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August 24, 2005

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» More Originalism from Political Animal
MORE ORIGINALISM....Since I live in the hinterlands of Irvine and the Washington Monthly is produced in, um, Washington, I'm not always aware of what's coming up in future issues of the magazine. It turns out, though, that last night's post... [Read More]

» More Originalism from Political Animal
MORE ORIGINALISM....Since I live in the hinterlands of Irvine and the Washington Monthly is produced in, um, Washington, I'm not always aware of what's coming up in future issues of the magazine. It turns out, though, that last night's post... [Read More]

» More Originalism from Political Animal
MORE ORIGINALISM....Since I live in the hinterlands of Irvine and the Washington Monthly is produced in, um, Washington, I'm not always aware of what's coming up in future issues of the magazine. It turns out, though, that last night's post... [Read More]

» More Originalism from Political Animal
MORE ORIGINALISM....Since I live in the hinterlands of Irvine and the Washington Monthly is produced in, um, Washington, I'm not always aware of what's coming up in future issues of the magazine. It turns out, though, that last night's post... [Read More]

» More Originalism from Political Animal
MORE ORIGINALISM....Since I live in the hinterlands of Irvine and the Washington Monthly is produced in, um, Washington, I'm not always aware of what's coming up in future issues of the magazine. It turns out, though, that last night's post... [Read More]

» More Originalism from Political Animal
MORE ORIGINALISM....Since I live in the hinterlands of Irvine and the Washington Monthly is produced in, um, Washington, I'm not always aware of what's coming up in future issues of the magazine. It turns out, though, that last night's post... [Read More]

» originalism from rubber hose
abu aardvark has an interesting post comparing the originalists school in american constitutional interpretation. with the modes of interpretation employed by the salafi tradition in islam... [Read More]

Comments

sepoy

Oh great, more fuel for the conservative fire - upgrade the "Founding Fathers" to the level of God and Prophets! :)

John Penta

You're right in saying that comparing the two trends really makes no sense.

For one thing, Originalism comes from the fact that the Constitution's text (and, for that matter, most of the texts of the period) has survived, provably, without loss or alteration (of the original texts) through the whole span of time. We know, definitively, what it says. Now we just have to figure out what was meant, since definitions change according to the context in which they're written.

The Islamic version, that didn't happen (Or did someone manage to keep a fully-intact "master copy" around?). So there's argument whether something was transmitted in whole and without error, I suppose.

Far better, I think, to compare Islamic jurisprudence to Biblical exegesis.

Rachel

Yep. It's struck me several times over the last few years how similar the debates over interpreting the Constitution, and interpreting the Torah, can be. (I've only recently read the Qur'an, so I'm a complete beginner where Qur'anic exegesis is concerned, but I can see how there would be a parallel similarity between Constitutional interpretation and Qur'anic interpretation.)

I imagine there's significant overlap between those who favor interpreting the Constitution in an originalist way and those who favor interpreting scripture along similar lines. I see it as a distressingly absolutist hermeneutic with troubling political and religious implications...but then again, I'm all about reinterpreting our central texts to speak to changing times.

yinshuisiyuan

Trying to divine the original intention of legislation isn't necessarily a problem. There's long been a debate, in the context of European integration, between British principles of legal interpretation and EU principles.

The British favour a strict interpretation of the words of the law, arguing that it is the responsibility of Parliament to make laws and arguing that it is not the right of judges to introduce their own subjective interpretation of what the law 'should' be had only Parliament chosen its words better.

The EU favours a teleological approach, where details of legislative proceedings from the relevant EU bodies are admissible as evidence of the underlying intent of the law, which is what judges then seek to enforce.

To my mind, the reasons why the different principles have evolved is quite clear. The British lack a constitution, and so do not find themselves bound by framework document, but rather a loose assembly of different areas of legislation and, where legislation does not exist, there are centuries of customary legal principles to which judges can turn. Customary law provides a basis upon which judges can be creative, but where Parliament speaks, judges must follow its word to the letter.

