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Chapter Eight: The Rule of Law and Civil Society in Muslim Contexts
Fetishism of each one for his merchandise: jurists walk on the head because they think that law is the reality.
K. Marx, German Ideology
I want to know how long we can go on doing this stuff in defence of western society without ceasing to be the sort of society that is wealth defending. That's all. And what stuff maddening with thin pots Third world countries, bullying them, smashing their economies, rigging their elections, assassinating their leaders, buying their politicians like pop corn, ignoring they are starving, they are uneducated, kicking their peasants from the land, arming their oppressors to the teeth, turning their children into tomorrow's terrorists, manipulating the media, lying constantly.
John Le Carré, Lecture at John Hopkins University, 1986
Islamism is a fecund fuel.
Hassan II, Le Monde 9/8/1988
The rule of law and civil society are a modern historical construct; they are still in the process of construction on the basis of the new needs and demands of various societies and the political culture available in each tradition of thought. Apart from the advanced European and North American democratic regimes, large-scale, ongoing experiment are taking place in every contemporary society, such as China, India, Brazil, Mexico. Yet, there is no one recognized ‘model’ or archetype of a Civil Society with its correlated rule of law. One can even speak of the crisis of political reason in the most advanced experiments in the construction of a civil society such as those that are ongoing in United Kingdom, France, Holland and Scandinavia. On the other hand, there are societies in which political thought is paralyzed, dangerously diverted by a perverted and perverting instrumentalization of the religious tradition. This is the case in several of the so-called Islamic regimes or rather regimes which claim Islam to be the official religion of the state. To encompass all societies in which Islam is represented by a large majority or a minority of citizens, I prefer to use the expression ‘Muslimcontexts’. This enables Muslim minorities living in European and American societies to be included in the general exploration of the attitudes and approaches to civil societies that are more or less inspired by references to ‘Islamic’ principles, values and political vision.
Surely, in all Muslim contexts, the issue is continuously and passionately debated in the ongoing political struggles between the established regimes and opposing movements in which opposition is tolerated. There are also many international conferences, seminars and political and religious meetings which provide opportunities for dialogue. These activities have an important educational role and should be systematically developed everywhere to fill the gaps where there is a deprivation and emptying of modern critical conceptualization of vital issues concerning the creation of a worldwide civic citizenship starting, of course, from various national experiences. I have personally insisted on the pedagogic necessity of liberating all nationalist collective imaginaries from the alienating ideological representation of so-called national or religious ‘identities’. I have indicated the negative functions of the mythological identities built and taught in all national historiographies, including those of the already well-established modern democratic regimes. All the epistemological, intellectual, linguistic, political and legal obstacles that have been analyzed in the previous chapters continue to prevent and delay significant progress towards radical reassessments of the religious, legalistic and political legacy related to the ‘great Islamic Tradition’. The concepts of secularized law and democratic culture are not only misunderstood and even totally ignored, and certainly strongly rejected by a large majority of Muslims, on the basis of what I called ‘institutionalized ignorance’. The ideological competition between the two blocs constructed under the names of ‘Islam’ and the ‘West’ is increasingly distorting, disrupting and breaking down any positive experience that may be emerging in certain countries ruled by precarious political regimes.
One of the most negative results of the mutual exclusion that has developed since 1945 by the negative polarization of ‘Islam’ and the ‘West’, is that both ideological poles instrumentality a dualist, Manichaean thinking whenever they have to express their perception of each other. How is it possible to break free from these historical, cultural, intellectual impediments? There can be no political cooperation and positive communication as long as the basic political vocabulary is not available for both protagonists. I mention such simple and current words as democracy, rule of law, human rights, citizenship, justice, liberal philosophy, free market … Through translation — at least when it is accurate — ideas and representations can be transferred from one culture to another; but the concepts will remain abstract, cut off from their initial existential, historical content as long as the process of conceptualization has not become rooted, initiated by the historical experience that shapes the living collective memory of each social group, community or nation. This collective memory also needs to be expressed and transmitted in the original language used through all the historical experience of the group. This is not the case for the majority of marginalized groups and societies, since the modern secularized languages, developed in European societies from the seventeenth century onwards, were spread all over the world during colonial expansion, followed by the increasing pressures of the ideology of development/underdevelopment and now by globalization with its constraining economic, monetary and technological rules and mechanisms.
In each society of what has been known for some time as ‘the Third World’, increasing gaps have been created between a rich, powerful economic and political so-called elite and the marginalized masses who are submitted to a continuous process of social exclusion. Such a sociological structure generates strong authoritarian, repressive, non-accountable States, in which the emergence of a civil society is nigh impossible. It is difficult, under such conditions, to identify a middle class with the roles, the status and restrictions currently experienced in advanced democratic regimes. The middle classes and a dynamic, creative bourgeoisie have a precarious existence in undemocratic countries; they remain too weak, unable to reach the critical mass required for recognition by the State as a necessary partner for the enhancement of the historical building process of a civil society, backed by the state and supporting, in return, the construction of a rule of law. This process took place in Europe in the seventeenth and eighteenth centuries; it has obviously failed to develop in contemporary Muslim contexts, although the States that emerged in the late 1950s and 1960s had access to two dominant competing models, the Communist regime claiming the construction of a so-called democratic popular republic and the Western, liberal model applied in Western Europe and North America. The result of the Cold War competition that broke down in 1989 is well known. New ideological obstacles have been added everywhere to those inherited from colonial regimes between 1800 and 1945, and from a long, disintegrating historical process that dates back at least to the thirteenth and fourteenth centuries in all Muslim contexts.
All these historical, cultural and ideological facts still have a determining impact on the deep political, economic, social and semantic crisis that has been exacerbated by the new pressures of globalization in all of the former Third World societies. The end of the Cold War has opened an horizon of a short-lived new hope of more shared and controlled emancipation for all these societies. This ended as quickly as 1990–91, with the Gulf War and the new geopolitical strategies for mapping the frontiers between the Big Seven and the rest of the world, inaugurating a new phase in the ‘just war’ between the ‘West’ and ‘Islam’. My colleague, S. Humphreys, used a very evocative title for he last book: Between Memory and Desire: The Middle East in a troubled Age. Any inquiry as to the political attitudes and the theoretical approaches to the rule of law and civil society in Muslim contexts since 1945 should start with the following questions:
Which memory of Islam was alive in Muslim societies before and immediately after the independence of each country? How was this idealized collective memory interacting with the still strong, living, collective, local, ethno-cultural memories of each society? How did the new states consider and take decisions about the ‘Islamic’ memory used as an ideological tool to legitimize their power and initiate a unifying process between the imagined Nation on one side, the local ethno-cultural and linguistic memories marginalized, ignored and doomed to dilution on the other? And which desires inspired and motivated the political decision-makers, compared to the desires and expectations of various social groups that were still subject to the mechanical solidarities of the tribal, patrimonial and patriarchal archaic systems, that originated long before the birth of Islam? Not one of these questions has been adequately considered so far in the current literature about political Islam as well as in the so-called Muslim societies prior to their clashes with modernity, industrial civilization and the forces of globalization. That is why all scholars continue to use the political vocabulary developed in European contexts under the epistemological guidance of the reasoning of enlightenment as the reliable criteria for locating intellectually, ethically, philosophically and through jurisprudence, all the discourses and the decisions made elsewhere concerning the rule of law and civil society. Very few Muslim intellectuals and scholars share the critical analysis performed in Europe in rethinking the whole nation-state experiment embarked upon since the eighteenth and nineteenth centuries which has been replaced by the new political entity of the European Union. The importance of the transition which Europeans have been experiencing since 1945 is crucial for all contemporary nation-states. |It must be said that this experience has been rejected, minimized and ignored by many intellectuals and decision-makers, who prefer to insist on the priority and primacy of the imagined, desired Islamic Model, constructed with anachronistic arrangements of mythological fragments of what I called the Inaugurating Age of that Islamic Model.
These are the prevailing conditions in which the debates about a civil society are engaged in Muslim contexts. It is undeniable that these basically romantic, emotional, frustrating, even phantasmagorical conditions generate clashes between two conflicting imaginaries. The geopolitical strategies of the West have clearly accelerated the dialectic ‘answers’ of radical political Islam; the geopolitical sphere called ‘the Middle East’ in American terminology is particularly affected by several ongoing conflicts over vital stakes: oil, the strategic positions for Western forces, the place of Israel in the whole area, the conflicting religious memories since the emergence of Islam as a new rival in the semiotic manipulation of the monotheist legacy. This is really too much; it is an explosive mixture of material interests, the desire for authoritarian rule and a dispute over jointly held symbolic symbolic capital all of which are disputed, fragmented and dismantled by the modern ideologies that are designed to support self-promoted national interests.
To shed more light on this complex situation, there is a need to consider key substantive themes concerning the historical dialectic which has ordered world history after ‘the end of history’. The analysis will concentrate on the following major themes:
- Does culture matter?
- The ethics of intellectual and political responsibility;
- Siyāsa shar'iyya, rule of law, civil society.
1. Does Culture Matter?
Does Culture matter? Politics and Governance in the Mediterranean Region. This was the title of a two-day seminar held in Bonn, Germany on 19–20 June 2001. The theme is inspired by a book published by Lawrence E. Harrison and S. P. Huntington entitled Culture Matters: How Values Shape Human Progress (Basic Books, 2000). The aim of the authors is to consolidate, expand upon and illustrate the famous theory of the clash of civilizations. Thoughtful contributions are made on the most basic debatable fields of knowledge and reality: culture and economic development; culture and political development; The anthropological debate; culture and gender; culture and American minorities; the Asian crisis; and promoting change.
From the perspective of my own research published in The Unthought in Contemporary Islamic Thought, I would make two remarks. Firstly, there is not one contribution on the example of Islam as a commanding, cognitive framework imposed on a great number of cultures and languages in the world; nevertheless, S. Huntington has built his famous theory of representations of ‘Islam’ borrowed from a very limited and biased Islamicist literature. Secondly, the approach used by all of the contributors confirms the scientific relevance of my concept of Applied Islamology which I defended for the first time in 1973 (see my Critique of Islamic Reason). There is no question that culture matters, and it does so on two important levels. For the individual, the group, the community and the nation, it mirrors the existential experiences, values and performances which enhance the civic consciousness, the sense of ethical and spiritual growth of the human subject and the aesthetic emotional participation in humanistic creativity. Culture is also responsible for the building process of the cognitive frame of perception, interpretation and expression of the human, historical, cosmic reality within which reason, intelligence, imagination and memory can either expand, create and innovate, or regress, degenerate and deviate from their optimal activities. There are cultures that emancipate the human condition, cultures addressed to and instrumentalized by social imagmaries. It is the task of the social, political and economic science as well as of philosophy to detect and expound upon the alienating elements and functions of each culture. This approach to culture, taking into consideration all living cultures in the world, is absolutely new; it is made possible by anthropology as cultural criticism and archaeology as a deonstructive analysis of the systems of thought as exemplified in the works of Jacques Derrida and M. Foucault.
