Critical Theory for Thee but Not For Me

September 1, 2009 | 15 comments
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In 1996, the Catholic scholar Massimo Introvigne published an article entitled “The Book of Mormon Wars: A Non-Mormon Perspective.” He wrote:

[T]he basic epistemology of Latter-day Saint conservatives is entirely different from the fundamentalist paradigm. We have mentioned earlier that—contrary to popular prejudice—Protestant fundamentalists, according to the most recent scholarly interpretations, are in fact deeply committed to Enlightenment concepts of “objective knowledge” and “truth.” Postmodern, anti-Enlightenment epistemology is favored by their liberal counterparts. Not so in the Mormon controversy. Liberals, to start with, are staunch defenders of the Enlightenment. . . . On the other hand, the late modernist and postmodernist position that knowledge is by no means objective and that “true,” universally valid historical conclusions could never be reached, is held by Latter-day Saint conservatives.

There are, of course, nuances to what post-modern “conservative” Mormons like David Bohn have actually been arguing for all these years, and in the overheated environment of the late-1980s and early-1990s some rather exaggerated claims were made about the extent of conservative Mormon “post-modernism.”  One of the claims that got made in that debate was that conservative Mormon scholars were willing to turn their epistemological guns on the neo-Enlightenment opposition but wouldn’t put their own faith through a similar critical and skeptical acid.  I think that the charge rested on an uncharitable and ultimately inaccurate reading of writers like David Bohn or Lou Midgley, but I do think that among less sophisticated conservative intellectuals (like me yammering on in the BYU Philosophy Department Workroom circa 1996) there was a hope that one could find some magic, meta-argument that could dispose of this or that line of reasoning without necessarily thinking through the full implications of the idea for the rest of one’s thought.

I was reminded of this whole episode recently while reading some recent scholarship on Islamic law.  One of the writers that I have been looking at is Wael Hallaq, a Muslim legal theorist at McGill University in Montreal.  In his book Sharia: Theory, Practice, Transformations (Cambridge UP, 2009), he writes:

[T]he modern state represents itself, and is represented in discourse about it, as an abstract legal entity, the being a fundamental feature of its ideological make-up.  The function of this ideological constitution “is to misrepresent political and economic domination in ways that legitimate subjection,” which is to say that it “is the distinctive collective misrepresentation of capitalist societies” whose prop is that “ideological project,” that “exercise in legitimation.”  The state, at lease according to Marxist analysis, hides the domination of one class over others, the act of hiding here being one of its quintessential features. . .  The Shari’a, by the constitution of its fiqh [i.e. legal elaboration] (as well as by its actual socio-economic history), neither promoted economic classes nor encouraged capitalistic or class dominance.   But more importantly, the Shari’a, lacking this agenda and serving no class in particular, did not develop the need to hide itself behind and impenetrable ideology, one that, in the case of the modern state, has befuddled scholars and continues to defy palpable analysis.

Now I suspect that I am about as sympathetic a non-Muslim student of Shari’a and usul al-fiqh as one is likely to find in an American law school.  I have an enormous respect for the huge intellectual effort required to create the classical Shari’a, and I understand the piety and desire to infuse life with the presence of the divine that stands as the central spiritual impulse behind the Islamic law.  I work hard to try and “get it” when studying the Shari’a, rather than skipping straight to denunciations of the Taliban and dire warnings about the threat that Islam poses to western civilization.

But even I can’t swallow the blithe critical-theory-for-me-but-not-for-thee in Hallaq’s analysis.  Shorn of the awful Marxist/crit jargon, Hallaq in effect argues that the nation state and with it the western notion of the rule of law is essentially a lie that is told as a way of shoring up the power of economic elites.  The Shari’a, in contrast, has no sinister under currents and serves no particular class.  Give.  Me. A. Break.

The classical fiqh was articulated by a group of Arab conquerors ruling over a large non-Muslim population.  It strikes a careful balance between securing Muslim dominance without so repressing the conquered populations that they revolt or (nearly as bad) convert en mass to Islam and thereby subjecting themselves to lower tax rates.  Likewise, the classical fiqh on its face allocate greater power to men than to women within marriage contracts and divorce proceedings (although again, it is not as brutally misygonistic as it is sometimes portrayed).  It litigation between Muslims and non-Muslims, Muslims clearly enjoy certain evidentiary and procedural advantages.  And so on.

At the end of the day, I don’t buy into either the Marxist critique of western law or the insipient one that I make against Islamic law in the proceeding paragraph.  Both systems, I believe, represent efforts to realize justice and decency in human relationships.  Both systems frequently fall short of their stated ideals.  I don’t want to overplay the similarities.  Shari’a rests on very different assumptions about legal ontology and epistemology as compared with western legal systems.  Both systems, however, have a dignity and wisdom that makes them worthy objects of study.

The implausibility of Hallaq’s asymetrical use of Marxism, however, brings home to me again the problem of employing critical theories sloppily.  The result is neither persuasive nor, ultimately, coherent.

15 Responses to Critical Theory for Thee but Not For Me

  1. The other Bro Jones on September 1, 2009 at 1:35 pm

    It is Greek to me

  2. Dave on September 1, 2009 at 2:14 pm

    Very nice discussion, Nate. So what we really need is an ethics governing the use of critical theory. I’m no epistemological pacifist — these guns are made to be used. But I’m also tribal enough to agree that they should be used on one’s enemies, not on one’s friends.