In the EU system, law is determined by a series of treaties, regulations and directives. Some should have been updated by now (part of the project of the new constitution); all suffer, because of the nature of treaty negotiation, from vagueness. As a result, judges find that if they apply the letter of the law, they either don't get an answer, or they get an answer that patently runs against the original spirit of the law. So teleological interpretation provides a way to resolve that issue. Bear in mind that teleological interpretation has given EU judges a huge amount of leeway to create new law - look at the principles of direct and indirect effect.

Ikram

Damn it. I made this exact same point two years ago (on Yglesias' old blog). Now you're going to win that McArthur Genius Award. (Ok, I admit you always had a better chance).

There are only about 4 or 5 ways to interpret a text -- and one of them will always be salafism/originalism.

Does a poem mean what its author intended it to mean, or what you think it to mean? Give the wrong answer and you're just like Osama Bin Laden and Antonin Scalia!

wysiwyg

A bit OT (although, on second thought, not really that OT): can you comment on the grape = virgin thing? Is he correct?

Minh-Duc

It is a bad analogy because the US constitution can be changed through the admendment process. Originalists believe that admendment responsibility lie with the legislative branch, not the judicial branch.

Azmaray

I want to comment on this sentence in your post:

"The Islamic reformers - the original salafis - in the late 19th and early 20th centuries - called to sweep away these centuries of accumulated traditions and return directly to the text of the Quran and authentic hadith."

In my discussions with several "traditionalists", I've discovered that this is a prevalent misconception. Salafi scholars do not call to "sweep away these centuries of accumulated traditions". In fact, Salafi scholars are trained via the institutions created by these years of tradition. All Salafi scholars start studying Islam by choosing a school of thought, be it Hanbali, Hanafi, Shafi'i, or Maliki. So, they're definitely not ignoring these traditions.

The main contention between Salafis and traditionalists, from what I've gathered is that whereas traditionalists stick to their school of thought long after they are trained scholars, Salafis are against such obsessive following.

Also, the main thrust behind the Salafiyyah message was not to dismiss the centuries of accumulated tradition, but was to call against erroneous traditions that had crept into Islam, such as grave worshipping and extreme reverence of scholars.

As for the "originality" argument, that is a long debate that is ongoing.

Stacey

Minh-Duc,

Can the US constitution be ammended without limit, or are there core values that need to be respected. The process of ijtihad and the practice of fiqh are a form of exegesis that susbtantively amounts to ammendment, which is part of why Salafi jurists (use ijtihad to) reject ijtihad. They also specifically exclude the use of analogical reasoning (qiyas) and scholarly consensus (ijma') in cases where there is no clear textual guidance.

What's interesting to me about Salafi fiqh (and now about constitutional originalism, since I think this is pretty engaging analogy) is the level of intellectual gymnastics required to defend the originalist position. It's one thing to say that one wants to be guided by the practices of the Prophet and his cohort (most fuqaha, Salafi or not, would describe themselves in this way, I think), but it's another to assiduously attempt to find answers to unanticipated legal questions within such a limited set of texts.

Salafi fiqh, in this way, is actually far more "new" in its effort to be "old" - by throwing out the scholarly tradition of centuries of jurisprudence, they're starting from scratch, which ironically requires more ijtihad than others who do accept or adapt older traditions. Thus what's called "fundamental" is often quite innovative.

Azmaray

Stacey, with all due respect, you are wrong and I disagree with you.

Salafis definitely do not reject qiyas or ijma'. They recognize them. However, they do rank them below other methods of jurisprudence.

Maybe, I'm not on the same wavelength as everybody else, therefore, examples will be appreciated. But, having studied under Salafi scholars I fail to recognize how Salafis ignore traditional methods of jurisprudence.