The two editors of Culture matters allocated only three chapters to culture and political development. This question is vital in all Muslim contexts, however. Which culture has been supported, chosen and imposed by all the post-colonial states since the 1950s? Is it the emancipating, liberating, liberal, pluralist modern culture, or, its antithesis, the ideological, restrictive, alienating, oppressive culture aiming first and foremost at political manipulation of the collective memories and the social imaginaries? A few ethnologists have addressed these questions in limited monographs. Political scientists have essentially been busy with the narrative and descriptive transcription of the fundamentalist discourses into European languages in order to build up a strong negative imaginary of Islam, Muslims and Muslim societies; a few have paid scant attention to the interaction between different forms and levels of the official ‘culture’ and political development in order to evaluate, for example, the chance given or refused to the rise of a civil society. The monolithic, closed image of fundamentalist Islam has led to the marginalization, and eventually the elimination, of other cultures which have been rejected and ignored both by the state policy of education and the powerful political movements for the Islamisation of the surviving remnants of idolatry and ‘savage’ (Jāhiliyya) cultures. Christian minorities, the languages and cultures of groups converted to Islam, such as the Berbers of the Maghreb and the Kurds of the Middle East are living examples of what I have described elsewhere as the historical dialectic of the powers and residues in all societies and at all periods of history (see Penser l'Islam aujourd'hui). Here we have a case study of the role of the Jacobin centralizing states using religious orthodoxy, whether or not it is linked to the ideology of the unified nation in order to transform the emancipating function of a humanist culture into a psychological alienation of the individual and the collective consciousness. There are enabling liberating cultures and disabling, regressive, schizophrenic cultures.
The ideological manipulation of the social imaginary by political and/or religious leaders, parties and brotherhoods is exemplified not only in Fascistic, totalitarian experiences, but even in theocentric regimes, such as those of the Middle Ages, or in some contemporary democratic regimes. The level and the styles of manipulation differ, of course, from one context to another. The style of the Third Republic in France is different from the Italian process of national unity, and the Spanish democratic transition from the Franco regime to the present, decentralized state. In Muslim contexts, the role of culture changed radically during the struggle for liberation (1945–67) followed by the so-called socialist and Islamic fundamentalist revolutions (from 1970 onwards). The changes and their consequences have not yet been studied; it would be enlightening, for example, to compare the progressive, critical attitude of the reformist Muḥammad ‘Abdu to the regressive, dogmatic positions of his so-called disciple Rashid Ridha, or the later conservative sage Muḥammad ‘Amāra. Even more significant would be the comparison between the well-know liberal writer and thinker Taha Ḥussein and the fundamentalists who rejected his contributions as too favourable to Western culture and close to a ‘bourgeois’ anti-socialist ideology. The shift from a socialist collectivist revolution to the Islamic revolution mainly concerns the substitution of Islamic vocabulary and references for a socialist secularized ideology. In both cases, liberal philosophy and political institutions are rejected and maintained in the domain of the unthinkable, order to avoid the dissolution of Islamic belief. The Nobel prizewinner, Naguib Mahfuz, was able to encompass both revolutions without ever making concessions to any regime of political control; for this reason, at an advanced age, he was the victim of terrorist aggression. This regressive evolution demonstrates that what matters in cultural life is to carefully monitor the fault line between ideological alienation and positive, innovative, liberating subversion of inherited ‘false’ values and ideals. This has been shown in the case of The Satanic Verses. What I am saying about culture in Islamic contexts can be extended to all the cultures that are employed to defend ‘national identities’ and collective ‘identity’, as a springboard for seizing political power. If we agree on the principle that a civil society and the rule of law should both be founded on the defence of and strong support for a humanist, liberal culture, the expression ‘Culture matters’ will be seen to mean that culture, like knowledge, is a subject and a domain of continuous inevitable conflict. The best result achievable in this domain is to restrict the conflict to peaceful, constructive debate and enlightened rivalry.
2. The Ethics of Intellectual and Political Responsibility
Max Weber insisted on the distinction between the Ethics of responsibility and the Ethics of conviction. Yet there is still a need to clarify the interaction between these two levels of practical moral conduct, especially in the light of the new ethical challenges product by discoveries in biology, the problems of genocide, crimes against humanity, humanitarian help in many places in the world, international terrorism and the movement of people across rigid political frontiers. I would be very cautious with the ethics of conviction in the sense that a suicide attack by terrorists, as has been repeated in the second Palestinian Intifada, has for each individual perpetrator and his whole community a highly valid legitimacy based on deeply-held, sacred ‘convictions’. We know how each attack of this kind generates a more ‘civilized’, less ‘barbarian’, more legitimate ‘reprisal’. It is an historical fact that since the creation of the State of Israel, there has been no single national or international instance of authority which has been able to put a stop to this circle of violence by means of a just solution to the conflict. It would be wrong to speak only of political and ethical failure; the concept of intellectual responsibility needs to be introduced here. My contention is that intellectual responsibility cannot be separated, put aside, or even more so, deliberately ignored in any reflexive process leading to political and ethical decision-making. If it is accepted that the building process of a rule of law, with its related civil society, cannot do concrete, full, continuous justice to human dignity in all contexts, at all times, in all cultures and all regimes of truth, one can no longer ignore ‘convictions’ founded on religious belief, philosophical options and social solidarity. That is the meaning of my chapter on believing and the human subject.
The ethics of responsibility means that any political, scientific, religious, ecological or economic decision engaging the future of all living generations, as well as those yet unborn, should evaluate all the consequences of each decision for the immediate present and the foreseeable future. President Bush recently refused to subscribe to the international ecological agreement to reduce air pollution in the next few years; similarly, the Clinton administration refused to endorse the creation of the Penal International Tribunal, to say nothing of the US refusal to pay its annual dues to UNESCO and United Nations. All these decisions raise problems of the ethics of intellectual and political responsibility concerning the state as applying rule of law and the civil society which supports or rejects this rule of law as applied by the state. The immediate pressures of Realpolitik have made obsolete any reference to the ethics of responsibility not only in matters that depend on the decision-makers at the highest level of government, as well as in the domain of scholarship, scientific researh and the teaching or scholarly transmission of the knowledge produced by the most reliable scholarship. Certain scholars have chosen to focus their research on what Pierre Bourdieu in France has illustrated with the concept of reproduction. The idea is that scholars are not always innovative in their methodology, approaches to aspects of reality, vocabulary and systems of thought and interpretation; they tend to reproduce the substance and cognitive framework of what is already available, supported and imposed by the academic establishment. This attitude has clear repercussions on the shape of government, the style of governance and the type of civil society that is necessarily dependant on the scientific culture and the space of the thinkable created and transmitted from behind the scenes on the highest level. In other words, the rule of law is more the product of a political philosophy (or theology in the case of states tied to an official religion) than it is the direct initiator and manager of the dominant mainstream of what I call the shared space of the thinkable. The intellectual, ethical and scientific scope, the thematic dimensions of the thinkable tolerated in each regime of truth, 2 is itself the product of interactive sociological forces, collective memories and social imaginaries on the one hand and the type of political regime imposed by the central state on the other. In other words, the dialectic evolution of the two main factors called the rule of law and civil society is so complex and specific to each society that its investigation cannot be restricted to an extensive logosphere such as the native speakers of Arabic, Persian or Hindi, the Muslim community that is often confused with ‘Islam’, modern, secular societies or ‘Islam’ and the ‘West’. Consultants, administrators, engineers, bankers, the uncultured, illiterate and ideologically motivated politicians are the modern protagonists who cross every social, economic and political divide in order to shape the ‘spirit’ of the nation, i.e. its arbitrarily defined identity, regardless of the historical, cultural, religious and scientific differences between societies in which modernity emerged and shaped new mentalities with critical regimes of truth, and those societies in which the same modernity has been imposed from outside, and is manipulated and instrumentalized as a disintegrating, alienating, delinquent force. The intellectual gap is not only widening between developed and underdeveloped societies. Sociologists have produced a more complex picture; the attention paid to intellectual responsibility, together with the ethics of responsibility and conviction, is certainly more effective in democratic societies than it is in vassal states and disadvantaged societies, but it remains generally restricted to social categories such as critical intellectuals. In other words, the developed world has active supporters in each satellite country striving for its emancipation through inadequate systems of thought, forms of rationality and institutions. The defenders of national interests and identities during wars of liberation, have managed to live in social, cultural, economic enclaves in their own societies while simultaneously procuring advancement for themselves to the more enabling level of the professional categories in the ex-colonial, developed societies in which they are choosing more and more to live. This worldwide re-composition of social links, ideological alliances and visions of the future is not the result of the ‘brain drain’ phenomenon, lack of political security for innovators and entrepreneurs, or the economic necessity of finding employment, when it is mostly to be had in the wealthy countries. It is also a manifestation of the historical failure of those nationalist regimes that emerged after so-called liberation from the colonial domination. Through their individual political options, people who were unable to enjoy modern, completely reliable citizenship in their own countries are proving that civil society and its correlated rule of law are the basic attributes of a worldwide modern polity. Emigration to foreign countries or to social and economic enclaves within oppressive regimes has two consequences. It delays the emergence of a civil society in disabling societies and it enhances the construction for the future of pluralist spaces for a wider citizenship in advanced democratic regimes. These critical observations need to be expanded upon by introducing some key substantive themes, often considered by those who aim to bring about the rule of law to a civil society, and moving from utopian aspirations to the concrete historical empirical ground of states, societies, nations and international institutions.
