Islamic Legal Authority in a Cacophonous Age

By Nathan J. Brown, George Washington University

*This memo was originally drafted as a part of the Islam, Islamists, and the Media in a Changing Middle East workshop held at George Washington University on October 28, 2016.

Let me begin with a familiar pair of authorities: the mufti and the judge. A mufti, we learn in most efforts to explain authority in Islamic law, is a learned scholar who answers questions interpreting religious law; a judge issues rulings based on application of the law. They are often paired in accounts explicating the elaboration and reproduction of Islamic legal thought over time: the judge’s rulings are held to be ephemeral reactions to particular circumstances; the mufti’s fatwas are learned interpretations based on knowledge of the sources. The first is held to be authoritative for the litigants because it is enforced by the state; the second is held to be authoritative in a more profound and sustained (if less political) sense—it is an interpretation which, whether or not it is deployed in a particular case, bears the prestige of the mufti and participates in the discourse among scholars that reproduces the Islamic shari`a over time.

I want to argue in this short essay that while the mufti and judge survive, they have now been joined by many other figures who make religious arguments and that all kinds of new settings are friendly to religious arguments. Standing alone, this is an unexceptional claim. But I also want to claim that the ways in which authority and arguments are linked has changed, that arguments travel far more easily but do not always bring the authority of their inventors with them. This is an abbreviated version of the argument more fully developed my book, Arguing Islam after the Revival of Arab Politics.

As part of the research for the book, I sought to meet some popular muftis and observed others who issue their interpretations not in scholarly writings but on television call-in shows. When I watched this new mode of consulting muftis, I was puzzled by the fact that so many smile. Perhaps this is a phenomenon restricted to the Arab world — even their Salafi broadcasters are often an exception. But the avuncular expression is quite striking. It is often similar to that on the expression on the face of the da`i, the preacher, who stays away from legal rulings to focus on moral and ethical exhortation. The television mufti’s message seems to be one that his learning is deployed with compassion and understanding; God’s law is helpful not harmful.

By strong contrast, when I have seen judges in courts, their faces seem largely devoid of expression, betraying at most a dispassionate scowl. The message seemed to be that law is serious and even severe.

In his recent book Questioning Secularism, Hussein Agrama compares his conversations with Egyptians who deliver fatwas with his observation of personal status courts. He notes a puzzling phenomenon: those who deliver fatwas are often pressed by their questioners for more demanding interpretations and become frustrated if the muftis seemed to be making things too easy for them. In court, however, litigants tailor their appeals in such a way as to obtain the most favorable ruling. Those who fail to get a favorable court ruling might appeal; those who seek a second fatwa (not a common occurrence) do so in the precise opposite circumstances: “if people ask different muftis the same question, it is often not because they are seeking advantage, but because they are uncomfortable with a past decision that is to their advantage.”

In my own conversations with those who deliver fatwas in the Arab world, I have asked about this phenomenon noted by Agrama and been told similar stories, with muftis often feeling forced to teach the questioner that the Islamic path is rarely the more difficult one but instead designed to meet the needs of the believers. Judges I speak with, by contrast, are more likely to be suspicious of litigants and insist that they need to question carefully and each for signs of shaving the truth and deception.

The reason is clear, going back to the familiar image of the pair of legal specialists: mufti and judge have two very different kinds of authority. The faithful go to muftis voluntarily for moral guidance on how to live their lives; litigants go to judges to have their rights enforced. The religious authority of the mufti does not carry easily into the political realm; the finding of a civil court judge does not generally sway a religious scholar. Neither arguments nor authority are fungible.

The proliferation of new media and the revival of some older ones have led to many new entrants into religious arguments besides mufti and judge. A more subtle, but just as consequential, effect of the proliferation of religious talk in so many media, new and old, is not simply to create new publics but also to make for an environment in which arguments can pass easily from one sphere to the next, unlike the classical image of the mufti and the judge. When arguments move — or, to be more accurate, when actors move them, since there is agency involved — they are often shorn of the original speaker’s authority.

Religious authorities — whether new preacher, learned scholar, salafi shaykh, television talk show host, web-based mufti, pamphleteer, newspaper columnist movement leader — operate on different playing fields. They have different modes of communication, contrasting styles of persuasion, and various forms of relationship with followers. There is no single public square in the Arab world but a whole host of arenas of contest and argument, many of which are difficult to follow.

What is remarkable about the multiplication of spheres is not that they can throw off the shackles of authoritarianism (some can to a degree, but to much less an extent than was sometimes hoped by enthusiasts), but that they greatly increase the portability of arguments.

