1This paper examines certain facets of the language of discourse that the traditionally educated Muslim religious scholars, the `ulama, use in the public sphere and how it contrasts but also overlaps with the discursive languages of the “‘new’ religious intellectuals” (on the latter, see Eickelman and Piscatori, 1996: 13, 43-44, 77, 180). Focusing on Pakistan, I consider some of the ways in which the `ulama articulate their discourses in the context of what professes to be an “Islamic state” – a state in which the very definition of Islam, let alone the public roles it ought to have, has long remained a matter of severe, multifaceted contention. My central question here concerns the limits of mutual intelligibility in the discourses of the `ulama and their critics in the Pakistani public sphere.
2In reflecting on the difficulties inherent in representing or translating the ideas and beliefs of one “linguistic community” into those of another, the moral philosopher Alasdair MacIntyre has suggested that “the outcome in each case of rendering those beliefs sufficiently intelligible to be evaluated by a member of the other community involves characterizing those beliefs in such a way that they are bound to be rejected” (MacIntyre, 1987: 390). This is so, he says, because the communities in question are defined by and embody distinct traditions:
[W]hen two … distinct linguistic communities confront one another, each with its own body of canonical texts, its own exemplary images, and its own tradition of elaborating concepts in terms of these, but each also lacking a knowledge of, let alone linguistic capacities informed by, the tradition of the other community, each will represent the beliefs of the other within its own discourse in abstraction from the relevant tradition and so in a way that ensures misunderstanding (MacIntyre, 1987: 392).
- 1 On the Islamic discursive tradition as the framework in which the `ulama typically define their cla (...)
3Though MacIntyre does not concern himself with Islam, his conception of distinct linguistic communities guided by their own traditions illuminates some of the contestation among Muslim groups in contemporary societies. Despite the major transformations that modernity has forced onto their institutions and their discourses, the `ulama have retained a discursive tradition of their own – a tradition constituted by a long and complex history of commentary, debate, agreements, and disagreements about the foundational texts and about all matters Islamic. This is not a closed, frozen, or monolithic tradition, yet it is with reference to it that any given reading of the foundational or other texts finds meaning or legitimacy in their discourses. Even as it takes many different expressions, this commitment typically sets the `ulama apart from the Muslim “modernists” and the “Islamists.”1 The modernists have, since the 19th century, made often strenuous efforts to rethink Islamic norms in ways that are compatible with what they take to be the imperatives of modernity. Such efforts are usually predicated on seeking guidance from what they see as the true “spirit” of Islam. But where many modernists have tended to define this spirit in ignorance or conscious opposition to how the Islamic tradition has developed in history, illustrations of serious engagement with the tradition are not lacking even in their ranks, as we shall observe. The Islamists, too, usually prefer to locate the authoritative religious norms not in any historically articulated Islamic discursive tradition but squarely in what they take to be the plain and original meaning of Islam’s foundational texts. It is, however, not so much their approach to the foundational texts as their self-conscious refusal to rethink Islamic norms in conditions of modernity and their commitment to the public implementation of these norms that set them apart from the Muslim modernists.
4If we assume that different linguistic communities do, indeed, inhabit the Pakistani public sphere – and we will try to refine the connotations of this assumption as we proceed – we must ask what this means in terms of the ability of their members to adequately understand each other. The existence of some mutual incomprehension among them has long been recognized in various contexts by observers of modern Islam (Gibb, 1947; Binder, 1961: 3-69 and passim; Rahman, 1979: 116 and 212-34), but it is worth revisiting this matter before proceeding to examine how firm the boundaries are between these communities and what we are to make of the differences among them.
- 2 With the exception of commonly used words like `ulama, Arabic and Urdu words will usually be italic (...)
5“The trouble is,” as A. K. Brohi (d. 1987), a former law minister of Pakistan (1953-54) put it in echoing a common and influential view of the `ulama, “that the modern Muslim theologian with a few honourable exception[s] of the past, lives in [a] prehistoric world and his feet are not on the contemporary ground and so far as historical understanding of the situation of modern man is concerned he is totally at a loss to know what to do….You have to be first initiated in the principles of modern knowledge, scientific, historical, cultural…, before one can have the insight to present Islam to the modern man in terms which he can understand and appreciate.” Brohi expressed this view in his Introduction to a posthumously published collection of essays on Islam by Hamood-ur-Rahman, a former chief justice (1968-75) of the Supreme Court of Pakistan (Brohi in Rahman, 1983: 15). Though Brohi assumes Hamood-ur-Rahman’s views of Islam – and of the `ulama – to be altogether in accord with his own, the former chief justice actually comes across in his own essays as much less antagonistic towards the `ulama. Thus Hamood-ur-Rahman suggests, for example, that at least some of those studying law ought also to be trained in Islamic law at places such as al-Azhar in Egypt, and he envisages the need for the judges and the legislators to consult the `ulama in matters of Islamic law (Rahman, 1983: 110, 216). In helping “shake off our immobility of thought” (Rahman, 1983: 98), Hamood-ur-Rahman does repeatedly call, however, for renewed initiatives to undertake ijtihad,2 that is, systematic reflection on Islam’s foundational texts to arrive at new legal rulings. And, in good modernist fashion, he advises those concerned with Islamic scholarship “not only to explain Islam in the context of the modern times but also to discover from the Quran and Sunnah ways and means of remodeling society in the basic Islamic pattern by paying more attention to the essence rather than the form” (Rahman, 1983: 80; for his calls for ijtihad, ibid., 81, 106, 209).