The key substantive themes are those related to the distance, if not the brutal split between the total triumph of the tele-techno-scientific civilization that leave all the pre-modern societies with their traditional cultures totally marginalized, excluded from the new imaginary of progress and intellectual emancipation. This divide and its political, economic, cultural consequences cannot be compared to what prevailed during the late 1960s and the 1970s, when the ideology of development-underdevelopment was taken care of by the two competing solutions of the socialist-collectivist secular revolution, as opposed to the liberal bourgeoisie contention that economic progress could not be achieved without a democratic rule of law as the protector of human rights and those of the citizen. The post-colonial states could thus sustain the political illusion that poor societies would able to achieve their industrialization in a shorter time than Europe had done in the nineteenth century, since this was considered as the required first step for attaining a rule of law and a civil society more concretely committed to social justice and political freedom. This ideological representation of the future of a common world civilization was the determining factor in the Cold War. When the Communist supporters of Socialist Revolution disappeared from the political international scene, the Third World regimes demonstrated their failure to offer a workable alternative vision of the future of those many peoples and cultures exposed to stronger dismantling forces than those of the industrialization and urbanization that had been experienced in the previous century by the First World, but in this case without the massive, radical uprooting, disintegrating process of the peasantry. The majority of the Third World regimes had to replace their so-called Socialist liberation plans by a reversion to a traditional faith-driven ‘national identity’. This ideological leap prevailed in Muslim contexts in which the demographic explosion provided a large sociological basis for the so-called ‘Islamic revolution’.
Many ‘organic’ intellectuals supported the new historical alternative to the previous secular, revolutionary model. In both cases, they supported recurring demands for the restoration of ‘national identities,’ officially related to an illusory, imaginary, defective representations of ‘Socialism’, and to an even greater extent of ‘Islam’ because illiterate peoples could relate more easily to Islamic justice than to ‘Socialist, secular’ justice. The role given to this imaginary ‘Islam’ expanded so quickly and widely throughout the world that it has itself become the most unwieldy unthought in contemporary Islamic thought. It involves systematic references to an Islam that is isolated from the most elementary historical reasoning, linguistic analysis or anthropological decoding, operating as a psychological, cultural and intellectual obstacle to a serious approach to the major twin themes of rule of law and civil society. The constant amalgam between the modern cognitive framework and the West depicted as a hostile, destructive force imposed on Muslim societies and culture is systematically used as a decisive argument in order to preserve ‘Islam’ from all the intellectual and scientific challenges.
A stronghold has been thus created in which a large number of social protagonists, including the ‘ulamā’, intellectuals, scholars, jurists, physicists, journalists, politicians and wealthy influential citizens, can present themselves as the defenders of an ‘orthodox’, ‘authentic’ dogmatic Islam while simultaneously enjoying a comfortable, privileged lifestyle in social, economic enclaves that are closer to the civil society in Western democratic regimes than they are to the overwhelming sector of their own society (workers, peasants, low-grade civil servants, the unemployed, women as a marginalized category). This socio-economic segregation is the result of the political will imposed since the several societies gained their independence. Of course, it has had many adverse consequences on the new expressions and distorted functions of religion, the lack of a civil culture common to the global society, the strategies used by the state in order to balance the conservative ‘religious’ opposition with the secular modernizing trends, or the reverse, according to King Hassan II's metaphoric definition of fundamentalism as a ‘fecund fuel’. Where can change come from if there is no leading group, no authoritative creative voice capable of initiating a reliable plan of action for a modern polity in a dynamic, challenging historical environment? Any intervention from outside would generate violent indignation in the name of the state sovereignty; diplomatic relations are limited to negotiations about trade, transfer of technology, economic assistance and immigration problems; there is no place for cultural, scientific or educational issues for improving the communication of common values and preventing the clashes of the so-called ‘conquering civilizations’. To shed more light on these matters, we need to consider the tensions between the conceptualisation and the values proposed in the traditional construction of the siyāsa shar‘iyya or wilāyat al-faqih expounded in militant Islamic discourse in order to challenge and dismiss the Western concept and practice of the rule of law and civil society.
3. Siyāsa Shar‘iyya, Rule of Law, Civil Society
How can the rule of law and civil society be located within political and religious culture using the thought processes claimed by contemporary Muslims as the ultimate legal instance of authority on which an ‘authentic’ Islamic governance should be exclusively based? Those who defend this position minimize, ignore or even reject a fruitful dialogue, and refuse to identify any reliable, universal model leading to garnering legitimacy for the planned civil society. They constantly point out to failures, deviations, perverted ideologies and unfulfilled promises of all the existing models experienced in several democratic regimes. The historical experiences of Europe and North America societies offer the possibility of detecting the solid, sustainable elements of a dynamic civil society. One example is the very successful French law of freedom of association promulgated in 1901. This also makes it possible to falsify — according to Karl Popper's definition of falsification — theoretical visions based on purely ideological options in Muslim contexts. This is the only way out of the recurrent conflicts about religious and secularized models, Oriental and Western ‘values’, the universal and the local outreach of human rights, etc. For this search, the ‘light’ of both Euro-American and Muslim post-colonial experiences might be helpful on condition that both are approached through a radical criticism. The failures of post-colonial states to foster a democratic civil society should be clearly identified with their actual internal genesis and external contexts. Describing the opposition of fundamentalist defenders of a so-called ‘Islamic model of state’ to the existing regimes accused of introducing Western secularized norms and institutions is insufficient. In fact, all states in all countries have more or less used and imposed Islamic references and a will to protect the Shari'a; there is a mimic rivalry between the state and the opposition, to outdo each other in closeness to the ‘authentic’, ‘pure’ and ‘original’ teachings of the Qur'ān and the Prophet. This debate on old theological, exegetic and legal issues unknown historically to both protagonists, has overwhelmingly occupied the political space and eliminated the intellectual and scientific endeavours to trace a clear-cut line between the ideological, instrumentalized so-called Islam, and two other problems neglected and maintained in the unthinkable and the unthought: the historical, doctrinal Islam, according to the critical studies published since the last nineties (see the bibliography) on the one side; and the crucial new debates enlarged and enriched by the current experiences of the European Community, in particular, on the other.
In my upcoming book Penser l'Islam aujourd'hui, I have devoted a long chapter to the critique of juridical reason in contemporary Islam, to show the extent to which existing political regimes and their Islamist conservative opponents disregard books dealing directly with major issues of the Sharī'a, like those of B. Johansen, G. Makdisi, N. Calder, W. M. Ballantyne, D. J. Stewart, B. Weiss, W. B. Hallaq and many others. Even among those who can read English, French or German, there is a reluctance to trust ‘Western’ scholars on Islamic matters of ‘faith’. This means that faith is not a matter of critical knowledge, but only of orthodox reproduction of what the ‘Tradition’ B itself preserved from any criticism B has transmitted since the age of the ‘pious anestors’ (al-salaf al-⋅āliḥ). The result of this policy and mental attitude is that the modern conceptualization of the rule of law and civil society is continuously postponed until a future is to be found in the past, not to be invented, imagined, planned and made present with relevant decisions. The more public opinion is receptive to the idea that sharī'a should replace all secularized laws and institutions, the more likely that freedom of expression and publication is restricted to what the state, the dominant opinion or both, allows. Examples of this can be observed in several countries and contexts inside and outside the Muslim world. Another contradiction should be mentioned here: many intellectuals, writers, artists who stand on the side of democratic values prefer to stress the responsibility of the West in supporting conservative regimes than to insist on the role of national so-called ‘elites’ who have monopolized political power since the independence of each country. We shall come back to the role of intellectuals and their status in society later.
Such aspects and critical analysis are not always properly integrated into the currrent research programs of political and social sciences, which prefer either to maintain the descriptive, narrative erudite presentation of the ‘facts’, or to endlessly point to the abstract, biased theory of the ‘clash of civilizations’ built, on what I call the ‘intellectual irresponsibility coupled with an obvious ideological vision of the present map of geopolitical and geocultural spheres in the world’. This is a matter of top priority in negotiations between democratic states and all post-colonial states, where the democratic culture and modern legal and philosophical frames of thought are dramatically absent. Therefore, a strictly shared modern, legal, historical and philosophical culture should take precedence in all negotiations between states and peoples around the world; this would fill the intellectual and institutional gaps created by the colonial period, and deepened by nationalist, alienating and authoritarian policies imposed by the post-colonial states of an imagined, arbitrary so-called identity opposed to the ‘cultural aggression’ (al-ghazw al-fikrī) of the ‘West’. It is true that the Western discourse on democracy and human rights, presupposes the existence of a reliable, already set model of rule of law and civil society in all ‘backward’, traditional and patriarchal societies. At the same time as those official voices urge the spread of democratic responses to the current history, they continue to support conservative regimes strongly opposed to the rapid and successful emergence of a strong, efficient civil society. In the case of some states, like Morocco and Turkey, candidates to the European Union and later the Community itself, but as long as Islamic institutions, laws, customs and culture officially prevail in these regimes, it will be impossible to harmonize the legislative process, the sine qua non condition, to the admission of new members. This is a very significant and concrete case study testing the possibility for contemporary societies claiming an Islamic identity, to radically rethink this identity in the framework of a criticized, enlarged, eventually revised intellectual, scientific and secular modernity.
From this perspective, there is also a difficulty on the side of the European approach to political debates in the modern polity. We mentioned the issue of intellectual and ethical responsibility. It is currently debated by several NGOs, that priority should be given to the capacity-building of an ethical reasoning and judgement process. Certainly, ethical reasoning is not only weakened, if not totally absent, but made obsolete by the triumphant experimental, empirical, pragmatic and managerial reasoning spread by the social, political and managerial science. Long ago, R. Musil described the substitution in industrial societies of the Man without Qualities (L'homme sans qualités) to the traditional man, trained to aspire to ideals codified in rigorous ethical and civic programs of education. At the same time, Guy Debord showed the other shift, from societies of personalized relationships to the ‘society of spectacles’ (La société du spectacle, 1967). Even philosophy tends to comply with the rules of the ‘society of entertainment’ when authors supported by the media, focus their reflexive activities on the problems and ideas raised within the limitations of the national language, cultural identity, religious or positivist tradition of thought. We have witnessed this phenomenon in France with the wave of ‘new philosophers’ after 1968. The culture of disbelief and the criteria of economic and political reasoning have marginalized, disqualified all forms of ethical discourse, except in the idealist apologetic sermons of religious leaders and official calls for a civic secularized conscience. Both discourses hide, or exclude, the urgent need to reactivate ethical concerns with the task of building civil societies as new historical platforms for the genesis of a worldwide space of solidarity and citizenship, foreseen and claimed by a still reduced number of influential voices. The concept of worldwide space of solidarity and citizenship is not considered in the diplomatic discourse and geopolitical strategies of any contemporary state, especially the Western democratic states who are rather developing theories of clashes, threats of fanaticism, violence, terrorism, Islamist/Islamic movements against ‘Western values and civilization’. This Manichean dualist frame of the present geopolitical struggle is becoming the main obstacle for a serious consideration of the building process of a worldwide space of solidarity and citizenship.