Minh-Duc

Stacey,

I am not an constitutional law expert, but my understanding is there is no limit to constitutional ammendment. But the requirement for ammending it is so high that unless there is overwhelming support from the public for radical change, it has little chance. It hard enough this day to get a simple majority support for a legislation, immagine a super majority requirement.

Stacey

Azmaray,

Certainly, I haven't studied under Salafi scholars as a student, but I have conducted interviews with a number of them in the course of my research, and this is the position that has been imparted to me by them. It was also been supported by secondary academic research on the topic. If your expereince as a student of Salafism contradicts that, I would be very interested to know more.

Since certainly all Islamic legal scholars rank qiyas and ijma' below the Quran and the Sunna, how would you characterize the distinction between Salafi fiqh and traditional modes of fiqh? In my understanding (and consistent with your earlier comment above), Salafism is not another school, but is instead a method of interpretation, a hermeneutics. Would this conform with your experience of it?

If people are bored with this, we might also discuss it via email instead. :)

aardvark

I'm not bored - keep discussing it here!

Anna in Cairo

Your point has been made by Islamic legal scholar Khaled Abu el Fadl. He has written books about these issues.

Salafis may say they accept Qiyas and ijma' but the thing is - as I understand it - that they don't give the traditional schools of jurisprudence (Shafai, Hanbali, Malaki and Hanafi) as much weight as more typical Sunnis do. (Shia have their own school called Jaafari but they also have a lot more modern legislation going on, through their own religious bodies, than any Sunni organization does).

In terms of how recognized the text is, the Quran is a lot like the U.S. constitution in that it has an accepted and universal form in its original Arabic. However, the Hadith is a whole other issue. Many small groups of Muslims reject certain formso f Hadith and some reject all Hadith and this is a huge issue of debate. Even among traditionalists you can find variation in how much weight to give to this or that Hadith.

Azmaray

Stacey, sorry for this delay in response; I don't have internet access over the weekends.

How would you characterize the distinction between Salafi fiqh and traditional modes of fiqh?

I don't see a significant difference between Salafi fiqh and traditional modes of fiqh. I say this because when a Salafi chooses to learn fiqh, he/she will learn the traditional modes of fiqh. Students choose a school of thought. In Saudi Arabia since the prevailing school of thought is Hanbali, students choose to study the fiqh under this particular school. Here, thanks for pointing out that "Salafism is not another school, but is instead a method of interpretation, a hermeneutics".

What, after all, then, is the point of contention? I myself, am still exploring this. However, from what I have gathered, I agree with Anna in Cairo in that "[Salafis] don't give the traditional schools of jurisprudence (Shafai, Hanbali, Malaki and Hanafi) as much weight as more typical Sunnis do".

In this issue, I tend to side with the "typical Sunnis". I have noticed that non-Salafi da'is (students of knowledge) stick to the school of thought they're studying in more stringently than a Salafi da'i. A Salafi da'i relies exclusively on the "Quran & Sunnah", often ignoring - which I see as being unintentional - rulings within the school of thought they're studying in. Non-Salafi da'is are less prone to change their opinions based upon the Quran & Sunnah, especially if the new opinions do not conform with the school of thought they're studying under.

continued...

Azmaray

Stacey, sorry for this delay in response; I don't have internet access over the weekends.

How would you characterize the distinction between Salafi fiqh and traditional modes of fiqh?

I don't see a significant difference between Salafi fiqh and traditional modes of fiqh. I say this because when a Salafi chooses to learn fiqh, he/she will learn the traditional modes of fiqh. Students choose a school of thought. In Saudi Arabia since the prevailing school of thought is Hanbali, students choose to study the fiqh under this particular school. Here, thanks for pointing out that "Salafism is not another school, but is instead a method of interpretation, a hermeneutics".

What, after all, then, is the point of contention? I myself, am still exploring this. However, from what I have gathered, I agree with Anna in Cairo in that "[Salafis] don't give the traditional schools of jurisprudence (Shafai, Hanbali, Malaki and Hanafi) as much weight as more typical Sunnis do".

