 C.E./587 A.H.) bases his argument regarding the realities of sins and iṣrār in a well-known ḥadīth that notes: “There remains no minor sin upon persistence, and no major sin upon repentance (lā ṣaghīra maʿa al-i ṣrār wa lā kabīra maʿa al-istighfār)” (cited in Al-Kā sā n ī, 2004, v.6, p. 406 and Quadri, 2019, p. 218). We can see from this powerful example that Allah is all merciful and forgiving—even of the major sinner—so long as they repent. On the other hand, the unrepentant minor sinner who persists in committing minor sins eventually becomes a major sinner who is liable for punishable in the hereafter. Such a person—the unrepentant minor sinner—through habituation becomes ineligible to testify as a witness in certain cases. These examples for Quadri (2019, p. 220)

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demonstrated that “ fiqh and akhlāq shared a common ground of normativity, and were thus intimately connected, perhaps inextricably intertwined.”

Conclusion When properly actualized, an Islamic legal discourse would never completely absolve itself from considering questions of goodness or soundness when offering a legal decision. As Hallaq (1984, p. 4) reminds us: In Islamic legal theory, discovering the law of God was of crucial significance, for it was the law that informed man of the conduct acceptable to Allah. It is exactly for the purpose of finding the rulings decreed by God that the methodology of usul al-fiqh was established. Here we can see that nested within taqlīd is the idea of creating laws that have the ultimate purpose of being acceptable to Allah. This point in my opinion represents a radically different end from liberal positive law. When taking this matter seriously, it means that Islamic law has certain restrictions that are not present within liberal positive law from the start. This is the case even in Islamic courts. Makdisi (1999, p. 1687) comments that in a dispute between two parties transpiring before a qāḍī in an Islamic court, [t]he plaintiff (muddaʿi) initiated an action by filing a complaint (maqal), to which the defendant (muddaʿa ʿalayhi) was required to file an answer ( jawab). The pursuit of this action was not merely a matter of agreement by the parties, as in the popular recognition of English law. Nor was it a matter of privilege granted by the grace of the sovereign power, as in the royal inquest. Rather, the Islamic judge was under a divine obligation to render justice in all cases brought before him. Justice is an explicitly divinely ordained requirement in an Islamic court. While context-specific iterations of liberal positive law often have their own foundational sources, such as secular constitutions or the humanmade Bills of Rights, these foundational sources are inherently malleable and subject to change. Justice Oliver Wendell Holmes Jr. (d. 1935 C.E.) at the beginning of the twentieth century commented in Southern Pacific Company v. Jensen (1917, p. 222) that “[t]he common law is not a brooding omnipresence in the sky,” rather it is “the articulate voice of some sovereign or quasi sovereign that can be identified.” It seems clear in Holmes’s assessment that there is no room for God when articulating or even thinking about modern common law. In his words, common law “always is the law of some state” which means it is always law exclusively made by man, for man (1917, p. 222). The Islamic legal approach is simply no longer Islamic and becomes little more than a historical artifact when its foundational sources are no longer taken seriously—or to put it even more bluntly borrowing from

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Holmes’s words—Islamic law can never be fully and properly conceptualized without recognizing a “brooding omnipresence in the sky.”

Notes 1 For more information regarding the differences between the role of the qāḍī and muftī in the Islamic legal discourse, see J. Hendrickson, (2013). “Fatwa.” In, G. Böwering and P. Crone (ed.), The Princeton Encyclopedia of Islamic Political Thought, and K. Vikør, (2005), Between God and the Sultan: A History of Islamic Law. 2 Hallaq was surprised by Couslon’s conclusion on this matter despite the fact that Joseph Schacht (1950) had already published The Origins of Muhammadan Jurisprudence nearly a decade earlier demonstrating this point with ample evidence. َّ ‫س وُل‬ ٍ ِ‫ع ْن ث َ ا ب‬ 3 ‫للاِ ص ل ى هللا ع ل ي ه‬ ُ ‫ قَ ا َل قَ ا َل َر‬،‫ع ْن أَنَ ٍس‬ َ ،‫ت‬ َ ،‫ أ َ ْخ بَ َرنَ ا َم ْع َم ٌر‬،‫ق‬ َ ‫ َح دَّث َ نَ ا‬،‫ي‬ َ ‫َح دَّث َ نَ ا يَ ْح يَ ى ْب ُن ُم و‬ ِ ‫ع ْب دُ ال َّرَّزا‬ ُّ ‫س ى اْل بَ ْل ِخ‬ . ً ‫ش اة‬ َ ‫ق َك انُ وا يَ ْع ِق ُروَن ِع ْن دَ اْل قَ ْب ِر بَ قَ َرة ً أ َ ْو‬ َ ‫“ قَ ا َل‬.‫ع ْق َر ِف ي ِاإلْس ال م‬ َ ‫وس ل م ”َل‬ ِ ‫ع ْب دُ ال َّرَّزا‬

4 For example, Muhammad Tahir-ul-Qadri’s (2011) Fatwa on Terrorism and Suicide Bombings was over 500 pages long. 5 For more information on the relationship between ʿilla and qiyā s, see the work of the tenth-century C.E. Hanaf ī qād ī Al-Ja ṣṣāṣ (d. 942 C.E./330 A.H.) titled, U ṣūl al-Ja ṣṣāṣ al-musammá al-Fu ṣūl f ī al-u ṣūl, 2 vols. (Beirut: Dā r al-Kutub al-ʾIlm īyah, 2010.) 6 For a more technical discussion about how scholars determine the scope of legal injunctions, I recommend Sherman Jackson, (1996b) Islamic Law and the State: The Constitutional Jurisprudence of Shih āb Al-D īn Al-Qarāfī. 7 On this matter Hallaq (1984, p. 33) comments: “The idea of closing the gate of ijtihad or the notion of the extinction of the mujtahids did not appear during the first five Islamic centuries.” 8 Also see Felicitas Opwis (2010), Ma ṣla ḥah and the Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century, for more analysis on how taqlīd is actually operationalized in the post-formative era of Islamic law. 9 Jackson drew from Alan Watson’s (1977) earlier discussion of “legal scaffolding,” noting that in order for Islamic law to keep up with practical realties as time goes forward, it became increasingly necessary at a more advanced stage of Islamic legal development (i.e., at the stage in which taqlīd is prevalent) for “ jurists [to] seek needed adjustments through new divisions, exceptions, distinctions, prerequisites and expanding or restricting the scope of existing laws” rather than reinventing the proverbial wheel (i.e. engaging in ijtih ād) each time they are confronted with a new situation to adjudicate (1996a, p. 167). Aaron Panken (2005, p. xxi) comments that legal scaffolding could be understood as a strategy used by a society that was “created around a law that no longer met the needs of the society” in order to slow the potentially disruptive process of major legal change. He goes on to further comment: “Instead of cancelling the law entirely, the jurists create a scaffold that holds the divergence to a manageable level, rather than allowing a chasm to grow and force legal change” (2005, p. xxii). Panken’s description of legal scaffolding seems to resonate with how Jackson also understood the same process within an Islamic context, except I think Jackson’s understanding of this whole process is more positive than Panken’s. 10 For example, since the 1787 US Constitutional Convention, approximately 12,000 constitutional amendments have been proposed and “only 33 have gone to the states for ratification, and just 27 have made it all the way into the Constitution” (Desilver, 2018, para. 4). That means fewer than 0.2% of proposed constitutional amendments have been enacted in the last 230+ years. In India on the other hand, in fewer than 75 years, over 100 amendments to their constitution have already been made.

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11 Within Shiʿa Islam, high ranking ʿulamāʾ such as marājiʿ often have more latitude when issuing fatāwā since ijtihād is more prominent and undeniably less controversial within their tradition. 12 Hallaq (2009b, p. 248) concludes his observation with a forceful call to action: “We have, unconsciously, taken these categories and applied them to other nations and communities, to other histories and anthropologies. Our struggle now is to free ourselves of our controlling and hegemonic ideas whose vehicle is our language, our conceptual slave-driver.” 13 Junaid Quadri (2019, p. 206) concluded: “Miskawayh’s discussion of the role of the shar īʿa, then, should be seen not as an idealized prescription, but as a description of the agency best equipped to discharge the Aristotelian imperative.” It is something meant to be put into practice and applicable for regular Muslims in their daily lives; it was not just meant to be confined to scholarly quarters and debated as ideal theory. 14 ‫ض ا ْل َح َال ِل ِإلَ ى َِّللا ال َّط َال ُق‬ ُ َ‫أ َْب غ‬ 15 There is much disagreement on the grading of this particular ḥadīth, however, the prominent 20th century Saudi scholar, Mu ḥammad Ibn Ṣā li ḥ al-ʿUthaym ī n (2016), argued that even though the ḥadīth is not ṣa ḥīḥ, its meaning is sound. His statement on this matter can be found in a compiled collection of his rulings titled, Liqāʾ al-B āb al-Maftūḥ. 16 See M.H. Kamali (2003), The Principles of Islamic Jurisprudence, for more discussion on makr ūh ta ḥr īmī and makr ūh tanzīhī. 17 8 U.S.C. § 1182(f ) states that “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” 18 Baker v. Carr, 369 U.S. 186, 217 (1962) is widely seen as the leading Supreme Court case that addresses the political questions doctrine. However, other landmark court cases also engaged with the political question doctrine to one degree or another including Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and Nixon v. United States, 506 U.S. 224 (1993). 19 Kamali (1990, p. 217) is careful to point out, however, that this statement needs to be “qualified in that it is valid only in so far as the clear injunctions (nu ṣūṣ) of the Qurʾan and Sunnah are concerned. Its validity is limited to such cases where the qadi merely declares the existing law and ascertains its application to a particular case.” Things get more complicated in cases where there are not clear injunctions that can be turned to. 20 Powers (1992, p. 317) is critical of Shaprio’s claims regarding the lack of hierarchical organization within the Islamic legal tradition. He accused Shapiro of being biased and argues, based on a case study of fourteenth-century Morocco, “that hierarchical organization was a regular feature of Muslim polities and that these polities appear to have developed a rudimentary, informal appellate structure in which the court of the chief qadi of the capital city served as a court of review for the decisions of local and provincial judges.” However, Powers himself is admitting that this was an informal appellate structure which in my assessment does not necessarily completely invalidate Shapiro’s claims. 21 For original ruling see, Al-Sarakhsī, Mabsūṭ, vol. 16:131.

References Abou El Fadl, K. (2013). The Shar īʿa. In J.L. Esposito and E. Shahin (Eds.), The Oxford Handbook of Islam and Politics (pp. 7–26). New York, NY: Oxford University Press.

158

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Abū Dāw ūd, S. (2008). Sunan Abū D āw ūd (3/5). Translated and edited by A.T.A. Zubair ‘Ali Za’i and N. al-Khattab. Houston, TX: Darussalam Publishers. Al-Ba ṣr ī, M.A. (1965). Al-muʿtamad fī u ṣūl al-fiqh (Vol. 2). Edited by M. Hamidullah, et al. Damascus: Institut français de Damas. Al-Hibri, A. (1999). Islamic and American constitutional law: Borrowing possibilities or a history of borrowing? University of Pennsylvania Journal of Constitutional Law, 1(3), 492–527. Al-Ja ṣṣāṣ, A. (2010). Uṣūl al-Ja ṣṣāṣ al-musammā al-fu ṣūl fī al-u ṣūl (Vol. 2). Beirut: Dā r al-Kutub al-‘Ilm īyah. Al-K ā sā n ī, A.D. (2004). Badāʾiʿ al- ṣan āʾiʿ fī tartīb al-sharāʾiʿ (Vol. 7). Porbandar, India: Markaz Ahl-e Sunnat Barakāt-e Raz ā. Al-Qadri, M.T. (2011). Fatwa on Terrorism and Suicide Bombings. Lahore: Minhaj-ul-Quran Publications. Al-Sarakhsī, M.A. (n.d.). Al-Mabsūṭ (Vol. 31). Beirut: Dā r al-Maʿrifa. Al-ʿUthaym ī n, M. (2016). Liqāʾ al-bāb al-maftūḥ (Vol. 10). Unayzah, Saudi Arabia: Muʾasasa al Sha ī kh ʿUthaym ī n al Khayriyya. Anderson, J.N.D. (1976). Law Reform in the Muslim World. London, UK: Athlone Press. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Arabi, O., Powers, D., and Spectorsky, S. (2013). Introduction. In O. Arabi, D. Powers, and S. Spectorsky (Eds.), Islamic Legal Thought: A Compendium of Muslim Jurists (pp. 1–8). Leiden: Brill. Badawy, T. (2009). Towards a contemporary view of Islamic criminal procedures: A focus on the testimony of witnesses. Arab Law Quarterly, 23(3), 269–305. Baker v. Carr, 369 U.S. 186 (1962). Butler, G. (2018). In search of the political question doctrine in EU law. Legal Issues of Economic Integration, 45(4), 329–354. Cattan, H. (1955). The law of waqf. In M. Khadduri and H. Liebesny (Eds.), Law in the Middle East: Origin and Development of Islamic Law (pp. 213–215). Washington, DC: Middle East Institute. Coulson, N.J. (1957). The state and the individual in Islamic law. International and Comparative Law Quarterly, 6(1), 49–60. Coulson, N.J. (1978). A History of Islamic Law. Edinburgh, UK: Edinburgh University Press. Desilver, D. (2018). Proposed amendments to the U.S. Constitution seldom go anywhere [online]. Pew Research Center: Fact Tank. [Viewed 12 June 2020]. Available from: https ://www.pewresearch.org/fact-tank/2018/04/12/a-look-at-proposed-constitutional -amendments-and-how-seldom-they-go-anywhere/. Fadel, M. (1996). The social logic of taqlīd and the rise of the mukhata ṣar. Islamic Law and Society, 3(2), 193–233. Fadel, M. (2004). Too far from tradition. In K. Abou El Fadl (Ed.), Islam and the Challenge of Democracy (pp. 81–86). Princeton, NJ: Princeton University Press. FED. R. EVID. 403. (n.d.). Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons. [Viewed 8 May 2020] Available from: https://www.rulesofe vidence.org/article-iv/rule-403/. FED. R. EVID. 608. (n.d.). A witness’s character for truthfulness or untruthfulness. [Viewed 8 May 2020] Available from: https://www.rulesofevidence.org/article-vi/ rule-608/. FED. R. EVID. 609. (n.d.). Impeachment by evidence of a criminal conviction. [Viewed 8 May 2020] Available from: https://www.rulesofevidence.org/article-vi/rule-609/. Fyzee, A.A. (1974). Outlines of Muhammadan Law. New Delhi: Oxford University Press.

