Pluralism: Legal and Ethno-Religious
LEGAL AND ETHNO-RELIGIOUS
Several Qur˒anic verses as well as hadiths seem to confirm the acceptance of ethnic and religious diversity or pluralism. One such example is found at 49:13, which reads: "O people! We have created you from a male and female; and we have made you in confederacies and tribes so that you might come to know one another. The noblest among you in the eyes of God is the most pious, for God is omniscient and well-informed." This verse offers no prejudice, but rather expresses a consciousness of difference and emphasizes that piety is more important than the birth. Ethnic pluralism, that is the existence of groups defined primarily by race, language, or other cultural, historical, and in some sense geographical criteria was thus accepted from the beginning in Islam. However, the unity of the Islamic umma (community of believers) was emphasized and was thought of as a kind of superstructure upon which other identities, whether tribal or ethnic, were hung.
The Spread of Islam to Other Cultures
From the time of the first conquests, Muslims spread out from the Arabian Peninsula to people who neither spoke Arabic nor could claim Arab descent. Different ethnic groups, as well as different religions, were incorporated into the new empire. The integration of people from other races and cultures did not pose great legal or religious problems, although in the first two centuries, the institution of wala˒(clienthood) was used to affiliate non-Arab Muslims to the developing Muslim society. This reflects the struggle between the pure-Arab, conquering aristocracy, who claimed ethnic and social superiority, and the Muslim converts among the conquered, who could claim neither ethnic nor familial advantage. Thus, the cohabitation of different ethnicities and races was never without problems. The idea of racial innocence and total racial (and ethnic) harmony in Islam is, in other words, a Western creation, as Bernard Lewis argues in his 1990 volume, Race and Slavery in the Middle East.
Accommodating Other Religious Practices
Religious pluralism, on the other hand, must be dealt with on several levels. Whereas the acceptance of the "people of the book" (comprising Muslims, Christians, and Jews) was stated from the beginning, and whereas Christians and Jews had an acknowledged (but not equal) position in the Muslim society, people belonging to other, "non-book" religions were required to convert to Islam. However, even within Islam, belief itself is not and cannot be considered monolithic. Pluralism existed in Islamic formal theology as well as in popular belief.
The common belief in Islam is based on the acknowledgment of the unity of God, and Muhammad being the prophet of God. It also requires the acknowledgment of the other four pillars of faith: prayer, fasting, pilgrimage, and the payment of alms. Those who did not accept these basic tenets were considered to be unbelievers. On the other hand, within this framework, a wide range of different forms of religiosity developed, as evidenced by the rise of the mystic orders, especially since the fifteenth century.
Theological controversies centered around several different issues, including the analysis of the concept of God, the ontological and cosmological proofs, and the politics of the application of divine rule to the community. Different theological schools came into existence, such as the Murji˓a, the Qadiriyya, and the Mu˓tazila. These have been complemented by diverse approaches to mystical and philosophical theology and, more recently, by a theology that reflected the confrontation with Western colonial powers.
Religious pluralism on both the normative and the social level must be looked at in a historical perspective, taking into consideration Islam's adaptation to the manifold political, economical, regional, and social conditions, and the different cultural backgrounds and separate historical developments that prevailed in the vast areas into which it spread. There is, however, a limitation to tolerance, a turning point where different beliefs must be judged as unbelief (kufr). Just where this turning point occurs is still under discussion today, and transgressions are still prosecuted. An example is the case of Nasr Abu Zaid (b. 1943), who was considered an unbeliever for his interpretation of the Qur˒an. As punishment, he was forced to divorce his wife in 1995 (although the marriage was later reinstated).
Islamic law can also be called pluralistic. It derives its norms, rules, and judgements from the holy texts (Qur˒an, sunna), but in cases where these sources provide no clear rules, they are derived through the method of analogy (qiyas). Rules and judgements derived in this way were then gradually accepted through the consensus of the jurists (ijma˓), which, however, was not institutionalized. Thus, from the beginning, there existed a wide range of acceptable legal resolutions to problems. Over time these were derived from the texts by the jurists (fuqaha) and laid down in the legal literature. This process of derivation was based on the independent juristic interpretation of the texts, called ijtihad. Codification of law only began in modern times, starting in the Ottoman Empire with the mecelle in 1877. The methodological tool of ijtihad and the pluralism of different legal norms and rules have always supplied Islamic Law with a certain flexibility.
