Jurisprudence: The Ultimate Arena

By Dr. Robert D. Crane - TAM The American Muslim - Bridgeton, MO, U.S.A.
Saturday, March 31, 2007

From the traditionalist perspective of the world religions, the underlying issue in the world today is whether the ultimate reality is man’s autistic pursuit of unlimited power through the modern state with its monopoly of coercion as a substitute for God, or whether a higher reality of universal truth is accessible to persons and communities as guidance for a normative system of compassionate justice.

The conflict between these two paradigms of jurisprudence boils down to the question whether law is “positivist” or “normative.” Is it instrumentally created and sustained by human command or is it a system of heuristic norms that always wait to be discovered?

Orientalists have always used Western positivist law as the base case and thereby set the stage to denigrate Islamic law as non-existent or at least inferior because it is utopian and is not enforced. Traditionalist Muslims, on the other hand, especially the more mystical Shi’a, consider that Islamic law is primarily educational and is designed to motivate both persons and communities to fulfill their spiritual and moral potentials. From this perspective of Islamic law as the base case for comparative jurisprudence, it appears that Western law is grossly inferior.

One may legitimately argue that in recent centuries the pragmatic result of the “Western” and the “Eastern” legal systems in the actualization of justice may favor Western law, at least for domestic consumption. Civilizational clash, however, stems more from philosophical points of origin as part of identity politics than from “practical” results.

Perhaps the three most seminal books to appear during the past year or two on the role of jurisprudence in the renewal of civilization as a means to marginalize violent extremists in every religion have been published by Harvard Law School, by the International Institute of Islamic Thought, and by the Institute of Ismaili Studies in London.

The thirteen scholarly chapters in the new book from the Harvard Series in Islamic Law, The Islamic School of Law: Evolution, Devolution, and Progress, explore the origin, dynamics, and function of the madhhab or “school of law” and particularly of its institutionalization as a means to provide legitimacy and effectiveness in government. Of its three editors, namely, Frank Vogel, who is head of Harvard’s Legal Studies Program, Peri Bearman, who is his alter ego, and Rudolph Peters, only the latter has contributed a chapter to this symposium.

Professor Peters’ chapter on the Hanafi school of law adopted by the Ottoman Empire confirms the dynamic and fluid nature of the Islamic shari’ah as developed by the four Sunni madhhabib and the four Shi’a related ones, especially in their formative period before they became institutionalized as a matter of survival in competition with the many now extinct schools of law. In his introduction, Peters asks how “such a fluid doctrine full of contradictions could be enforced by the courts. Or, in other words, how Islamic legal doctrine with its many conflicting views and rulings could be transformed into positive law.”

This question is central to Western jurisprudence, political science, economics, and sociology. According to Black’s Law Dictionary, which has been authoritative at Harvard Law School ever since I earned a J.D. there in comparative legal systems half a century ago, positive law is “law actually and specifically enacted or adopted by proper authority for the government of an organized jural society. … Positive laws are those enforced by a sovereign political authority. They are distinguished from rules like the principles of morality … enforced by an indeterminate authority that is either superhuman or politically subordinate and therefore not authoritative.”

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The driving force for such “modernization” of Islamic law, perhaps especially in the realm of gender equity, is not justice reflecting the essentials or universal purposes (maqasid) of Islamic jurisprudence, but the felt need to “adapt the Islamic legal tradition to political realities inherent in the nation state.” The issue is not merely whether the law should mirror society’s morals, rather than serving as a moral guide to society, but whether the law can serve its positivist role to consolidate political power in the imagined community of the corporate state.

For centuries, the Dutch colonialists accentuated and fostered the differences among the many indigenous cultures in the Indonesian archipelago based on their various forms of customary law or adat, which were rooted in an indigenous, mystically-oriented and syncretic form of Islam known as abangan. The object was to counter the threat of shariah-oriented or santri Islam as a potential unifying force against foreign rule. After independence the political incentives were reversed as indigenous nation-building based on a national form of shari’ah Islam came to serve the interests of centralized power.

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According to both Sunni and Shi’a historiography, Imam Ali always excelled in tracing all decisions to higher principle, as was demanded by the Prophet Muhammad himself in instructing his followers. The deadening practice of taqlid, following detailed rules without informative principles, can produce injustice.

Following principle in the search for compassionate justice is the key to combining reason and revelation in always up-do-date understanding and response to changing conditions of life so that both individual persons and the communities derived from them will have optimum conditions to remain close to God and thereby fulfill the purpose of their existence.

The final chapter in the Harvard publication on the Islamic school of law addresses the declining relevance of the traditional madhhab and the threat of chaos from individual faux ijtihad developed on the internet in the form of what the author Ihsan Yilmaz from Turkey describes as “inter-madhhab surfing” in the practice of talfiq, which is the syncretic search among madhhabs for whatever supports one’s selfish interests.