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Giannelli, P. (2009). Understanding Evidence (3rd ed.). San Francisco, CA: LexisNexis. Gibb, H.A.R. (1947). Modern Trends in Islam. Chicago, IL: University of Chicago Press. Hallaq, W. (1984). Was the gate of ijtihad closed? International Journal of Middle East Studies, 16(1), 3–41. Hallaq, W. (1994). From fatwās to fur ūʿ: Growth and change in Islamic substantive law. Islamic Law and Society, 1(1), 29–65. Hallaq, W. (2009a). Groundwork of the moral law: A new look at the Qurʾā n and the genesis of Shar īʿa. Islamic Law and Society, 16(3/4), 239–279. Hallaq, W. (2009b). Shar īʿa: Theory, Practice, Transformations. Cambridge, UK: Cambridge University Press. Hendrickson, J. (2013). Fatwa. In G. Böwering and P. Crone (Eds.), The Princeton Encyclopedia of Islamic Political Thought (pp. 173–174). Princeton, NJ: Princeton University Press. Ibn ʿĀbid ī n, M.A. (1979[1855/6]). Radd al-muḥtār ʿalā al-durr al-mukht ār sharh tanw īr al-abṣār (Vol. 8). Beirut, Lebanon: Dar al-Fikr. Ibn Bā z, A.A. (2001). Majmooʿ al-fatawa of late scholar Ibn Bazz (r) (English Translation, 2nd ed.), 1/30). Riyadh: Portal of the General Presidency of Scholarly Research and Iftaʾ. Ibn Mājah al-Rabʻī al-Qazw ī n ī, M. (2007). Sunan ibn M ājah (volume 3—from hadith no. 1783 to 2718). Translated by N. al-Khattab. Edited by Abu Tahir Zubair ʿAli Zaʾi. Riyadh, KSA: Darussalam. Ion, T.P. (1908). Roman law and Mohammedan jurisprudence: III. Michigan Law Review, 6(5),371–396. Jackson, S.A. (1996a). Islamic Law and the State: The Constitutional Jurisprudence of Shihāb Al-D īn Al-Qarāfī. Leiden: Brill Publishers. Jackson, S.A. (1996b). Taqlīd, legal scaffolding and the scope of legal injunctions in postformative theory muṭlaq and ʿāmm in the jurisprudence of Shihāb al-Dī n al-Qar ā f ī. Islamic Law and Society, 3(2), 165–192. Jennings, R.C. (1978). Kadi, court, and legal procedure in 17th c. Ottoman Kayseri. Studia Islamica, 48, 133–172. Kamali, M.H. (1990). Appellate review and judicial independence in Islamic Law. Islamic Studies, 29(3), pp. 215–249. Kamali, M.H. (2003). Principles of Islamic Jurisprudence (3rd ed.). Cambridge, UK: Islamic Texts Society. Kamali, M.H. (2012). Constitutionalism in Islamic countries: A contemporary perspective of Islamic law. In R. Grote and T.J. Röder (Eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity (pp. 19–33). New York, NY: Oxford University Press. Khan, L.A., and Ramadan, H.M. (2011). Contemporary Ijtihad: Limits and Controversies. Edinburgh, UK: Edinburgh University Press. MacIntyre, A. (1988). Whose Justice? Which Rationality? Notre Dame, IN: University of Notre Dame Press. Makdisi, G. (1981). The Rise of Colleges: Institutions of Learning in Islam and the West. Edinburgh, UK: Edinburgh University Press. Makdisi, J. (1999). The Islamic origins of common law. North Carolina Law Review, 77(5), 1635–1740. Malekian, F. (2011). Principles of Islamic International Criminal Law: A Comparative Search (2nd ed.). Leiden: Brill Publishers. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Miskawayh, A.M. (1968). The Refinement of Character. Translated by C.K. Zurayk. Beirut: American University of Beirut.

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Morison, W.L. (1982). John Austin. Stanford, CA: Stanford University Press. Nixon v. United States, 506 U.S. 224 (1993). Odermatt, J. (2018). Patterns of avoidance: Political questions before international courts. International Journal of Law in Context, 14(2), 221–236. Opwis, F. (2010). Ma ṣla ḥah and the Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century. Leiden: Brill Publishers. Panken, A. (2005). The Rhetoric of Innovation: Self-Conscious Legal Change in Rabbinic Literature. Lanham, MD: University of American Press. Powers, D. (1990). Fatwā s as sources for legal and social history: A dispute over endowment revenues from fourteenth-century Fez. Al-Qantara: Revista de Estudios Arabes, 11(2), 295–342. Powers, D. (1992). On judicial review in Islamic law. Law & Society Review, 26(2), 315–342. Quadri, J. (2019). Moral habituation in the law: Rethinking the ethics of Shar īʿa. Islamic Law and Society, 26, 191–226. Qur’ā n. (2004). The Meaning of the Holy Qurʾan (10th ed.). Translated by A.Y. Ali. Beltsville, MD: Amana Publications. Schacht, J. (1964). An Introduction to Islamic Law. London, UK: Oxford University Press. Shapiro, M. (1980). Islam and appeal. California Law Review, 68(2), 350–381. Shapiro, M. (1986). Courts: A Comparative and Political Analysis. Chicago, IL: University of Chicago Press. Shehaby, N. (1982). ʿIlla and qiyā s in early Islamic legal theory. Journal of the American Oriental Society, 102(1), 27–46. Siddiqui, M.I. (1979). The Penal Law of Islam. Lahore: Kazi Publications. Southern Pacific Company v. Jensen. (1917). 244 U.S. 205. Thomas, A.V.W. (1949). Note on the origin of uses and trusts–waqfs. Southwest Law Journal, 3(2), 162–166. Tillier, M. (2009). Qadi’s and the political use of the mazalim jurisdiction under the ʾAbbasids. In C. Lange and M. Fierro (Eds.), Public Violence in Islamic Societies: Power, Discipline, and the Construction of the Public Sphere, 7th–18th Centuries CE (pp. 42–66). Edinburgh, UK: Edinburgh University Press. Trump v. Hawaii, 17–965, 585 U.S.___ (2018). Udovitch, A. (1970). Partnership and Profit in Medieval Islam. Princeton, NJ: Princeton University Press. Vikør, K. (2005). Between God and the Sultan: A History of Islamic Law. New York: Oxford University Press. Watson, A. (1977). The Nature of Law. Edinburgh, UK: Edinburgh University Press.

8 A COMMUNITARIAN ALTERNATIVE FOR MODERN ISLAMIC SOCIETIES?

Thus far this work has offered comparative domain-specific ontologies of both liberalism and Islam. It has looked at major thinkers—past and present—as well as primary and secondary canonical sources to back its main arguments and claims. While I hope that the reader thus far feels that the preceding pages have provided valuable insights, I feel more benefit can be derived from this work—and perhaps even a future book—by looking at a mode of discourse that does appear to offer more possibilities within which to conceptualize Islam. If one is to offer what amounts to mostly a critique of something, then I feel that they are obliged to at least try and offer something positive in its place. Therefore, this concluding body chapter will introduce the possibility of what is widely understood as communitarianism as a more suitable alternative discourse for rethinking novel forms of Islamic social and political organization in the twenty-first century. Some of the first communitarian critiques emerged in the mid-nineteenth century in Karl Marx’s early writings on the pitfalls of industrial society (Walzer, 1990). Marx’s early manuscripts foretold of an increasingly alienated society in which the bonds between men were constantly being undermined via an increasingly brutal and impersonal market mechanism that nonetheless was producing greater wealth for certain classes than ever before. In Marx’s (1972[1844], p. 71) own words: “With the increasing value of the world of things proceeds in direct proportion the devaluation of the world of men.” A corollary to the devaluation of the world of men is the devaluation of community more generally. As alienated labor becomes more separated from its product, the sense of loss and meaninglessness in the workplace moves beyond its immediate setting and ultimately transfers into the community more generally wreaking havoc on all areas of social life. Communitarianism is often seen as liberalism’s most formidable alternative. Elizabeth Frazer (1999 p. 8) contends:

162 A communitarian alternative for modern Islamic societies?

“Communitarianism” refers to a range of positions in social and political discourse, which, like other “isms,” consist typically of sets of concepts which are tied to beliefs, propositions and theories about the world, values, and prescriptions about acceptable and appropriate strategies for realizing these values. Frazier’s characterization here does seem to posit that communitarianism—as she herself notes—is like other “isms” in the sense that it is a comprehensive doctrine. However, others more convincingly have contended that communitarianism should be understood as less of a comprehensive doctrine and instead as more of a method of critique and analysis than anything else even if there are certain comprehensive elements inherent within it (van Seters, 2006; Bell, 2005). Filippo Dionigi (2012, p. 75) for example comments that “communitarianism is a political theory whose main assumption is that a person develops her ethical principles throughout a network of relations established within the ethical community in which she acquires her identity.” This certainly is not a metaphysical truth claim as to what is constitutive of the good life or what sources of morality we ought to follow. What these specific ethical principles Dionigi are referencing vary from community to community. Theories offered by the likes of Michael Sandel (2006; 1998) and Alasdair MacIntyre (1988; 2007) hinge upon the impossibility of individuals acting as autonomous moral agents who have the capacity to choose among competing notions of the good life divorced from their communal settings and existential situatedness. This chapter will follow the same general format of the previous chapters. It will first offer a working definition of community followed by a working definition of communitarianism. It will then lay out the main communitarian critiques of Rawls’s original position as well as the communitarian and Islamic contentions that secular liberal individualism ultimately is a self-defeating enterprise. The final part of this chapter will look in greater detail as to what virtue ethics can potentially offer for novel conceptualizations of Islamic modes of social and political organization. The ultimate aim of this chapter is to show that communitarian discourses offer more possibilities for meaningful engagement with Islam than does comprehensive or political liberalism. It seeks to open the door to further scholarly engagement between Islamic and communitarian discourses.

The contested notion of community As noted in this chapter’s introduction, I do not think that communitarianism should be understood as a competing grand theory to liberalism. This primarily is due to the fact that the communitarian tradition has yet to even come together around a widely assented to understanding of community. Paul van Seters (2006, p. viii) contends that, to this point, “no clear and concise elaboration of the concept of community has been put forward” within the broader communitarian tradition. Even sociologists have yet to fully codify an airtight elaboration on

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the concept of community. If the notion of community is not even settled, then how can one offer a coherent account of communitarianism as a comprehensive doctrine that stakes out certain specific metaphysical truth claims? While it may be somewhat ironic that the “scholarly community” cannot agree to a common definition of community, it should not be that surprising. Benedict Anderson (1991, p. 6) famously contended: “Communities are to be distinguished, not by their falsity/genuineness, but by the style in which they are imagined.” Communities can exist at many different levels, in many different settings, and can center around many different things (Frazier, 1999). They can be large or small, and sometimes we exist in certain communities due to factors beyond our control such as an ethnic community or a social classbased community. Indeed, sometimes we are even members of a community that we would much rather have nothing to do with such as a community of prison inmates or a community of people with cancer or heart disease. Scholars in the twentieth century (Crow and Allen, 1994; Willmott, 1986; Lee and Newby, 1983) have conceptualized community as existing at three different and often overlapping levels. These levels include: (1) place/territoriality (i.e., the physical place where people live); (2) interest or elective communities in which people share a certain common personality trait—including but not limited to—things such as gender, sexual orientation, or ethnic background; and (3) communion or the idea of people having a sense of attachment or belonging to a particular idea, group, or place. At the level of communion, one can be a part of the Muslim community [ummat al-Isl ām] even if they live in a place where they literally are the only Muslim within a thousand of kilometers of their locale.1 Another important element of community is boundaries. Certain practices, actions, ideas, beliefs, or even brute facts place one either inside or outside the fold of a particular community. Anderson (1991) for example argued that religious communities historically had always been rooted in a unique sacred language which ultimately held the keys to admission into that particular community; to be a member of that community was to understand and embrace that sacred language. Any convert to Islam will undoubtedly have at least one story about being told by a community elder about the importance of staying within the fold of Islam. While certain boundaries may be obvious such as lines on a map or those based on one’s DNA, boundaries can also be thought of “as existing in the minds of the beholders” (Cohen, 1985, p. 12). In many cases, it is the existing members of a particular community who confer or deny membership in their community which leads to the inevitable question: who gets to do the deciding? As a result of these ambiguities, boundary disputes frequently occur and these disputes often rise to the level of conf lict within communities. Despite these potential pitfalls, community—by definition—requires some type of limits or “external other,” or else all the different categories would collapse. Beyond this basic schematic, there are many different opinions regarding community that go beyond the scope of this book. What constitutes group membership and

164 A communitarian alternative for modern Islamic societies?

belonging as a more general meta-phenomenon is a topic that likely is not going to be resolved anytime soon.

What actually is communitarianism then? Communitarianism is a substantive ethical and political theory of sorts although it is not fully comprehensive; it does not lay out which metaphysical truth claims it requires which means that it is not necessarily a transformative project as Chapter 3 argued is the case with liberalism—both political and comprehensive. Communitarianism also is not nearly as codified as liberalism nor does it possess large swathes of loyal followers like liberalism. As a matter of fact, many of the most well-known communitarian-oriented scholars such as Charles Taylor and Michael Walzer actually identify as liberals, albeit liberals that have deep problems with certain assumptions made within liberalism more generally (Guttman, 1992; Bell, 2005). These are not the only two either. Michael Sandel (1998) described his thought as republican, not communitarian, and Alasdair MacIntyre (1991) himself rejected the label outright even though many see him as the embodiment of contemporary communitarian thought. In a letter responding to his critics in the early 1990s, MacIntyre (1991, p. 91) declared: “In spite of rumors to the contrary, I am not and have not been a communitarian.” In the same letter, he goes on to reject efforts aimed at reforming mass society around communitarian values, commenting that “attempts to remake modern societies in systematically communitarian ways will always be either ineffective or disastrous.” For MacIntyre, certain particularized communities that share a similar conception of human good can (and should) be built with communitarian ideals in mind, but only in local environments such as schools, workplaces, and places of worship. In his view, modernity itself is too far gone to implement “communitarianism” at a societal level without resorting to authoritarian coercion or deeply exclusionary and discriminatory politics. Many communitarian works can be understood as responses to and critiques of modern liberalism’s shortcomings. Daniel Bell (2005, p. 216) contends that communitarianism challenges liberalism via “[1] ‘ontological’ or ‘metaphysical’ claims about the social nature of the self, [2] methodological claims about the importance of tradition and social context for moral and political reasoning, and [3] normative claims about the value of community.” One can conceptualize the relationship between liberalism and communitarianism as being similar to the relationship between realism and constructivism in international relationstheorizing; the former has a solid core of ideological supporters proudly offering their own conceptions of what “counts” as realism. Realism and realist theories of international relations offer a certain set of metaphysical truth claims and are exclusionary in the sense that they possesses a few inextricable doctrinal axioms and are centered around certain very fundamental, timeless assumptions about the international order such as the centrality of state actors in international politics, the international order being perpetually anarchic, the idea that states always

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act with their rational self-interest in mind, and the idea that all states are driven by a desire for self-preservation. Constructivism and constructivist approaches to international relations on the other hand often are not even described as an international relations theory proper. They comprise a far looser confederation of approaches that all at some level seek to analyze international politics via the lens of constructed identities. Jeffrey Checkel (1998, p. 342) once described constructivism as “nothing more than a method [that] leads one to ask certain questions and make certain assumptions.” There are many variations within the expansive and inclusive constructivist tent with perhaps the only really universal feature being a shared emphasis on the role of constructed identities and the indeterminate nature of the international order. Constructivist approaches to international relations generally avoid making sweeping, definitive ontological and metaphysical claims about the international order. Most constructivist-oriented international relations thinkers qualify their constructivism and rarely if ever articulate it as a definitive, timeless, and codified theory of international relations.2 Communitarianism therefore is quite f lexible and f luid since it is not nearly as codified an “ism” as liberalism. I do not think it can be understood as a comprehensive doctrine proper nor do I think it is dependent upon any other comprehensive doctrine as this work has thus far argued is the case with political liberalism. With this in mind, there are significantly fewer obstacles to contend with when seeking to engage with certain communitarian concepts in order to conceptualize an Islamic mode of socio-political organization. For example, one does not run the risk of drawing from too many first-order principles that are rooted in incompatible second-order metaphysical claims. Due to its lack of a strictly defined axiomatic core, one can more readily draw from different communitarian critiques of liberalism and find congruence between these critiques and an Islamic moral epistemology.

