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.