In this issue, I tend to side with the "typical Sunnis". I have noticed that non-Salafi da'is (students of knowledge) stick to the school of thought they're studying in more stringently than a Salafi da'i. A Salafi da'i relies exclusively on the "Quran & Sunnah", often ignoring - which I see as being unintentional - rulings within the school of thought they're studying in. Non-Salafi da'is are less prone to change their opinions based upon the Quran & Sunnah, especially if the new opinions do not conform with the school of thought they're studying under.

continued...

Azmaray

Darn, it got posted twice. Anyway...

Anybody who has come across Salafi students must have noticed how focused they are on the "Quran & Sunnah". At times, they can come off as being rude by asking scholars to corroborate their opinions by citing references from the "Quran & Sunnah". Salafis will rarely refer to themselves as Hanafis, Shafi'is, etc. They dislike being boxed into a school of thought. I have learned that this is not always the right approach. The Quran and Sunnah literature is vast, and dealing with the polemics surrounding rulings is extremely complicated. Therefore, when anyone but a scholar starts focusing on the Quran & Sunnah at the expense of rulings by seasoned scholars, one will end up with contradictory rulings.

I'll give you an example. It's cursory, so please do ask for further clarification, if needed.

In fiqh, there are general rulings and then there are specific rulings.

If memory serves me right, in the Hanafi school voluntary prayers right before sunset are forbidden (or at least disliked). This stems from a ruling in which the "time" factor is specific. There are other schools of thought which allow voluntary prayers before sunset. This is because, in their rulings they consider the "time" factor to be general. Remember that both schools have support from the Quran and Sunnah for their rulings. However, due to the interpretation of the support as being general or specific, their rulings are different.

More importantly, if the "time" factor is specific in one ruling, then it ought to remain specific in all other rulings as well, for consistency purposes. Here is the difference. Salafis, in their quest to focus on the Quran & Sunnah, can at times ignore these details, thereby rendering some of their rulings as contradictory to each other.

Finally, I would like to bring your attention towards the disagreements between the Salafis and Deobandis. Both of these groups, at the core, are carbon copies of each other. The central message of Salafiyyah is tawheed (the oneness of God). Therefore, Salafis staunchly eschew any form of association with God. Deobandis share this belief with the Salafis, and the disagreements are on minute issues, such as the positioning of hands during prayers. However, the animosity between the groups is greater than one would expect emerging from minute disagreements. I've been looking for answers - as of yet, in vain.

Stacey

Thanks, Azmary, for a helpful answer. I'm going to go out on a limb here, though, and argue that what you see as wrong-minded in Salafi practice is actually more doctrinal than you think. I'll give you an example: the very influential leader of the Salafi movement in Yemen, Shaykh Muqbil al-Wadai'i, rejects all school-identification and insists that his students - who number exceeds 100,000 in the past decade, by independent estimates - be indentified as "Sunni" only. They may very well come from a particular jurisprudential tradition, but they also may not (according to Shaykh Muqbil - and empirical observation - the majority of students in his institutes are converts from Western countries with very little prior knowledge of Islam before arriving in Yemen). This adoption of the "Sunni-only" label is also widespread among the local Yemeni Salafi population, since many "converted" from the locally-dominant Zaydi Shiism. That said, they don't then identify with the local minority Shafai' school, either, but insist on being identified as Sunni (see Shelagh Weir's excellent 1997 article on this subject in MERIP).

One side note: Your position is ironically close to the position adopted by most Aran Shia - you may not be formally advocating adherence to a marja' at-taqlid, but it seems to me that for many Salafis, the appeal of the Salafi method is that it sidesteps mediated spirituality and is an empowering rejection of clerical authority.

Azmaray

Stacey, I don't think there is a disagreement anymore. :)

I loved this: "...but it seems to me that for many Salafis, the appeal of the Salafi method is that it sidesteps mediated spirituality and is an empowering rejection of clerical authority."