6Such advice would seem reasonable, even unexceptional. Yet the `ulama do often take exception to such sentiments. In the 1960s, for instance, the noted modernist scholar Fazlur Rahman (d. 1988) was a major target of the Pakistani `ulama’s polemics precisely for what they saw as his wayward interpretations of Islam (cf. Rahman, 1976). Educated at Oxford University with a Ph.D. in medieval Islamic philosophy and subsequently a professor of Islamic studies at McGill University in Montreal, Rahman had returned to Pakistan to become the director, in 1962, of the recently founded Institute of Islamic Research. The Institute had been established by the Ayyub Khan regime (r. 1958-69) to assist the government in reinterpreting Islamic norms in order to make them compatible with its modernizing initiatives. Many of Rahman views – including doubts about the authenticity of the reported teachings (hadith) of the Prophet Muhammad, a view of the Qur’an that posited a more active role for the Prophet in the revelatory process than the orthodox tradition had allowed, and a denial that Qur’anic legal norms were meant for all times (Rahman, 1976: 286-88, 299-301) – garnered fierce opposition from the `ulama. His close association with an authoritarian regime did nothing to improve his public standing. Instead, his controversial views provided important opportunities to the `ulama to undermine, on Islamic grounds, the legitimacy of the Ayyub Khan regime itself. Rahman was one of the first casualties of the widespread opposition that brought down the regime in 1969. He fled to the United States, where he taught at the University of Chicago for the last two decades of his life.
7Much of the religious opposition to Rahman had come from `ulama belonging to the “Deobandi” orientation, which traces its origins to a madrasa – a school of higher Islamic learning – founded in the town of Deoband, in northern India, in 1867. In the aftermath of the establishment of British colonial rule in much of the Indian subcontinent, the founders of the Deoband madrasa had sought to “reform” Muslim beliefs and practices through a renewed focus on the Qur’an and especially the hadith, as refracted through the norms of the Hanafi school of law. Madrasas sharing this Deobandi orientation (though often lacking any direct links with the parent institution) came to be established throughout the Indian subcontinent: there were nearly 9,000 throughout South Asia a century after the founding of the madrasa at Deoband (Metcalf, 1982: 136). Those associated with these madrasas have not had uniform views on either political or religious matters. Yet they have often shared a strong opposition to secularizing regimes and to modernist intellectuals like Rahman.
8The monthly magazine of the Dar al-`Ulum Haqqaniyya, a major Deobandi madrasa in the North-west Frontier Province which was later to gain considerable international notoriety for its close ties with those who emerged as the Taliban in Afghanistan, had the following advice for Rahman and his Institute on what Islamic scholarship should or should not be about:
If you really wish to establish the supremacy of Islam in every age and if you genuinely believe that …Islam can provide alternative solutions to the illegitimate social and economic problems created by the West, then the goal of your research should not be to turn Islam’s ‘prohibitions’ into its ‘permissions’ as a way of justifying illegitimate Western practices.… You ought to seek solutions to new problems within specific limits, according to specific conditions, and in light of the Qur’an, the Sunna, the ways of the Prophet’s companions and the judgments of the forbears, rather than make the shari`a itself subservient to reason, giving the latter a free rein to ‘veto’ [sic] the entire textually-based shari`a … (`Abd al-Haqq 2002, 1: 579-80).
9At issue for the `ulama is not the question of ijtihad itself, for many among the leading `ulama do not deny the need for it. As Mawlana Muhammad Taqi `Uthmani, the vice president of the Dar al-`Ulum of Karachi, one of the most important of Pakistan’s Deobandi madrasas, puts it, the gate of ijtihad was opened by the Prophet himself and it is for no one to close it (`Uthmani, 1999: 92, 93). At issue, rather, is the unconstrained manner in which modernist judges and other new interpreters of Islam are seen to violate the integrity of the Islamic tradition in the name of ijtihad, of the “common good,” or of “necessity.” All of these justifications for legal change have a long history in Islamic legal thought, but the `ulama often see their use in modernist hands not as legitimate means of broadening and enriching the Islamic legal tradition but of undermining and misappropriating it. “When the practice of ijtihad is mentioned,” says Taqi `Uthmani, “one [sometimes] imagines as though the Qur’an and the Sunna have been revealed to us today for the very first time, that nothing has been done by way of explicating [these foundational texts] over the course of fourteen centuries, and that whatever our own intellect and understanding [now] leads us to would be our ijtihad, which we should then proceed to implement…. This is a highly mischievous conception of ijtihad, [for it entails] that we ignore the entirety of the juristic corpus and, raising [all] legal problems afresh, we do away with the [existing] jurisprudence and create a new one.” (`Uthmani, 1999: 92-93).
