Islamic Law, the Taliban, and the Modern State

[GemState]

Very Interesting article. I'll mention key parts;

https://islamiclaw.blog/2023/03/31/islamic-law-the-taliban-and-the-modern-state/

How should Muslims relate to pre-modern Islamic ideas and experiences?

How should Muslims relate to their tradition? There is a spectrum of responses generated by this question. On one end are those Muslim thinkers who want to Islamize western modernity, often by locating the seeds of modern ideas in the vast reservoir of pre-modern Muslim experiences and ideas. To deconstruct the pre-modern Islamic orthodoxy, these scholars have militated against Ashʿarīsm of Sunnī Islam [Ashʿarī is a school of theology that privileges revelation, as oppose to reason, as a way to determine the morality of an action], the fiqh-centrism of Islamic orthodoxy [fiqh refers to Islamic jurisprudence], the political economy that underpinned the production of (ethical) knowledge in pre-modern Islam, and the authority of tradition more broadly.

On the other end, there are those scholars who adopt a critically discriminating approach to western modernity. These scholars envision multiple modernities and argue for a Muslim modernity, a modernity that embraces some elements of western modernity but rejects others. For example, Abdurrahman Taha, who is a leading philosopher the Islamic world, rejects the “denuded rationality” of western modernity but incorporates critical inquiry. Wael Hallaq, a leading scholar on pre-modern fiqh, perhaps goes even further. Commenting on Taha’s writing, he questions the need to import critical inquiry from western modernity and the possibility of avoiding the destructive outcomes of western modernity, for example, in the form of large-scale war-making and environmental destruction, from other elements of western modernity. Wael Hallaq seems to lean towards a complete rejection of western modernity, an approach that he too may admit is primarily deconstructive.

What these opposing views have in common is their conviction that the Islamic tradition is incompatible with (western) modernity. What falls in between these two sets of opposite views is a range of more narrow responses that advance a varied synthesis of pre-modern Islamic tradition with modernity, sometimes remaining methodologically traditionalist and sometimes not. Jonathan Brown, a prominent contemporary ḥadīth scholar, possibly produces the most compelling synthesis of modern conclusions with the traditional methodology of fiqh (the best example of this is his book on Islam and Slavery where he employs an ʿurf-based [custom-based] argument to defend the moral authority of the tradition in relation to moral evolution of our sensibilities towards slavery)

 

[GemState]

What makes the Taliban modern?

The Taliban fully accept the nation-state and the international order that is built on the concept of national sovereignty. Externally, the Taliban have maintained that the sovereignty of the Afghan state empowers them to implement their version of an Islamic state within the boundaries of Afghanistan without foreign interference. Internally, the Taliban are committed to building a Weberian state. It has monopolized the use of violence and extended the writ of the Afghan state beyond what other Afghan states had done in recent Afghan history albeit the security situation remains fragile.

The Taliban’s state-building aspirations are not periphery to the group’s core mission. The Taliban’s Chief Justice talks of Islamic state. The group makes extensive use of influential works on state affairs from within the Islamic tradition in justifying its government policies: Majallat Al-Aḥkām Al-‘Adlīya, the Ottoman-era codification project,Al-Fatāwā al-‘Ālamgīriyya, a legal product of Mughal Empire state building project, and Al-Māwardī’s Al-Aḥkām al-Sultānīyya [the Ordinances of Governance], a book dedicated to the inner working of Islamic governance authored by a scholar of the Shāfi‘ī madhhab from the Abbāsid era. In the last instance, the Taliban rely on a book from a scholar of a rival madhhab even though they remain staunch partisans of the Ḥanafī madhhab.

While many have rightly criticized the Taliban’s ethnic biases, it could be argued that the Taliban’s ethnic makeup and tendencies are more due to their history, tools, and available tactics of governance than their ideology or view of the state—in fact, their ideology may militate against their ethnic biases (admittedly, this is a distinction without a difference to different Afghan communities who are disfranchised by the Taliban). The Taliban are very sensitive to the creation of a unifying national narrative, employing the slogan of “Afghānīat” and “Islāmīat”—even if that narrative remains uncompelling to the diverse makeup of Afghan society.

Presumably, having learned from the failed experience of the first Emirate, the Taliban have also accepted the Weberian bureaucratic state even if they do not have the know-how to run it well. In fact, they have bureaucratized some essential religious functions such as commanding virtue and enjoining vice and fatwā-making in a government ministry [fatwā refers to an authoritative opinion on a question of Islamic jurisprudence or fiqh] and the Supreme Court, respectively. The Taliban have also codified rulings of the Ḥanafī madhhab, relying primarily on Majallat Al-Aḥkām Al-‘Adlīya in doing so.