The communitarian critique of Rawls’s starting point Rawls’s Theory of Justice (1999, p. 10) sought to further develop the ideas of Locke, Rousseau, and Kant and “present a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract.” His entire theory is rooted on what transpires in the original position (OP). The OP is a hypothetical situation in which people conceptualize themselves as free and equal persons that jointly agree upon the principles of social and political justice and commit themselves to these principles. The veil of ignorance (VoI) is the lynchpin upon which the OP hinges. The VoI is a unique hypothetical condition in which parties involved in the deliberative process that transpires within the OP are deprived of almost all knowledge of their specific subjective conditions. This includes being deprived of any knowledge of their social and historical circumstances as well as their personal characteristics. People are also deprived of all knowledge of their race,

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gender, religion, ethnicity, and all other similar physiognomies that people commonly categorize themselves within. This condition was understood by Sandel (1984, p. 86) as the “unencumbered self, a self understood as prior to and independent of purposes and ends.” Under the VoI, people deliberate as generic human beings who are only aware of certain fundamental interests that Rawls assumes all human being have, as well as general facts about psychology, economics, biology, and other social and natural sciences. Rawls (1999, p. 221) draws from Kant and argues that “moral principles are the object of rational choice,” and assumes that, under the VoI, people would make decisions rooted in their own rational self-interest. As a result, individuals deliberating under the VoI will inevitably choose principles of justice that leave themselves subject to minimal personal risk. 3 Rawls’s more general understanding of rationality, by his own accounts, draws heavily from contemporary notions of economic rationality, and explicitly avoids “any controversial ethical elements.” Instead it only focuses upon “stipulations that are widely accepted” (1999, p. 12). Rawls’s maximin principle assumes that people will, out of rational self-interest, choose a framework of justice that maximizes the position of those at the bottom of the social hierarchy since nobody under the VoI knows their own personal details; they may very well be one of the people at the very bottom of the social hierarchy and as a result will seek a framework for justice that will ensure that if they are unfortunate enough to be in this position, they will enjoy the best possible framework for justice that will help them rise out of this position. Rawls’s first principle posits that “[e]ach person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty.” This means that nobody will be left out of the schema for the distribution of the basic goods. Rawls’s (1999, p. 220) priority rule stipulates: The principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty. There are two cases: (a) a less extensive liberty must strengthen the total system of liberty shared by all, and (b) a less than equal liberty must be acceptable to those citizens with the lesser liberty for all. The restriction of liberty for the sake of liberty resonates with what Popper and Marcuse were talking about and which was discussed in the previous chapter. The restriction of liberty ought to be prioritized in a way such that the overall distribution of liberty improves. When certain liberties are restricted, they are done so in a manner that those who already enjoy less liberty (i.e., those at the bottom of the social order) will assent to via their own free will and not due to coercion. The OP and VoI have been critiqued, defended, and analyzed ad nauseum. However, I will engage here with a few of the more salient and enduring criticisms of philosophical architecture that undergirds Rawls’s entire framework.

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The most obvious critique of the OP is that it is predicated on a hypothetical condition—the VoI—that some have argued is completely untenable. Some have claimed that we cannot even begin to understand any type of conception of the good without taking into consideration our own unique subjective predispositions (Sandel, 1998, 2006; MacIntyre, 1988, 2007). As Sandel (1998, p. 64) notes: “The assumptions of the original position thus stand opposed in advance to any conception of the good requiring a more or less expansive self-understanding, and in particular to the possibility of community in the constitutive sense.” He believed that to conceptualize individuals without meaningful constitutive attachments in actuality amounts to conceptualizing unfree and non-rational agents. It involves imaging “a person wholly without character [or] moral depth” (2006, p. 167). In his view, the person who operates strictly in accordance with Rawls’s vision of public reason represents the archetype of an individual engaging in a static and contrived form of deliberation. Sandel viewed such a person that ignores their own history and personal moral sentiments as not really human at all. After all, it is our own ability to understand ourselves as existing concurrent within space and time along with our deeply held moral convictions that make our species unique; once these are removed you remove the essence of being human. Sandel (2006, p. 168) artfully writes: For to have character is to know that I move in a history I neither summon nor command, which carries consequences nonetheless for my choices and conduct. It draws me closer to some and more distant from others; it makes some aims more appropriate, others less so. As a self-interpreting being, I am able to ref lect on my history and in this sense to distance myself from it, but the distance is always precarious and provisional, the point of ref lection never finally secured outside the history itself. Being fully human involves being aware of one’s place in history and possessing a specific moral epistemology and vision of the good or the good life. To keep all of this off the table when engaging in public political reason is an act that itself is dehumanizing rather than liberating. Not only this, but being human also involves wanting to see that vision realized in practice and not just held at the level of abstract or ideal theory. By minimizing the accessibility of competing conceptions of the good in public political space, one is minimizing our uniquely human endowments. In a similar vein as Sandel, MacIntyre (2007, p. 23) in After Virtue notes that all approaches to moral philosophy “presupposes a sociology” whether they want to admit it or not.4 We come to understand notions of the good from our communal embeddedness; removing all notions of belongingness to particularistic communities removes the ability to adequately theorize about the good. Sandel and MacIntyre would argue that rational economic behavior, or the idea that rationality consists primarily of maximizing subjective utility, is by no means something that can be understood as having an independent, objective reality of its

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own that is applicable to all human beings at all times in history. Even today, for the devout Muslim more concerned about their afterlife than this life, it would be wholly irrational to maximize subjective utility at the expense of eternity. The Qurʾā n (87:16–17) is very explicit in its forewarning about those who choose this world (i.e., maximizing subjective utility) over the next: “Nay (behold), ye prefer the life of this world; But the Hereafter is better and more enduring.”5 In his Tafsīr on this particular verse, Ibn Kath ī r (2003, vol. 10, p. 453) comments: “For indeed, this worldly life is lowly and temporal, whereas the Hereafter is noble and eternal. Thus, how can an intelligent person prefer that which is short-lived over that which is eternal[?]” There are many hundreds of millions of Muslims that, at least outwardly, would assent to this unambiguous metaphysical declaration in the Qurʾā n and Ibn Kath ī r’s commentary on it. It is the societies in which we live that imbue us with this rather modern notion of the primacy of subjective utility maximization as being axiomatic. Indeed, there still are tribal societies in today’s world that operate in a more communal manner, eschewing Rawls’s assumption regarding the universality of economic utility maximization. One simply cannot have any coherent notion of rationality without understanding what values and ends an individual or society prioritize. Therefore, even what Rawls assumes to be universal is still rooted in a particularistic community ethos, even if that community ethos historically is widely shared among many different cultures and groups. As MacIntyre (2007, p. 70) reminds us: “Moral incommensurability is itself the product of a particular historical conjunction.” Morality cannot be properly realized outside of some type of specific historical setting. Even rationality itself cannot be fully understood outside a cultural context. For example, Rawls assumes the universality of his maxmin principle, but the idea of people being averse to risky behaviors is also something that is confined to a certain historical and social context. Who is to say that in other societies things might not be significantly different? Even in Western societies, people regularly engage in risky gambling behaviors hoping against all odds to win the lottery or hit the jackpot even though they are fully aware of the miniscule odds they face.

The Islamic and communitarian critiques of secular liberal individualism as self-defeating Communitarian- and Islamic-oriented thinkers have carefully outlined some of the main problems with secular liberal individualism and have reached a similar conclusion—namely that in the end, secular liberal individualism is a self-defeating enterprise. Chris Brown (1997, p. 49) makes an interesting claim contending that the success of liberalism actually has hinged upon latent communitarian impulses: Liberal societies of the last 150 to 200 years have indeed been the freest and most generally congenial societies known to history, but not because they

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have been constructed on the basis of rights; their success has been based on features within them that pointed towards a different, more community and less individualist, context for political action. It was because of the existence of this context, because these societies were, in certain respects, ethical communities, that rights were widely honoured and respected. Liberalism under Brown’s characterization has been successful in spite of its appeals to individualism, not because of it. In his assessment, “a successful rightsbased politics is parasitic on features of the polity that have nothing to do with rights—indeed, that may even be inimical to rights thinking” (1997, p. 49). It was in fact an informal, internalized communal commitment to a certain set of liberal values that made liberalism a success in the first place. For example, there had to be some shared understanding and acceptance regarding the limits of, and rights related to, property. Robert Bellah et al. in Habits of the Heart (University of California Press, 1985) argued that human beings by nature are bound together upon certain moral convictions, and liberalism rather than destroying the actual bond instead destroys our sense of that bond which is then ref lected in the messiness of day-to-day liberal politics. For Bellah et al., liberal theory “deprives us of any ready access to our own experience of communal embeddedness” (Walzer, 1990, p. 10). Successful political liberalism therefore is contingent upon strong communities with some shared ethical commitment to public reason and the public good in order to make it work; it cannot sustain itself on a conglomeration of detached individuals solely seeking to maximize their own material positions. After all, a public conception of justice needs to be rooted in some type of coherent “public” beyond just a certain number of human bodies occupying a similar physical space. The problem for people like Brown and Bellah et al. is that while secular liberal individualism may work for a while, over time it ultimately undermines itself when taken to its logical conclusion. This point was also made by the esteemed contemporary Islamic intellectual Abdelaziz Sachedina (2009, p. 147), who argued: The universalization of secular liberal individualism tends to devalue communitarian identities founded upon collective constraints and sanctions that provide a necessary social environment for practical connections between individuals and groups. To obscure the very pattern of their connection is detrimental to the development of individualist assumptions of moral autonomy, which actually depend upon the individual’s ability to function as a member of society. Once again, as with Sandel and MacIntyre, in Sachedina’s analysis we can see how moral agency cannot be adequately conceptualized outside an individual’s communal settings. Moral autonomy does not exist independent of one’s role as a member of any particular society, nor does it develop in a vacuum; rather it is

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one’s social settings that incubate a coherent notion of moral autonomy in the first place. This is to suggest that there is a deeply dialectical relationship between communitarian ideals and moral autonomy; it is through community that one crafts their own unique moral perspectives and understandings of autonomy in the first place. If someone asks a person from Denmark or Sweden what their understanding of moral autonomy is, one most certainly will find that their definition differs dramatically from someone living in Russia, China, or North Korea. For certain, an Islamic communal setting alone does not necessarily foster uniform moral agents or citizens who all act in accord with that particular society’s ethical demands—no society or government does for that matter. As James Madison reminds us in Federalist #51: “If men were angels, no government would be necessary” (referenced in Genovese, 2010, p. 120). The number of corrupt and malfunctioning societies that operate in the Muslim world today—Islamic communal settings largely in name only—are too vast to count. The dialectical interaction between personal responsibility, a sense of communal obligation, and authentic moral autonomy, specifically in the sense that people are permitted to freely choose to follow Islam’s moral order or not is something that can be further scrutinized via a communitarian lens. Moral autonomy is not the exclusive domain of perfectionist liberals like Joseph Raz. One possible direction for future research may be investigating how to conceptualize moral autonomy from an Islamic perspective that engages with communitarian themes related to the give-and-take relationship between the rights of the individual and the rights of society as a whole.

What can MacIntyre’s virtue ethics offer Islam? Another avenue for future research relates to evaluating what virtue ethics can offer contemporary Islamic societies, many of which seem to be lacking in virtue as a shared collective good. Virtue can be understood in its simplest terms as excellence in character. It was discussed in detail first by Aristotle and then later Augustine and Aquinas. For Aristotle, ethical virtue was described as a hexis [ἕξις] or a type of active disposition toward appropriate or proper feelings. It represented an intermediate condition between extremes: “virtue must have the quality of aiming at the intermediate” (NE, 1106b15).6 The “morally motivated” virtuous act according to Rosalind Hursthouse (1999) is an act which is done from a state of character which is similar to the character of agents who are perfectly virtuous; it goes far beyond simply “habit” in the sense of—as she notes in her original example—having a habit of drinking a cup of tea at lunch every day. It is a complex state of thinking that involves properly operationalizing practical wisdom. It is telling the truth simply because lying is wrong—full stop. For Muslims it is about taqwā or piety. Virtue is something that one constantly must work on further developing; it does not happen without effort. While developing virtue may be easier for some than for others, all rational, conscious, and non-cognitively deficient human beings have the capacity to do so if they try.

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Virtue ethics are rooted in the Ancient Greek notions of arete [ἀρετή] (excellence or virtue), phronesis [φρόνησῐς] (practical or moral wisdom), and eudaimonia [εὐδαιμονία] (most often translated as “happiness” or “f lourishing”) and can be understood as enduring habits and what types of knowledge are necessary in order to live a good life. MacIntyre’s (2007, p. xiv) critique of liberalism is rooted in his recognition of the central role virtue plays within a function state: My own critique of liberalism derives from a judgment that the best type of human life, that in which the tradition of the virtues is most adequately embodied, is lived by those engaged in constructing and sustaining forms of community directed towards the shared achievement of those common goods without which the ultimate human good cannot be achieved. A society must be organized in a manner in which there is a shared understanding of virtue that permeates the collective ethos of a society. The shared achievement of common goods, by definition, necessitates individuals who are willing to forgo certain individual liberties in the name of the greater communal good. In other words, it requires individuals who are willing to obey certain rules even if it is to the detriment of their immediate short-term interests and desires. MacIntyre (2007, p. 244) understands virtue as “a disposition or sentiment which will produce in us obedience to certain rules.” However, agreement about any particular virtue first depends upon a general communal sense of “agreement on what the relevant rules are to be” in the first place. Liberal societies for MacIntyre are incapable of developing this prior agreement, and therefore they cannot properly develop virtuous citizens either. The main takeaway from all this for those interested in developing political institutions is that a collective ethos regarding what the relevant rules are does not develop on its own; certain institutional structures are necessary to facilitate in fostering this. Islamic comprehensive doctrine can help bolster institutional structures imbued with a collective ethos or a common shared destiny. The institutional order promoted by political liberalism impinges upon the ability to construct any types of self-sustaining community since it consciously avoids overtly pushing forth a certain understanding of the good life or a shared sense of destiny. It is important to point out here that Macintyre (2007, p. xv) does not support contemporary conservatism either—something he sees merely as “a mirror image of the liberalism that it professedly opposes.” The contemporary conservative movement for MacIntyre does not really promote virtue at all. Instead it represents “a way of life structured by a free market economy [and] is a commitment to an individualism as corrosive as that of liberalism” (2007, xv). Such a society is no more capable of promoting virtue than a liberal one. Rather he seeks a society that is capable of fostering virtue. Virtue and the production of virtuous citizens is obviously something that deeply resonates within the Islamic mindset as well. The Muslim community is supposed to be an ummatan wasaṭan, or a community of believers that make