Four major legal schools have emerged over time. These are the Maliki, Hanafi, the Shafi˓, and the Hanbali. In addition there are the Shi˓ite schools of law, the most important of which being the school of the Twelver Shi˓a. On the institutional level, this pluralism led the rulers of the Mamluk Empire, in Egypt in the thirteenth century, to create the offices of the four judges, each associated with one of the four Sunni schools of law.
Nonetheless, the application of Islamic law has always been restricted to the Muslim community, and the legal independence of the Jewish and Christian communities was accepted to a certain degree. Thus, Islamic law could be defined as a personal law and not as the law of a territory. In the Ottoman Empire, the millet system began as a coexistence of religious communities, each with its own administrative autonomy and jurisdiction. This system finally led to a change whereby the personal law became more territorial, ultimately becoming a law applicable to all subjects of the Ottoman Empire and not only to the Muslim community.
Legal pluralism describes the (legal) situation observed in the Islamic countries today, but it is by no means exclusive to them. From the lawyer's point of view, legal pluralism denotes a state's recognition of the existence of a multiplicity of legal sources that constitute its legislation: international treaties, customary law, religious law, and the like. From the sociological point of view, legal pluralism can be defined more broadly, to acknowledge that a plurality of sometimes interactive social fields produce norms of legitimate behavior. For Islam, the term not only recognizes the coexistence of modern, secular modern laws alongside shari˓a norms, but also the existence of customary practice beside, or even in opposition to state law.
Throughout its history, the legal structures of Islamic society have made room not only for the coexistence of shari˓a and qanun (that is, religious and secular law), but also for customary practice (˓urf). An example of this is the so-called "secular justice" of the mazalim, an institution dealing with grievances that not only is rooted deeply in the theory of Islamic constitution but which has also been practiced through centuries. The problem of accommodating multiple sources of the law, however, gained special importance under the influence of modern, secular Western law in nineteenth and twentieth centuries. In response to the growing importance of Western law in Muslim societies, a powerful political Islam arose in the 1970s that was rooted in the belief of the necessary implementation of Islamic law. Thus, Islamic law was rediscovered as a national legal tradition, and was held up in opposition to the influence of the Western law.
Kilian Bälz, a turn of the twenty-first-century legal scholar whose work has focused on the problem of the legal pluralism in Muslim society, has argued that the coexistence and relation between the modern Western law and the shari˓a has always been discussed in this context of influence. He has shown that in Egypt, as in many other Islamic countries, the constitution holds the principles of shari˓a to be the primary source of legislation. In 1994, however, Egypt's highest court defended the autonomy of the secular legal order by taking control of the interpretation of Islamic law. As Bälz reports, the court reserves to itself the right to interpret Islamic rules, and it reconstructs Islamic law on the basis of secular paradigms. This is, however, nothing new. The interpretation of shari˓a has historically been flexible, as can be seen in the existence of several different schools of law (ikhtilaf) and through the practice of ijtihad, which is the legal interpretation of the Qur˒an and other textual sources by jurists. Thus, Islamic legal pluralism refers not only to multiple sources of the law (religious or secular), but also to multiple interpretations of any given law.
Also important to the analysis of Islamic legal pluralism is an examination of rules, other than those enacted by the state, which govern and shape social conduct. Social norms and customary practices can in no way be considered uniform through out the lands of Islam, yet they operate within or alongside of formal legal structures. An important example of this is the haqq al-˓arab, a form of conflict resolution in modern Egypt (and other Muslim countries), that operates outside of both religious and formal secular law, yet enjoys at least partial official recognition.
Aslan, Adnan. Religious Pluralism in Christian and IslamicPhilosophy. Richmond, U.K.: Curzon, 1998.
Bälz, Kilian. "Shari˓a and Qanun in Egyptian Law. A Systems Theory Approach to Legal Pluralism." In Yearbook of Islamic and Middle Eastern Law, Volume 2 (1995): 37.
Dupret, Baudoin; Berger, Maurits; and al-Zwaini, Laila. Legal Pluralism in the Arab World. The Hague: Kluwer Law International, 1999.