Islamic law and ethics: the ideology behind a troublesome dichotomy (pt. 1 on theorizing Islamic law)

Yet another decolonial take

When it comes to Islam, there’s a tendency to valorize either “law” or “ethics” as the true essence of the Islamic norm. As a Muslim, one ought to live their life by the letter of the law or find in ethics their liberation from the dead hand of the past. It’s either law or ethics that is the true Islam that holds the promise for collective redemption.

But if you’re an academic, law and ethics are the master categories by which you try to impose “sense” on Islamic discourses, manufacturing it for and from a particular (Eurocentric, liberal) perspective. After much head scratching, early 20th century colonial scholars of Islam — officials and academics writing from and for a colonial episteme — could only conclude that because the categories of Islamic law did not mirror European ones, it must be a primitive system, a blob of undifferentiated norms (e.g., Snouck Hurgronje, Ignaz Goldziher, Joseph Schacht).

Is it even law at all?

Later in the century and down to the present, there was a more generous reappraisal: there such a thing as Islamic “law,” but ethics is layered within. When it comes to fiqh, the task of the Orientalist is distinguish between the legal and ethical through an analytical surgery. But by what criteria?

The problem is that the dichotomy is entirely ideological.

Law versus ethics. Which one truly represents Normativity? This is a problematic entirely of modernity’s invention — because law and ethics only emerged as counterpoints to one another relatively recently in human history and, you guessed it, in Europe.¹

Let’s table the reasons why people are drawn to either law or ethics as the governing arbiter for life and examine the dichotomy itself. I wish I had something original to say here, but the credit goes to the late philosopher and political theorist, Judith Shklar (d. 1992). Her book, Legalism, is a blistering critique of modern legal philosophy, specifically the positive and natural law theories. After reading her book, I just couldn’t see how the dons of legal philosophy — Hart, Dworkin, Finnis, Fuller et al. — could recover. Yet for some reason, as far as I can tell, she’s still only canon adjacent.

The gist of Shklar’s argument is that positivism and natural theories are rival siblings. They share a lot more in their genetic code than they disagree on. Law must be a discrete category for both of them because the West and liberalisms’ self-identity depend on it. Law cannot be politics; it must be “out there,” objective, and serve as the neutral standard for governance. Skhlar argues that this ostensible value-neutrality is a “refined political ideology.”²

Liberalism’s integrity depends on distinguishing between the public (law) and private (morality) spheres. Yet, Shklar writes, this classification is political, not logical. The ideological starting point is that there is a group of norms we call “law” that must be identified and distinguished from others (morality).

One of Shklar’s crucial insights is that all this depends on a highly specific definition of morality. Law as social, objective, and coercive is the counterpoint to morality as internal, individualized, subjective, and voluntary. In a word, this is the morality of Christian conscience. Yet other moralities abound — e.g., utilitarianism (where law and morality are largely collapsed); moralities of custom and tradition; moralities of authenticity; “anti-legalistic” moralities of the heart; and so on.

As Shklar writes, “there can be no way of dividing law off from morals in general without first selecting one set of moral and political values as the only valid one.”³ In other words, the classification fails the test of neutrality because it presumes both a type of political order (those that separate between law and morality, the secular and the religious, and the coercive and educative) and a type of morality (“the ethics of conscience”).

There’s a lot more to her argument, but the point’s been made.

Modern theories of law are obsessed with violence. Violence is not an auxiliary to the law, but constitutive of it. That law might exist in the absence of power or coercion is unthinkable. (And before the Hartians object, yes, even on Hart’s theory). It seems it’s only official if you can get billy-clubbed or jailed.

There’s a deeper history, of course.⁴ Yet Muslims and academicians of Islam adopt the categorical distinction hook, line, and sinker. The result is rather disastrous because it refashions Islam in the image of a modern, Western, and colonial⁵ social theory. It transposes a conflict (between law and ethics) and tells Muslims, “you have this problem in your tradition — fix it.” It’s not only a historical offense but debilitates the creative potential of Muslim social, political, and economic thought by enforcing terms — the “rail guards” of thought — that are alien and anathema to the Islamic tradition.

Historically Muslims ordered their social world very differently. Normativity, the right course of action, drew its force from neither power (modern “law”) nor the self (the subjective volitional conscience of modern “morality”). Then from whence?

Next I’ll write about how Muslims debated the definition of law and categories of norms, and hopefully this will lead up to a critique of Sherman Jackson’s The Islamic Secular.

Note: The fuller argument will appear — at some unknown future point in history, insha’Allah — in my book on Islamic legal personhood. Or maybe an article. Point being, this is the highly abridged version of my argument.

1. What about Sufi castigations against the fiqh-minded? Perhaps I’ll explain why this objection fails if the opportunity arises, or if I find that anyone ends up caring to know the answer.

2. Shklar, Legalism, 34.

3. Skhlar, Legalism, 50.

4. Think Weber and Hallaq on the modern state’s monopolization of violence and law.

5. See Hallaq, Restating Orientalism; Lena Salaymeh, “Decolonial Translation” (and just do yourself a favor and read all her work).