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a conscious effort to tread the middle path in their daily lives between excessiveness [ifrāṭ] and laxity [tafr īṭ]: “Thus We have appointed you a middle nation [ummatan wasaṭan], that ye may be witnesses against mankind [shuhadāʾ ʿalā al-nās] and the messenger may be a witness against you” 7 (Qurʾā n 2: 143). Al-Fā r ābī (d. 950 C.E.) talked extensively about the importance of moderation in his Ta ḥṣīl al-Sa’āda (Dā r al-Andalus, 1983), translated into English by Muhsin Mahdi as The Attainment of Happiness (Cornell University Press, 1972). For Al-Fā r ābī, the virtuous person was moderate and was thus able to properly discern “the time, the place, the agent, the patient, the origin and the instrument of the action as well as the reason for which the action is done” (cited in Fakhry, 2002, p. 94). Good judgement for Al-Fā r ābī, similar to Aristotle, came from engrained habit; people acquire certain virtues only when they become engrained habits. Al-Fā r ābī (1972, p. 60) also understood the importance of community, recognizing that man has an innate predisposition to interact and work with each other: It is the innate disposition of every man to join another human being or other men in the labor he ought to perform: this is the condition of every single man. Therefore, to achieve what he can of that perfection, every man needs to stay in the neighborhood of others and associate with them. Clearly the attainment of worldly and moral perfection cannot be achieved without having good neighbors that share a similar moral conception of the good. Interacting with the taqwā of others helps to reinforce one’s own taqwā. Where Al-Fā r ābī departs from Aristotle is regarding what is constitutive of ultimate happiness. Eudaimonia for Aristotle does not have a supernatural component. For Al-Fā r ābī, as one would expect for an Islamic thinker, the ultimate end of virtue in this world is ultimate felicity or happiness in the afterlife. However, it is important to note here that Al-Fā r ābī possessed what can only be described as a heretical understanding of the afterlife in which he denies the physical resurrection of mankind on the Day of Judgement, a matter that is a core creedal belief within Islam, in favor of a psychic or intellectual understanding of the soul (Yusuf, 1986).8 Despite Al-Fā r ābī’s undeniably heretical views on certain creedal axioms, his understanding of the importance of virtue and community remain relevant and useful for conceptualizing nascent forms of social order in the contemporary Muslim world. Virtue ethics were also present in the thought of Ibn Miskawayh, who was referenced in the previous chapter. He was one of the great Islamic ethical thinkers who lived during Islam’s Golden Age. He was a chancery official in the Buyid Era who enjoyed great prestige during his lifetime. A polymath who was f luent in Middle Persian [Pārsīk], Ibn Miskawayh produced multiple works, but perhaps his most enduring work was his Tahdhīb al-Akhlāq which was translated into English by Constantine Zurayk as The Refinement of Character (American University of Beirut, 1968). It is considered one of the earliest works “whose

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purpose is to bring together two sources, Islamic revelation and the Greek philosophical canon” (Bucar, 2018, p. 208). Ibn Miskawayh, similar to many of his Neo-Platonist contemporaries, Islamized certain Ancient Greek constructs to find better harmony within an Islamic discursive framework.9 For Ibn Miskawayh, virtue ethics was all about perfecting the soul for God’s pleasure. This represents a major departure from Aristotle’s original understanding, in which humans possessed “the ability to be moral because of our rational capacities, not our relationship to God” (Bucar, 2018, p. 209). Our rational capacities were inextricable from our relationship to God for Miskawayh even though we all innately possess the capacity to be rational. We simply can never fully maximize our rational capacities independent of fostering a relationship with God. This seems to be a recurring theme in Islamic ethics; we are endowed with certain innate predispositions toward rational action and goodness, but in order to properly operationalize these dispositions, we need revelation to guide us. For the Ancient Greeks, virtue ethics can be understood as doing right for the sake of right due to our inherently rational nature with no other ends in mind for doing so. For the devout Muslim, this statement is modified to note that virtue is about doing right for the sake of Allah.

Conclusion: perhaps it is time for everyone to stop bowling alone? A successful Islamic polity is dependent upon some shared notion of Islamic moral agency that is rooted in Qurʾanic values. In the end, moral agency is developed as a communal value in any society—religious, secular, or otherwise—only when people actively participate in civil society, something that is sorely lacking in much of today’s Muslim world in which autocrats either create false civil societies that aim to mimic authentic civil society in external form, but not internal content, or stif le it altogether. Drawing from many of the insights offered by the great nineteenth-century French sociologist and historian of the United States, Alexis de Tocqueville (d. 1859 C.E.), twentieth-century Western scholars of social capital and civic engagement addressed the importance of civic participation in liberal societies and lamented its decline (McWilliams, 1973; Barber, 1984; Putnam, 2000). McWilliams’s nearly 700-page tour de force referenced a litany of alterative American political and literary traditions that did a much better job of reaffirming the notion of fraternity than America’s more widely known, thinly construed liberal democratic tradition, while Barber’s iteration of strong democracy called for “politics (citizenship) as a way of living: a fact of one’s life, an expected element of it, a prominent and natural role in the same manner as that of a parent or worker” (Prugh, et al. 2002, p. 112). The radical individualism that underpins both modern liberal theory and practice ultimately undermines democracy. What Barber calls weak democracy in the end produces outcomes less legitimate than a strong democracy would. Freely choosing one’s leaders in the

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most formalistic, Schumpeterian sense of the term does not ensure that people view their government as legitimate. Twenty years ago, Robert Putnam’s critically acclaimed Bowling Alone (Simon & Schuster, 2000) explored the loss of communal engagement in American society. Public trust in the US began to decline in the 1960s and into the 1970s, reaching all-time lows by the 1990s. Concomitantly, these same decades also saw the rapid rise of neoliberal and globalist economic policies that often benefited the rich at the expense of the poor. Putnam placed much of the blame for the precipitous decline in social trust on the realities of modernity itself, but also contends that these declines can be reversed if individuals retake the initiative to reach out to one another and participate again in communal life; Americans in Putnam’s mind literally needed to start bowling with friends once again as did their relatives of yesteryear. In 2010, Putnam, along with his colleague Thomas Sander, revisited his earlier thesis. They noted that following the 9/11 terrorist attacks there was a shortterm bump in civic engagement in the US, especially among those who were in their adolescence when the attacks happened. However, as time went on, this bump was primarily confined to more aff luent white teens. This was problematic in their view which led them to conclude: The widening gaps that we are seeing in social capital, academic ambition, and self-esteem augur poorly for the life chances of working-class youngsters. If these gaps remain unaddressed, the United States could become less a land of opportunity than a caste society replete with the tightly limited social mobility and simmering resentments that such societies invariably feature. (Sander and Putnam, 2010, p. 14) Sadly, as I am writing this today in July 2020, ten years after Sander and Putnam, it seems that their forewarnings have finally come to fruition as the US is enveloped by massive social protests against police brutality, discrimination, and enduring inequality from the left and a resurgent white nationalist movement from the right that has become increasingly brazen in making its reactionary and violent agenda known. These dueling social movements continue to serve as mediums for what at one time were simmering resentments that have now elevated to a full boil. The loss of communal trust ultimately translates into the loss of public trust which facilitates in expediting the ossification of liberal democratic political institutions. The election of Donald Trump as president of the United States in 2016 on the premise of making America great again perhaps best illustrates the culmination of decades of rudderless neoliberalism and the steady erosion of public trust in US institutions that began in the 1960s and exponentially grew following President Richard Nixon’s Watergate Scandal some 45 years ago. The rise of extreme politics and political movements on both the left and the right are directly attributable

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to the undeniable shortcomings of the liberal project which has not sufficiently addressed poverty, discrimination, and perhaps even more importantly social cohesion and a sense of a higher purpose beyond the accumulation of material wealth and worldly ends. It is as if the steam of the post–World War II liberal international order has finally run out and people are returning back to the fearful nationalism that characterized the years immediately prior to it. The lessons that ought to be drawn from what is happening in both the US and EU as a result of failed neoliberal social and economic policies along with useful insights offered by communitarian-oriented scholars offer valuable food-forthought for offering novel conceptions of Islamic political and civil society. The rise of radical individualism which in recent times has morphed into full-blown selfish egoism and a complete lack of concern for the well-being of others, perhaps best illustrated by the absurd politicization of mask-wearing that has emerged during the COVID-19 crisis in the United States, is a challenge that communitarian theorizing may be better suited to address. Nonetheless, since morality ultimately is something developed within the individual, in the end, the final decision to embrace and operationalize moral agency remains a uniquely individual choice. However, this process of coming to terms with moral agency and moral autonomy is one that is intimately connected to one’s communal settings. A society that prioritizes positive communal bonds is bound to produce a different moral agent and a different public conceptualization of moral agency than one that does not. The prioritization of communal bonds does not necessitate denigrating into the politics of sectarianism or exclusion. Drawing from Islam’s historical moral resources, further scholarship should aim to create models of political discourse in which the “Islamic” part of Islamic societies remains at the forefront and which at the same time offer reasonable accommodations for nonMuslim citizens to participate in socio-political processes and enjoy a maximal range of individual liberties and freedoms. This is the only way to ensure social harmony and political stability in an increasingly diversifying world.

Notes 1 An umma relates to a specific type of community based on a supra-national connection rooted in faith or belief; a community of believers [ummat al-muʾminīn]. It is not confined by borders or ancestry. A shaʿab on the other hand relates to the idea of a people connected by common national boundaries or ancestry. 2 For a useful introduction to international relations theoretical approaches and paradigms, see: Dunne, Kurki, and Smith, eds., International Relations Theories: Discipline and Diversity (New York, NY: Oxford University Press, 2007) and McGlinchey, S., Walter, R., and Scheinpf lug, C., eds., International Relations Theory. (Bristol, UK: E-International Relations, 2017). 3 In order to avoid relying too much on Kant’s transcendental subject which would have been problematic for his own theory, Rawls (1977, p. 165) argued that “the force and content of Kant’s doctrine must be detached from its background in transcendental idealism” and recast within the “canons of a reasonable empiricism” (cited in Sandel, 1984, p. 85). The lenses of rational choice and rational self-interest is how Rawls recast Kant.

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4 MacIntyre (2007, p. 23) goes on to argue: “every moral philosophy offers explicitly or implicitly at least a partial conceptual analysis of the relationship of an agent to his or her reasons, motives, intentions and actions, and in so doing generally presupposes some claim that these concepts are embodied or at least can be in the real social world.” Moral philosophy is rendered incoherent when one seeks to approach it outside social and historical context. 5 ‫بَ ْل ت ُْؤِث ُروَن اْل َح يَ اة َ ال دُّْن يَ ا َواْآلِخ َرة ُ َخ ْي ٌر َوأ َْب قَ ٰى‬ 6 See Nicomachean Ethics, 1106a26–b28 in J. McKeon, ed. The basic works of Aristotle. (New York: The Modern Library, 2001). All references to Aristotle in this section will be from this edition. References to the Nicomachean Ethics will be identified as NE. 7 ‫َوَك ٰذِل َك َج عَ ۡل ٰن ُك ۡم ا ُ َّم ةً َّوَس ًط ا ِلّ ت َُک ۡونُ ۡوا ُش َه دَآ َء َع لَ ى ال نَّ ا ِس َويَ ُك ۡوَن ال َّرُس ۡوُل َع لَ ۡي ُك ۡم َش ِه ۡي دًا‬ 8 Al-Farabi’s belief in the eternity of the world along with his denial of bodily resurrection and Allah’s knowledge of particulars led later scholars like Al-Ghazali to declare him and Ibn Sina as heretics. 9 For example, he purposefully mistranslated Aristotle’s use of the word theon [θεόν] or “gods” as the monotheistic word for “God.” For more on how medieval Islamic thinkers Islamized Greek thought via their translations so that it would be compatible with Islamic monotheism, see Peter S. Adamson, Arabic Plotinus: A Philosophical Study of the “Theology of Aristotle” (London, UK: Gerald Duckworth & Co. Ltd., 2002).

References Adamson, P. (2002). Arabic Plotinus: A Philosophical Study of the 'Theology of Aristotle.’ London, UK: Gerald Duckworth & Co. Ltd. Al- Fā r ābi, M. (1972). The attainment of happiness. Translated by M. Mahdi. In M. Mahdi and R. Lerner (Eds.), Medieval Political Philosophy: A Sourcebook (pp. 58–82). Ithaca, NY: Cornell University Press. Al-Fā r ābi, M. (1983). Ta ḥṣīl al-sa’āda. Edited by Jaʿfar al-Yasin. Beirut: Dā r al-Andalus. Anderson, B. (1991). Imagined Communities: Reflections on the Origins and Spread of Nationalism (Revised ed.). New York: Verso. Aristotle. (2001). The Basic Works of Aristotle. Edited by J. McKeon. New York, NY: The Modern Library. Barber, B. (1984). Strong Democracy: Participatory Politics for a New Age. Berkeley, CA: University of California Berkeley Press. Bell, D. (2005). A communitarian critique of liberalism. Analyse & Kritik, 27(2), 215–238. Bellah, R. et al. (1985). Habits of the Heart: Individualism and Commitment in American Life. Berkeley, CA: University of California Press. Brown, C. (1997). Universal human rights: A critique. The International Journal of Human Rights, 1(2), 41–65. Bucar, E.M. (2018). Islamic virtue ethics. In N. Snow (Ed.), The Oxford Handbook of Virtue (pp. 206–223). Oxford, UK: Oxford University Press. Checkel, J. (1998). Review: The constructivist turn in international relations theory. World Politics, 50(2), 324–348. Cohen, A.P. (1985). The Symbolic Construction of Community. London, UK: Tavistock. Crow, G., and Allen, G. (1994). Community Life: An Introduction to Local Social Relations. New York: Harvester Wheatsheaf. Dionigi, F. (2012). Islamism as communitarianism: Person, community and the problem of international norms in non-liberal theories. Journal of International Political Theory, 8(1–2), 74–103.

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Dunne, T., Kurki, M., and Smith, S. (Eds.). (2007). International Relations Theories: Discipline and Diversity. New York, NY: Oxford University Press. Fakhry, M. (2002). Al-Fārābi: Founder of Islamic Neoplatonism. Oxford, UK: Oneworld. Frazer, E. (1999). The Problem of Communitarian Politics: Unity and Conflict. Oxford, UK: Oxford University Press. Genovese, M.A. (Ed.). (2010). The Federalist Papers. New York: Palgrave Macmillan. Guttman, A. (Ed.). (1992). Multiculturalism and ‘the Politics of Recognition.’ Princeton, NJ: Princeton University Press. Hursthouse, R. (1999). On Virtue Ethics. Oxford, UK: Oxford University Press. Ibn Kath ī r, I. (2003). Tafsīr al-Qurʾān al-ʿA ẓīm (Abridged, Vol. 1–10). Edited by SaifurRahman al- Mubarakpuri. Houston, TX: Dar-us-salaam. Lee, D. and Newby, H. (1983). The Problem of Sociology: Introduction to the Discipline. London, UK: Unwin Hyman Ltd. MacIntyre, A. (1988). Whose Justice? Which Rationality? Notre Dame, IN: University of Notre Dame Press. MacIntyre, A. (1991). I’m not a communitarian, but.... The Responsive Community, 1(3), 91–92. MacIntyre, A. (2007). After Virtue: A Study in Moral Theory (3rd ed.). Notre Dame, IN: University of Notre Dame Press. Marx, K. (1978[1844]). Economic and philosophic manuscripts of 1844. In R. Tucker (Ed.), The Marx-Engels Reader (2nd ed., pp. 66–125). New York: W.W. Norton & Company. McGlinchey, S., Walter, R., and Scheinpf lug, C. (Eds.). (2017). International Relations Theory. Bristol, UK: E-International Relations. McWilliams, W.C. (1973). The Idea of Fraternity in America. Berkeley, CA: University of California Berkeley Press. Miskawayh, A.M. (1968). The Refinement of Character. Translated by Constantine Zurayk. Beirut: American University of Beirut. Prugh, T., Costanza, R., and Daly, T. (2002). The Local Politics of Global Sustainability. Washington, DC: Island Press. Putnam, R. (2000). Bowling Alone: The Collapse and Revival of American Community. New York, NY: Simon & Schuster. Rawls, J. (1977). The basic structure as subject. American Philosophical Quarterly, 14(2), 159–165. Rawls, J. (1999). A Theory of Justice (Revised ed.). Cambridge, MA: Harvard University Press. Sachedina, A. (2009). Islam and the Challenge of Human Rights. Oxford, UK: Oxford University Press. Sandel, M. (1984). The procedural republic and the unencumbered self. Political Theory, 12(1), 81–96. Sandel, M. (1998). Liberalism and the Limits of Justice (2nd ed.). Cambridge, UK: Cambridge University Press. Sandel, M. (2006). Public Philosophy: Essays on Morality in Politics. Cambridge, MA: Harvard University Press. Sander, T. and Putnam, R. (2010). Still bowling alone? The post-9/11 split. Journal of Democracy, 21(1), 9–16. Van Seters, P. (Ed.). (2006). Communitarianism in Law and Society. Lanham, MD: Rowman & Littlefield. Walzer, M. (1990). The communitarian critique of liberalism. Political Theory, 18(1), 6–23.