10This is not entirely a caricature of how many modernists view the possibilities of ijtihad. As the judges of the Lahore High Court had stated in 1959, in giving women the right to seek a divorce (khul`) through the agency of the court even against the wishes of the husband and thereby departing from the authoritative views of the Hanafi legal school, “if we be clear as to what the meaning of a verse in the Qur’an is, it will be our duty to give effect to that interpretation irrespective of what has been stated by the jurists” (Pakistan Legal Decisions, 1959 ; Lahore, 566: 584, quoted in Carroll, 1996: 107). That modernist judges and other interpreters are often willing to bypass the legal tradition in order to interpret the foundational texts afresh does not mean, however, that they necessarily do not, or cannot, cite authorities, sometimes extensively, from the Islamic juristic corpus. Yet, in general, modernist efforts to support particular interpretations with traditional texts do little to brighten Taqi `Uthmani’s dim view of the intent behind such efforts. For, as he says in another context, “the work of a researcher is not to establish a theory and then to seek indications in its support, but rather to form a view after examining the evidence…. Our modernists (ahl-i tajaddud) … believe, however, in making the evidence subservient to the judgment….” (`Uthmani, 1999: 50).
- 3 For discussions of riba, see Mallat 1988; Skovgaard-Petersen 1997: 295-318; Saeed 1999; Kuran 2004; (...)
11If it is not difficult to adduce illustrations of the incommensurability between different linguistic communities, there is also important evidence of at least the effort to find a common or less incommensurable language. In what follows, I focus on discussions concerning financial interest – whose elimination from the economy, on grounds that it is the equivalent of the usury (riba) condemned in the Qur’an (cf. Q 2:274-81; 3:130; 30:39), is often deemed to be among the most important symbolic markers of an “Islamic state” – as a way of illuminating how we might think about the different linguistic communities in the Pakistani public sphere3.
- 4 The article was first published in Urdu in 1963. My references are to the English version (Rahman 1 (...)
12Muslim modernists have long contended that the `ulama and the Islamists misunderstand this Qur’anic prohibition and that, rather than indiscriminately disallowing all interest-based transactions it applies only to exorbitant forms of usury practiced in pre-Islamic Arabia. But the argument has usually been made by appealing to what modernist thinkers take to be the “spirit” of Islam or of the Qur’an, rather than by a sustained analysis of the traditional debates that bear on the question. A major (if partial) exception to this is represented by a detailed article that Fazlur Rahman, then the director of the Institute of Islamic Research, had published on “Riba and Interest,” in both Urdu and English, in the Institute’s journal to demonstrate that worries about the prohibition of financial interest rested on misconstruing what the Qur’an had in fact prohibited4. While Rahman’s conclusions were entirely in accord with modernist views of riba, it is his mode of argument that primarily concerns us here.
13Rahman begins by adducing the various forms in which the Arabic root “r-b-w” occurs in the Qur’an in order to determine the original connotations of the term riba, and he then proceeds to establish how the Qur’anic verses on the matter relate to one another. He argues that it is only usurious transactions, with their “redoubling” of interest, that the Qur’an had intended to prohibit, though he acknowledges that the Qur’anic prohibition has, in fact, typically been understood to apply to all interest-based transactions, including seemingly non-oppressive ones. This, he suggests, is to be explained by the fact that “all these individual cases were part of one riba-system in whose nature it was to be so exorbitantly usurious. Therefore, what had to be banned was the system as a whole, and hence no exceptions could be made in individual cases. When the entire system was banned, the milder cases within that system were also naturally abolished since the system itself was tyrannical. It cannot, therefore, be argued that since the Qur’an abolished even the milder cases … the bank-interest of today also stands condemned” (Rahman, 1964: 7). Rahman goes on to examine the hadith-reports on riba, noting both their ample contradictions and demonstrating how an increasingly rigid view comes to overtake chronologically earlier indications that certain forms of interest may have been permitted and practiced in the time of the Prophet and his Companions (Rahman, 1964: 12-30). Throughout the discussion, he critiques not just pre-modern juristic understandings of riba but also the stringent views of modern Islamists and `ulama. He argues, for instance, that a common definition of riba as “every loan from which some profit accrues” may have originated in 10th century lexicographical attempts at offering comprehensive definitions and that it was only in the 11th century that it finds its way in hadith collections (Rahman, 1964: 21-22). Modern `ulama, he argues, refuse to recognize the late origins and therefore the unreliability of this sort of hadith-reports; nor do they acknowledge the variety of ways in which riba had continued to be defined by the medieval lexicographers and the exegetes (Rahman, 1964: 21-24).