    From that admittedly personal perspective, one can hardly blame the Mormon postmodernists who sent volleys in the direction of Mormon historians for not also directing their critical guns at traditional Mormon doctrines and thinking. Only academics argue about the wisdom of not shooting one’s friends.

  3. Frank McIntyre on September 1, 2009 at 2:31 pm

    “Only academics argue about the wisdom of not shooting one’s friends.”

    I like it.

  4. Nate Oman on September 1, 2009 at 2:50 pm

    “It is Greek to me”

    The post is about geese, ganders, and the relative goodness of a thing for one or the other.

  5. Nate Oman on September 1, 2009 at 2:52 pm

    Dave: Doesn’t it depend on one’s audience and what one is trying to do? Also, there is the quaint old notion that intellectual discussions are more than simply exercises in rhetoric and ego preaning. It’s implausible I realize, but at times we might want to just understand things…

  6. Nate Oman on September 1, 2009 at 2:56 pm

    “Only academics argue about the wisdom of not shooting one’s friends.”

    I may make this the new signature line for my emails. Great turn of phrase.

  7. Dave on September 1, 2009 at 3:11 pm

    Nate, I agree that audience is important. Alas, in the Internet Age it is very difficult to control audience. A closed transmission or an email sent to one person can, the next day, become a post to the world.

    Summarizing a criticism from that earlier debate, you said:

    One of the claims that got made in that debate was that conservative Mormon scholars were willing to turn their epistemological guns on the neo-Enlightenment opposition but wouldn’t put their own faith through a similar critical and skeptical acid.

    I think it is almost certainly the case that this criticism is wrong. I am sure most or all “conservative Mormon scholars” did look critically and skeptically at “their own faith” (and they were obviously able to reconcile the results of that exercise with their own faith). It’s just that they didn’t publish that private argument. So one can pursue understanding without necessarily publishing or even publicizing. The question of what to publish or not publish is, I think, part of the more general ethics governing the use of critical theory.

  8. Postmodernist Beginner on September 1, 2009 at 3:27 pm

    Dave, Nate: A simple question for you–who are or were the Mormon postmodernists? I was under the impression that some of the historians fit this category.

  9. Nate Oman on September 1, 2009 at 3:38 pm

    I am thinking of writers like Lou Midgley, David Bohn, and Alan Goff for example. Now some of these folks are not really properly called post-modernists (Midgley doesn’t really fit the bill) but they are generally lumped into the same group.

    Of course, my main point was about critical theory as much as about post-modernism. Hallaq, you’ll note, relies on an essentially Marxist argument to differentiate Shari’a from western law, and Marxism is hardly a post-modern ideology.

  10. Kent Larsen on September 1, 2009 at 6:16 pm

    Nate, I’m a little bit in the camp of “Postmodernist Beginner” on this one — it would be nice to have a “crib sheet” to the various parties in the Mormon intellectual debates of the past 50 years or so. My own education on these movements is quite limited (mostly to literature and art until the 1950s or 60s, and certainly not in the extended intellectual movements beyond art).

    Has this kind of analysis of recent Mormon history been written or explored anywhere — Is there a kind of intellectual history of Mormonism after 1950 that looks at the effect of these intellectual movements in the broader society on Mormon thought?

  11. Ida Tarbell on September 2, 2009 at 11:14 am

    “At the end of the day, I don’t buy into either the Marxist critique of western law or the insipient one that I make against Islamic law in the proceeding paragraph. Both systems, I believe, represent efforts to realize justice and decency in human relationships.”

    Are you saying that western law is ONLY an effort to realize justice and decency in human relationships? That there is no bias towards economic elites or, at the very least, property owners? That western law was not largely created by and for economic elites or, at the very lease, property owners?

    Your critique of the Marxist critique of western law would be more forceful if you admitted that Marxists might have a point, however small.

  12. Adam Greenwood on September 2, 2009 at 11:22 am

    Isn’t this one of the main attacks against critical theory in general? The argument goes — if texts are really disguised bids for power and/or attempts to maintain power structures, why should critical theory texts be exempt?

  13. Dave on September 3, 2009 at 9:42 pm

    Kent, a quick overview is given in Chapter 11 of Givens’ The People of Paradox. Another source would be Faithful History, available online at:

    http://www.signaturebookslibrary.org/faithful/intro.htm

    Chapters 13 and 14 in particular cover the historiographical debate.

  14. Kent Larsen on September 4, 2009 at 10:08 am

    Thanks, Dave.

  15. BHodges on September 7, 2009 at 9:53 pm

    I realize I am a little late to the party, sorry, but I have also recently been looking at law and Islam. I wonder what camp Hallaq is in, and how that has affected hisa reading of the history of Sharia. It seems to me that his argument is weak from all angles; in over-applying Marxism to the US and underapplying historical analysis to his own tradition. He is comparing two systems to show the differences, but his B is inaccurate, and as a result will tend to skew his A anyway. And he is missing the boat on the Sharia thing. Sounds like a moderate or liberal interpretation of Sharia, but I don’t know anything about that author.