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Willmott, P. (1986). Social Networks, Informal Care and Public Policy. London, UK: Policy Studies Institute. Yusuf, I. (1986). Discussion between Al-Ghazz ā l ī and Ibn Rushd about the nature of resurrection. Islamic Studies, 25(2), 181–195.

9 CONCLUSION

Fred Dallmayr (2004, p. 254), one of comparative political theorizing’s most prominent pioneering figures, commented that comparative political theorizing offers us the possibility “to rekindle the critical élan endemic to political philosophy since the time of Socrates and Plato,” furthermore contending that it ultimately “is not [about] a nostalgic return to a pristine past, but a willingness to engage in cross-temporary and cross cultural interrogation.” In an effort to channel these invaluable insights from Dallmayr, this work offered a comparative analysis of two discourses that I argue are rooted in very different ontologies. It sought to create a constructive dialogue of sorts between Islam and liberalism keeping in mind Dallmayr’s (2004, p. 254) contention that dialogue “is not necessarily harmonious or consensual,” but rather that it “includes challenge and critical contestation.” At the same time, however, this work did not aim offer a radically new conceptualization of the relationship between Islam and liberalism. Rather its primary goal was to do something that, to my surprise during my preliminary research on this topic, really has yet to be done: explain in a rigorous and methodologically sound manner—drawing from key texts and scholars from within each tradition—where the ontological incompatibilities (and at times compatibilities) between Islam and liberalism as discourses more broadly construed actually lie. This work also aimed to rekindle the critical élan endemic to political philosophy by showing how relevant this discussion still is today with the hope that it would open new doors for novel lines of inquiry that can be further developed. It did so by engaging with the claims of different authors and texts on their own terms with the hope that readers would be able to judge for themselves where congruencies between Islam and liberalism can be found and how meaningful these congruencies are. Obviously, there were many different ways to approach this project; however, the main goal of this work was to present all material and

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arguments in a fair-minded and reasonable manner that would benefit readers coming from a wide range of disciplinary backgrounds and levels of professional expertise. This book was also written as a partial rejoinder to the recent wave of what can only be described as uninformed nonsense coming from the many different voices representing both sides. Those interested in comparing and contrasting Islam and liberalism sadly often seem to be more interested in pushing an agenda more than anything else. With relatively few exceptions, scholarly rigor generally is eschewed in favor of catchphrases and gross generalizations. On one side there is nonsense coming from classically trained Muslim scholars as well as proponents of Islamic models of social organization who could not tell you who John Rawls or Judith Shklar even were, but who nonetheless have the utmost confidence that they know what modern liberalism really is all about. Many of these voices have reduced an expansive discourse to gripes about external policy manifestations on hot-button social and economic issues that ironically often are more socialist than liberal. On the other hand, there is an equally voluminous amount of nonsense coming from partisan Western-educated liberal voices. Many of these voices do not even know the difference between a mutaghayyirāt (variable or subject to change) or thawābit (immutable) injunction, but without hesitation will tell you who Qur’ā n 9:51—the controversial so-called “Sword Verse”—really applies to. While we all are familiar with certain figures in politics and the media doing things like this, this also even happens in academic settings, most often in debates related to democratic transitions and developing countries. These are the individuals who often reduce authoritarianism and corruption in the Muslim world to spurious cultural claims based on miscontextualized references that are cherry-picked from Qurʾā n translations. This conclusion chapter will first recount three major undercurrents that permeated this work: 1) the differences in how Islam and liberalism have thus far understood the interaction of the otherworldly or dīnī and the worldly or dunyāw ī; 2) how alien the notion of secularism historically has been within the Islamic mindset and even the Arabic language more generally; and 3) the inextricability of Enlightenment liberalism from political liberalism. It will then go on to brief ly articulate some of the practical, real-world implications of rushing liberal reforms on illiberal societies with a focus on the case of modern Saudi Arabia. It will close with an appeal to toleration and mutual respect—constructs that are readily present within both Islam and liberalism—as this is the only way for all of us to maximize our own security and collective happiness in this world.

Conceptualizing the dīnī and the dunyāwī One of the overarching goals of this book was to show how seriously liberal discourses—both earlier and more recent—have sought to clearly demarcate between religion [dīn] and the material, physical world [dunyā]. This all should

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be pretty clear at this point when considering the writings of twentieth- and twenty-first-century liberals like Rawls, Larmore, and Quong. Even someone like Larry Siedentop who tries to blur these lines via his claim that secularism represented the “embodiment of Christian moral intuitions” that was cited in Chapter 2 nonetheless is still conceding a very significant point for our purposes. Under his conceptualization, European Christianity was not only a distinct step away from a premodern (which for him means overtly religious and dogmatic) to a modern (which for him means secular, yet not necessarily amoral or atheistic) worldview, but it also was the catalyst to what eventually would become the more fully laicized distinction between the dīnī and the dunyāw ī that is readily apparent in many Western European and liberal societies more generally today. At the core of his argument is the idea that deeply embedded within the DNA of European Christianity (and Siedentop makes it quite clear that his argument is specifically about European Christianity) is the genetic coding of what would eventually blossom into full-blown modern secular liberalism. Such a view led him to conclude that secularism was “Christianity’s gift to the world” in so far as that over time the world would increasingly prioritize individual liberties at the expense of communal values that by their very definition, for him, impinge upon those individual liberties that he so cherishes (2014, p. 360). I think that one would be hard-pressed to find many Muslim intellectuals of a traditional or even modernist persuasion that would ever venture to make similar claims regarding Islam’s natural trajectory and how over time it will lead to the prioritization of individual liberties over communal obligations and familial bonds: Middle Eastern, North African, South Asian, European, or otherwise. It is important here to make clear that the demarcation between the dīnī and the dunyāw ī —contrary to what people often perceive—was also present within earlier Islam and is not unique to Western modernity and Enlightenment thought. Most recently, Rushain Abbasi (2020) convincingly demonstrated how nuanced the premodern Islamic approach to the dīnī –dunyāw ī distinction actually was. He backed his claims via a litany of direct references to primary Islamic sources as well as a wide range of theologically diverse medieval Islamic scholars spanning the eleventh through fifteenth centuries C.E. In addition to demonstrating early Islam’s cognizance of the dīnī –dunyāw ī distinction, another one of Abbasi’s major contentions was that while earlier Muslims readily recognized this distinction, they never conceptualized it in the same laicized way that modern Western liberal discourses do. In Abbasi’s words (2020, p. 40), what is unique to liberal modernity are its efforts “to draw rigidly the boundaries between various categories like the religious and secular and the natural and supernatural.” One of Abbasi’s most powerful references to support his point about how earlier Muslims understood the interaction between the dīnī and dunyāw ī was to Al-Ghaz ā l ī’s (2004) understanding of this distinction which originally can be found in his I ḥyā’ ʿulūm al-dīn. For the iconic medieval thinker, Abbasi (2020, p. 28) contends:

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the dunyāw ī dealings of humans are always in some way connected to the dīnī sphere since one’s dīn can be corrupted or enhanced in the course of these interactions. This is why he [Al-Ghazā l ī] unproblematically includes “preservation of the dīn” among the dunyāw ī benefits. The example he provides illustrates how this practically functions: being annoyed by stupid people is primarily dunyāw ī in that one will be bothered and develop feelings of restlessness and stress, which are ordinary human emotions. It can become dīnī, however, when one acts on these bad thoughts and commits the sins of slander and backbiting, which can slowly corrupt one’s religion over time. The clarity of Abbasi’s analysis of Al-Ghaz ā l ī’s thought on this matter really struck me when I first read this passage. Indeed, traditionalist Muslim luminaries who by no means could be identified as modernists or “neo-Muʿtazilites” did in fact recognize that the dīnī and the dunyāw ī were not one in the same. Abbasi points out that the former was understood in a more restricted and particular sense as defined and deliberated upon by Islamic scholars, whereas the latter was more universal, neutral, and readily accessible to everyone. Mass publics often unwittingly drew litany of non-Islamic sources—most specifically those from ancient Greece and Persia—to help them make sense of the dunyāw ī. At the same time, however, the dīnī and dunyāw ī constantly interact “in a mutually-defining relationship, but not necessarily one of opposition” (Abbasi, 2020, p. 8). One cannot be fully understood without the other, and this mutually defining duality was a part of God’s larger plan. The prolific Swiss journalist and Muslim intellectual Roger du Pasquier (1980, pp. 57–58) nicely summarized the interaction that Abassi is referring to four decades earlier, commenting that the Prophet gave believers the opportunity to realize fully on earth their human condition without losing for a moment their spiritual orientation. He thus established this remarkable balance which characterizes Islam and which allows one to taste earthly life without ever forgetting that we must all return to God and appear before him.2 This is quite different from how Siedentop (2014, p. 361) conceptualizes the onesided relationship between European Christianity and secular liberalism in which he contends that “secularism identifies the conditions in which authentic beliefs should be formed and defended.” Both premodern and contemporary practicing Muslims f lipped the lexical prioritization regarding which sphere regulated the other: for Muslims, religion—specifically Islam—and what Siedentop calls “authentic beliefs” are what regulate the secular. For Siedentop, over the centuries, European Christianity passed the baton to what would eventually become the modern secular world order. In Abbasi and du Pasquier’s conceptualizations of how things work within Islam, the baton is never actually passed; rather, it

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remains firmly in the Muslim’s hand as they races through this life—ultimately toward the next—fully cognizant of their often overlapping responsibilities in both the dīnī and the dunyāw ī spheres, recognizing which sphere ultimately takes priority over the other when push comes to shove. Premodern Muslims were sensible enough to avoid trying to forcefully locate everything that was clearly dunyāw ī into the dīnī as if this would make them better Muslims in the eyes of Allah. Doing so is patently absurd if one thinks about it. The Qur’ā n contains many general moral and ethical guidelines, but relatively few specific policy instructions. Those few specific policy instructions are primarily limited to family matters such as laws of inheritance and marriage; matters that are for the most part private affairs. As a matter of fact, denying the dīnī –dunyāw ī distinction is pretty much exactly what the group known as dāʿish (ISIS) sought to do during their short-lived Caliphate of terror. ISIS sought to do this by “Islamizing” just about everything that they could. This facilitated the realization of their totalitarian governing model, thus allowing them “to issue rules and regulations governing virtually every aspect of life in the caliphate” (Revkin, 2016, p. 12). In essence, ISIS sought to make as many matters as they could a Shar īʿa matter that necessitated a distinctly “Islamic” ruling in order to be seen as valid and binding. Recycling the same quote from Hamza Yusuf that I used in my previous book: “Building roads has nothing to do with what madhhab you follow” (2013 [online] and cited in Kaminski, 2017, p. 7). The same can be said for many of the other more mundane things we do in our daily lives as well; not every single action that transpires in this world can be said to be explicitly dīnī or come with some divinely mandated prescription telling us precisely how to act. However—getting back to the original claim about the more general deep interconnectedness between the dīnī and the dunyāw ī —if one lives wretchedly and corruptly in the dunyāw ī, then they are almost assured similar shortcomings in the dīnī. In one particularly memorable khuṭba I attended in Brooklyn about 15 years ago as a new convert, the Imam made a very profound point: if one is actually praying on time every day five times a day as they are supposed to, in reality, there is very little time for extended periods of worldly disobedience. Literally every few hours of the waking day, one is supposed to stop what they are doing and perform ritualistic ablution [wuḍūʾ], unless they somehow managed to avoid engaging in any behaviors that break their wuḍūʾ (which is a very difficult feat to achieve if one is aware of all the different actions that break wuḍūʾ which include some completely natural and regular bodily functions), thus at least temporarily re-purifying themselves both physically and spiritually each time prior to entering into prayer. Muslims do not believe that the water one uses to wash their hands, face, and feet goes through some type of metousiosis or Islamic transubstantiation process. The water is purely of the dunyāw ī made of molecules and atoms just like any other substance in this world; rather it is the ritualistic performance of the ablution with the proper intention or niyya that connects the dunyāw ī to the dīnī.

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Islam’s “emphasis on properly performing rituals such as prayers and pilgrimages are meant to codify a common experience that Muslims worldwide can share” and it is “this shared experience that [...] make[s] Islam universally accessible to all believers” (Kaminski, 2020, p. 134). It is the uniquely Islamic rituals coupled with the right intention that help play an essential role in maintaining the intimate bond between the two distinct, yet constantly interacting, spheres within an Islamic worldview. Therefore, I believe that one can argue that the preservation of the religion— or ḥif ẓ al-dīn as described by Al-Ghazā l ī—in many ways is dependent upon ḥif ẓ al-dunyāw ī which is realized via proper and right worldly action. To paraphrase that Imam in Brooklyn on that warm summer afternoon around 2005: if you are properly maintaining and performing your prayers, there is only so much ẓulm and fasād you can actually commit during a 24-hour period. The two spheres simply cannot be conceptualized in the same laicized manner within the Islamic tradition as in the Western liberal tradition; trying to do so simply does not even make sense within an Islamic context. The dialectical interaction between the dīnī and dunyāw ī that is absolutely inextricable from Islam is entirely absent from within the (post)modern, increasingly secularized liberal mindset. This is the real crux of the higher-order irreconcilability between liberalism and Islam. All further thinking and reasoning on just about all matters delineate from this starting point. In this sense, the dunyāw ī, as understood by earlier and many contemporary Muslims, still always possesses an element of sacredness nested within even if it does not necessarily reach the level of dīnī. In Weberian terms—there still is an element of enchantment within the Muslim mindset when it comes to understanding the world that we live in. For Muslims, the sacred often manifests itself via numerous subtle signs. Though not always explicit, Muslims believe that these signs nonetheless most certainly exist under the watchful gaze of Allah: Soon will We show them our Signs in the (furthest) regions (of the earth), and in their own souls, until it becomes manifest to them that this is the Truth. Is it not enough that thy Lord doth witness all things?3 (Qurʾān, 2004, 41:53) Even the dīnī itself at a purely historical level cannot be properly comprehended without the dunyāwī. One must not forget that the Islamic tradition teaches us that the very first words the angel Jibr īl told to the Prophet Muhammad (‫—)ﷺ‬iqraʾ or “read”—transpired in the dunyāwī in the Cave of Hiraʾ on the Jabal an-Nūr located on the outskirts of Mecca; this event did not happen in some type of dream state or otherworldly realm. These divinely mandated words were heard by the Prophet’s (‫ )ﷺ‬ears and processed by his brain forever cauterizing the worldly and the otherworldly together within the very fabric of Islam and Islamic creed. Perhaps a Christianized iteration of a more balanced dīnī and dunyāw ī interaction lurked somewhere in the minds of earlier Enlightenment liberals such as John

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Locke who tried to root their arguments within their own idiosyncratic iterations of natural law. This is a point certainly worth further debating. Siedentop makes it clear that the dunyāw ī regulates the dīnī, but is unwilling to concede that the two are laicized even though it seems to me that in many ways they are under his view. However, I think it would be hard to argue this type of interaction was of any concern in the writings of Rawls and his acolytes who make up the mainstream of contemporary liberal theory. The role of ritual and otherworldly beliefs simply are not of practical interest to liberal political theory or political liberalism.