14Rahman’s tone throughout is one of unrelieved derision towards the Islamists and the modern `ulama. This would have done little to win them over. The substantive content of this article would have been no less unpalatable to them, as we would observe later. And yet, the `ulama’s caricatures of the modernists do not easily stick to it. Indeed, Rahman’s discussion of riba is an excellent example of what might be characterized as “internal reasoning” (Bilgrami, 1999; Zaman, 2005), that is, a mode of reasoning that seriously engages with the resources of the religious tradition and then proceeds to critique particular positions held by those committed to it, rather than doing so by writing it off from the outset as irrelevant to modern issues and debates. For all the harshness of its tone, it represents, in other words, the effort to find a less incommensurable language for the various linguistic communities.
- 5 The Federal Shari`at Court rules on whether any laws are “repugnant” to the Qur’an and the normativ (...)
15There are sites where this effort has continued to be made. Several key institutions established at various times in Pakistan’s history to assist the government in its constitutionally mandated obligation of promoting Islamic norms typically include traditionally-educated religious scholars alongside Western-educated judges, bureaucrats, and other modernists. This is as true of the Council of Islamic Ideology, an advisory body first established in 1962 to guide the government on Islamic matters, as it is of the Federal Shari`at Court and the Shari`at Appellate Bench of the Supreme Court of Pakistan, both of which were established by General Zia al-Haqq (r. 1977-88) to oversee the implementation of Islamic law in the country5. Governmental committees constituted to reform madrasas have typically also included representatives of the `ulama. All such bodies are almost invariably dominated by government officials, yet the `ulama have often had more than a token presence. `Ulama have often also been members of the houses of parliament, and their organizations have long participated alongside other parties in political alliances and agitations. An increasing proportion of those trained as religious scholars also have some—in many cases, considerable—exposure to mainstream institutions of learning. Taqi `Uthmani, the vice president of the Dar al-`Ulum of Karachi, not only has advanced degrees from his own madrasa, but also bachelor’s degrees in arts and in law from the University of Karachi and a master’s degree in Arabic from the University of the Punjab (Zaman, 2002: 83). He has served as a judge (1982-2002) on the Shari`at Appellate Bench of the Supreme Court of Pakistan, long remained active as a member of international bodies such as the Islamic Fiqh Academy in Jeddah, Saudi Arabia, and advised Islamic banks and other Saudi-sponsored financial institutions elsewhere (Usmani, 2002: xi).
16If Taqi `Uthmani has flourished in international associations set up under Saudi auspices, Saudi patronage has also extended to Islamists such as Abu’l-A`la Mawdudi (d.1979) and those associated with or influenced by his Jama`at-i Islami. Taqi `Uthmani’s views of Islamists like Mawdudi are not complimentary, anymore than are those of other leading Deobandis. Yet, in Pakistan and abroad, Deobandi `ulama have worked together with scholars and activists of an Islamist orientation. This was especially the case during the reign of Zia al-Haqq, whose early years in power were marked by the influence of the Jama`at-i Islami but who also strove to cultivate the favor of the `ulama. Not a few of those appointed by the regime to important positions dealing with Islam in public life – for example, Tanzil-ur-Rahman, who served as the chairman of the Council of Islamic Ideology and later as the chief justice of the Federal Shari`at Court (hereafter often FSC) – reflected Mawdudi’s influence. Tanzil-ur-Rahman is the author of the 1991 FSC judgment on the matter of financial interest. I examine this judgment, and others that followed it, in the remainder of this paper.
- 6 The FSC judgment was published in All Pakistan Legal Decisions 1992, and subsequently reprinted fro (...)
17In 1980, the Council of Islamic Ideology, then headed by Tanzil-ur-Rahman, had issued a report urging the government to end financial transactions based on riba; and in 1991, the Federal Shari`at Court, of which Tanzil-ur-Rahman was then the chief justice, issued a detailed ruling to similar effect. The contradictions of Zia al-Haqq’s Islamization are eloquently brought out by his regime’s repeated initiatives towards keeping matters of fiscal law – including riba – outside the purview of the Federal Shari`at Court, a court specifically constituted to rule on whether particular laws were in conformity with Islamic norms (Kennedy, 1996: 127-42). The court did, however, manage to hear petitions on riba during the first premiership of Muhammad Nawaz Sharif (1990-93), its verdict coming just months after the government had underlined its renewed commitment to Islam in the form of an elaborate Enforcement of Shari`ah Act, 1991; yet, as the court noted, even this government had “rendered no assistance … except raising issues” (Pakistan Federal Shari`at Court [hereafter FSC] 1995: 236)6.
- 7 The secondary source in question was Saleh 1986.
18Written with guidance from several `ulama (including Mufti Muhammad Rafi` `Uthmani, the president of the Dar al-`Ulum of Karachi and the elder brother of Taqi `Uthmani) as well as from economists specializing in “Islamic economics,” the 1991 FSC verdict had little for the Pakistani `ulama to quarrel with. In line with a mode of argumentation often encountered in the `ulama’s own writings, the Judgment was contemptuously dismissive of arguments suggesting that modern forms of financial interest are not the riba prohibited by the Qur’an and the teachings of the Prophet. One of the leading counsels for the respondents had, in arguing for the permissibility of financial interest, supplied some evidence to show that the opinions of certain medieval and modern jurists could be construed to allow it. But, as Justice Tanzil-ur-Rahman wryly commented in his judgment, this evidence had not gone beyond adducing merely the names of certain medieval scholars—names as cited in a recent publication which itself was said to be unavailable (FSC, 1995: 56-57)7. For its part, the FSC judgment invoked the full authority of a juridical consensus (ijma`) to assert that financial interest was indeed riba and that it was indeed forbidden (FSC, 1995: 108). Any argument that considerations of the common good – much invoked in modernist discourses – might justify an otherwise illegitimate practice was likewise dismissed (FSC, 1995: 118-22; Hallaq, 1997: 219-20).