His solution to this problem is to “raise the level of Islamic consciousness by indicating the connection between reason and revelation [in order to] raise individuals who would meet the criteria of a mujtahid.” This can be done only through “faith-based movement leaders with effective organizations to implement their ideas.” Ihsan Yilmaz’s chapter focuses on the movement of Fethullah Gulen as a model.

Other possible models would be the Islamist movements of the past half century modeled after the former Sufi, Hassan al Banna, who today is still the mentor of enlightened Islamist movements throughout the Sunni world.

None of these faith-based movements has succeeded in developing a jurisprudence adequate to the demand for Islamic leadership in pursuing human responsibilities and rights as the major requirement for peaceful engagement among civilizations in the third millennium.

The missing dimension has been supplied by perhaps the greatest Islamic legal scholar of the twentieth century, Muhammad al-Tahir ibn Ashur, who taught at Al Zaituna, was a follower as a young man of the reformer Muhammad Abdu, and rose to become the Grand Mufti of Tunisia.

His major work, first published in Arabic in 1946, was translated and annotated for a modern reader with incredibly thorough footnotes by Mohamed el-Tahir el-Mesawi under the title Ibn Ashur, Treatise on Maqasid al Shari’ah. This was funded and published by the International Institute of Islamic Thought in 2006 just in time for a conference in Malaysia on the subject, which marked the first serious attention given by Muslims in the Sunni world to normative Islam in six hundred years.

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The most profound of the recent books addressing the past, present, and future of existential clash or cooperation within and among civilizations is the monumental, 558-page, Festshrift, entitled Reason and Inspiration in Islam: Theology, Philosophy, and Mysticism in Muslim Thought, Essays in Honour of Hermann Landolt, edited by Todd Lawson and published by the Institute of Ismaili Studies in London.

This magnum opus on a major world religion was well worth the more than fifty hours required to read, annotate, and index the work of many scholars, both Ismailis and others, who have devoted their lives to exploring a thousand years of scholarship on the interdependent roles of reason and inspiration in seeking out the Will of God.

This task is essentially jurisprudential, because the paradigm of all Islamic thought, and indeed of all religion, is the search for a higher reality of universal truth accessible to persons and communities as guidance for a normative system of compassionate justice.

This collection of studies, each one a model of careful scholarship on the historical development of what is known as Shi’ism and especially of its Ismaili branch, is particularly interesting for the typical American who believes only what he or she has directly experienced and is attracted by the traditionalist Islamic emphasis on immediate awareness and love of God and on its natural manifestation in the search for universal justice.

This independence of spirit is why the typical American hanif or Muslim by primordial fitra, like those in Makkah fourteen hundred years ago, is skeptical of all institutionalized religion but eager to learn about the deeper insights that are obscured in all religions by identity politics. Of course, this is also the reason why ethnic and ideological Muslims from abroad distrust American converts and why this distrust, especially among African Americans, often is reciprocated.

Mysticism is at the core of all religion, including often lapses into superstition and polytheism, which is precisely why a major purpose of divine revelation is to bound it by right reason. The tension between these two capabilities of the human being, the esoteric and the exoteric, is what gave rise in the Muslim world to Sufism.

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The magisterial work, Reason and Inspiration in Islam, explicates Shi’ism as a path to compassionate justice in the form of what scholars might, but never have, called ‘Ilm al ‘Adl, the combined esoteric/exoteric science of jurisprudence. In point of fact, though not by intention, this tour de force presents a chronological history of Sufism in four parts: Classical Islam, Early Medieval, Later Medieval, and Pre-Modern and Modern.

Following European custom, whereby the individual professor rather than the educational institution carries maximum prestige, this undertaking was prepared by the former students of Hermann Landolt in his honor as a foremost advocate of what nowadays is often termed the Sophia Perennis or science of the permanent things.

Landolt started his career in his hometown, Basel, Switzerland, where he wrote his dissertation in its then dominant environment of post-war existentialism epitomized by Karl Jaspers and Karl Barth. These were identified as the two leading beasts of the Anti-Christ (bete noir) by my professor at the time, the famous Roman Catholic theologian Romano Guardini at the University of Munich, where I was the first American student at a German university after World War II.

