Rational Actors in Sharīʿa?: An Interview with Professor Anver Emon

Editor’s Note: Professor Anver Emon is a Professor and Canada Research Chair in Religion, Pluralism and the Rule of Law at the University of Toronto. He is also a senior scholar with SHARIAsource. SHARIAsource Research Editor Sharon Tai spoke with him about two of his essays, Is ISIS Islamic? Why it Matters for the Study of Islam and Banning Shari’a as well as a lecture he delivered at MIT last December on “Why ‘Tolerance’ Misses the Point: Legality of Sexual and Religious Difference in Islamic Law.”

The conversation began as a discussion on how governments use Islam and anti-Islamic sentiment (often expressed in terms of antipathy toward sharīʿa, without definition) to advance narratives of perceived threats they pose to national security. Conversations rarely proceed as intended, as they soon reveal underlying assumptions that need to be questioned in order to arrive at coherent answers, temporary as they may be. In pursuit of answers, the conversation turned to comparisons of how secular systems as opposed to religious legal systems, such as that of Islamic law, account for the unknown and unknowable are in terms of policies and laws designed for human actors. This led naturally to questions as to whether Islam’s legal system assumes human actors to be rational, and how this assumption of the rational actor plays out differently in secular systems. The text below provides edited excerpts from the full interview and is not a perfect record of the interview.

On rethinking research:

ST: Behavioral economics is a growing field in law and economics, and has enormous implications for Islamic law. What do you think of Nudge, the book of wide acclaim, written by our own Harvard Law School Professor Cass Sunstein and University of Chicago Business School Professor Richard Thaler?

AE: I am relocating myself in terms of Islamic law, in terms of shifting attitudes around what the social sciences and humanities are, so it’s hard not to see our production of knowledge in a context when what counts as knowledge—what gets funded as research—is also conditioned by a variety of factors both inside and outside the university connected to philanthropic funding, government funding, and the government withdrawing from public education and the advancement of research at a time when we may need it most to be present in research.

And so what I think [when I think] of the way in which psychology and economics are teaming up in behavioral economics to qualify its rationality models and to create better predictive models [is] it’s in the service of something. Reading Thaler and Sunstein’s [Nudge] you get the sense that, yeah, there are certain disciplines that have a certain kind of power beyond the confines of academic research, but it’s a power that boomerangs by to define the scope of what is valuable research.

At a time when I think we have so much misunderstanding about Islam, and so much policy directed at the Muslim world, it’s very easy to define our research questions by reference to policy directives and policy questions. But those aren’t always the best questions. Those are often reactionary questions. They’re often questions that take us down roads that either resemble those taken by the colonial enterprise or are critiqued by the post-colonial tradition. But they also don’t reflect the very nuanced notions of power, communication, and transformation that I think we’re seeing. You know, when Facebook can be a vehicle for Tahrir square [the protests that brought down the Egyptian Hosni Mubarak government in January 2011], you’re suddenly seeing global capital, you’re seeing local protests, you’re seeing local social movements coming together in a particular space. And how do you capture that? Those are the things that motivate me to rethink the trajectory of my own research.

On ideology and reduction:

ST: I’m speaking to you in your capacity as a legal historian, because basically something I found underlying in these your two blog posts [ Is ISIS Islamic? Why it Matters for the Study of Islam and Banning Shari’a ] and in your talk, is the idea of narratives — specifically about the narrative of the state and the security of the state. What does that mean? For example, when we frame research projects, scholars often use narratives to get research funded, that is, to tell a story about why a particular research topic is of national importance. But when you talk about policy as it relates to Islamic law and policy, you speak about the narrative being national security after 9/11. What was the narrative prior to 9/11? And, is the focus on national security part of the narrative you critique of American exceptionalism?

AE: I think there’s actually a lot to be said in reading American history around how the failure of American foreign and domestic policy during the Cold War period is now being mimicked again. In the way that Americans, and maybe it’s by virtue of their physical distance from the Muslim world, believe that it’s appropriate to reduce Islamic tradition or Islam—whatever they think it is—to an ideology: sharīʿa. So sharīʿa becomes the touchstone of that ideology.

So one of the essays, discussing the sharīʿa bans [was about this]: Thinking of the sharīʿa bans in Europe, the U.S., and Canada, they’re really the vehicles by which we’re seeing majoritarian politics contest the definition of the state, the value of the state, the core vision of the state in an exclusionary way. In a manner that is situating the Islamic as [the American state’s] antithesis.

But it’s a reduction that doesn’t understand what it means to be, let’s say, Muslim and American: to pray in Tennessee, to be a patriot, and to be a Muslim in the U.S. Army. Those are uneasy examples that disturb the ideological reduction narrative. And I think that’s certainly something I see a lot today. It makes me think about the way Islam is now portrayed. Shari’a is a piece of that portrayal, but becomes a rarefied, essentialized notion. Part of what I’m trying to do in my work, and [what] I think others in the field are trying to do, is to say: well, as we think about law, broadly speaking, shari’a is no less law than any other tradition. It might not be law that “we” like, it might be law that “we” find distasteful, but that’s the same with any jurisdiction.We’re talking about a difference of degree [as opposed to a difference of kind].