- 8 `Uthmani’s English publications, which are all translations from Urdu, spell his name as “Usmani.” (...)
19The 1991 FSC decision was challenged before the Shari`at Appellate Bench (hereafter SAB) of the Supreme Court, the final court of appeal against the FSC. In December 1999, the SAB issued a highly detailed decision upholding the 1991 decision of the Federal Shari`at Court. Taqi `Uthmani of Karachi’s Dar al-`Ulum madrasa, then a member of the Shari`at Appellate Bench, wrote a substantial part of the judgment, and his contribution to it was later separately published as a book (Usmani, 2001)8.
- 9 Cf. the definition offered by Rahman 1964: 40: “Riba is an exorbitant increment whereby the capital (...)
20Given that the 1991 FSC judgment was already trying to hew close to the `ulama’s views and their modes of argumentation, the concord between Taqi `Uthmani’s opinion and the FSC judgment is hardly coincidental. But there are differences. For instance, Taqi `Uthmani’s opinion shows more clearly than anything in the FSC judgment the perils that modernist counsels for the government face in arguing on the `ulama’s own, “traditional,” grounds. The appellants, too, invoke hadith-reports in support of their position and question the authenticity of other reports (Usmani, 2001: 2, 11-17, 60). There is the argument from “necessity” – which often serves as the complement of the argument from the common good (Usmani, 2001: 115-16). And it is argued that the Qur’an’s leaving the definition of riba vague is, in fact, to be construed as a blessing, for God has left it to people to decide what it means in light of their economic systems and their conceptions of injustice. It really is injustice (zulm) that the Qur’an means to forbid, according to the appellants; and modern forms of bank interest are not unjust, hence not forbidden (Usmani, 2001: 68-69). But once the debate comes to proceed on grounds of the juristic and exegetical tradition, all Taqi `Uthmani needs to do is demonstrate where specialized expertise in that tradition lies and, on his showing, it clearly doesn’t lie with his opponents. Thus, in response to one of the foregoing arguments, Taqi `Uthmani notes that if the Qur’an does not give a precise definition of riba, it doesn’t do so for most of its other commands and prohibitions either: “Should we, then, say that none of these concepts has a specific meaning and all these injunctions are therefore subject to ever-changing whims based on ‘space-time situations’?” (Usmani, 2001: 73-74; quotation at p. 74). Further, he emphasizes the need to make a distinction between the illat (Arabic: `illa) and the hikmat (Arabic: hikma) of a ruling: “The Illat is the basic feature of a transaction without which the relevant law cannot be applied to it, whereas the Hikmat is the wisdom and the philosophy taken into account by the legislator while framing the law or the benefit intended to be drawn by its enforcement” (Usmani, 2001: 69). Earlier in his opinion, in defining riba, Taqi `Uthmani had characterized it as any “increased amount … charged on the principal amount of a debt” (Usmani, 2001: 24)9; and though he refuses to accept that modern financial interest doesn’t involve zulm, his point is that even if the “wisdom” behind a ruling cannot, in each instance, be determined, the `illa – in this case, any amount added to the principal – is sufficient to retain the law in effect. But the issue goes beyond whether or how the scholarly tradition might be invoked; it goes to the limits of human reason, and on this the `ulama and the Islamists have shared sensibilities: “There are many areas of human life,” Taqi `Uthmani writes, “where ‘reason’ is often confused with ‘desires’…. It is these areas where human reason needs the guidance of divine revelation…which finally decides as to which human attitude actually falls within the limits of ‘zulm’ or injustice, even though it appears to be just in the eyes of some secular rationalists….”(Usmani, 2001: 74-78; quotation at p. 76).
21Importantly, Taqi `Uthmani is not content only to invoke earlier Muslim authorities in support of his understanding of riba and to refute rival suggestions. He also wants to show that many modern Muslim as well as Western economists agree with the sort of case he wants to make against financial interest (Usmani, 2001: 122-30, 153-54). Given his foregoing argument about the limits of human reason, this ought to be unnecessary; for even if everybody else concurred in opposition to what he takes to be God’s explicit command, that command would not carry any less weight. But the fact that he does want to muster contemporary economists on his side is significant. For it clearly indicates a concern not just to bolster the case against financial interest, but also to demonstrate that he understands the language of modern economics and can therefore explain the imperatives of Islamic norms in terms that an economist or, for that matter, anyone with a modern education can easily understand (for another example of the latter concern, cf. Usmani, 2002).