Mindful of all these observations, we shall explore three issues which, in my view, have prior relevance to the necessity of moving from a diplomacy of national interests and hegemony to a new vision of history based on two harmonized principles: the protection of specific national cultural rights, and the commitment to a common effort to reach a worldwide space of solidarity and citizenship:
- Beyond the dichotomy of religion vs secularism.
- Rethinking the trilogy religion, ethics, rule of law.
- The status and the role of ‘intellectuals’ in Islamic contexts.
3.1. Beyond the Dichotomy of Religion vs Secularism
This dichotomy is the product of history; developed by religions claiming the monopoly on Truth 3 as a whole: the truth of beliefs and non-beliefs, the truth of the Just Law, the truth of the answers to all questions in the universe, physical phenomena, terrestrial history and the history of salvation, life and death, human nature and activities, etc. Reason, imagination and memory are associated in the articulation, the transmission and the protection of the Truth, from deviations, destruction and negation. All these definitions and strategies that deliver, explain, teach, apply and protect the Truth can be called the ‘religious regime of Truth’. Pre-modern states have adopted, supported and utilized this ‘regime of Truth’ as the ultimate instance of their legitimacy; the ‘managers of the sacred’ (priests, rabbis, imams, wise men) and the secular rulers agreeing to respectively share their responsibilities B religion being the instance of authority, the state, the instance of power B to implement, serve and protect the Truth to which the head of state himself submits as a human being. The alliance between religion and politics has generated a dogmatic control on all levels of the ‘subjects’‘ life and expression, submitted to the religious law itself as mediated by the ruler and his delegates. Modern revolutions have substituted their own ‘regimes of Truth’ to the religious ones, which are still claiming full validity against the most constraining scientific evidence established by linguistics, critical history, cultural anthropology, psychology, historical epistemology, etc. Scientific arguments cannot remove religious Truth once rooted in the human subject; it can be transformed, focused on different ‘values’, activities, but the ‘ethics of conviction’ continue to determine the perception, interpretation and motivation of each person. This construction of the subject needs to be better studied along with the scientific knowledge, used as a mere expertise and technical reproduction, which superficially affects the deep psychological, emotional structure of the individual's life. For this purpose the French Revolution is a rich case study: it was particularly violent and radical in its will to overthrow the ‘old Regime’ and a king invested with the divine Right as sacralized by the Church at Reims. When Louis XVI had been judged and executed by the courts in the name of the sovereignty of the people, the sacralizing power of the divine Right was finally abolished. When Khomeini came to power in February 1979, he did just the opposite of what the French revolutionaries imposed: he decided to arrest the Shah, presenting him as Fir‘awn, the Qur'ānic symbol of the unjust ruler who usurped the right of the charismatic guide to enforce God's law on earth. That way the Shah could be arrested, judged and executed in the name of God as represented by the Imam.
In human affairs, all things start with mystical, high hopes, transcendentalizing visions to end up with politics, and the constraining power imposed by a ‘legal’ violence. The chronological order of the chapters of the Qur'ān ( sūras) as presented by the Muslim tradition, suggests this process: the last sūra ( al-tawba) contains the verse 5 called by jurists the sword verse and several polemical verses addressed to the Peoples of the Book and those Arabs who refused to participate in the Just war ( jihād) against the idolaters (see chapter 3). This historical, anthropological and psychological fact should be integrated in our reflection on the conditions of the emergence, construction and positive use of civil society. If we still need to search for Just governance as the sine qua non condition for building the capability of becoming a civil society, we should also pay more attention to violence as a structural force at work in each society. We are accustomed to speaking of violence just as the religious sermons and the civic training of the citizen in secular, democratic regimes have taught us. Violence is linked exclusively to the others, perceived, described and condemned as barbarians, uncivilized and uneducated, who are ignorant of the true teachings provided only by the True Religion, or the true philosophy, the objective history taught in the public schools of the modern laïc4 state. If we consider French or American newspapers produced at the time of the Vietnamese and Algerian colonial wars, or Israeli literature about Arabs, Muslims and Palestinians, to say nothing of Communist and Nazi literature, we come to the conclusion that the building process of any type of society involves at some level, in given circumstances, the Manichean split between a civilized, cultivated, peaceful, humanist we radically opposed to a terrorist, fanatic, rebellious, unenlightened he/them. This sociological psycho-cultural rule also applies to the foreign immigrants in modern civil societies, in the spite of the legal attempts to correct the situation introduced by the rule of law. Structural violence is also manifested in the field of education. The intellectual competition between different schools of thought is translated into political rivalries leading to the monopoly of legal violence exercised by all types of states, including those built on democratic majorities. These short historical, anthropological remarks show clearly that religion and secularism are mostly handled as polemical concepts referring to contingent ideological regimes of Truth. This contingency is already displayed in the founding texts of the three monotheist religions. God himself is involved in the polemical disputes and violent conflicts between the true, loyal believers and all the groups who, for various reasons, refuse to receive and hold on to the true Revelation. This polemical framework is accepted, enforced and perpetuated in the religious Law developed by theologians-jurists recognized as orthodox authorities of the three religions (Jewish Law, Christian canon Law, Sharī‘a). European revolutions endorsed the same polemical affirmative action leading to the triumph of a lay/secular regime of truth. The most important problem here, that has not yet been fully and convincingly addressed by modern historians, can be explained in the following terms.
While in Islamic contexts, the stakes of the battle as shaped in the paradigmatic, Prophetic Discourse, ended with the political and cultural defeat of the philosophical, scientific regime of truth, in Europe — mainly Catholic and Protestant Europe — the contrary happened, after the contributions of Descartes, Spinoza, Leibniz, Locke, Hobbes, Rousseau, Diderot, Voltaire and many others. Critical reasoning was directed at the task of building modernity as an alternative framework of thought and action, while religious reasoning in Islamic contexts has not only survived until today, but has consented to regress from the intellectual, scientific levels it reached in its classical period (700–1400). Muslim supporters of the reformation movement (i⋅lāḥ) that began in the nineteenth century and lasted until 1940, had an apologetic, naïve answer to this question. They claimed that regression back to the ‘authentic’ Islam taught by God and his Messenger started with the opulent, materialistic, secular civilization that prevailed under several dynasties and contemporary regimes. Muslims went astray and deviated from the ideal Righteous, God-given Rule which can be recovered and restored by learned, pious, reliable authorities … this genuine mythologization of the mythical structured message of the Prophetic Discourse was defended as an answer that challenged modernity and would be replaced after 1945, by the nationalist, secular ideology of liberation. The transition from i⋅lāḥ to the so-called socialist revolution lasted until the late 1970s, when the political failure of the post-colonial regimes with a single-party system opened the way to a fundamentalist Islamic solution, or radical Islam.
In the present crises of all regimes of truth and inherited systems of legitimation, the new waves of ‘believers’ are happy with ‘the return of religion’ as a platform of resistance to the ‘materialist’, secular, corrupted, corrupting regimes; but they are unable to rethink the new status and functions of this religion manipulated, in fact, by politically oriented and obscurantist ‘leaders’. In European contexts, the social sciences provide more reliable approaches to the religious phenomenon and its traditional and contemporary expressions. At the same time, the secular regime of truth is revisited and reinterpreted in the wider perspectives and the new cognitive frameworks offered by the combined revolutionary discoveries of social, information and hard scinces. The intellectual and philosophical follow-ups of the technological leaps with their impact on contemporary societies as well as on the formation of the new human subject, is obviously not in the line and on the level of the hopes, demands and repressed needs of various populations and social classes. We see, rather, a growing fear and anger in the face of so many forms of violence generated by the powerful and obscure forces of globalization. As far as Islam and societies referring to it are concerned, acts of terrorism and physical violence in the name of a so-called Islamic Revolution, have replaced the reformist discourse (i⋅lāḥ) in reactivating the so-called ‘authentic Islam’ bequeathed by the pious pure sanctified Ancestors, al-salaf al-⋅āliḥ. Examples of this structural move are provided in several contemporary Islamic contexts. The social, political, cultural and economic conditions to generate or negate the emergence of a modern peaceful civil society, are changing as a result of tragic murders and ideological pressures. The search for a more concrete, effective, liberating interaction between thought, knowledge and action is again delayed and distorted, if not deleted by uncontrolled, invisible forces. Obviously, these forces are not only opposed to the orientation I am proposing, but the majority of social actors are prevented by political, social, economic, cultural impediments from even thinking of the possibility to take the initiatives precisely required to get out of their present impasse. Demographic pressure, unemployment, social marginalization, material, psychological and sexual frustrations, precarious conditions of daily life, authoritarian distant state, inefficient bureaucracy, irrelevant system of education, disintegration of cultural, ethical and semantic codes, uncertain future and populist religious expressions. These are themes for sociological analysis to show how problematic and, indeed, almost impossible is the emergence of a civil society with all its attributes, institutions and functions.
More will be said about the status and the role of ‘intellectuals’, the place and levels of cultural life; but we can already make the following statement as regards the disputed issue of the separation between Mosque and State as institutional entities. A brutal separation along the lines of that used by Kemal Atatürk to eradicate Ottoman institutions, cannot be on the political agenda of any party in power as long as the state ultimately remains patrimonial and the social mentalities are deeply shaped and commanded by patriarchal kinship mechanisms. I have observed these common features in all the Muslim countries in which I have lectured from Indonesia to Morocco, from the Caucasus to South Africa. Systematic ethno-linguistic surveys of all contemporary Islamic contexts would show how gender segregation is reflected in the separation of private and public space, in the division of daily work, in the vertical power of the father or the elder bother, in the culture transmitted by the mother to her daughters, the father to the males. When rural or nomadic populations are uprooted and move to the slums surrounding the overpopulated cities, the patriarchal order breaks down, to be replaced by a specific populist system of inner solidarity and outer hostility which deserves the special attention of sociologists. A rampant secularization permeates these emerging micro- societies through the media, but the intellectual and cultural dimensions of what we call secularism in Western contexts — more specifically in Western Europe — are as absent and unthinkable as they are in the upper, wealthier classes in whom material modernisation is too often combined with cultural traditionalization. Under such socio-cultural and anthropological conditions, asking for a separation of Mosque and state is just imposing a foreign formal ideological model on societies in which the problem of increasing structural violence, reflected in the architecture and urban fabric, is not addressed either by the patrimonial states, nor by the ‘élites’ obliged to negotiate their conditional freedom with the powerful bureaucracy or levels of power at the service of the established regime.