“Secularism” as an alien concept to Islam and the Arabic language A second major leitmotif of this book—also closely related to the dīnī-dunyāwī distinction—was the concept of secularism and how alien it actually is from the Muslim mindset. Secularism, as it is most widely understood today, is a European construct that is rooted in the European Enlightenment tradition. The Islamic tradition never possessed a similar notion of secularism. Al-Attas (1993) contends that al-ḥayāt al-dunyā, which roughly translates to “the worldly life,” is the closest Islamic equivalent to the European notion of the secular. However, in its Qurʾanic usage, the expression al-ḥayāt al-dunyā and its derivatives were generally further developed within the broader context of warnings about the ephemeral and distracting nature of the worldly or the worldly life. For example, Qurʾān (2004) 45:24 states, And they say: “What is there but our life in this world [mā hiya illā ḥayatunā ad-dunyā]? We shall die and we live, and nothing but time can destroy us [wa-mā yuhlikuna illā ad-dahr].” But of that they have no knowledge: they merely conjecture.4 Here we can see the expression being used in its theological sense as a forewarning to those who think there is no world beyond this one; it certainly is not being used in a very positive light symbolizing progress and liberation. While in Europe the development toward secularism was more of a bottomup process, driven by civil society over a steady period of time, in the Muslim world, it was the opposite. The imposition of secularism in Muslim lands was a rushed, top-down process driven by elites who inherited both their power and penchant toward cruelty from their former colonizers (Nasr, 2010). As a matter of fact, civil society was almost completely excluded from the forced secularization process that transpired in the Middle East. Instead secularism was thrust upon the masses by “enlightened” despots who were assisted by the military elite in crushing dissent and cementing their own power. In the words of Nader Hashemi (2014, p. 444): In the past 200 years, the Muslim world’s experience with secularism has been largely negative. It is important to appreciate that in Europe

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secularism was an indigenous and gradual process evolving in conjunction with socio-economic and political developments while supported by intellectual arguments—and, critically, by religious groups—that eventually sank deep roots within its political culture. By contrast, the Muslim experience has been marked by the perception of secularism as an alien ideology imposed from the outside, first by colonial and imperial invaders, then by local elites who came to power during the post-colonial period. Once again, this time in practice, secularism in the Muslim world has hardly been linked with progress and liberation in the minds of many of the people living there. The actual term secularism itself is a loanword that cannot be readily found within the any of the major languages spoken in the Muslim world. It cannot be found in classical Arabic, Turkish, or Persian, nor does it even have a clear synonym in any of these languages (Nasr, 1981; Hashemi, 2009). According to Hashemi (2009), the concept of secularism as we think of it today was first introduced into the Arabic vernacular via the Qurʾanic term dahr in the late nineteenth century in a debate between Ernst Renan and Jamal al-din al-Afghani. The term dahr refers to a passage of worldly time. This is the context in which the term is used in the Qurʾā n 45:24 and which was referenced a couple paragraphs earlier and in Qurʾā n (2004) 76:1 which says: “Has there not been over man a long period of time [ad-dahri], when he was nothing-(not even)mentioned?”5 However, interestingly enough, according to Pakatchi and Esots’s (2008, para. 1) entry in the Encyclopaedia Islam, the word dahr, along with referring to the passage of worldly time, can also be conceived as a kind of cosmic force or inevitable fatality. The verbal noun of its triliteral root d-h-r in Arabic refers to descending or falling, in a pejorative sense (although it is not used in this sense in the Qurʾā n). The passive participle, madhūr, means “calamity-stricken” or “aff licted by a disaster.” We can actually see some of this aforementioned fatalism at the end of Qurʾā n (2004) 45:24, “and nothing but time can destroy us [wa-mā yuhlikuna illā addahr].” So, in addition to its proper Qurʾanic context where it refers to the passage of time, in its popular use, it also refers to something bad—something really bad actually. According to Hashemi (2009), over time, the term dahr evolved in its Arabic context to refer to atheism (which of course is also seen as very bad in much of the Arab world today).6 While secularism today is a contested, yet generally understood and accepted, concept in Europe—especially within liberal discourses—in the Muslim world, the word still does not have a clear translation nor is it a term that many practicing Muslims would be willing to ascribe to themselves even if it does accurately describe their disposition as per its European meaning. Here it is understood not merely as a neutral category of social discourse or a mode of political organization that separates religion from political

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institutions, but rather as a normative label; a term that embodies an active and conscious rebellion against revealed authority and God’s divine will itself. I remember one private office chat about contemporary politics in the Middle East with a female Muslim student originally from Iran who noted that she supports separating religion from politics and feels that the ḥijāb should be a personal choice rather than something Ayatollahs force or guilt her into wearing. Without any real forethought, I then asked, “Oh, so would you consider yourself secular then?” Immediately after I posed this seemingly innocuous question, a befuddled look came over the student’s face. She then snapped back, “No, don’t say that! I am not secular—that sounds bad; I am still a believer.” Her defensive response caught me off guard, and I quickly apologized. I soon after realized that I should have been more careful in my choice of words. The more I have studied and observed how secularism is understood by those coming from Muslim societies, and the deeply normative connotations that “being secular” holds in these societies, the more I have come to understand why she responded in the manner she did. I highly doubt that if I posed the same question to a Christian student from France or Denmark that I would have received the same bemused—bordering on offended—reaction and response. I think this example is quite illustrative of the broader point regarding how alien the European concept of secularism is from the Muslim mindset even today, and I think this has much to do with culture, history, and the nature of the religion itself. As for the role secularism plays within liberal discourses, as Chapter 3 demonstrated, it is apparent that the two concepts are closely related. Some iteration of secularism is a necessary corollary to liberal socio-political discourses. While Western, liberal-minded public reason intellectuals like Rawls and Habermas have sought to accommodate for religious views within their more recent theories on public reason, we still see numerous caveats that come with their accommodations. Liberalism—which hinges upon liberty and autonomy—needs secularism. Religious discourses impinge upon both. One does not have the same levels or liberty and autonomy within a traditional Islamic discursive framework as demanded by liberalism. Certain communal obligations simply take precedent to individual rights and freedoms within an Islamically administered society. While the concept of secularism is alien to the more general Islamic discourse, for liberalism it is a necessary component to one degree or another; liberal public reason cannot be operationalized without it.

The inextricability of Enlightenment liberalism from political liberalism The third main point I want to brief ly reiterate is related to the inextricability of Enlightenment values from political liberalism. The machinery of Rawls’s political liberalism is dependent upon societies situated within certain value systems, and, at a more abstract level, Enlightenment values are inextricable from political liberalism itself. March’s (2007) claim about comprehensive liberalism’s rejection

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of heteronomous deference to established authority is very problematic for a discourse such as Islam that is so dependent upon authority and, based on how we described political liberalism, it seems apparent that it too shares a similar relationship with heteronomous deference to establish authority. To return to Nikolas Kompridis’s quote in the introduction chapter which noted how modernity can perhaps best be characterized by its forward-looking nature, with no necessary need to look back to the past, the notion of modernity we think of today undeniably is a product of Enlightenment values and developments. The ability to look toward the future without dependence on the past is a uniquely modern and Enlightenment way of thinking. Prior to the Enlightenment, the idea of moving beyond that past was almost unthinkable. Rawls’s earlier liberalism was largely ahistorical in the sense that long-held social mores and commitments as well as one’s own experiences with oppression and inequality are not really relevant when offering a public conception of justice. In Sheldon Wolin’s (2004, p. 538) famous critique of Rawls’s Theory of Justice he notes: It is difficult to recognize Rawls’s conception of an abstracted equality and undistracted rationality as a plausible account of human actors, since those actors have been deprived of essential human attributes, such as historical memory, and retain only the barest social consciousness. Symbolically, Rawls’s fiction is tantamount to a denial of the contemporary political relevance of those historical scars inf licted on particular groups that helped to shape not only their identities but their notions of political rationality. The sources of moral guidance as well as the historical scars left upon our fathers and grandfathers that helped shape their own understandings of justice and right action simply are not relevant as justifications in and of themselves for choosing a public conception of justice for Rawls: “the experience of inequality was to be excluded when basic principles were chosen” (Wolin, 2004, p. 537). In today’s world dominated by waves of protests rooted in the growing Black Lives Matter movement against police brutality such a public conception of justice in which the experience of inequality is excluded simply would not appeal to the hundreds of millions—if not billions—of people who have been socially conditioned and constructed via their unsettling experiences of inequality and oppression. More simply put: to exclude these experiences is to exclude these people as who they actually are. Understanding oneself in the abstract as a generic being devoid of any traumatic personal metanarrative is a luxury reserved for the privileged. Even in Political Liberalism, where Rawls did engage with local history and tradition, his efforts, in the words of J. Judd Owen (2001, p. 114), represented an “uneasy historicism.” He was speaking from a position of relative privilege. According to his critics, Rawls’s historicism was ref lective of the status quo specifically in the United States—not even Europe, let alone Muslim societies (Owen, 2001; Müller, 2006). Rawls therefore went from positing an ahistorical

Conclusion

189

philosophy of political culture in his earlier work to positing a very specific type of history that underpinned political culture in the sense that he “now relied on ideas already present in the public political culture of Western societies (or even just the United States, as some European critics of Rawls kept pointing out)” (Müller, 2006, pp. 327–328). So, in essence he went from one extreme to the other.7 Islam is deeply tied to its past; there simply is no other way to put it. One of the more well-known Ṣaḥīḥ-graded ḥadīth on this matter was reported in Sunan Abū Dāw ūd (2008, vol. 5, no. 4607) in which the Prophet (‫ )ﷺ‬said in a powerful sermon to his companions: I advise you to fear Allah, listen, and obey, even if an Abyssinian slave is put in charge of you. Whoever lives after me will see many conf licts. You must adhere to my Sunnah and the Sunnah of the righteous, guided successors. Hold firmly to it as if biting with your molar teeth. Beware of newly invented matters, for every new matter is an innovation and every innovation is misguidance.8 In this ḥadīth we can see the importance of both obedience to proper authority—which itself is rooted in deference to heteronomous authority—as well as adherence to the Prophetic tradition. As a matter of fact, proper authority is that which adheres to the Prophet’s (‫ )ﷺ‬Sunna. While the Prophet’s (‫ )ﷺ‬forewarning regarding newly invented matters has been interpreted as those matters relating to innovations in the religion itself, the more general point remains: the past and adherence to tradition and precedent are essential elements of living a proper Islamic life. Even today, a Friday khuṭba hardly goes by without some reference to examples of moral guidance offered by the Prophet (‫ )ﷺ‬and his companions (or the twelve infallible Imams in the Shīʿa tradition). At a profoundly metaphysical level, Islam can never be fully modern under Kompridis’s characterization because it can never even theoretically fully divorce itself from its own history and tradition. In Islam, one simply cannot look to the future without looking to the past for guidance and wisdom. This is not to suggest the Islam is forever chained to its past and is incapable of looking forward; rather the claim being made here is that complete breaks with the past simply are not an option for a discourse rooted in Prophetic authority, Divine Revelation, and countless ḥadīths that regularly remind modern Muslims of the importance of looking to the Prophet’s (‫ )ﷺ‬companions for guidance. This is a genuine ontological distinction between Islamic and liberal discourses.

The practical implications of grafting liberalism onto illiberal Muslim societies The final thing I would like to brief ly touch upon in my concluding remarks is related to the real danger of ill-conceived efforts to haphazardly graft liberalism

190 Conclusion

onto non-liberal societies. Efforts to force liberal modes of discourse within transitioning Muslim states has thus far proven to be disastrous even if the implementation of liberalism in many of these cases has been stillborn. Efforts to speedily implement liberal/republican reforms following the overthrow of monarchy during the 1950s and ’60s in places like Tunisia, Libya, Iraq, Northern Yemen, and Egypt backfired spectacularly and ultimately resulted in decades of brutal authoritarian rule in all of the aforementioned countries. However, modern Saudi Arabia under the auspices of its ambitious young Crown Prince, Muhammad bin Salman, is the perhaps best example of what happens when traditional societies seek to embrace shock therapy liberal social and economic reforms at the behest of other more powerful global actors when they simply are not built to handle them. Slapdash liberal reforms regarding the permissibility of musical concerts and women driving have been accompanied with egregious human rights violations, mass arrests, and politically motivated killings. The overnight liberalization of rules regarding certain behaviors and certain forms of speech not perceived as political or threatening to the state have simultaneously transpired as real political speech and dissent have been crushed to a greater degree than they ever were before. As Saudi women now enjoy the right to drive cars and attend musical concerts, feminist activists challenging the norms of the state such as Loujain alHathloul, Aziza al-Yousef, and Eman al-Nafjan have been tortured and detained for what Saudi prosecutorial authorities called “coordinated and organized activities […] that aim to undermine the Kingdom’s security, stability, and national unity” (“Saudi Arabia: Women’s Rights,” 2019, para. 4). Surely there is nothing Islamic or liberal about torturing Muslim women who are simply seeking rights even if some of the rights they seek may be contentious from certain theological vantage points. There is another important lesson can be drawn from the Saudi case of shock therapy liberalization (or at least acting like you are engaging in genuine liberal reform). The Saudi regime has effectively utilized these aforementioned liberalizing gimmicks to placate their Western patrons thus giving themselves more breathing room for their continued malignant domestic and regional behaviors. The frightening part is that this strategy has thus far worked very well for the Saudi regime. Saudi Arabia’s seemingly contradictory moves have befuddled both Western leaders and popular political pundits alike. Shortly after the October 2, 2018 murder and dismemberment of the Saudiborn Washington Post columnist Jamal Khashoggi in the Saudi consulate in Istanbul, a befuddled Thomas Friedman (2018, para. 16), one of Mohammed bin Salman’s biggest early Western cheerleaders, rhetorically opined in a New York Times opinion piece: “So, once again, what do we do? I don’t have a simple answer. It’s a mess.” The simple answer that Friedman cannot seem to find is that “M.B.S.” should be heavily sanctioned and adorned with the same pariah status from the rest of the world that has already been bestowed upon other tyrannical autocrats like Bashar al-Assad and Kim Jong Un. However, despite the

Conclusion

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heinousness of this particular crime, is it obvious that Friedman prefers sweeping this incident under the rug as quickly as possible, noting that the US government needed “to find some way to censure M.B.S. [Mohammed bin Salman] for this—without seeming to attack the whole Saudi people and destabilize the country” while also ensuing “that the social/religious reform process in Saudi Arabia proceeds—whoever is in charge there” (2018, para. 16).9 The lack of seriousness in Friedman’s response is obviously readily apparent: after all there must be some way to hold M.B.S. accountable for this as if he got caught trying to sneak the empty milk carton back into the refrigerator before anyone noticed. Logic like Friedman’s is particularly dangerous; it literally gives compliant autocrats a license to kill not just domestically but abroad as well, perhaps best illustrated by the deafening silence from the West regarding Saudi Arabia’s continued carpet-bombing of Yemen. This logic appears to be similar to the thinking used by those at the highest levels of the US Department of State as well which basically posits that if these people show progress and take our side on matters related to Israel and the ongoing proxy war with Iran, then we should not be too quick to condemn them or else progress may be lost. Thus far, this is exactly how US Secretary of State Mike Pompeo has framed things, and such framing is a perfect recipe for a never-ending cycle of killings followed up with cosmetic social reforms which are then followed up with more killings. Indeed, many decolonized nations in the Middle East, Africa, and Asia have at least paid lip service to the notion of liberalism and/or liberal reforms at some point. However, in the end, most of these states have found themselves situated within conditions that have often been far more illiberal and repressive than when they were colonized.