- 10 Jalundhari has a master’s degree from al-Azhar in Egypt and a Ph.D. from the University of Cambridg (...)
22In upholding the Federal Shari`at Court’s 1991 decision on riba, the Shari`at Appellate Bench had laid down that Pakistani banks should end their interest-based transactions by June 30, 2001. Deadlines for the inauguration of an “interest-free” economy had been imposed and extended earlier, and this deadline was itself later extended till June 30, 2002. Rather than seek any subsequent extension, however, the government of General Pervez Musharraf, who had come to power through a military coup in October 1999, decided to reconstitute the Shari`at Appellate Bench just a little over a month before the June 30, 2002 deadline. Taqi `Uthmani was removed from the SAB, and two new judges, Dr. Khalid Mahmud and Dr. Rashid Ahmad Jalundhari, were appointed to the seats reserved for `ulama on the bench (Dawn, May 25, 2002; Ali in Dawn, June 12, 2002; cf. Dawn October 2, 2004)10. The SAB now hurriedly attended to an appeal filed by a Pakistani bank and supported by the Government of Pakistan to review its December 1999 decision on riba. On June 24, 2002, this reconstituted Shari`at Appellate Bench set aside its December 1999 decision as well as the 1991 decision of the Federal Shari`at Court, sending the case back to the latter “for determination afresh” (for the text of the judgment, see Ali in Dawn, June 25, 2002). The SAB’s reconstitution shortly before this judgment had already signaled the government’s eagerness for a quick and favorable decision. The court did not allow much time to the concerned parties to make their arguments, and its own judgment was perfunctory in comparison with the earlier verdicts of both the Federal Shari`at Court in 1991 and the Shari`at Appellate Bench in 1999. But condensed as they were, the proceedings of the court were extensively reported in the national press and, once again, they shed considerable light on languages of discourse in contemporary Pakistan as well as on issues of religious authority.
23Some of the arguments put forth by the petitioners challenging the 1999 SAB judgment rehearse earlier arguments in defense of financial interest. It is suggested, for instance, that the abolition of interest would adversely affect the Pakistani economy and, as such, be contrary to the common good, whereas Islam seeks to further such good. And the view that the rationale (`illa) for the Qur’an’s prohibition of riba is, indeed, injustice (zulm), which therefore differentiates financial interest from the oppressive usury the Qur’an does forbid, is put forth once again (Dawn, June 20, 2002). But in an environment where the military government was concerned to flaunt its liberal aspirations more than its Islamic credentials, there seemed to be a new boldness in making the case against the elimination of financial interest before a court which, with its new composition, was highly sympathetic to such a case. Thus, while invoking the common good, the petitioners go beyond it to argue that the elimination of financial interest is simply not possible in a modern economy (Ali in Dawn, June 14, 2002). Much of the reasoning, however, is on Islamic grounds. The SAB’s 1999 judgment had, it is argued, failed to distinguish forms of riba which are merely “reprehensible” (makruh) from those that are “forbidden” (haram), thus obscuring a crucial distinction between the moral and the legal (Dawn, June 18, 2002). Further, the petitioners argue that there is, in fact, no consensus on the prohibition of financial interest and the earlier judgments had willfully ignored the dissenting voices – including that of the present rector of al-Azhar, Sayyid Muhammad al-Tantawi (Dawn, June 18, 2002). Echoes of this argument would later figure prominently in the SAB’s own 2002 judgment (Ali in Dawn, June 25, 2002).
24Issues pertaining to the translation of particular Qur’anic terms into modern economic language are prominent in many of the petitioners’ arguments. It is suggested, for instance, that the earlier SAB judgment had understood the term “qarz” (Arabic: qard) as “loan,” but that qarz in the Qur’an has connotations of giving money to help others in need, which the word “loan” does not. The point here is that while some “loans” might be given to assist those in distress, others might legitimately be given out on interest, that is, as an investment (Dawn, June 18, 2002; Dawn, June 19, 2002). Another argument in this regard concerns the Qur’an’s prohibition of riba in the very same verse that allows “bay`.” Yet bay`, it is suggested, had been wrongly translated as “sale,” when, in fact, its connotations include “business, trade, investment and bargain” (Ali in Dawn, June 14, 2002). Again, the point here is that reasonable and non-oppressive forms of interest are anything but forbidden by the Qur’an. The most central of what are taken to be misunderstood words, of course, is riba itself, whose connotations, the petitioners repeatedly argue, do not encompass the interest based transactions of the modern banks. The issue, in other words, is not whether the Qur’an forbids riba, but whether the authors of the earlier judgments and, more generally, the `ulama, understood the difference between the Qur’anic riba and modern financial interest. Whether or not they understood this difference, the counsel representing the government went so far as to characterize the `ulama as themselves the “main hurdle in the Islamisation process in the country” (Dawn, June 19, 2002).
