Judging in God’s Name: State Power, Secularism, and the Politics of Islamic Law in Malaysia, Tamir Moustafa

In this excerpt, Tamir Moustafa begins by explaining that precolonial Islamic law in Malaya was highly decentralized, since God's will as expressed in the shari'a, though singular and immutable, was interpreted in various ways by different human authorities.

Malaysia ranks sixth out of 175 countries worldwide in the degree of state regulation of religion.

Few would disagree that aspects of religion and governance are intertwined in contemporary Malaysia, but the simple secular-versus-religious dichotomy tends to obfuscate the ways that religious law is transformed as a result of incorporation as state law. The imposition of select fragments of fiqh (Islamic jurisprudence) should not be understood as the implementation of an �?Islamic' system of governance, or the achievement of an �?Islamic state', for no such ideal type exists. Instead, Malaysia provides a textbook example of how core principles in usul al-fiqh (Islamic legal theory) are subverted as a result of state appropriation. Malaysia thus provides an important opportunity to rethink the relationship between the state, secularism, and the politics of Islamic law. [...]

i. The Islamic Legal Tradition

One of the defining features of Islam is that there is no �?church'. That is, Islam has no centralized institutional authority to dictate a uniform doctrine. For guidance, Muslims must consult the textual sources of authority in Islam: the Qur'an, which Muslims believe to be the word of God as revealed to the Prophet Muhammad in the seventh century, and the Sunnah, the normative example of the Prophet.

The engine of change within each school of jurisprudence was the private legal scholar, the mujtahid, who operated within the methodological frame­work of his or her madhhab to perform ijtihad, the disciplined effort to discern God's law. The central instrument of incremental legal change was the fatwa, a non-binding legal opinion offered by a qualified mujtahid in response to a question in Islamic law. Because fatwas are typically issued in response to questions posed by individuals in specific social situations, they responded to the evolving needs of particular Muslim communities in their own specific contexts. In this sense, the evolution of Islamic jurisprudence was a bottom- up, not a top-down process.

The Muslim legal community maintained unity within diversity through a critical conceptual distinction between the shariah (God's way) and fiqh (understanding). Whereas the shariah was considered immutable, the diverse body of juristic opinions that constitutes fiqh was acknowledged as the product of human engagement with the textual sources of authority in Islam.

The conceptual distinction between the shariah and fiqh was also critical in defining the relationship between experts in Islamic jurisprudence and lay Muslims. Because human understanding of God's will was recognized as unavoidably fallible, religious authority was not absolute. A fatwa, by defin­ition, merely represented the informed legal opinion of a fallible scholar; it was not considered an infallible statement about the will of God.

The plural nature of Islamic jurisprudence and the conceptual distinction between the shariah and fiqh provided for the continuous evolution of Islamic law. Whereas the shariah was understood by Muslim jurists as immutable, fiqh was explicitly regarded as dynamic and responsive to the varying circum­stances of the Muslim community across time and space. [...]

Conspicuously absent from this brief synopsis is any mention of the state. This is because the modern state, as we know it, did not exist for roughly the first twelve centuries of Islam. While specific forms of rule varied across time and place, as a general principle there was no administrative apparatus that applied uniform legal codes in the way that we have become so thoroughly accustomed to in the modern era.

2. The Transformation of Islamic Law

A. Codification as the Death of Pluralism

Although Islam spread through the Malay Peninsula beginning in the 14th century, the institutionalization of Islamic law in its present form is a far more recent development. To the extent that Islamic law was practiced in the pre­colonial era, it was part and parcel of adat (custom) and was marked by tremendous variability across time and place. [...]

The introduction of codified law, new legal concepts and categories, and English style legal institutions all marked a significant departure from the customary practices that had varied widely across the Malay peninsula. The new legal regime was also incongruent with core epistemological assumptions of usul al-fiqh. The term �?Anglo-Muslim' law characterized this peculiar mix of legal traditions. The law was �?Anglo' in the sense that the concepts, categories, and modes of analysis followed English common law, and it was �?Muslim' in the sense that it contained fragments of Islamic jurisprudence that were applied to Muslim subjects. As such, Anglo-Muslim law was an entirely different creature from classical Islamic law. By the beginning of the 20th century, �?a classically-trained Islamic jurist would be at a complete loss with this Anglo-Muslim law', whereas �?a common lawyer with no knowledge of Islam would be perfectly comfortable.'^[30] Passages from the Qur'an and Sunna may be cited in court rulings to support particular decisions, but the mode of legal analysis is English common law, not usul al-fiqh.