On whether the Islamic law framework sees actors as rational:

ST:  U.S. law has long centered on the idea that legal actors are rational actors. When thinking about the state through an Islamic law framework, is there a similar idea? Do those who construct Islamic law see legal actors as rational? Who are the actors in the first place?

AE:  I’ve been trying to think about what does it mean to legally reason. What are the conditions of it, what are the political assumptions that inform [it]? … I actually think there are certain kinds of rationality very much at play. I think the assumption that Islamic law is about, on some level, obedience to the divine is actually not the site of irrationality but rather the site of creative rationality. In the context where one cannot know the divine, you have an epistemic gap. So then the question isn’t, well, “Is it just some irrational move that bridges it [the epistemic gap]?” And I actually don’t think it’s irrationality at all. I think that it is the law that creates a demand for almost overcompensating [by rationality].

Let’s take the example of ritual purity. My current research is on this issue right now. One of the questions I’m interested in is “Do you have to [express] an intention [explicitly] when you perform the ritual of purification in anticipation of praying?” Muslim jurists disagree [on the answer]. Some say no: the sheer act is something from which we can infer intent. But others say yes: you have to actually make an express intent. The reason is that when you’re actually performing the ritual of purification, what you’re doing is you’re trying to get close to God. Ok, why does getting close to God require [explicit] intent?

[In answering that question, the Muslim jurists revealed that their reasoning was] actually not irrationality, but probability. You can’t really know if you’re close to God. So the only way you can compensate for the gap, the epistemic gap, is to require an express action to be the gap filler. So the demand for an express intent when performing ritual purity is about recognizing the inability of being able to infer, assume, or otherwise presume, that you are, in fact, close to God. In the absence of that, and in view of the epistemic gap, the law fills in through the requirement of an expressed action. It’s actually quite brilliant, when you think about it.

It’s about addressing in a world of human rationality, the inability to access the divine law, and therefore creating mechanisms to compensate. That’s a form of rationality to me. I might disagree with it; I might think it’s awfully formalistic; I might say it reduces the divine-believer relationship to a kind of form as opposed to substance. We can have that conversation. But none of that takes it out of being a form of rationality. And that’s what’s interesting to me.

…I’m now trying to expand that kind of prodding into thinking across a range of issues. … When you think of ritual purity, how might you also think of it in relation to [endowing charitable trusts or any other issue in Islamic law]. Both are about getting close to God. So what is that link? Is the link that we can see process to discrete legal fields, and what’s the implication of that? If that’s the operative site for “God” in Islamic law, it’s a pretty minimal one; it’s a pretty thin one. And as a thin one, it’s easily bridged epistemically by formalistic requirements of acts or inferences of achieving it through acts. And so we have to then ask ourselves what is it that we can infer from human activity.

And then we’re back to the kinds of rationality that we’re quite familiar with: How do you predict? How do you anticipate? How do you infer? On the one hand, economists actually like this. Humanists and the more qualitative social scientists might say, “Isn’t that too predictive, isn’t that too formalistic, does it really coincide with the complexity of this behavior?” That’s where we ought to perhaps be having this conversation.

On ISIS and using the unknown:

(The following exchange concluded a series of questions about the paradox of using predictive models in a sharia-based legal system, which relies upon the idea of “Who can know God?”, and the role of the state in a theological and secular system.)

AE:  We’re beginning to get insights into the inner tensions [within ISIS]. I think what’s interesting about [James Scott’s] hidden transcript as applied to ISIS is that once it [the hidden transcript] becomes increasingly public…the true thuggishness of groups like ISIS becomes apparent. And I think that’s an important part: that the thuggishness is covered over by an ideology, but it’s an ideology that serves the clash [of civilizations]. They know it, we implicitly know it, and we all participate in it on a regular basis. Our securitization is informed by a policy of clash. So it’s a public transcript that serves various interests that see that clash as, in fact, their vehicle of state formation, state identity, ideological politics, and also a vehicle to promote securitization.

I’m not so sure that I would [see it that way]. It’s not that there isn’t an emotive content there. Obviously there is, but for me, the turn to the hidden transcript is, in a sense, what the Muslim jurists [I discussed earlier] were doing by requiring the making of an intention for purification rituals. It’s their attempt to attend to the unknown – and not just the unknown, but in a certain context, the unknowable. There’s an epistemic humility about that. Thus, for some of the Muslim jurists, [that attempt] demanded a particular set of overt acts. What I’m simply asking is that when we act, we act with a certain humility about what’s not in the record, about what’s not present.

As we indulge our emotions, or if not that, model our behavior on models of rationality that are dependent upon the public transcript only, as evidentiary indicia, [I ask] that we use caution. To see that there might be things that are unsaid, that are unstated, that we know are not being revealed, that are no less important, but would move us in a different direction [if they were public record]. And so it’s a kind of epistemic humility. Perhaps being able to talk about purity rituals in Islam and securitization in the same way by situating this in terms of the unknown is one way Islamic law can do for the securitization discourse what James Scott’s ethnography of the Malay peasants was doing for him in contesting a certain narrative around the dispossessed being complicit in their dispossession. That may be one way to think about it.