25This last assertion seems startling, yet it neatly illustrates not only the modernist view of the `ulama but also, and more importantly, the distance between the modernist conceptions of Islam and those of the `ulama. The claim here is that an economic and social system that seeks the betterment of the people’s condition is “true” Islamization, for this is what the “spirit” of the Qur’an demands. The `ulama’s Islam, on the other hand, is tied to outmoded forms and concepts and, since these only exacerbate the people’s economic woes, they can hardly further the common good or, what amounts to the same thing, serve the true interests of Islam. The contention, once again, is on the place of the Islamic tradition: while many modernists keenly draw upon it to try to bolster or deflate particular arguments, the idea that arguments should be guided not just by fragments from this tradition but by a sense of its integrity and continuity often remains unacknowledged and even incomprehensible. On occasion, such incomprehension even assumed comical proportions. The counsel for the Jama`at-i Islami, Pakistan’s premier Islamist organization, had asserted in the course of his arguments on behalf of the respondents that riba meant “any amount … over the principal” irrespective of the nature of the loan, that the `ulama were agreed on this view of riba, and indeed, that this understanding of the Qur’anic teachings on riba was to be found in the “tafseer-e-masoora” (Arabic: tafsir bi’l-ma’thur). The latter is a method of Qur’anic exegesis that purports to be based on traditions of the Prophet and of Muslims of the first generations of Islam, a method that seeks to determine what the Qur’an “means” by adducing what the earliest Muslims had taken it to mean. This, however, was anything but clear to all judges and, mistaking the method for the name of a specific book, the court wanted to know “who was the author of Tafseer-e-Masoora and which printing house had published it” (Dawn, June 22, 2002).
- 11 The FSC Judgment (1991) does mention one “Fazal-ur-Rahman” of the Aligarh Muslim University, India, (...)
- 12 In case of the arguments leading up to the 2002 SAB decision, these include, inter alia: Sayyid Ahm (...)
- 13 FSC Judgment (1991), 77-78; compare Rahman 1964: 1-2. Newspaper articles have sometimes also mentio (...)
- 14 The government counsel’s argument in 2002 that the 1999 SAB verdict had failed to make a distinctio (...)
26The inclination or ability for a sustained engagement with facets of the Islamic tradition is scarcely lacking in all modernists, of course, as we noted earlier with reference to Fazlur Rahman. Yet one of the most remarkable features of the rich discussions on riba that we have examined here is the almost complete absence in them of any explicit mention of Rahman’s work. Neither the 1991 FSC judgment, nor Taqi `Uthmani’s detailed opinion that formed part of the 1999 SAB decision, nor even the arguments by appellants and respondents that preceded the 2002 overturning of the 1999 SAB decision so much as mentions Rahman11. Other modernists are, in fact, mentioned on occasion12. And certain indications make it clear that it’s not a matter of Rahman’s aforementioned article on riba having simply escaped notice: a passage in the 1991 FSC judgment, adducing Qur’anic usage of the Arabic root r-b-w, exactly parallels Rahman’s article in the particular examples cited, the sequence in which they are cited, and their English translation, which makes it highly unlikely that these citations derive from anything other than Rahman’s article13. Nor has Rahman’s work been lacking in impact. As Timur Kuran has observed, Rahman’s view on spending Zakat-revenues on heads other than those explicitly mandated by the Qur’an was once highly controversial but it had found broad acceptance by the 1980s even among Islamist circles (Kuran, 2004: 20-21, 25). Many arguments by government counsels against the abolition of financial interest also echo those of Rahman14. This, then, is a studied silence on Rahman’s contribution to discussions of riba, and it is probably attributable to the highly antagonistic view the Pakistani `ulama have of him. No less than Sayyid Ahmad Khan (d. 1898), the pioneering Muslim modernist of South Asia, Fazlur Rahman embodies for the `ulama the totality of modernism’s challenge. But unlike Sayyid Ahmad, he is not removed from the contemporary `ulama by more than a century; Rahman was also a much more accomplished scholar of Islam than Sayyid Ahmad, hence perhaps more of a serious threat to them. Rahman’s disrepute with the `ulama probably accounts for his neglect even by those who could have invoked his arguments in support of their case. This neglect may also suggest the beleaguered state of contemporary modernism in Pakistan and its intellectual impoverishment.
27If the petitioners’ arguments against the judgments of the Federal Shari`at Court and the Shari`at Appellate Bench – and many of the latter court’s own queries and its eventual 2002 judgment – underscored the continuing distance between the modernists and the `ulama, some of the respondents’ arguments are equally instructive for their rhetorical moves. In 2002, nothing of substance was added by the respondents to the detailed earlier judgments on the abolition of riba that they were here defending. What is of considerable interest, however, is the effort, on the part of the Jama`at-i Islami counsel, to invoke the authority of the `ulama and to speak in their defense in a way that obscures the long history of mutual distrust and polemics between Islamists and the `ulama. In criticizing the removal of Taqi `Uthmani from the SAB, the Jama`at counsel had questioned the credentials, qua “`ulama,” of the two judges raised to the bench on seats reserved for `ulama (Ali in Dawn, June 7, 2002). On another occasion, he had argued that it was inadmissible to adduce, as the petitioners had, the views of Sayyid Ahmad Khan, for the `ulama did not think of him as a “religious scholar” (Dawn, June 21, 2003). The irony in such arguments coming from a Jama`at counsel is, of course, that many `ulama of Pakistan and India have an equally unfavorable view of the influential Qur’an-commentary by Mawdudi, the founder of the Jama`at, just as they have never acknowledged Mawdudi to have been one of the `ulama.