That is so true. Like most Muslims by birth, I learned my basics from my parents, often without questioning. Islam, as a result, seemed distant, outside of one's personal jurisdiction.

Then at school I was taught to question why I was doing a certain action; to question my intentions and the source of my beliefs. I was taught to accept that scholars and parents :) are fallible, and hence the importance of ascertaining the authenticity of a certain "ibadah".

The consequence: I, and others like myself, didn't identify with any school of thought. Because, now, we were simply Muslims, striving only to follow the teachings of Muhammad (peace be upon him). Later on, due to the increasing flak the Salafis were getting, some scholars insisted that we call ourselves "Salafis". This might have been extreme, but I digress.

Although I still mostly subscribe to Salafiyyah, I realize the above description might be a tad bit too rosy. I learned this the hard way. Salafiyyah made Islam very easy and approachable. Every individual was responsible for himself/herself. On the other hand, warring factions/schools of thoughts made it tougher.

continued...

Azmaray

Example:

The positioning of hands during prayer might be a trivial detail for most, but students of knowledge, and even some scholars made a mountain out of a molehill. This is a fact: disagreeing scholars from different schools of thought have written books (not just one) on just this issue, refuting each other. Obviously, all of them draw their support from the Quran and Ahadith. For a layman, thus, it can become increasingly frustrating. That is where I see the need of perhaps following a scholar or group of scholars that one trusts.

I believe that a scholar needs to know the Prophet, his companians, their environment, and the events surrounding them so thoroughly that he/she is mistaken for having lived in that time period. It is just not possible for an average Muslim to arrive at the true essence of an ayah in the Quran or a message in the Ahadith. This concept is more pronounced when we witness the likes of Osama Bin Laden promulgating harmful fatwas by focusing on parts of Islam which if interpreted in isolation, have fatal meanings.

By adhering to this concept, am I in conflict with Salafis? I think not. If, however, this leads me to strictly adhering to a school of thought, then, yes, I am in disagreement with the Salafis.

And this brings me to Shaykh Muqbil. As you already know, he was a significant scholar of the Salafis; I follow many of his rulings. However, I'm not sure if his rejection of school-identification means that he is not imparting the traditional Islamic jurisprudence to his students. I really don't know. I'm hoping you can shed some light on this.

Lastly, Aran Shia are also new to me. If you would kindly expand on that too, plz.

Azmaray

I forgot a point...

The Salafis' rejection of school-identification, as you put it, is often seen by traditional Muslims as a lack of respect for scholars. This, in my opinion, is a gross misconception. We do respect scholars; we just don't revere them in the manner traditional Muslims do.

The reasons for why Salafis are blamed for all the terrorism and extremism around the world have eluded me. But, the misconception above might be it. Traditional Muslims blame us for extremism. I elaborated on this somewhat in my last post.

Traditional Muslims, however, blame Salafis also for the rise of the so-called "progressive" Muslim. The argument is that progressive Muslims, like the Salafis, have the seed of ignoring scholars and Islamic tradition. My counter-argument has always been that Salafis do not dismiss Islamic tradition; they only strive against blind-following. And, I think, this takes us back to how our discussion began.

Stacey

I can see quite logically how Salafism - as a method of unmediated interpretation (for some, though I understand your reservations, as well) could form the roots of progressive "reformist" Islam, as well. It's certainly often mentioned that scholars like Muhammed 'Abduh were among the first to use the term salafiyya to describe what they were doing (particularly in the emphasis on "reopening" the door to ijtihad). If you received a religious education that encouraged you to question and to be self-reflective, then it's a lot better than the religious education that most of us get, myself included!

Oh - "Aran" was just a typo. It was supposed to be Arab. I was distinguishing between 12er minorities in the Arab world and the 12er majority in Iran, with its adherence to walayat al-faqih (a more extreme version of marja' at-taqlid).

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