Women's rights advocates welcomed many of the provisions in the new Islamic Family Law Act as progressive advances for women. However, subse­quent amendments introduced regressive provisions that made it more diffi­cult for women to secure divorce, placed women in a weaker position in the division of matrimonial assets, and provided women with fewer rights in terms of child custody and maintenance. For example, Article 13 requires a woman to have her guardian's consent to marry (regardless of her age) while men have no similar requirement. Article 59 denies a wife her right to maintenance or alimony if she �?unreasonably refuses to obey the lawful wishes or commands of her husband'. Articles 47-55 make it simple and straightforward for a husband to divorce his wife (even outside of court), while a woman is faced with lengthy court procedures to earn a divorce without her husband's consent. Article 84 grants custody to the mother until the child reaches the age of seven (for boys) or nine (for girls), at which time custody reverts to the father. Moreover, Article 83 details conditions under which a mother can lose her right to custody due to reasons of irresponsibility, whereas no such conditions are stipulated for fathers. It should be emphasized that these stipulations are not unambiguously �?Islamic’. Indeed, Muslim women's rights activists field powerful arguments for why these and other provisions must be understood as betraying the core values of justice and equality in Islam. [...]

B. Naming as a Means of Claiming Islamic Law

In addition to codification and increased specificity in the law, there was an important shift in the way that Anglo-Muslim law was presented to the Malaysian public beginning in the 1970s. Until that time, Anglo-Muslim family law was understood as being grounded in some substantive aspects of custom and fiqh (Islamic jurisprudence), but there was no formal pretense that the laws themselves constituted �?shariah'. The 1957 Federal Constitution, for example, outlined a role for the states in administering �?Muslim law' as did the state-level statutes that regulated family law. However, a constitutional amend­ment in 1976 replaced each iteration of �?Muslim law' with �?Islamic law'. Likewise, every mention of �?Muslim courts' was amended to read �?Syariah courts'. The same semantic shift soon appeared in statutory law: the Muslim Family Law Act became the Islamic Family Law Act; the Administration of Muslim Law Act became the Administration of Islamic Law Act; the Muslim Criminal Law Offenses Act became the Syariah Criminal Offenses Act; the Muslim Criminal Procedure Act became the Syariah Criminal Procedure Act and so on.

Why is this important? In all of these amendments, the shift in terminology exchanged the object of the law (Muslims) for the purported essence of the law (as �?Islamic'). This semantic shift, I argue, is a prime example of what Erik Hobsbawm calls �?the invention of tradition'. The authenticity of the Malaysian �?shariah' courts is premised on fidelity to the Islamic legal tradition. Yet, ironically, the Malaysian government reconstituted Islamic law in ways that are better understood as a subversion of the Islamic legal tradition. That distinct form of Anglo-Muslim law, it must be remembered, is little more than a century old. But every reference to state �?fatwas' or the �?shariah courts' serves to strengthen the state's claim to embrace the Islamic legal tradition. Indeed, the power of this semantic construction is underlined by the fact that even in a critique such as this, the author finds it difficult, if not impossible, to avoid using these symbolically laden terms. It is with the aid of such semantic shifts that the government presents the syariah courts as a faithful rendering of the Islamic legal tradition, rather than as a subversion of that tradition. In this regard, a parallel may be drawn to nationalism. Just as nationalism requires a collective forgetting of the historical record in order to embrace a sense of nation, so too does shariah court authority require a collective amnesia vis-a­vis the Islamic legal tradition. [...]

C. The State's Monopoly on Religious Law

One of the most striking features of the Malaysian legal system is the extent to which the state and federal authorities claim a monopoly on religious inter­pretation. The institutionalization of religious authority can be traced back to the colonial era when state-level religious councils (Majlis Agama Islam) and departments of religious affairs (Jabatan Agama Islam) were established in most states of British Malaya. According to Roff, these institutional transform­ations produced �?an authoritarian form of religious administration much beyond anything known to the peninsula before.'^[32] This centralization of religious authority continued after independence. [...]

