Before answering whether Islamic law and modernity are in conflict, we need to explain the…
In the previous article on Islam and Modernity: Part 1, we touched upon the creation of schools of law and parliaments in the Islamic world as some of the products of modernity and the secular world. These systems challenged the public sphere of Islamic law and led to the replacement of the Islamic legal system by Western legal systems in Western colonies, including Egypt, Malaysia, and others. However, there are many common misconceptions when contrasting shariah legal systems with secular Western legal systems. Thus, as promised, this article will describe and explain the misconceptions regarding the secular legal system vis-a-vis its relative standing with respect to Islam and the implementation of law.
The assumption that shariah bases its foundation on supernatural elements and theology, like revelation, whereas the Western legal system does not, is a widespread misunderstanding among the public and even among many educated academics. Many falsely contend that the Islamic legal system is solely based on theological premises, whereas the secular legal system is established on verifiable facts without the need for a theological foundation.
To discover the hidden theological foundations of secular legal systems and secular knowledge in general and to analyze their accuracy, one needs to pay attention to the standardization of secularism in modern knowledge. The secular discourse has presented itself in the modern world, at least in academic settings, as the standard and normative paradigm and as the apparatus of an unbiased method of thinking. By presenting itself as standard, universal, transhistorical, and permanent, secularism has excluded itself from being a subject of an objective critical study. In other words, if secularism allows or encourages heretical questions against religions in general and in particular against Islamic tradition, does it also permit and encourage heretical questions against itself? It was by establishing itself as the standard system, that modernity and secular knowledge was able to pursue its hegemonic power over all other existing cultures. The sweeping brush of modernity misrepresented the previous segments of human achievement as the “Dark Ages.” While that era was often branded as a time of war and ignorance, the new modern era was presented as the time of enlightenment and knowledge. By its criticism against other methods of thinking, modernity was able to demonize the “other” (i.e., sacred texts in general and Islam in particular). In doing so, modernity was also able to engineer a cultural self-identity for its own adherents.
Thus, any attempt to discover and critique the theological foundation of modernity needs to pay attention to the normative, hegemonic, and colonizing political nature of modernity. It is through this approach that in his latest book, Reforming Modernity, Wael Hallaq adapts the philosophical thoughts of Abdurrahman Taha (born 1944), a Moroccan philosopher, to explain and critique some of the theological foundations which all fields of secular knowledge are based on, whether it is in the field of secular law, the topic that we are dealing with in this and the previous article, or other humanities and sciences.
The Theology of Progress
One of the assumptions that secular knowledge, including the secular legal system, operates on is what Hallaq calls the theology of progress. One of the assumptions of Western modernity is that the earliest phases of human history and knowledge have been preparatory for the later ones. In other words, time, in this theology has a teleological structure in which the traditions that appeared earlier, non-Islamic and Islamic, were all instruments for a goal, and secularism is that goal. The theology of progress in secular knowledge resembles Darwin’s theory of evolution in biology. In Darwin’s theory, organisms evolve over time, while in theology, previous traditions have evolved and perfected themselves and produced secular modernity, which is the outcome of the evolution that occurred in all the preceding traditions.
To assume that theories, compared to their predecessors, always perfect themselves and evolve towards a better direction and never go in the opposite direction is not only a misleading argument, it also ignores the fact that human civilizations have been more like a rollercoaster than a ladder. Many ideas and theories in human history have come to prominence and fallen apart without much evolution. Even if we assume the applicability of the theory of evolution to the matter at hand, in the realm of ideas, we should conclude that the best ideas will evolve in the future and the secular method is yet to be completed and has still to demonstrate a tangible evolution that might be deemed positive by succeeding methods of thinking. To pause and stop the evolution of theories and assume the secular world view to be the natural finality of evolution, and therefore perfection, is also another line of implausible reasoning.
The Scope of Scientific Reasoning
Another fundamental assumption that modernity rests upon is the unlimited scope of scientific and experimental reasoning. Modern knowledge in general and Western legal systems in particular are founded upon a belief that experimental reasoning can comprehend everything and the human mind does not need anything else to discover reality and truth. Other forms of accessing truth and reality like intuition, testimony, intellectual reasoning, and other approaches utilized by other systems of thinking were downgraded or completely abandoned in favor of experimental and scientific reasoning.
The unlimited scope of scientific reasoning is one of the shakiest foundations of modernity that Taha refutes by employing an intuitive principle from the field of Islamic logic. In logic we learn that “what comprehends must necessarily be more powerful than that which is comprehended.” Based on this seemingly simple principle, it is impossible for experimental reasoning to comprehend itself. Hallaq explains this argument as follows: “Reason, after all, is self-refutative. First, reason cannot comprehend itself, although it is a thing. A stronger form of reason is required to comprehend reason because that which comprehends must necessarily be more powerful than that which is comprehended. This second form of reason in turn requires yet another, stronger, or higher form of reason to comprehend it, which leads to an innate regress.”
The second logical principle that rejects the wide scope of scientific reasoning is the principle of “part and whole” (al-juz wa al-kull), which implies that a part is never able to contain the whole. In our discussion, experimental reasoning, which is a part of truth and knowledge, claims the comprehension of the entire truth, yet it is logically impossible for it to know everything.
The Here and Now Nature of Modern Knowledge
Modernity was born in confrontation with the centralized sovereignty of the Catholic Church in Europe. It was in this context of domination that individual liberty and freedom became a central piece of advocacy for modernity, and many liberal theologians started preaching for its implementation. Through emphasizing individual will and freedom, hedonism and egoism theories were born—theories in which humankind and its short-term desires became the center of this universe, as if humans own everything and everything else in this universe should circle around them. In these theories, the new humans and their immediate will and desires replaced God and religions. Empowering individual freedom and will helped Europe to free itself from the Catholic Church’s sovereignty and it elevated the material living conditions of modern humans on Earth to some extent. Yet, the question is about the long-lasting effects and impact that this theology has had and will continue to have on the next generations of humans and on the Earth as their home. The will of human individuals that shifts quickly from time to time, the will of here and now, the will of benefiting from the moment and the short-term application of things in the world has already harmed our planet and continues to harm it every day. This will, with its concentration on the immediate interests and gains of human beings, has already damaged our oceans, our forests, and our environment. This is a theology that justifies the belief of owning everything on this planet and neglecting subsequent ages and humans to come; it is the theology that we need to struggle to reform.
The theology of progress, experimental reasoning theology, and the theology of here and now are only some of the theological foundations of modern knowledge and secular legal systems. The problem is that many have preferred secular theology over their traditional ones without even realizing that in this process they are replacing a stable system with something less stable. Many have taken for granted the plausibility of this secular theology without even stopping to question its shaky foundations.
We should mention here that we are not purifying the traditional theologies, Islamic knowledge, and Islamic legal system, by criticizing the secular ones. That is not the purpose of this series. The Islamic legal system has its own challenges, which need addressing. However, what concerns us here is the hegemony of secular knowledge, the monopoly of this theology, and its phobic nature. It purifies itself of all the deficits that plague other systems, and presents itself as the epitome of human knowledge and the reasonable and perfected outcome of previous traditions. In another word, a healthy conversation between the secular knowledge and traditional knowledge can only accrue if secular knowledge forgo its hegemonic nature.
To continue this series, in the next article we will discuss another misconception about Islamic and secular legal systems. We will turn the page and find out how the Islamic legal system, which is founded on seemingly immutable and permanent tradition, has been changing and adapting itself within different contexts.
 Wael B. Hallaq, Reforming Modernity: Ethics and the New Human in the Philosophy of Abdurrahman Taha, (New York: Columbia University Press, 2019).