The issue of religion, ethics and rule of law deserves further clarification.
3.2. Rethinking the Trilogy of Religion, Ethics and Rule of Law
I singled out this issue just to determine under which conditions and in which sense references to religion and ethics can be relevant to set a rule of law and locate civil society in Islamic contexts. In other words, when we consider the case of Islamic contexts, we need to re-examine from the outset the principle accepted by the majority of Muslims, according to which Islam is simultaneously religion, state and society, the three inseparable ‘D's — Dīn, Dawla, Dunyā — often discussed in classical Islamic thought. 5 The rule of law and civil society are the result of modern conceptualization, based on the legal and institutional principle of the separation or autonomy of the religious sphere with its specific, theological speculation on spiritual and ethical values, and the political sphere with its secular, philosophical approach to governance, legitimacy, popular sovereignty, positive law and the separation of the three instances known as the legislative power, the executive power and the judicial power. In the modern concept of political legitimacy, God and Revelation, prophetic authority are no longer the source of the True Knowledge, the Just Law, the ultimate spiritual and ethical values; all types and levels of which are called values. They are doomed to be re-discussed and reassessed in the perspective of the interface between political theology and reflexive philosophy, unless theology and philosophy are totally separated, pursuing different lines of thinking to create two competing frameworks of thought, interpretation and action. This is exactly what happened historically in the development of Islamic thought. After the death of Ibn Rushd (1198), the creative interface between theology, religious law and philosophy was disrupted; theology as a rationalizing attempt at faith building or even criticism, disappeared after the thrirteenth-fourteenth centuries; schools of law stopped their disputations ( munāẓara) and became isolated from each other; ethics elevated by Miskawayh (1020) to the rank of a key discipline in the curriculum of a learned humanist human subject, 6 was disregarded as well as a critical, rationalizing endeavour to consciously discern the positive, operative, emancipating virtues from the traditional, uncriticized, unthought collective habits ritually reproduced in patriarchal societies. We cannot ignore this historical transformation of the intellectual scene in all Islamic contexts from around 1300 to 1850. The second radical transformation of intellectual activity concerning all the issues related to the three ‘D’s, began after 1945 and is still in progress. All so-called Muslim societies have been challenged by the modern intellectual, institutional shift that occurred in Europe during the seventeenth and eighteenth centuries, but they had to be cautious and finally reject a historical experience introdcued from the outside under colonial domination. There is an urgent need to rewrite the whole history of the colonial phenomenon, bearing in mind the important distinction between the local traditional cultures of the colonized countries and the colonial, ideological translation, in the nineteenth century, of intellectual modernity by Europeans themselves for their own peasant population and industrial workers. The colonized societies were actually based on the patriarchal system more than on Islamic Law and ethics. That is why I prefer to speak of Islamic contexts, or the so-called Muslim society in order to escape from the ideological confusions spread throughout the contemporary world by Muslim discourses ‘objectively’ (I mean by that, without any deconstructive criticism) transcribed, reported by the media and even a great number of well known scholars.
Highly respected and influential Muslim personalities and leader refer with pride and conviction to the intangible superseding Islamic spirituality and Ethics, without taking into consideration all that I have just mentioned about the historical, sociological and ideological transformations inside Islamic thought itself on one hand and the undisputable challenge of modernity as a mental, historical shift, on the other. Such positions based on personal belief, or constraining responsibilities for those in charge of religious, political and educational leadership, contribute to maintaining the ideological, apologetic confusions and, as a result, delay the inevitable radical criticism of values — whether spiritual or ethical — introduced by Nietzsche in his Genealogy of Values. Because this criticism is ignored and unthinkable, of course, in its philosophical inspiration and consequences, wherever the neopatriarchal regime of authority, values and truth is prevalent, ethical thinking cannot articulate today for pluralist civil society a single normative code of ethical ‘values’. This is the experience of many national ethics committees for the life sciences. I was a member of the French committee from 1990 to 1998 and I know how each member was very careful to not refer to his personal scale of ethical values to share the consensus of the committee on the basic universal principle that the dignity of human person should take precedence in all the positions publicly declared in the name of the committee. This is the typical French laic approach to the issue of ethics in a pluralist society.
The debate remains open as to the philosophical postulates of different approaches to the ethical issue. There is a place, of course, for a specific approach in each of the religious traditions; but there are also a number of common founding principles recognized by cultural anthropology in traditional and modern systems of thought. My contention is that philosophical ethics and Islamic ethics developed as two competing, differentiated systems until the eleventh and twelfth centuries. The competition ended with the elimination of the philosophical trend of thought; this historical fact generated an intellectual handicap and a cultural gap which prevent contemporary Islamic thought from joining in the debate on ethics on its constraining level: namely biological, anthropological, sociological, psychological and ultimately philosophical. Insofar as ethics and law generate knotty problems that need to be unravelled, the Islamic rule of law, with its relevant civil society, cannot be proclaimed if we do not even recognize that we have inherited from classical Islamic thought many such complex problems that were left untackled in the reject pile of unthinkable issues. Religion and secularism are just frameworks of thinking and interpreting which generate different knots, with the important difference that in the religious framework, values and legal norms are sacralized, deified and declared intangible, while in the secular framework, all values and norms are doomed to change, to be changed under the pressure of historicity.
Mindful of all these considerations, we can trace a programme of research and action to enhance the emergence of a rule of law, with its civil society, in Islamic historical contexts. An outline of the programme of research is proposed in every chapter of this book. The problem is that such a programme cannot be considered either by the popular and populist sector of societies, nor by the upper class of managers, entrepreneurs and decision-makers. It cannot be supported either by the existing political regimes whose legitimacy is radically subverted in terms of the critique of religious, legal, historical and anthropological reason and cognition. States in general do not mind of this kind of subversion, as long as it cannot affect the social ‘order’. ‘Successful’ politicians are those who detect and monitor the main structuring representations, expectations of the social psyche to manipulate it with an appropriate ideological, mobilizing discourse.
The most impressive illustration of this strategy is provided by Khomeini's conquest of power. His discourse mixes religious symbolism of righteously guided Islamic governance with prospects of eschatological salvation, judgements rooted on the Shī’ī high instance of spiritual authority (marja’ altaqlīd and last, but not least, an exceptional sense of political action. Another example of this attention given to the social psyche as a springboard, a social platform for legitimizing the monarchy and its head, is provided by the late king Ḥassan II. He supported a policy of traditionalization while fully supporting the modernisation of sectors of social development, apart from so-called personal status, especially concerning the legal status of women, the religious institutions of learning and places of worship, the ceremonial of allegiance to the king and the royal family and the ceremonial of religious teaching during Ramaḍān lead by the king himself, with his sons seated on the ground to listen humbly to the teachings of God, delivered from a magnificent seat symbolising the throne of God, by learned men officially invited for that purpose. A third, different example is provided by the Algerian president, Houari Boumediène, who imposed a socialist collectivist government inspired by the Soviet regime, but supported a paralleled policy of Islamization through the annual Seminar of Islamic Thought, the University of Islamic studies on the model of Zaytūna in Tunis, Qarawiyyīn in Morocco, al-Azhar in Egypt, and the great number of mosques built throughout the country. Boumediène thought that with this dual strategy he could introduce a ‘modern’ Islam, compatible with the socialist collectivist ideology brutally imposed upon the Algerian peasantry and pastoral nomads of the Saharan Desert. This tragically mistaken vision translates clearly into the emergence of the FIS party and the civil war that broke out in 1990, illustrating the devastating political and cultural consequences of the unthought in contemporary Islamic thought.
After such conclusive experiences (I could give more examples), the question arises: as to what kind of contribution can be made in the ongoing battle as to the type of state and civil society are claimed by two radically opposed visions. The stakes in the battle become ever more similar to those engaged in French Revolution versus Roman Catholicism, that began in 1789. But there are decisive differences. Islam with its so-called ethics and law were radically changed after the use and abuse made of it for mere political, ideological purposes by all the regimes that merged in post-colonial societies. Even the five canonical obligations deviate, in many aspects, from their essential meaning as spiritual expressions of the human person, and are transformed into an ostentatious display of social and political loyalty, or even into opportunities for small and big business, during Ramaḍān and the Ḥajj. Mosques are used, either by the state or by religious parties, as places for political militancy Scarf, veil, keffiyeh, moustache, dress and other ritual are also transferred to the semiological expression of political options under the cover of religious faith. The re-conceptualisation of Islam as a religion becomes impossible when the frontier between religious expression and political struggle is blurred in almost all daily activities and discourses. I personally experience this obstacle in every lecture I deliver, even in Europe and America, at which Muslim attendance is always high.
Intellectually and scientifically, there is no way of subscribing to the apologetic anhistorical confusion which projects back on an ‘imagined’ Islamic tradition, separated from the historical facts or about selected fragments from the Qur'ān and ḥadīth, a so-called Islamic democratic model, with an Islamic constitutional Law. 7 It is possible that some formal aspects of the modern rule of law are recognized and incorporated into ‘Islamic’ regimes such as the Iranian one initiated by Khomeini. But the question arises: either the empirical, pragmatic experience of Iran since 1979, eventually leads to the process of an original articulation of the religious sphere of authority within the political sphere, similar to the one accepted long ago in United Kingdom, or it ultimately fails to integrate intellectually, spiritually, politically, legally and institutionally the whole modern re-conceptualisation of the three ‘D's in Islamic thought. In the first hypothesis, we can speak of the first radical revolutionary mental shift through the whole Islamic tradition with major historical consequences for all the societies linked to the Islamic traditional model; in the second case, there are again two possibilities: A rule of law with its civil society founded on specific Islamic principles, attributes and style, is historically viable not exclusively for Muslim believers, but in the sense that it would be an intellectual, spiritual, ethical, legal and institutional challenge to the so-called secular model achieved and presented in Europe as universal, or at least universalizable. Without such a challenge, the viability of an Islamic polity would be at most functional in terms of psychology, cultural expressions and chronological duration, since it would be limited by the contingency and subjectivity of what I described as the dogmatic theological enclosure. Teaching Islam as a system of beliefs and non-beliefs is compulsory at all elementary and secondary levels; children and students are taught that there is no point in teaching the history of religions, even less a compared anthropology of religions, since the Qur'ān has clearly and for ever ‘demonstrated’ with irrefutable ‘arguments’ that the cycle of revelation is closed and all previous religions are abolished. The psychological result of this teaching desired and paid for by the state to support the official religion, is that historical, anthropological reasoning is utterly inconceivable. I have given many lectures on social sciences as applied to the study of Islam to various Muslim audiences; regularly, I should say ritually, the first question I generate is: ‘do you believe that the Qur'ān is the word of God or not’? As it is phrased, the question aims to deny whatever is proposed and explained in order to retreat into the dogmatic enclosure. The most remarkable and also disappointing phenomenon is when women struggling for their emancipation, ask the same question after a whole lecture on the history of so-called Islamic law. There is no way to out of the enclosure, the paradise inside the enclosure. Those Muslims who have received a good training in the methodology of the social sciences or on philosophical reasoning would never dare to approach the problem of the cognitive status of revelation as I did in the Chapter 2 of this book. In other words, the search for a rule of law should either include the sharī'a as defined in the classical orthodox collections, or provide the opportunity of offering an unpredictable solution, unless the Algerian, Iranian, Sudanese and Afghan civil wars are deliberately chosen as a third possibility for entering or exiting the dogmatic enclosure. The continuous brain drain is another answer to the lack of communication imposed, as I explained, by the political strategies of the state-party to gain the support of the public opinion shaped with the culture of traditionalization and nationalist identity.
