Mind the Gap: Islam, Secularism, and the Law

"Everyone appeals to past authorities all the time," Hussein Ali Agrama writes in his introduction to Questioning Secularism, "but it does not follow that all such appeals are therefore traditional." ¹This appeal to past authority is quite noticeable, Agrama tells us, in modern law, with its references to earlier precedents or previously enacted codes. Modern law, however, is hardly considered traditional, since its orientation appears to fragment authority, progressing onward to a liberating albeit deferred future. ²The appeals to the past within Islam, on the other hand, become quintessential expressions of traditional authority's permanence, which continually affirm the past for its own sake. In its claim to the past, then, Islam is presumed to be reactionary and resistant to change, whereas modern law's references to the historical promise deliverance.

The references to the past in Islam, however, are not simply about the perpetuation of a singular authority. Tradition's temporality cannot be so easily codified as a static inheritance culled from an expansive archive. ³Instead, tradition, as Talal Asad argues, straddles the gap between experience and expectation, in which past, present, and future reorient in relation to each other. ⁴But neither is such an indeterminate inheritance simply a matter of indeterminacy of all human practice or celebrating an abstract transcendence; rather, the question is about how indeterminacy is understood and experienced in cases where its presence as an indeterminacy is also a question. ⁵For example, an unresolvable tension in the Islamic tradition appears between the "divinely constituted truth" of the Qur'an and "the humanly constituted versions of that truth," a body of knowledge called fiqh(jurisprudence). ⁶"In this gap," as Brinkley Messick writes, "between divine plan and human understanding lay the perennially fertile space of critique, the locus of an entire politics articulated in the idiom of the sharī'a." ⁷The goal in sharī'a, therefore, is not to close the gap but to wallow in its opening. ⁸To return to the problem of the past, the questions raised in this indeterminate space emerged not to preserve past authority or public order in a resolved future but to allow for the possibility of disagreement about and cohabitation with a range of embodiments and disciplines that refused to be sutured.

In its confrontation with modern systems of law through colonial expansion and capitalist development, sharī'adoes not remain as such, since, as Marc Galanter argued early on, the secular state "propounds a charter for its religions; it involves a normative view of religion." ⁹Though important and axiomatic now, this view can also obscure our understandings, because when this normative view of religion and therefore the secular is not followed somewhere, Agra-ma adeptly writes, "this enables us to say that secularism there is incomplete, partial, failed, precarious, and so on." ¹⁰To put it another way, by upholding the normative view of the secular when examining it, we reproduce the very standards and criteria to determine success or failure of the secular. It becomes a problem of matching content to definition. This is an especially acute problem: as Agrama argues, "secular power works by rendering precarious and even undermining the very categories on which it ostensibly depends," thereby provoking indeterminacies where scholars search for a normative rendering. ¹¹The crisis of secularism that scholars can often lament is therefore part of its very structure.

Moving beyond the secular's tenuous promises, Asad asks us to examine the "new institutional and discursive spaces (themselves not immutably fixed) that make different kinds of knowledge, action, and desire possible." ¹²Turning our focus to these sensibilities, we find that the secular's own normative commitments are continually destabilized, because the secular is...