In closing: a call for toleration Jean Jacques-Rousseau (2002[1762], p. 253), toward the end of his Social Contract (Book IV, Ch. VIII), famously declared that for the individual with strong religious convictions “It is impossible to live at peace with people whom we believe to be damned; to love them would be to hate God who punishes them. It is absolutely necessary to convert them or to punish them.” While this may sound profound and foreboding, in reality people all over the world have been living in relative peace with those they believe to be damned for centuries now. The simple fact of the matter is that the alternative is far less desirable; one need not love someone they think is damned, rather they only have to tolerate them and “let God do the punishing later” so to speak. As political liberals have rightly contended, value pluralism and a variety of different conceptions of the good and the good life are an undeniable fact of modernity whether one likes it or not. I do not think many Muslims at this point would disagree with this undeniable fact either. Barring the unforeseen, this state of affairs will not be changing anytime soon. Therefore, citizens all over the globe must come to terms with this reality in one way or another.

192 Conclusion

The Qurʾā n (2004, 2:256) itself is cognizant of this fact as well unequivocally declaring “lā ikrāha fīd-dīni”10 or let there be no compulsion in religion. Even in an authentically Islamic governed state, protecting the basic rights and freedoms of non-Muslims is a moral prerequisite. A lack of congruence between different discourses does not mean they cannot peacefully co-exist. As I am writing this conclusion chapter, the world remains in the midst of the COVID-19 pandemic, a true global crisis that undoubtedly will be taught in high school classrooms all over the world for decades, if not centuries, to come. Despite the enormous human tragedy and suffering that has touched almost every nation on the planet, we can nonetheless still see both Muslims living in “liberal” societies and liberals living in “Muslim” societies working together in hospital emergency rooms and intensive care units all over the world in order to save lives—lives of those who identify as Muslim, liberal, or otherwise. Recognizing and accepting differences that may be irreconcilable at a philosophical/theological level does not entail the necessity of Rousseau’s pessimism or Carl Schmitt’s perpetual us-versus-them dynamic in our day-to-day interactions. Toleration and mutual respect for others is found within the mainstream iterations of both liberalism and Islam. The Qurʾā n (2004, 49:13) explicitly calls for toleration among the believers of all different races, ethnicities, and social backgrounds, commenting: “O mankind! We created you from a single (pair) of a male and a female, and made you into nations and tribes, that ye may know each other.”11 However, there also exist ḥadīths that extend to non-Muslims as well that seem to illustrate a similar point. For example, one well-known muttafaqun ʿalayh ḥadīth retells a story of the Prophet (‫ )ﷺ‬standing up as the funeral procession of a local Jew who was about to be buried was passing by to the surprise of his companions who were with him at the time.12 The ḥadīth reported in Ṣaḥīḥ Muslim (2007, vol. 2 no. 1312) states that when the Prophet (‫ )ﷺ‬was questioned by his companions about why he stood for a Jew, he responded: “Is it not a human being?”13 Islam recognizes the inherent value within all of mankind; there should be no questions about this. Even the disbeliever is still a product of God’s creative hand and therefore always retains some level of moral dignity in light of this fact. Further fine-tuning what toleration actually means, what its limits are, and how it can actually be realized will need to be further dissected by scholars and policy-makers. In the meantime, however, we as individuals can and must take it upon ourselves to further explore and engage with the notions of toleration and pluralism that are inherent within our own self-subscribed comprehensive and political doctrines. In the end, moral progress is ultimately made at the individual level and this begins by recognizing everyone’s inherent moral worth. It means treating all people—so long as they are not openly trying to harm you—with respect and basic decency. This certainly is how John Rawls would have had it, and there is ample evidence within primary and secondary Islamic sources that this would have been the position of the Prophet Muhammad (‫ )ﷺ‬as well. Allāhu ʾaʿlam.

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Notes ُ ‫س لَ َخ األَش ُه ُر ال ُح ُرُم فَ اق ت ُلُ وا ال ُم ش ِرك ي َن َح ي‬ 1 ‫ص ٍد ۚ فَ إِن‬ ُ ‫ث َوَج دت ُم وُه م َوُخ ذ وُه م َواح‬ َ ‫فَ إِذَا ان‬ َ ‫ص روُه م َواق عُ د وا لَ ُه م ُك َّل َم ر‬ َ ‫س ب ي لَ ُه م ۚ ِإَّن ََّللا‬ ‫غ ف وٌر َرح ي ٌم‬ َّ ‫ت ا ب وا َوأَق اُم وا ال‬ َ ‫ص الة َ َوآت َ ُوا ال َّزك اة َ فَ َخ لّ وا‬ 2 le Prophète a donné aux croyants la possibilité de réaliser pleinement sur la terre leur condition humaine sans perdre un instant leur orientation spirituelle. II instaura de la sorte ce remarquable équilibre qui caractérise l’Islam et qui permet de goûter à la vie terrestre sans jamais oublier que nous devons tous retourner à Dieu et comparaitre devant lui. 3 ٌ‫ش ِه ي د‬ َ ‫ش ْىٍء‬ َ ‫ع لَ ٰى ُك ِّل‬ ِ ‫ق َوِف ٓى أَن فُ ِس ِه ْم َح ت َّ ٰى يَ ت َبَ يَّ َن لَ ُه ْم أَنَّ هُ ٱْل َح ُّق ۗ أ َ َولَ ْم يَ ْك‬ َ ُ‫ف ِب َرِبّ َك أَنَّ هۥ‬ َ ِ ‫س نُ ِري ِه ْم َءاٰيَ ِت نَ ا ِف ى ٱْلَءافَ ا‬ ُ َ‫ت َونَ ْح يَ ا َوَم ا يُ ْه ِل ُك نَ ا إِ َّل ال د َّْه ُر ۚ َوَم ا لَ ُه م بِ ٰذَِل َك ِم ْن ِع ْل ٍم ۖ إِْن ُه ْم ِإَّل ي‬ ُ ‫ي ِإَّل َح يَ ا ت ُنَ ا ال دُّْن يَ ا نَ ُم و‬ 4 ‫ظ نُّ وَن‬ َ ‫َوقَ ا لُ وا َم ا ِه‬ 5 ‫ش ي ئ ًا َم ذك وًرا‬ َ ‫ع لَ ى اِإلن س اِن ح ي ٌن ِم َن ال دَّه ِر لَ م يَ ُك ن‬ َ ‫َه ل أ َت ٰى‬ 6 According to Hashemi (2009, p. 147): “The early translation of the word constructed a dichotomy between Islam and secularism such that secularism was interpreted as synonymous with atheism.” 7 According to Müller (2006, p. 328): “In short, over time Rawls’s work seemed to become less and less ‘analytical’ in a traditional sense, and, for those who equate ahistorical with universalist, also less and less universalist.” َّ ‫س ْم ع َوال‬ َّ ‫ص ي ُك ْم ِب ت َْق َوى‬ 8 ‫س يَ َرى اْخ ِت َالفً ا َك ِث ي ًرا فَ عَ لَ ْي ُك ْم‬ ْ ‫ع ْب دًا َح بَ ِش يًّ ا فَ إِنَّ هُ َم ْن يَ ِع‬ َ ‫ع ِة َوِإْن‬ َ ‫طا‬ ِ ‫أُو‬ َ َ‫ش ِم ْن ُك ْم بَ ْع ِدي ف‬ ِ َّ ‫للاِ َوال‬ ْ ْ َ َ َ ُ ُ َّ َّ َّ ُ َ َ ‫ي‬ ‫د‬ ‫ه‬ ‫م‬ ‫ا‬ ‫ء‬ ‫ا‬ ‫ف‬ ‫ل‬ ‫خ‬ ‫ا‬ ‫ة‬ ‫ن‬ ‫س‬ ‫و‬ ‫ي‬ ‫ت‬ ‫ن‬ ‫ل‬ ‫ل‬ ‫ت ا ْأل ُ ُم وِر فَ إَِّن ُك َّل‬ ‫ا‬ ‫ث‬ ‫د‬ ‫ح‬ ‫م‬ ‫و‬ ‫م‬ ‫ك‬ ‫ا‬ ‫ي‬ ‫إ‬ ‫و‬ ‫ذ‬ ‫ج‬ ‫ا‬ ‫و‬ ‫ن‬ ‫ل‬ ‫ا‬ ‫ب‬ ‫ا‬ ‫ه‬ ‫ي‬ ‫ل‬ ‫ع‬ ‫ا‬ ‫و‬ ‫ض‬ ‫ع‬ ‫و‬ ‫ا‬ ‫ه‬ ‫ب‬ ‫ا‬ ‫و‬ ‫ك‬ ‫س‬ ‫م‬ ‫ت‬ ‫ن‬ ‫ي‬ ‫د‬ ‫ش‬ ‫ا‬ ‫ر‬ ‫ل‬ ‫ا‬ ‫ن‬ ‫ي‬ ْ ِ َ ْ ُ َ ْ َّ ِ َ ِ ِ َ ِ َ َ ُّ َ َ َ ِ َّ َ َ ِ ِ َّ َ ِّ ِ ْ َ ِ ِ ُ َ ِ ‫س‬ ُ ‫ِب‬ ٌ‫ض َاللَ ة‬ َ ‫ع ٍة‬ َ ‫ع ةٌ َوُك َّل ِب ْد‬ َ ‫ُم ْح دَث ٍَة ِب ْد‬ 9 On August 6, 2020, The New York Times reported that Saad Al-Jabri, a former top Saudi intelligence official, was filing a suit in Washington D.C. against Mohammed bin Salman alleging that he was aiming to use a similar group of mercenaries to kill him that killed Jamal Khashoggi around the same time Khashoggi was killed. The report further comments that “Mr. Aljabri has accused Prince Mohammed of using increasingly aggressive tactics to try to return him to the kingdom, including offering him a job, threatening to have him extradited on corruption charges, and arresting two of his adult children to be used as leverage” (Hubbard and Mazzetti, 2020, para. 11). 10 ‫َل ِإْك َراهَ ِف ي ال ِدّي ِن‬ ُ ‫س ِإنَّ ا َخ لَ ْق نَ اُك م ِ ّم ن ذََك ٍر َوأُن ث َ ٰى َوَج عَ ْل نَ اُك ْم‬ 11 ‫ش عُ وبً ا َوقَ بَ ائِ َل ِل ت َعَ اَرفُ وا‬ ُ ‫يَ ا أَيُّ َه ا ال نَّ ا‬ 12 A ḥadīth is considered muttafaqun ʿalayh or “agreed upon” if it is found in the two most authentic Sunnī ḥad īth collections: Ṣa ḥīḥ al-Bukh ār ī and Ṣa ḥīḥ Muslim. This is even stronger evidence for the authenticity of a ḥadīth than just being graded as Ṣa ḥīḥ by a single scholar or even set of scholars; all muttafaqun ʿalayh ḥadīth are Ṣa ḥīḥ, but not all Ṣa ḥīḥ-graded ḥadīth are muttafaqun ʿalayh. ْ ‫س‬ 13 ‫س ا‬ ً ‫ت نَ ْف‬ َ ‫أَلَ ْي‬

References Abbasi, R. (2020). Did premodern Muslims distinguish the religious and the secular? The din-dunya binary in medieval Islamic thought. Journal of Islamic Studies, 31(2), 1–42. Advanced online publication. doi: 10.1093/jis/etz048. Abū Dāw ūd, S. (2008). Sunan Abū D āw ūd (Vol. 5). Translated and edited by A.T.A. Zubair ʿAli Zaʾi and N. al-Khattab. Houston, TX: Darussalam Publishers. Al-Attas, S.M.N. (1993). Islām and Secularism (2nd ed.). Kuala Lumpur, Malaysia: Art Printing Works Sdn. Bhd. Al-Ghaz ā l ī, A.Ḥ. (2004). I ḥyā’ ʿUlūm al-D īn (Vol. 4). Beirut: Dā r al-Maʿrifa. Dallmayr, F. (2004). Beyond monologue: For a comparative political theory. Perspectives on Politics, 2(2), 249–257. Du Pasquier, R. (1980). Découverte de l’islam. Genève: Institut Islamique de Genève. Friedman, T. (2018). America’s dilemma: Censuring M.B.S. and not halting Saudi reforms [online]. New York Times. [Viewed 24 August 2018]. Available from: https

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://www.nytimes.com/2018/10/16/opinion/jamal-khashoggi-saudi-mohammed-bin -salman.html. Hashemi, N. (2009). Islam, Secularism, and Liberal Democracy: Toward a Democratic Theory for Islamic Societies. New York: Oxford University Press. Hashemi, N. (2014). Rethinking religion and legitimacy across the Islam-West divide. Philosophy and Social Criticism, 40(4–5), 439–447. Hubbard, B., and Mazzetti, M. (2020). Former Saudi official accuses the crown prince of trying to kill him [online]. New York Times. [Viewed 6 August 2020]. Available from: https://ww w.nytimes.com/2020/08/06/world/midd leeast/saudi-pr ince-moham med-lawsuit-aljabri.html. Kaminski, J.J. (2017). The Contemporary Islamic Governed State: A Reconceptualization. New York: Palgrave. Kaminski, J.J. (2020). ‘And part not with my revelations for a trif ling price’: Reconceptualizing Islam’s aniconism through the lenses of reification and representation as meaning making. Social Compass, 67(1), 120–136. March, A. (2007). Reading Tariq Ramadan: Political liberalism, Islam, and “overlapping consensus.” Ethics & International Affairs, 21(4), 399–413. Müller, J.W. (2006). Rawls, historian: Remarks on political liberalism’s historicism. Revue Internationale de Philosophie, 3(237), 327–339. Muslim, I.H. (2007). Ṣa ḥīḥ Muslim (Vol. 7). Translated by N. Khattab. Riyadh: Darussalam Publishers. Nasr, S.H. (1981). Islamic Life and Thought. Albany, NY: SUNY Press. Nasr, V. (2010). The Rise of Islamic Capitalism: Why the New Muslim Middle Class is Key to Defeating Extremism. New York: Free Press. Owen, J.J. (2001). Religion and the Demise of Liberal Rationalism: The Foundational Crisis of the Separation of Church and State. Chicago, IL: University of Chicago Press. Pakatchi, A., and Esots, J. (2008). Dahr (in the Qurʾā n) [online]. In W. Madelung and F. Daftary (Eds.), Encyclopaedia Islamica. [Viewed 13 May 2020]. Available from: http:// dx.doi.org/10.1163/1875-9831_isla_SIM_05000105. Qurʾā n. (2004). The Meaning of the Holy Qurʾan. 10th ed. Translated by A.Y. Ali. Beltsville, MD: Amana Publications. Revkin, M. (2016). The legal foundations of the Islamic state [online]. The Brookings Project on U.S. Relations with the Islamic World, No. 23, July 2016. [Viewed 28 April 2020]. Available from: https://www.brookings.edu/wp%20content/uploads/2016 /07/Brookings-Analysis-Paper_Mara-Revkin_Web.pdf. pp. 1–44. Rousseau, J.J. (2002[1762]). The social contract. In S. Dunn (Ed.), The Social Contract and the First and Second Discourses (pp. 149–254). New Haven, CT: Yale University Press. Saudi Arabia: Eomen’s Rights Activists Charged. (2019). Human Rights Watch [online]. 1 March. [Viewed 24 March 2019]. Available from: https://www.hrw.org/news/ 2019/03/01/saudi-arabia-womens-rights-activists-charged. Siedentop, L. (2014). Inventing the Individual: The Origins of Western Liberalism. Cambridge, MA: Harvard University Press. Wolin, S. (2004). Politics and Vision: Continuity and Innovation in Western Political Thought (Expanded ed.). Princeton, NJ: Princeton University Press. Yusuf, H. (2013). Islamic state and shariʾa law are fantasies [online]. Part of the deen intensive foundation lecture series: 2013 videos and resources, Introduction to Logic. [Viewed 11 April 2020]. Available from: https://www.youtube.com/watch?v=qraC3 -VPi94.