If, on the contrary, we consider the hypothesis of the challenging Islamic model on the level we have indicated, the European model would be intellectually and scientifically constrained to stop looking down on all ancient and contemporary experiences of an Islamic polity. We know how political scientists, historians and philosophers have theorized about what they called ‘Oriental despotism’, ‘Islamic Law’ and so-called Islamic regimes. It is interesting to observe that neither the Japan experience, nor the potential Indian and Chinese experiences are likely to be admitted in contemporary political and legal philosophy as an actual or potential challenge in the sense that we are envisaging for the Islamic historical line of polity construction. It is an indisputable fact that the discourses produced outside the Western/European geopolitical, cultural and intellectual sphere of influence, are purely reactive, at most narrative and descriptive, not active and creative on the subjects and the themes under discussion in this section. In my own terminology, I would say that the existing Western/European model of governance, rule of law and civil society is generating themes, issues, institutions, evolutions and experiences that are intellectually challenging for all other systems and traditions of thought that are still alive in our world; this intellectual dimension remain largely the unthought critically, or a priority programme for critical thinking, especially in Islamic contexts.
The second possibility concerning the Iranian example is that it ultimately fails to produce a challenging Islamic model, just as the Saudī regime, established in 1932, or the much older Moroccan monarchy that dates to the rise of the first Islamic dynasty with Idris I at 789, have failed to do. The so-called Republican regimes, with formal modern constitutions, have been no more successful in handling the Islamic references in initiating a challenging sustainable model and filling the gap between the new leaps forward that we are witnessing in the construction of a new European space of governance and citizenship. It is very likely that political and jurisprudential discourses in Islamic contexts will remain reactive, dependent on the conceptualizations and the implementations carried on within dynamic, self-challenging European thought. There are urgent pressures on the younger generations who are more and more heavily influenced through the worldwide diffusion of a standard culture, to rid themselves of the patrimonial state and the patriarchal social order and affiliate to the more attractive regime of the rule of law with its democratic civil society. How long will the present transition be maintained under the ‘republican’, ‘parliamentary’ veil, hiding the totalitarian nature of several states obviously isolated from their people and rejected by large segments of their societies already committed to building a free, civil society? In the meantime, the rule of law remains a strong claim, civil society an obsessive dream of the populace, a theme of empty official discourse trying without success to offer a prospect of hope to sceptical populations still deprived of the full status of citizenship. It is also a device used by officials to refute the NGO criticism and prevent the objections of international organizations to totalitarian regimes.
We have several illustrations of this struggle for human rights, freedom of thought and belief and expression in societies in which the official religion is stated in the constitution. In Egypt, Tunisia, Malaysia and Turkey, well-known intellectuals and scholars such as Sa'd al-Dīn Ibrāhīm, Na⋅r Abu Zayd are put on trial and convicted just because they introduced discussions on religious issues that had been declared unthinkable, or civic problems casting doubt on the legitimacy of states when they exercise arbitrary ‘legal’ violence. The idea that a rule of law should protect all citizens, even when they debate issues of religious law and ethics is negated, although it might be formally recognized in the constitution. It is true, nevertheless, that in the Egyptian constitution, it is explicitly written that Divine Law supersedes any law developed on the basis of human opinion; this principle provides judges with every possibility of overruling prior judgements in the name of the sharī'a. 8 How can a civil society ever be developed when such a confusing constitutional law exists, that adopts the mediaeval mindset, dating from a time when the theocracies commanded and governed all legal systems in Christianity, Judaism and Islam? Under the secular rule of law, religious and ethical issues can be debated and studied on a scientific basis in the public sphere; they can also be kept in their orthodox expressions in private institutions of learning and practice. Regarding the legal distinction between the public and the private space, several options are debated in Europe; in Islamic contexts, the frontier remains rigid between the private space to which a large majority of women are still confined in many societies, the public space being monopolized by male activities and decision-making at all levels. Changes are certainly taking place, but this segregation has very negative consequences on all attempts to generate a civil society in which the role of women is and will be more and more crucial for the first time in the history of all forms, all places and at all times of Islamic polity. The Turkish example, in which a secular state was proclaimed in 1924, should be examined to determine how far the frontier between public/private spheres has moved in the 77 years of political struggle. I am not speaking only of the socio-legal, visible frontier, but of the psychological, invisible motivations, needs, hopes and criteria also traced in the present conflicting contexts, the deep fault lines between men and women.
All religions and systems of ethics are a matter for scientific research, philosophical debate, sociological and anthropological reassessment. This cannot be done without the protection of a rule of law and the support of a pluralist civil society in which many traditions of thought, many postures of mind and many religious experiences can be tackled. For this precise reason, I repeat that the building capacity of any level of ethical reasoning and judgement is a totally different task and will lead to different consequences in the fields of education, governance and construction of the human subject depending on where it is performed, whether in the arena of lay citizenship or under the control of an official religion imposed by the state. There it a cognitive, philosophical, legal and psychological barrier between the modern and the religious regime of truth. Because such a barrier has existed in Europe since the seventeenth and eighteenth centuries, it became one of the decisive criteria to assess a typology of political regimes, civil societies, the philosophy of law and the status of human subjects which are favourable or hostile to the expansion of an enabling, emancipating, sustainable civil society with the rule of law as its necessary partner. Like all criteria, that which I mention is fiercely debated among ‘religious’ believers and ‘ laīc/secular’ believers. In both spheres, I speak of believers in order to avoid the unjust prejudice that religious believers are not open to scientific criticism, while secular minds are necessarily supporters of enlightening scientific knowledge. Secularism — laïcism in French — had and still has its believers, unconscious of the philosophical, social, psychological and political challenges of their belief, that exist just as they do in the case of a religious society. The Manichean division between the so-called traditional, conservative believers and the modern, enlightened, progressive citizens of a progressive, advanced laic/secular democracy, still governs the discourses of both militant parties, less and less in western societies, but more and more in Islamic contexts. In both positions, as in all doctrinal options, belief is always present. That is why the two opposing parties should start by discussing the place and the role of belief in their philosophical, theological, ethical, juridical, historical reasoning and judgement and their ability to make constructive contributions. This is not yet the case either among the defenders of either one option, nor among scholars who specialise in these matters. 9 The fact is that the laic/secular state has generated a culture of systematic disbelief, rejecting religious reasoning and motivations in the obsolete past of the so-called Dark Ages, while the theocratic states have and are still imposing a stultified culture, rigid rituals and contingent ‘sacred’ law on their hapless subjects (it is not appropriate to call them ‘citizens’ in this case). Christian readers of this last statement will protest at its arbitrary generalization. I should add for their benefit that Roman Catholic Christianity resisted and is still resisting in many places the struggle of reasoning for autonomy and independence from any imposed statement about matters of knowledge, human beliefs and interpretations. We know how John-Paul II is exercising his theological Magisterium after Vatican II. Protestant Christianity, born as one of the first claims for modern intellectual freedom, is often linked with the emergence and growth of secular regimes and culture together with European capitalism. As for orthodox Christianity and Judaism they are in some aspects closer to the case of Islam than to the two first expressions of religion versus secularism. This is the historical and doctrinal platform from which we must start — at least as far as what I have described elsewhere as the ‘societies of the Book-book’ — to open a new historical space for rethinking the inherited systems of beliefs, values and norms, or thinking for the first time about the problems of the present and future. 10What are the implications for the civil society of this necessity to go beyond the dichotomist and the binary thinking of religion versus secularism?
A modern civil society should, of necessity, be pluralist. It provides all the individual citizens belonging to different ethnic, cultural and religious groups with all the required democratic freedoms. Debates are multi-faceted, cross-cultural, cross-disciplinary and are not subject to the restrictions imposed by monolithic religious, ideological communities or nation-states. Dichotomous thinking accepts the Aristotelian principles of contradiction and identity: a proposition is true or false, teaches good or evil. But pluralist logic is more flexible, offering a variety of ways and possibilities for expressing religious values and spiritual experiences through secular, political institutions or philosophical postures. In such a civil society, different cultures and world visions are not juxtaposed without significant appropriate interactions in the same space of citizenship, as has been the case so far in many democratic societies in which communities are situated in specific urban locations; inter-creative activities are made possible, even postulated, by the new style of thinking, the new political and legal concept of citizenship and the human subject.