Landolt left this dead-end corner of intellectual life to earn another diplome under Henry Corbin at the Sorbonne. In 1964 he moved to McGill’s Institute of Islamic Studies in Montreal, Canada, founded ten years earlier by Wilfred Cantwell Smith, where Landolt spent the next thirty-five years as a “Persianist” exploring Islamic mysticism, including the controversial subject of wahdat al wujud, about which I have published an extensive critique in http://www.theamericanmuslim.org, and the legacy of the leading mystical jurisprudents, ranging from Imam Jafar al Siddiq, who founded the first of the major schools of Islamic law, and the early Ismaili philosopher Abu Hasan al Hujwiri (Datta Ganjbaksh), the author of Kashf al Mahjub, which was the first history of tasawuf and introduced me to Islam during a two-week khalwa on top of a mountain in New Hampsure; to Suhrawardi, who led the cause of ijtihad during the Dark Ages of the Sunni naqba; to William Chittick, Toshihiko Izutsu, Hossein Nasr, and many others, who carried the flame of sophia perennis in the face of the cold winds that threaten to bring on the intellectual winter of a global naqba today.

The studies in this book reflect amazing detective work by many young scholars uncovering the interconnections among the seminal spiritual and intellectual leaders of Islam’s Southwestern and Central Asian heartland over the past more than one thousand years, as well as the historical backdrop of their respective eras.

Since this is a compilation for scholars by scholars, the reader would be well advised first to read Hossein Nasr’s chapter, “The Spectrum of Islam” in his book, The Heart of Islam, as background in order to distinguish the more orthodox intellectual and spiritual leaders among the Shi’a from the less orthodox and to identify the movements that originated from the latter but developed into sects within Islam and even into new religions outside its widest boundaries.

For example, the Akhbaris, mentioned in the Harvard Law School publication on schools of law, flourished in the middle Safavid period (early 1600s) but spawned the Shaykhi movement of the early Qajar period (1700s), which gave rise in the early 1800s to the new Bahai religion.

This modernist response to Western cultural imperialism essentially reversed the mindset of its origins by developing the anti-intellectual piety of the Akhbaris into a form of 21st-century post-modernism.

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“Truth can be understood,” Golam Dastagir writes, “not just in the remembrance of God through prayer but in the realization of God in the pure heart, in which there is no difference between the knower, the known, and the knowledge. Communion of the individual soul with the Divine is the ultimate goal of human life.”

“The methods of reaching this goal vary according to peoples’ customs, cultures, and beliefs,” but they are all converging from the outer circumference of a circle toward the center which is God.

He concludes that the cause of most conflict in the world today is the failure of religious people to recognize this, which is why they are vulnerable to emotions of despair, fear, and hatred.

We fear the specter of growing chasm between civilizations in an age of advanced technologies, but Dastagir warns, “The human mind-set is at the center of all contentions and conflicts among divergent faiths and nations. … Our first and foremost endeavor should be to bridge the chasm between God and humanity.”

This is the task of ‘Ilm al ‘Adl, the science of compassionate justice, which is based on the cycle of apophatic spirituality (the via negativa associated with islam), cataphatic spirituality (the via positiva or “yes” stage of the spiritual path associated with iman), and the highest level of ihsan, which completes the dynamics of tawhid.

This might also be termed ‘ilm al ‘adl al muta’aliy or transcendent law, similar to al hikmat al muta’aliyah of the seventeenth-century Shi’i polymath, Sadr al Din Shirazi, who, like Al Ghazali, created a major synthesis of philosophy, doctrinal Sufism or gnosis (‘irfan), and theology (kalam) in a new school that Syed Hossein Nasr has translated as “transcendent theosophy.”

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In 1982 I was asked to entertain two Buddhist monks who had just arrived at the invitation of the Aspen Institute to found a Buddhist monastery as part of an interfaith community of monasteries in Baca, Colorado. Not knowing how one entertains Buddhist monks deputed by the Dalai Lama for such a mission, especially those with a very tight schedule, I asked them to explain Buddhism in five minutes.

They laughed and replied that one minute is more than enough.

First, one must understand Hinayana Buddhism, which teaches that one must separate oneself from the material world and the search for illusory power. Next comes Mahayana Buddhism, which teaches that one can then unite with nirvana, which is nothing in the sense of no-thing, i.e., what is beyond the material. Finally comes Tantrayana Buddhism, at which level one will have an over-powering desire to bring compassionate justice to the world.

Although I was a hidden Muslim at the time, invited as an expert on Native American religions, I could not help but exclaim, “Al hamdu li Allah, you have just explained everything there is to know about Islam in thirty seconds.”

In retrospect, I would add that these two Buddhist monks had just identified the jurisprudence of compassionate justice as the ultimate arena for either cooperation or clash among civilizations.
“Justice, Justice, thou shalt pursue” Deuteronomy 16:20

“If you want peace, work for justice” Pope Paul VI

“And the word of your Lord is fulfilled in truth and in justice” Qur’an 6:115

Dr. Crane is Director for Global Strategy at The Abraham Federation: A Global Center for Peace through Compassionate Justice, Menefee Mountain Private Lane, Washington, Virginia 22747, http://www.globaljusticemovement.org