[T]he powers provided to these authorities are extraordinary. Most signifi­cantly, the Mufti is empowered to issue fatwas that, upon publication, are �?binding on every Muslim resident in the Federal Territories' [Article 34]. Accordingly, fatwas in the contemporary Malaysian context do not serve as non-binding opinions from religious scholars as in classical Islamic jurispru­dence; rather, they carry the force of law and are backed by the full power of the Malaysian state. Moreover, the Administration of Islamic Law Act allows this lawmaking function to completely bypass legislative institutions such as the Parliament. Other elements of transparency and democratic deliberation are also excluded by explicit design. For example, Article 28 of the Act declares, �?The proceedings of the Majlis shall be kept secret and no member or servant thereof shall disclose or divulge to any person, other than the Yang di-Pertuan Agong [Supreme Head of State] or the Minister, and any member of the Majlis, any matter that has arisen at any meeting unless he is expressly authorized by the Majlis.' In other words, the Administration of Islamic Law Act subverts not only basic principles of Islamic legal theory (usul al-fiqh), but also the foundational principles of liberal democracy that are enshrined in the 1957 Constitution, by denying public access to the decision-making process that leads to the establish­ment of laws. [...]

3. State Power, Secularism, and the Politics of Islamic Law

This study opened with the observation that Malaysia ranks among the top six countries worldwide in the degree of state regulation of religion. From this vantage point, Malaysia appears to be the antithesis of a secular state and the realization of a religious state, at least for the 60% of Malaysian Muslims who are subject to such rules and regulations. Indeed, former Prime Minister Mahathir Mohammad famously declared Malaysia an �?Islamic state' and government officials have subsequently repeated the claim. Yet despite the fact that aspects of religion and governance are clearly intertwined, the Malaysian case illustrates how the simple dichotomy of �?secular' versus �?reli­gious' obfuscates more than it reveals. As recent work on secularism shows, the secular-versus-religious dichotomy leaves unexamined the troubled genealogy of secularism itself. Most important for our purposes, the dichotomy takes its own starting point for granted and overlooks the ways that both categories were constructed as mirror opposites with the expanding regulatory capacity of the modern state.

The Malaysian case illustrates why the secular-versus-religious dichotomy provides a particularly poor schema through which to understand state incorp­oration of Islamic law. Perhaps most obviously, the conventional labels of �?religious' and �?secular' impose a binary with zero-sum properties. At any given point, the religious and the secular are imagined to be in an uneasy truce, a state of simmering tension, or an all-out struggle for supremacy. An advance for one is a loss for the other. Indeed, the two most common narratives in studies of Islam and politics in contemporary Malaysia depict an otherwise secular state capitulating to pressure and adopting Islamic law, or, alternately, proactively harnessing Islamic law for political advantage. While both readings capture important dynamics in the competition over religious authority, these sorts of arguments tend to present Islamic law in an �?additive' manner. That is to say, at any given moment Malaysia is understood as being somewhere on a continuum between a �?secular' and �?religious' state. Media frames and popular political discourse cycle through the same tropes ad nauseam, incessantly asking the anxious question of whether Malaysia is, will become, or was ever meant to be a �?secular state' or an �?Islamic state'. This is not to deny the fact that Malaysians have diverse (and often divergent) visions for the future of their country. And this is not to minimize the very real consequences that these political struggles have for individual rights, deliberative democracy, and a host of other important issues. It is only to say that the secular-versus-religious schema too often assumes a unidimensional and ahistorical conception of Islamic law and thus tends to take the state's claim to Islamic law for granted. In other words, anxiety over �?how much' Islamic law is incorporated as state law too often assumes that the outcome is consistent with the Islamic legal tradition in the first place. What drops out of the picture are the specific ways that state incorporation of Islamic law, at least in the fashion documented here, subverts the Islamic legal tradition itself.

As select fragments of fiqh (Islamic jurisprudence) are constituted within an emerging field of state law, little or no space is left for usul al-fiqh, the interpretive method that undergirds Islamic jurisprudence. Stripped of its methodological underpinnings, these transformations subvert the epistemo­logical approach of classical Islamic legal theory (usul al-fiqh) by collapsing the important conceptual distinctions between the shariah (God's way) and fiqh (human understanding), with the ultimate result of facilitating the state's claim to �?speak in God's name.'^[33] But more than this, by monopolizing interpretation, codifying select fragments of fiqh, and deploying those laws through state institutions, the Malaysian state is �?judging in God's name'. The religious councils, the shariah courts, and the entire administrative apparatus are Islamic in name, but in function they bear little resemblance to the

Islamic legal tradition. A deep paradox is therefore at play: the legitimacy of the religious administration rests on the emotive power of Islamic symbolism, but its principal mode of organization and operation is fundamentally rooted in the Weberian state.