INDEX

Abbasi, R. 181–182 ʿAbduh, M. 4–6 Abou El Fadl, K. 7, 84, 89n12, 102, 135nn30, 31 al-Afghā n ī, J. 4–5, 186 Ahmed, S. 78–79, 84, 86, 89n14 Akyol, M. 1–2, 7 al- ḥayāt al-dunyā (the life of this world) 185 al-ʾāḥk ām al-khamsa (Akham Pentad) 145 Anderson v. Liberty Lobby 153 antifoundationalism 7 anti-Semitism 27 Apostasy Wars 81 appellate courts 150 Aristotle 9–10, 45n5, 170, 172, 176 ārk ān al-Isl ām (pillars of Islam) 84 Asad, T. 15–16, 18, 36–37, 39, 47n19, 78–79, 82–83, 88n4, 89n14 atheism 131, 186, 193n6 al-Attas, S.M.N. 96, 185 authoritarianism 6, 19n11, 180 Bacon, F. 34–35, 46n14 Berger, P. 9, 20n13, 32–33, 35 Binder, L. 5–7 canons 13–15, 176n3 Casanova, J. 31, 37–38, 46n10 Cerić, M. 97 Christian: doctrine 35, 37, 92; ethos 31; moral intuitions 31, 56, 181; traditions 9, 26, 31, 123

Christianity 1, 31–32, 35, 37, 41–42, 47n21, 56, 92, 100, 108n6, 123; cultural 38; European 31, 181–182 church and state 27, 33, 56 citizenship 28, 65, 71n19, 100, 173 civilization 6, 20nn11, 20, 39–40, 43, 58–60, 69, 71n5, 131, 143 colonialism 6 colonization 57 Common Law 140, 144, 152, 155 communitarianism 3, 87, 161–165 community 5, 8, 70n10, 79, 81, 98–99, 106, 128, 131, 153, 161–164, 167–172, 175, 175n1 comparative political theory 3, 6, 13, 16–17 comprehensive doctrine 7, 17–18, 21n27, 52–54, 60–66, 68–69, 84, 112–114, 116, 123, 133n2, 162–163, 165 Condorcet, M. 57–60, 70n11 congruence 3, 17, 53, 61, 63, 113, 133n2, 165, 192 constitutional 21, 121, 144, 149; Convention (of 1787) 156n10; democracy 60; essentials 114–116; government 138; interpretation 118; tradition 105 constructivism 164–165 Dallmayr, F. 7, 8, 121, 179 democracy 1, 3, 6, 8–9, 14n11, 26, 60, 71n15, 132, 173 democratization 1, 69

196 Index

deprivitization thesis see Casanova, J. despotism 4, 52, 58–59 dictatorship 33 dīnī (of the religion) and the dunyāw ī (the worldly) 180–183 duty 29–30, 64, 97, 101–103, 114, 146, 150; of civility 64–66, 116–117; moral 64, 102 enchantment 34, 184 Enlightenment 1–3, 15, 18, 25–28, 30–34, 39, 45n1, 46n9, 49, 51, 55–59, 61–62, 65–66, 68, 71nn11, 13, 76, 80n1, 88n2, 103, 121, 138, 180–181, 184–185, 187–188 epistemology 9, 18, 53, 55, 70n7, 92, 95, 103–104, 114, 165, 176 ethical habituation 152 ethics 107, 121 Fadel, M. 19n8, 63, 84, 102, 114, 132–133, 134n14, 134n20, 143–144, 146–147 family resemblances 75, 79–80 al-Faruqi, I. 94–96, 108n6, 125 fasād (depravity) 115, 184 fatwā (Islamic religious edict) 135n31, 139–143 Federal Rules of Evidence (FRE) 152–153 fiṭra (state of natural goodness) 26, 96, 108n6 Fleischacker, S. 26 Foucault, M. 8, 10 French Revolution 99 German Peasants’ Revolt 26–27, 45n3 al-Ghannū sh ī, R. 5 al-Ghaz ā l ī, A.H. 75, 95, 142, 176n8, 182, 184 Grotius, H. 27–29, 45n5, 100, 103 Habermas, J. 8, 38, 112–113, 117–118, 121–123, 126, 128, 134nn15, 16, 187 ḥadd (Islamically mandated) punishments 153–154 Hallaq, W. 43–44, 47n21, 56, 135n35, 140–141, 145–147, 155, 156nn2, 7, 157n12 Hamid, S. 1–2 Hegel, G.W.F. 15, 20n20, 46n15, 88n1 hegemony 7, 16, 25, 37 Hobsbawm, E. 44, 58 Holyoake, G.J. 30 Hourani, A. 5–6 humanity 20n20, 45n5, 52, 105–107, 131

Ibn ‘Ābid ī n, M.A. 147 Ibn Taymiyya 89n5, 95–96, 108n6 ideal theory 62, 116, 130, 132–133, 157n13, 167 ijtihād (independent juristic reasoning); 120, 139, 142–144, 151, 156nn7, 9, 157n11 ikhtilāf (permissible legal disagreement) 75 imperialism 7, 58, 71n13, 76, 78 individualism 44, 53, 122, 126, 162, 168–169, 171, 173, 175 inequality 174, 188 instrumental rationality 67, 76 Iran (Islamic Republic of ) 19n11, 187, 191 ISIS (dāʿish) 19n3, 183 i ṣlāḥ (reform) 4 Islam: civilization 40, 71n15; and communitarianism 162, 168; community 81, 106; as a discursive tradition 79, 86; as an existential threat 43; five pillars of 81, 84; governed state 115, 192; and human rights 105; law 97, 114, 118, 121, 132, 134n14, 139–141, 144–147, 150–152, 154–156, 156nn8, 9; and liberalism 2–3, 5–7, 9, 13, 17–18, 19nn8, 10, 63, 91–92, 105, 179–180; as a meta-category 79–80, 82; modernist movement 3; ontology of 13, 76; orthodoxy 83–85, 95; Second message of 119; in Western Europe 37 Islamicate culture 86 jizya (tax on non-Muslims) 129 justice: as a freestanding view 62; political conception of 21n13, 62, 64–65, 113, 130; principles of 21n23, 166 Kamali, M.H. 105, 138, 145, 150, 157nn16, 19 Kant, I. 14–15, 20n19, 30, 46n9, 53–54, 58, 71n12, 88n1, 146, 165, 166, 175n3 al-K ā sā n ī, A.A. 154 Kompridis, N. 4 Laclau, E. 10, 38 laïcisme 31 Larmore, C. 52, 54, 62–63, 70n6, 71n16, 130, 181 law: Civil 144; divine 2, 101; Islamic see Islam; moral 99, 101–103; of Nature 28, 92–94, 100–101, 103, 109nn17, 18; positive 122, 146, 148, 155 legal precedent 107, 140, 144, 148 Lewis, B. 3

Index

liberalism: comprehensive 51–54, 61–63, 65–66, 68; Islamic 1, 6, 18n1; perfectionist 51, 54, 56, 61, 68, 70n6, 127, 130; political 7, 18, 49, 51–53, 60–66, 68–69, 71n19, 113, 119, 124, 127, 130–131, 162, 165, 169, 171, 180, 185, 187–188 liberty 5, 7, 30–31, 51–52, 56, 58–59, 62, 64, 68, 69n1, 93, 100, 103, 105, 166, 187 Lipset, S. 1 Locke, J. 9, 15, 29, 35, 54, 60, 70n11, 91, 95, 99–104, 106, 108nn3, 18, 138, 165, 185 Luther, M. 27, 42, 45n3, 45n4 MacIntyre, A. 2, 99, 104, 148, 150, 162, 164, 167–169, 171, 176n4 makr ūh (abominable) 135nn30, 31, 145, 147–148, 157n16 March, A. 6, 8, 13, 16–18, 19n8, 53, 71n19, 113, 118–119, 126, 187 Marcuse, H. 67–68, 166 marriage 106–107, 116, 129, 146, 183 ma ṣla ḥa (public interest) 6, 114–115 maximin principle 166 McWilliams, W.C. 173 meaning-as-use see Wittgenstein, L. Mendelssohn, M. 1 Mill, J.S. 6, 9, 15, 53, 58–60, 67, 71nn13, 14 Miskawayh, A.A. 146, 172–173 moderation 4, 172 modernity 3–4, 39, 46n12, 52, 121, 130, 164, 174, 181, 188, 191 modus vivendi 21n23, 69, 72n22, 97 moral autonomy 121, 169, 170, 175 Muhammad bin Salman 190–191, 193n9 Murjiʾa 1 Muslim Ban see Presidential Proclamation 9645 muʿāhid (non-Muslim who has a covenant with a Muslim) 128 Muʿtazila 1, 93, 150 naskh (abrogation) 119–120, 134nn12, 13 nation state 32, 36, 42–44, 69, 71n15 nationalism 29, 36, 175 Nicene Creed 124 1948 Universal Declaration of Human Rights 96 non-ideal theory 130, 132–133 Nussbaum, M. 54, 70nn1, 6 occult beliefs 35 Oliver Wendell Holmes Jr. see Southern Pacific Company v. Jensen

197

ontology 3, 9–13, 18, 76 original position (OP) 162, 165, 167 orthodoxy 1, 83–86, 89nn12, 14, 95, 140 overlapping consensus 17, 21n23, 64–66, 69, 72n22, 98, 113, 119, 124–125, 130, 132 paradox of toleration see Popper, K. Parekh, B. 2, 65–66, 100 Peace of Westphalia 26 personal autonomy 54–55 Pictionary 87 pluralism 51–52, 69, 69n1, 71n16, 78, 122, 125, 127, 130, 191–192 political question doctrine 149, 157n18 Popper, K. 67, 166 postmodernity 35–36 Presidential Proclamation 9645 149 private property 106 Prophet Muhammad 2, 79, 81, 89n8, 128, 131, 139, 184, 192 Protestant Reformation 27, 46n10 prototype theory 18, 75, 79–80, 82 public reason 56, 63–66, 112–116, 122, 130, 132, 167, 169, 187 Putnam, R. 174 Quong, J. 44, 51–53, 62, 69n1, 70n8, 71n16, 87, 113, 127–128, 130, 134n26, 135n33, 181 Qurʾā n 4, 9, 15, 95, 101–103, 108n4, 115, 118–121, 123, 125, 128, 131, 134nn12, 13, 134n15, 135nn30, 32, 139–140, 142–143, 146–147, 157n19, 168, 172–173, 180, 184–186, 192 Rashidun Caliphate 128 rationalism 4, 94 Rawls, J. 2, 8–9, 15, 17, 21n23, 53–54, 60–66, 68–69, 70nn2, 5, 112–114, 116, 118–119, 121–122, 127, 130, 133, 133nn2, 8, 135n15, 162, 165–168, 175n3, 180–181, 185, 187, 189, 192, 193n7 Raz, J. 54–56, 68, 70nn8, 10, 127, 170 reification 32 responsum prudentium 140 Riḍā, M.R. 4–6 rights: and freedoms 105, 187, 192; human 18, 27, 31, 44, 91, 96–97, 99, 104–107, 109n20, 118, 126, 190; individual 27–28, 68, 98–99, 187 Roman law 28, 99 Rousseau. J.J. 70n11, 165, 191

198 Index

ṣāḥib al-ma ẓālim (institution for appealing

a perceived injustice) 150–151 Ṣa ḥīfat al-Madīnah (Charter of Medina) 138 Said, E. 59, 76 Salazar v. Buono 32 salvation 102–103, 108n6, 122–124, 146–147 Sandel, M. 162, 164, 166–167, 169 al-Sarakhsī, M.A. 154, 157n21 Sartori, G. 11, 20n16 Saudi Arabia 126, 141, 180, 190–191 Schmitt, C. 39, 42–43, 192 sectarianism 44, 175 secularism 29–33, 36–39, 44, 56, 113, 131, 180–182, 185–187, 193n6 self-ref lexivity 123–124 Shar īʿa 2, 83–84, 97, 104–105, 108n5, 114–115, 119–121, 125–127, 129, 134n14, 138–140, 145–147, 150–151, 157n13, 183 al-Shāṭ ibī, A.I. 114 Shīʿa 88, 157n11, 189 Shklar, J. 51, 55, 61, 180 shūrā (consultation) 4 Siedentop, L. 30–31, 56, 181–182, 185 social contract 105, 165 Sosa v. Alvarez-Machain 97, 108n8 Southern Pacific Company v. Jensen 155 split-identity objection 116 Stoeckl, K. 123–126, 134n15 Strauss, L. 20n21, 93–94, 103, 109n18 Sunnī 85, 95, 128–129, 140 tajdīd (renewal) 4 ṭal āq (divorce) 147

taqlīd (conformity to a previous Islamic position) 4, 143–144, 155, 156nn8, 9 tawḥīd (belief in the oneness of God) 94–95 taxonomy 13 Taylor, C. 2, 33–34, 65, 68, 164 terrorism 37 Tocqueville, A. 173 toleration 37, 41, 43, 52, 56, 66–69, 70n10, 71n21, 128, 180, 191–192 Trump v. Hawaii see Presidential Proclamation 9645 al-Tū nisī, K. 4–5, 19n7 turāth (tradition) 131, 143 tyranny 4, 52 United States (of America) 8, 19n11, 29, 32, 36–38, 45n6, 69, 96–97, 108n8, 118, 144, 148–149, 157nn17, 18, 173–175, 188–189 universalism 60, 122, 126 Vattel, E. 27–29, 45n6 veil of ignorance (VoI) 165 violence 26–27, 42–43 virtue ethics 162, 170–173 voluntarism 100 Weber, M. 33–34, 46n12; Weberian 184 witness testimony 139, 151, 154 Wittgenstein, L. 75, 80, 88n5 women 31, 57, 95, 121, 128–129, 135n1, 190 zak āt (alms given to the poor) 81, 84, 89n7, 89nn8, 10, 106