3.3. The Status and Roles of ‘Intellectuals’
The contributions of ‘intellectuals’ 11 to the conceptualization of civil society in Islamic contexts cannot be assessed if no definition is provided of their social and political status, strategies of intervention in the political and intellectual fields and the reception of their work compared to the large audiences of the ‘ulamā’ who control religious orthodoxy. For our purpose here, it is more enlightening to evaluate the reception or rejection of their interventions than to insist, as is often done, on the eventual relevance and the substance of their work. I have written ‘intellectuals’ in quotation marks to remind the reader of the yet unanswered question: what is an intellectual? In the French philosophical tradition of thought, this debate has been raging since the eighteenth century. Scholars and writers are not necessary intellectuals; physicians, lawyers, journalists, politicians and executives can be intellectuals. To reach the widest consensus about the status and role of the intellectual in any cultural tradition, I propose to consider the following attributes:
- The sine qua non condition for a person to be considered as an intellectual is the constant commitment to the critical function regarding not only all the discussions about cognitive and scientific activity — debates shared in principle by all reputable scholars — but also all the important social, political, religious, ethical and legal issues raised in the current daily life in the limits of the nation-state as well as on the world level. For intellectuals, the critical quest for meaning and the right should in all circumstances prevail on any ideological option even if this option is shared by the greatest majority of the members of one's nation or community. The crucial point is that the critical function applied to concrete existential, social, political, ethical and legal debates should first focus on the suspicion of reason itself, just as the scientist remains suspicious of the results of his experiments in the laboratory. The intellectual is keen to generate, enrich and enlighten the debates with the purpose of enhancing the public awareness of the ultimate stakes of the discussed issues; thus, he brings precious contributions to the process of building a duly informed civil society with a shared civic responsibility and an emancipating sense of citizenship. Every listener or reader should feel more enabled to share the critical thinking on the basis of more reliable information and ways to approach the problems under discussion.
- The second attribute is the intellectual, scientific, moral authority to elucidate complex issues disputed among professionals, political parties, religious authorities, judges, philosophers, historians, etc. To gain this reputation, the intellectual needs to declare explicitly the epistemological postulates which command his own discourse and eventually his personal options as a citizen, believer or a defender of a particular case. This means that he has to listen to all the objections, and take any expressed disagreement seriously in order to rethink, adjust and absorb all relevant facts.
- As a corollary of the attributes mentioned, the intellectual should always regain total independence from any political option, religious or philosophical commitment that would affect the authority of the critical function.
- The discourse and writing of the intellectual should reflect at all times, all levels, the loyalty and fairness to the authors, the social actors and categories, the rulers, the communities, the doctrines, the peoples, the nations, the states, the cultures under debate.
I am aware that I am presenting an ideal archetype; intellectuals themselves need touchstones to pinpoint their positions and initiatives in a full scale of values and responsibilities. The reputation gained by the French writer Emile Zola with his letter ‘J'accuse’, concerning the Dreyfus affair, or Voltaire with the Calas affair, shows how powerful intellectual writers such as the aforementioned or J. P. Sartre, M. Foucault and P. Bourdieu can be, though they also might lose respect, because they have not scrupulously respected the frontier between the critical function and political militancy on behalf of one party, social category, or particular interpretation.
In my L'humanisme arabe au 4e/10e siècle, I have shown to what extent the critical function has been claimed and discussed among intellectuals belonging to what I called the generation of Miskawayh (d. 1029) and Tawḥīdī (d. 1023). The mindset, cognitive options and the activities of these intellectuals in the Islamic polity (al-madīna) can be compared to those displayed on a larger scale, with more appropriate scientific tools and social support, by the European philosophers and writers of the seventeenth and eighteenth centuries. That is why scholars agree now to speak of ‘Arab humanism’ in that exceptional period favourable to the first ephemeral emergence of a type of civil society aware of the necessity and the conditions in which it could attain a ‘virtuous city’ — the madīna fāḍila described by al-Fārābī — based on a strong philosophical trend. In other words, the role of intellectuals in constructing a civil society is crucial either in fostering the process or in allowing it to slow down and fail. It is worth saying more about this dialectic because historically, attempts have been made in Islamic contexts to institute a civil society; but they soon failed, while, as has been said, the process in Europe has been sustained and has been gaining greater momentum since 1950–60.
I would like to focus on a responsibility that is specifically that of intellectuals, mindful of the social, economic and political contexts in which this responsibility can be fully implemented. To develop the concept of intellectual responsibility and its relationship to the process of constructing a civil society, I shall use two examples. One concerns the highest level of authority, namely the interpretation of the Qur'ānic verse 5, 44; the other refers to the lowest social status imposed on marginalized groups almost excluded from many rights theoretically guaranteed to all citizens.
The verse says:
We, indeed, did reveal the Thora wherein is guidance and light; by its norms, the prophets who bowed [to God's Will] judge the Jews; so do the rabbis (rabbāniyyūn) and the doctors of law (aḥbār), for having been entrusted to safeguard the revealed part of God's Book and they were its witnesses thereto. So fear not mankind, fear Me; do not sell My signs for a little gain. Whoso judges not by that God has revealed, such are disbelievers.
The Shī'ī scholar Muḥammad Bāqir al-Ṣadr used this verse to contribute to the constitution of an Islamic state as Khomeini did in his book The Rule of the Supreme Jurist (Walāyat al-faqīh). The whole verse is interpreted as a commandment for the believer to intervene in political affairs. According to Bāqir al-Ṣadr, rabbāniyyūn refer to the twelve Shī'ī Imāms (known as the Twelver) and aḥbār are those authorities enabled to fulfil the function of marja’, the supreme jurist who is, in the new constitution, the mouthpiece and the ultimate reference for the implementation of divine Law on earth. Since the political triumph of Khomeini's theory, this interpretation has been officially translated in terms of the constitutional law of the new Iranian Republic, under the leadership of learned authorities who monopolize control of Qur'ānic interpretation.
Faced with this concrete, historical situation, what would be the place, the role and the initiatives of intellectuals aware of the historical, doctrinal and legal objections to the normative interpretations of leading religious ‘authorities’ who enjoy the status of Bāqir al-Ṣadr, Khomeini and so many ‘ulamā’?
During the revolutionary struggle to defeat a political regime, there is no place whatsoever for intellectuals aspiring to the profile I have described. Some totally subscribe to the principles and goals of the revolution and become the leading ideologues during and after it; others keep silent or emigrate. This has been, and is still, the case in several contemporary societies. Of course, many intellectuals engaged in the battle become organic supporters of the triumphant single party-state; they could and do even argue against their fellow intellectuals who have chosen to fulfil the critical function beyond all ideological options. I personally have many colleagues and friends in the Maghreb and elsewhere who have suffered from this situation. Intellectual life and scientific research are considerably distorted, postponed and impoverished in such ideological conditions, since decision-making is monopolized by ideologues who continue to impose themselves as intellectuals dedicated to the construction of a modern polity. Critical debates on cultural and educational issues are very rare, unless influential members of the party initiate them. When the FLN party in Algeria had full control over the party, Mostefa Lacheraf, the Minister of Education who was respected as a critical intellectual and a loyal supporter of national independence, had to resign from office because he criticized the demagogic politics of arabisation. This is not an isolated example in the political practices of all post-colonial states.
Many reasons obliged many intellectuals to emigrate to Western democratic countries. This option translates clearly the difficulties and pressures imposed on intellectuals in their own countries. In the 1960s and 1970s, organic intellectuals condemned this attitude as a betrayal of sacred national obligations. Renouncing one's own nationality in order to accept the nationality of the colonizing nation-state was judged to be an insult to the heroes and martyrs who died for the liberation of the nation. This kind of moral pressure on many intellectuals generated a guilty conscience, which prevented each person from thinking and acting as a genuinely free citizen of both the original and the new country of citizenship. This psychological and moral aspect of intellectualism which spread all over the world, especially to Europe and North America, should not be minimized or ignored when one is asked evaluate the contribution of intellectuals to the positive development of their respective countries. They have solved their own problems in different ways. There are those who preferred to forget about their origins and who, with their families, became totally integrated into their chosen society. Others maintained a nostalgic link to their original, imagined identity ‘waiting in the dreamed of future for the past to come’ to borrow the phrase used in a Tunisian novel by ⋅abīḥa Khemīr. Then there are those who decided to cross all the cultural, religious and nationalist boundaries to share with the new visionary thinkers, the humanist option for a world space of citizenship, using the historical platform of the emerging European Union. All ethnic, linguistic, religious, cultural and national groups and communities are represented in European and North American democratic societies. This is a unique opportunity offered to so many frustrated people, dramatically uprooted from their own culture, land, region and nation, to re-conquer new horizons of meaning and hope for their existence. Those intellectuals who are fully convinced of this privileged historical position — especially if they compare their position to that imposed on the previous generation immediately after the first liberation from colonial domination in the time of Cold War — will make a more efficient contribution to the new liberation of the people ignored, oppressed, exploited and submitted to tragic civil wars by their so-called national elites.
Whether inside or outside them, there are few intellectuals so far who have faced this responsibility regarding their native societies. The ‘ulamā’, on the other hand, have not emigrated; they are much closer to the lay people and have managed to perpetuate the old alliance with a patrimonial state exploiting society as its private, inherited property. This is the opposite of the modern status of a civil society. In the patrimonial regime, the head of state occupies second place in a vertical line descending from God to the ancestor of the clan and the father of the patriarchal family. While the state monopolizes power with its patrimonial logic, societies in Islamic contexts develop an underground system of exchange and regulation, parallel to the official ‘legal’ codes and bureaucracies. The word ‘corruption’ covers complex social and economic local practices called bakhshīsh and trabendo; practices that are tolerated as a functional dimension of the patrimonial state; they even reach an international level with what is described as petro-Islam and business Islam, with the support of the wealthy Arabian dynasties with their most deeply rooted patrimonial states. There are also patrimonial states disguised as democratic republics, including Indonesia, Algeria, Libya, Iraq, Syria and the Sudan. Algeria, still officially named the Algerian Democratic Popular Republic, is the country in which trabendo and what so-called political financial mafias have reached the structural importance described recently by Luis Martinez in La guerre civile en Algérie. Gilles Kepel in his Expansion et déclin de l'islamisme, gives other examples in the so-called Muslim world. The anthropological basis for the patrimonial, patriarchal system in Islamic contexts is clearly deconstructed by ‘Abdallah Ḥammoudi in his Masters and Disciples, and Hishām Sharābī in Neopatriarchy: A Theory of Distorted Change in Arab Society.
The second example will produce enlightening conclusions about two conflicting models of the civil society in Islamic contexts. Soumaya N. Guessous, a Moroccan sociologist, published in the June, 2001 issue of the magazine Femmes du Maroc, an impressive report on the brokers who provide rich urban families with teenage girl servants. The whole text should be translated because it describes a large segment of rural society in which girls are used by their own parents as chattels displayed in the market for sale. ‘Citizens’ of high social and economic profile, from the learned, cultivated, wealthy class, accept to enslave teenaged girls wrenched from their families, thrown into a hostile urban environment and forced to toil day and night as servants. Furthermore, they are exposed to the sexual harassment of the young boys and even the father or other males close to the family. This is not peculiar to Moroccan society; it is a worldwide phenomenon that has been studied by NGOs and other international institutions. The problem remains: neither the state, nor the society as it is, nor the moneyed classes, nor even the religious authorities and intellectuals who have been so far unable to eradicate such an intolerable contradiction in societies such as Morocco in which significant steps are being made towards a promising civil society.