Sometimes it is quite literally as easy as clicking on “copy” and “paste.” Indeed, newer social media are uniquely suited to just such a purpose: there is nothing new about a preacher giving a sermon and word of that sermon circulating through conversation. Over the course of the twentieth century words spoken in the sphere of the mosque might spread to other sympathetic spheres, generally ones receptive to the message through a steady accretion of technologies (press, followed by broadcast media, and then cassette tapes). Now in the twenty-first century, such sermons might be tweeted; video links spread by Facebook; friends might coordinate by text message about where to gather for congregational prayer; journalists might follow such discussions; talk shows might be alerted to controversies, particularly ones that lent themselves to dramatic confrontations. Satellite television allowed new voices to be heard; social media allow everyone to echo those voices and insinuate their arguments into personal interactions. The audience participates quite publicly in constituting religious authority.

What is happening is partly that the boundaries among the multiplying spheres have become permeable, so that arguments can travel by osmosis from one sphere to the next. Just as significant, the new spheres seem tailor made not simply for osmosis but for active transport: individuals or groups who wish to move arguments from sphere to sphere can do so with more ease and much more speed; the phrase “viral” to explain such the most extreme form of this phenomenon is hardly unique to the Arab world but perhaps well exemplified the potentialities of the new environment for giving birth rapidly to widespread political discussion.

Such active transport has been noted before, though its significance has not always been appreciated. When it has been noted, it is the empowering aspects of the tendency for opposition groups drew the lion’s share of attention, especially after the uprisings of 2011. But the new linkages among the spheres have some other underappreciated but politically significant characteristics.

First, speakers often lose control of their arguments as those engaged in active transport use them for their own purposes.

Second, emotion, symbol, and drama are more transportable than sustained reasoned argument. Those who use such devices in a persuasive way make their arguments quite transportable. But it should also be noted those who deploy feelings shorn of learned argumentation can pay a reputational price by doing so among their peers—sometimes seeming to crave attention for core audiences, losing a bit of the respect of colleagues (for individual scholars) or being seen as too politically ambitions (for movements).

Third, much of the trafficking in religious arguments is used less for gentle persuasion than for ridicule. Fatwas can be a particularly potent weapon when grasped by unintended audiences: when a prominent salafi leader in Egypt declared the symbol for Chevrolet forbidden for Muslims because it represented a cross, the effect was to inspire derision mixed with fear among non-salafis more than pious practice among the faithful.

In sum, we are dealing now with a period in which the fatwa has been transformed from a private scholarly ruling to a very public form of argumentation, in which emotion and symbol are mixed with reasoned verbal argument in new ways, in which arguments move with far greater speed and force than they did earlier and in a manner which governments and speakers can influence but not control the shape and direction of debate.

The ways in which arguments move, then, are not simply limited to building bridges; it is also easy in the new environment to burn them. And the political effects can be pernicious. This is most notable in the growing polarization notable in Arab politics in recent years; as arguments increase in force, scope, and publicity, citizens have become aware of how deeply they differ. And this awareness is often expressed in aggressive terms; it is also disconnected from structures for resolving or managing them.

Indeed, while the boundaries among public spheres have grown more permeable, structures of policymaking have not. They have been as closed as they have always been. Governing political structures seem to be designed to keep much of the public out of politics in this sense and the mechanisms that might be seen to link politics in the argumentative sense to politics in the policy-oriented sense are (or have been kept) weak. And in some countries, some of these structures exist only in name or are extremely weak.

The issue is partly state structures themselves — elections skewed, parliaments deprived of the tools of oversight, presidents who serve for life, other state institutions insulated from politics in almost any sense of the term — even in those systems that have liberalized sufficiently so as not to appear fully authoritarian. The issue is partly in what is sometimes called “political society”— those organizations and institutions outside of the state that organize constituencies, press for programs, ideologies, or policies, organize for campaigns or demonstrations. As Vickie Langhor aptly phrases the situation (using different terminology than we have here thus far), focusing on late Mubarak-era Egypt, the problem is “too much civil society, too little politics.

The problem is not a dearth of politics or of ideas; the problem is a weakness of institutional mechanisms to translate public discussions into public policies. It should be no surprise that rhetoric spins out of control if it finds no traction in policy outcomes.

Nathan J. Brown is professor of political science and international affairs and director of the Institute for Middle East Studies at George Washington University. Brown is also a Nonresident Senior Fellow at the Carnegie Endowment for International Peace.