 

[GemState]

Not unlike other Muslim modernists, the Taliban have, at times, Islamized these modern ideas by relying on pre-modern Islamic sources. For example, Mullah Omar, the group’s late founder, once presented an ijāra-based argument to justify the need for perfect attendance by Taliban officials [ijāra is a contract of hire in Islamic jurisprudence], while the current Chief Justice of the Taliban has made use of Al-Māwardī’s Al-Aḥkām al-Sultānīyya to Islamize the modern ministries of the Afghan state. The latter analysis especially illustrates the challenges of a systematic application of pre-modern sources to the modern context of the nation-state—i.e., the main thesis of Wael Hallaq—since the Taliban’s Chief Justice presents a pre-modern justification for a modern apparatus of a nation-state from the same source that assumed and required the Muslim ummah to be ruled by a single caliph—a position opposed to the reality of international order of nation-states.

Perhaps the more important disconnect in the Taliban’s attempt to establish an Islamic nation-state while remaining exclusively committed to pre-modern jurisprudence on state and governance is that in their role as ʿulamāʾ-turned-state-builders, the Taliban have removed any separation between the ʿulamāʾ class and the ruling class, a separation that was instrumental in creating some level of political accountability in pre-modern Islamic political order. This has led as much to control of the Taliban-affiliated ʿulamāʾ over the state as it has to control of the state over Afghan ʿulamāʾ.

For example, in the summer of 2022, 3000 men, the majority of whom were Taliban-affiliated ʿulamāʾ, gathered in Kabul to discuss the most pressing issues facing the newly re-established Islamic Emirate. While many hoped that the gathering would lend support to the reopening of secondary schools for girls, the final announcement of the gathering remained vague on the issue. Article 9 of the Communiqué acknowledges the importance of both religious and modern education, but it does not clarify if women too have a right to modern and religious education. The same article stresses the need to observe the undefined rights of women within the limits of sharīʿa. While the Communiqué remains unclear on women’s rights, it is clear in its support of the Emirate to the extent that it bans public disagreement among the ʿulamāʾ on issues that are deemed controversial, in effect banning public criticism of the Taliban’s approach to enforcement of Ḥanafī Islam. In a more recent example, the Taliban’s Acting Minister of Higher Education, a figure close to the Taliban’s supreme leader, has argued that anyone who undermines the Islamic state even if it is by words is bāghī and must be put to death [bāghī in Islamic jurisprudence refers to someone who revolts against the Islamic ruler].

While the Taliban’s embrace of the nation-state may make them modern, their re-publicization of religion and their rejection of individual rights makes them anti-modern.

 

[GemState]

The most illustrative case here, of course, is the Taliban’s gender policies. Many have rightly argued to the Taliban that even the traditional methodology of the Ḥanafī madhhab would not compel them to enact some of the extreme gender policies that they have. The Taliban admittedly choose to enact these policies from a range of policies that could be supported using the traditional methodology of the Ḥanafī madhhab, or in fact by some of its rulings. The Taliban’s top leadership does not argue that non-religious education for girls who have reached puberty is forbidden (ḥarām) and they admit that it is permissible (mubāḥ). While permissible, the argument goes, the Taliban Supreme Leader, as the person with authority over the community of Muslims, has the duty and the authority to restrict the permissible so that Afghan women, Afghan families, and Afghan society orient themselves towards the ethical trajectories prescribed by the pre-modern sources of Islam in which the Taliban’s Supreme Leader and his close allies are exclusively educated. This argument has close affinity with the fisād al-zamān (corruption of time) argument that is often deployed to justify positions more restrictive than classical Islamic jurisprudence on moral grounds.

 

[GemState]

Here lies a crucial point.

Groups like the Taliban wish to recreate a “pure” Islamic society using a textual pre-modern blueprint and as such their imagined ideal Muslim society does not contain the multitude and the normative paradoxes that pre-modern Muslim societies by virtue of being a product of a living tradition and not a textually reconstructed one contained. (It also bears mention that western intellectual thought has not been immune to idealization of tradition. Hegelian thought is best example of this.

The Taliban’s relation to rational empiricism is more complex. On the one hand, the Taliban’s desire for a strong nation-state, one that could allow them to stand foreign interferences in the way of their primary religious project, compels them to create a strong economic base and obtain modern technologies of power and control. On the other hand, the Taliban intuitively understand that rational empiricism is in tension with their religious project. Rational empiricism is fundamentally anti-traditional. The Taliban Chief Justice, for example, has argued that non-religious education can corrupt minds, and even that form of it that can produce useful technology for the benefit of Muslims and the Islamic state should be cautiously promoted along with a heavy dose of religious education. It is not clear whether the Taliban will be able to resolve this tension, but having learned from the failings of the first time they ruled Afghanistan, they seem committed to trying.