Another important aspect should be underlined here. The populist, political movements, generally described as the fundamentalist ‘Muslims’, display an ambivalent approach to the construction of a civil society. On the one hand, they provide the most relevant and significant social help and protection to those rural and urban population disabled, marginalized, excluded and often exploited both by the official middle class bureaucracy and the privileged socio-economic categories already mentioned. They cover health expenses for the poor; they provide transportation, material support and schooling for isolated families; contribute to maintaining a sense of morality among the younger generations cut off from their families and all traditional kinship protection. At the same time, they are developing their concept of an ‘Islam’ transformed into a refuge, or an ideological springboard from which to oust and replace the ‘corrupted-corrupting materialist, secular’ regimes. This positive and negative intervention in the building process of a civil society is a structural element of current developments in all Islamic contexts.
How is one to identify a civil society under such conditions? The wrong approach currently followed points to the constitutive attributes and practices of a consistent, coherent civil society as it is conceptualized and more or less achieved in advanced, democratic regimes. With this model in mind, one looks to detect signs, aspects, promises and institutions of a similar society in contemporary societies presented a priori as ‘Islamic’. Other authors, mainly apologetic or militant Muslims, select formal, idealized attributes displayed in concrete democratic examples, to project them back on the imagined Islamic Model achieved in Medina under the guidance of Prophet Muḥammad; by this device, the contemporary Islamic (the so-called fundamentalist) discourse restores for the popular psyche the original, ‘authentic’ archetype (according to the well known sociological concept) achieved in a mythical time and space (Medina during 610–632), while, in concrete contemporary historical development, one can see the evidence of patrimonial states delaying and obstructing by the politics of traditionalization the emergence of a rule of law with its expressly civil society. Methodologically, the same critical analysis needs to be applied to the ongoing social dialectic between the forces of the common Islamic imaginaire, the persistence of the patrimonial political order sacralized and ‘legitimized’ by ‘divine’ Islamic Law and modern democratic culture imposed from the outside through international organizations and the worldwide expansion of scientific knowledge, the new economy, the new monetary order, and new technology. How do these three trends interact in each particular society? The effectiveness of intellectual modernity and secular institutions in societies like Tunisia, Morocco, Egypt, Syria and Turkey, needs to be more accurately differentiated by comparison with other countries which have different historical memories and sociological constraints such as the Sudan, Indonesia, Malaysia, Mali, Uzbekistan, etc. As long as political and social sciences stick to their linear, descriptive, fragmented surveys of turning points, isolated movements or ideologies, we shall remain ignorant of the underlying operating mechanisms and protagonists.
To summarize the central arguments concerning the rule of law and civil society in Islamic contexts, past and present, I can propose the following brief statements in the hope to enlarge, deepen and enhance scientific research and enrich the debate with more concrete facts, more examples of experiences developed here and there in contemporary societies. I wish that my propositions had been received and used as heuristic hypothesis, because there is still a long way to go in Islamic contexts to achieve the rule of law claimed everywhere in the dreamed of civil society. Even the level of democratic practices and institutions already achieved and in process of improvement in the Western and Scandinavian European societies, goes a long way to achieving this goal.
- The biological and social sciences have established the constraining evidence that the activities of the human mind are all based on and conditioned by bio-socio-historical mechanisms. Philosophers draw conclusions from this evidence; but theologians and managers of the sacred resist this ‘materialist’, reductionist theory. The collapse of the Marxist-Communist ideology has liberated an area of scientific research and critical reassessment of the dichotomist, binary framework of analysis and interpretation concerning the two conflicting spheres of spiritual authority versus political power (ḥukm/sulṭa; auctoritas/potestas), intangible ethical principles and virtues versus relational truths and values, sacred law and contingent law. But such scientific leaps are not integrated into the populist culture and ways of reasoning used in daily life, educational practices and social and official discourses. This discrepancy is, of course, far wider and more influential in Islamic contexts.
- The content, functions and authority of religion are changing profoundly under the impact of the new forces and options offered by globalization. The problem for Islam and Muslims is to know whether they should resist against these forces as they did modernity, or whether globalization will be more effective in changing the status of the state and political institutions, the collective mentalities concerning traditional beliefs, rituals and values, educational practices, channels of communication and the relationship to scientific knowledge, especially in the domain of human, social, political and legal sciences. The changes that might take place are unpredictable, because all the societies considered in this essay are under-analysed, or as it used to be put, they are economically and culturally underdeveloped. Not only is scholarship a very slow process, but institutions for scientific research and learning, well-trained scholars and professors, educational and cultural activities are either rare, or poorly-funded and ill-prepared for heavy and difficult tasks. So how can the problems, demands and expectations be tackled of so many peoples who are forced to make use of obsolete knowledge, archaic bureaucracy, disintegrated urban spaces and architecture, decontextualized beliefs, values and references?
- According to these historical statements, it becomes irrelevant to keep asking whether or not Islam is compatible with secularism, democracy and human rights. Islam is controlled by the state; there is strong opposition to establishing a secular, liberal regime, and a desire to substitute it for a more ‘authentic orthodox’ Islamic regime following the example of Iranian Islamic revolution. In terms of theology, if any political regime monopolizes the control of Islam, it loses its legitimacy ipso facto. That is why, the caliphate, the imamate, the sultanate, the emirates and the so-called republican regimes of today pay a college of official ‘ulamā’ to maintain a fiction of religious legitimacy.12 I use the following expression to describe this historical and doctrinal situation of Islam: Islam is theologically Protestant and politically Catholic.
- Contemporary societies use many devices for resisting and overcoming the oppressive policies of their regimes; but they have greater difficulties when the vast majority of the female population is confined to the home and private domestic activities and there is an increasing number of jobless, illiterate, homeless orphans cut from any collective memory, deprived of a promising vision of the future, unconscious of the rights attached to modern citizenship and consequently unable to discover and respect the necessity and the functions of the connection between society and social responsibility. Sociologists do not address this crucial issue often enough, because the silent majority of the population can be heard only when it resorts to demonstrations, rioting and violence. So where are the chances and opportunities that promote the emergence of a modern enabling civil society? With slight modifications, these structural impediments are to be found today in all Islamic contexts.
- Can the paradigms of contemporary international relations accelerate the shift of post-colonial or Third World states from their patrimonial, patriarchal order to the democratic features and functions of the rule of law? Confronted with modern pluralist states, all the authoritarian states present themselves as full supporters of democratic values and institutions; but their domestic policy remains contrary to this image which is merely for show. To achieve empowerment through the ‘governed’ population, the state should pay more attention to developing a relevant culture of citizenship that provides greater social cohesion, less division and tension between the heterogenous collective psyche, a high level of universal education, adequate distribution and maintenance of skills and a humanist vision through the building process of national purposes. It is a historical fact that these conditions were very seldom fulfilled or even thought of in that perspective in any known Third World state. It is true that the leap from a bipolar to multi-polar world has resulted in more instability, violence, wars and a single major power dictating the international agenda. ‘We (USA) will retain the pre-eminent responsibility for addressing selectively those who are wrong, who threaten not only our interests, but those of our allies or friends, who could seriously unsettle international relations’ (Arab Studies Quarterly, 1993, vol. 15/4, p. 15).
- The whole of the present chapter can be re-written under the general title ‘Umma and Civil Society’. Umma as a spiritual Utopia was inaugurated with the prophetic discourse, developed and enriched through a great diversity of religious, political, ethical and social experiences, articulated intellectually in a large number of major works. This umma is still alive as a terrestrial and eschatological hope, project and aspiration in the collective minds of millions of believers. The main problem to be addressed today that is facing the modern secular unachieved — unachievable? — plan of civil society is the following: does the traditional Utopia of the umma with its specific culture and mindsets, constitute an intellectual, spiritual, ethical and legal obstacle to the acceptance and contribution of the historically advanced building process of a modern, secular, civil society? Conversely, does such a civil society which is still an idealized imaginary one, pursued and partially achieved in the democratic regimes of Western Europe and North America, present ontological, spiritual, ethical and humanistic perspectives for the overall emancipation of the human condition, which definitely supersede those taught and still held valid by the traditional religions and their adherents? Expressed in these terms, the problem requires much critical, modern investigation using comparative history and the anthropology of all religious and secular systems of thought and action.
- There is a last vital problem concerning not only the ‘rest of the world’, but the powerful hegemonic Western states where the intellectual and scientific agenda is defined, fixed, prescribed, although continuously debated, and imposed on the future of human existence and the status of human dignity. It is clear from the themes, questions and points, that I have raised throughout this book that tele-techno-scientific reasoning coupled with the Management of the so-called Human Resources (MHR), are mobilizing all human attention and energy in the service of the free market. Anthropology as cultural criticism, ethical definition of the limits in which any historical action by an individual or a community should take place, philosophical resistance to any form of violence justified by the promise of liberation from oppression and the negation of human dignity, are minimized, narrowed, neglected, disqualified, if not declared useless whenever the ‘rights’, ‘interests’, and ‘comfort’ of those in a hegemonic position are threatened. What is left then to those on the side of the victims, the oppressed, those ‘without history’ to be fully admitted among those who hold the monopoly on being the dignified? We know the answer of the revolutionary movements for liberation since the British, American and French Revolutions to Lenin, Stalin, Trotsky, Milosevic and all twentieth century leaders of wars against colonial domination who led criminally devastating operations to end up with even more violence, collective tragedies, semantic disorder and intellectual perversions still expanding at the dawn of the twenty-first century. If we are to consider the significance of the tragic failure of ‘Western’ reason on the horizon of meaning and hope for all living peoples on our small planet, we should also rethink the case, still unthought, of Hitler and his ‘final solution’. To enlighten this crucial point, I add this ethical principle:
For the third millennium, the struggle against semantic disorder and perversions of the intellect should supersede, precede and be sustained in all cultures, religions, systems of thought and political regimes whenever there is a historical necessity to initiate a war of liberation from oppression, domination and exclusion. Violence is a fact to be contained, refused, eradicated by all means; it is not a thesis to be discussed, be it the structural violence codified, legalized everywhere in all cultures and religions, or the physical, military violence. There is no way to legitimize any level, any form of violence between human beings or against animals and the environment, as long as human beings are unable to find the irreversible way out from what I called the anthropological triangle of violence, sacred and Truth’.
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