28The effort to obscure the differences between the Islamists and the `ulama made perfect sense in the context of the 2002 SAB courtroom, but it is also a reminder that many `ulama and Islamists have worked alongside one another in and outside Pakistan and that, at the very least, this has facilitated a strategic bridging of some of their divides. Indeed, for all his difficulties with the `ulama, Mawdudi himself had made common cause with them in agitating against particular governments and, more influentially, in pressing the modernist elite to live up to the expectations their own rhetoric so often created about the place of Islam in public life.
- 15 Cf. Fazlur Rahman 1964: 13-14, which seems to suggest that this increasingly uncompromising attitud (...)
29What, then, are we to make of the differences between the linguistic communities, the languages of discourse, in the contemporary Pakistani public sphere? It should be evident from the foregoing that, despite efforts to speak in a language intelligible to those outside their ranks, the `ulama’s discourses continue to be guided by a strong commitment to their scholarly tradition. This tradition preserves, and even cherishes, many disagreements, but it also rests on certain fundamental agreements. While acknowledging the existence of countless “weak” hadith reports, it insists, for instance, on the overall and continuing authority of the hadith-collections long deemed canonical in Sunni Islam. And there is a sense in which, for all the variation in exegetical understandings of Qur’anic riba – and the numerous legal stratagems devised in medieval and modern Islam to circumvent it – the “fact” of its prohibition is a matter of widespread agreement, of consensus, as the 1991 FSC judgment had repeatedly insisted. It is at this point that the divergences between the `ulama and even the most sophisticated of modernists often stand in sharp relief. As noted earlier, Rahman points to important contradictions on the question of riba in the corpus of hadith and he suggests how an increasing hostility to all forms of financial interest led people not long after the death of the Prophet to project their uncompromising attitudes back into hadith reports, which, in turn, came to be deemed authoritative by the jurists15. Rahman’s argument also rests on the claim, in characteristic modernist fashion, that the “spirit” of the Qur’an is opposed not to all forms of financial interest but only to the usurious sort (Rahman, 1964: 30, 41). For the `ulama, however, this spirit is only accessible through the long history of the efforts to discern it, rather than in opposition to it; and the conclusions that emerge from this history are, they believe, much more emphatically on their side than they are on that of the modernists. Insofar as Rahman is highly critical of pre-modern jurists misconstruing the meaning of riba, he admits as much. The derisive tone in which Rahman challenges his contemporary `ulama and Islamists is, for its part, suited less to persuading his opponents and more to drawing sharper battle lines between them and the modernists (Rahman 1976, 298-99). This is ironic, of course, for it is precisely the `ulama who might have been expected to be among the principal audience of his careful study of riba.
- 16 For a somewhat similar point in the context of divergent, and (seemingly) incommensurable views of (...)
30If it is precisely from their tradition that the `ulama derive their identity and their authority, then the prospects of any compromise over this tradition itself would obviously seem to be dim. The differences between the linguistic communities whose discourses we have explored in this paper are at their sharpest when they are in contention over such fundamental questions of overall orientation. But it is worth underscoring that beyond a certain incommensurability of basic positions, the views put forth by the `ulama on particular matters are often less uncompromising16. Taqi `Uthmani has argued, for instance, that while buying shares in a joint stock company is only permitted if the “main business” of that company does not involve things forbidden by Islam, the fact that such a company engages in transactions involving financial interest – e.g., by obtaining loans on interest or keeping the company’s funds in bank accounts that bear interest – does not, in itself, make its stocks illegitimate. If possible, one ought to raise one’s “voice against such activities in the annual general meeting of the company” or, at least, give away in charity the money earned from interest; but investing in such companies does remain legitimate (Usmani, 2002: 93-95). Just as the `ulama often draw on the tradition’s resources in diverse ways, the distances that they assume from other linguistic communities are themselves varied and subject to continuous negotiation. That the work of sophisticated Muslim modernists like Fazlur Rahman should have been passed in silence in contemporary Pakistan in debates to which it would seem to have been most pertinent suggests that the distances between the linguistic communities are not likely to disappear in the foreseeable future. But it is also tempting to suppose that sustained engagements with the `ulama’s scholarly tradition precisely along the lines Rahman had explored might also force the `ulama to more forthrightly grapple with such critiques, for fear that (as MacIntyre would argue) a consistent failure to do so would further erode their claims about the viability of their tradition in the modern world (MacIntyre, 1988: 327, 362). As many `ulama themselves recognize, moreover, their authority in a time of rapid change depends not only on a demonstrated commitment to their tradition but also on the effort to talk across precisely the distances it continues to affirm. Both kinds of effort not only shape the discourses of the ulama, but also the public sphere in which these discourses are articulated.