Coercion and Justice in Islam

Cover for Coercion and Responsibility in Islam
Coercion and Responsibility in Islam: a Study in Ethics and Law. Mairaj U. Syed. Oxford Islamic Legal Studies, Oxford, United Kingdom: Oxford University Press. 2017. Pp. 259. Hardcover. $95.00.

Mairaj Syed’s book provides a highly readable introduction into how a group of Muslim theologians and jurists understood coercion as a theological, ethical and legal problem. The book tries to understand the various Muslim responses to coercion in their respective domains not through the traditional binary of reason versus tradition or reason versus revelation, but rather through the rubric of competing traditions of reason. The traditions of Muslim reason Syed engages with in this book are the Muʿtazilites and Ashʿarites in theology, and the Ḥanafīs and the Shāfiʿīs in law. According to Syed, traditions of reason in the Muslim context are characterized by three sets of constraints. The first are internal constraints that are constitutive of the very tradition of reason in which a scholar participates. God’s justice is precisely such a commitment with respect to the Muʿtazilites, so a scholar could not abandon that commitment while maintaining affiliation with Muʿtazilism. The second kind of constraint is what the author calls external constraints. These constraints lay outside a particular tradition of reason, and may arise in circumstances where a particular tradition adopts a certain internal view or endorses a method of reasoning that differs substantially with the conclusions or methods of reasoning adopted by those outside the tradition. In such circumstances, a tradition of reason may respond not by changing its substantive view, because that might violate its own internal constraints, but it might reinterpret its own doctrine, giving it a different justification that deflects the most serious criticisms that might be brought against a substantive position that, for all practical purposes, cannot be abandoned. The third set of constraints are domain-specific constraints. In such contexts, the relationship between and among the participants in a practical interaction, such as whether coercion excuses murder (a question which occupies much of the book’s analysis), generates a finite set of possible responses to the ethical and legal questions that arise from the interaction at issue. It is within the sphere of reasoning subject to domain-specific constraints, Syed suggests, quite plausibly, that we are likely to find the greatest agreement in reasoning among otherwise incommensurable traditions of reasoning.

The book consists of six chapters that can be further divided into three parts, each containing two chapters. The first part is theological, and addresses Muʿtazilite and Ashʿarite doctrines with respect to the relationship of divine coercion and human moral responsibility; the Muʿtazilites argue that freedom is a condition for human moral responsibility, and accordingly it is inconceivable that God could coerce human actions. Because of the importance Muʿtazilites attached to free human action, Syed argues that they develop the most sophisticated psychology of freedom and coercion in the Islamic tradition. But I wonder about the implications of some of his interpretations of Muʿtazilite doctrines; specifically, the possibility that adherence to even false doctrines might compel us to such an extent that actions motivated by those beliefs no longer merit praise or blame. One would expect that Muʿtazilites would require individuals to reject false beliefs. If moral objectivism has any purchase at all, one would assume that it would function to deter individuals from adhering to false beliefs at all, or at least to the extent that such false beliefs could compel them into performing or refraining from otherwise meritorious actions. His analysis of Asharʿī doctrines regarding the relationship of coercion to moral responsibility provides an excellent example of how external constraints – those constraints that exist outside of a particular tradition but within its overall discursive milieu – led to an important shift in how Ashʿarīs justified their understanding of how divine coercion could nonetheless be consistent with moral obligation. In the case Syed cites, Juwayni and Ghazali do not abandon the position that God can impose upon us obligations that we cannot discharge, but revise the justification for that position by limiting moral obligation to matters that a human subject (fahm) can actually understand rather than making rationality (ʿaql) simpliciter the grounds of obligation.

Syed then shifts to law, and how Ḥanafīs and Shāfiʿīs treat coercion in their respective legal doctrines. Chapters 3 and 4 can be characterized as describing meta-legal issues related to coercion in both of these schools insofar as Syed tries to extract each school’s general theory of the conditions that define coercion. Chapters 5 and 6 then treat the particular rules the Ḥanafīs and the Shāfiʿīs developed to respond to coercion in the context of unlawful killing (qatl), what Syed calls “unilateral speech acts,” but largely divorce or manumission, and to a lesser extent, contractual formulae and acknowledgements of indebtedness. The materials in these chapters offer a good overview of the richness and diversity of solutions classical Ḥanafī and Shāfiʿī jurists offered to the legal and ethical problems arising out of coercion. Syed shows that some jurists preferred a bright-line approach to questions of coercion (e.g., plausibly perceived threats against life and limb), while others advocated a fact-specific inquiry that would take into account both the subjective attributes of the coerced and the nature of the coerced act, with the quantum of legally relevant coercion determined through a kind of proportionality inquiry. The author’s discussion of the Ḥanafīs’ distinction between the ethical significance of coercion in the case of murder (no excuse), and its legal consequences (a defendant coerced into killing is not subject to retaliation), is also revealing for confirming the care Ḥanafīs take in distinguishing between the this-worldly consequences of actions versus their consequences before God in the next life.

The book makes a nice contribution, but several features of it are puzzling. First, the author makes no attempt to tie the discussion of coercion in theology and its relationship to the grounds of ethical obligation to the legal doctrines of coercion, even though it seems that there is a very close connection between Muʿtazilite discussions of coercion and moral obligation, even to the point of shared vocabulary, e.g., iljāʾ (compelling necessity), and particularly Ḥanafī discussions of the legal effects of coercion. Second, the author fails to cite Khaled Abou el Fadl’s “The Law of Duress in Islamic Law and Common Law,” reprinted in 30,3 Islamic Studies (1991), pp. 305-50. While it is unrealistic to expect authors to be familiar with every piece of secondary scholarship written on their topic, it is hard to understand how a work by a well-known scholar on the precise topic of an author’s book could be completely ignored. Finally, it is hard to understand the author’s claim in his conclusion that “liberty” is not a commitment common to Islamic and Western political thought, despite the remarkably similar solutions both traditions give to the problem of coerced murder. (Is there a more extreme deprivation of liberty than a coerced unlawful killing?) Perhaps Syed reaches this conclusion because he does not find Muslim jurists using a positive term for “liberty” as opposed to just deploying its conceptual opposite, coercion. But in any case, there is certainly more than adequate grounds present in Islamic law to affirm an abiding concern for liberty. A quick perusal of the rules regarding interdiction (ḥajr) confirms Islamic law’s concern for preserving the integrity of personal freedom in exercising personal rights. Indeed, the prominent Shāfiʿī jurist, al-ʿIzz b. ʿAbd al-Salām expressly affirms that interference in the independence (istiqlāl) of individuals’ exercise of their rights is itself a legal injury (mafsada). He further affirms that the basic political principle is freedom, insofar as no one has a natural right to command the obedience of his fellows. Care should be taken in drawing general conclusions of comparative significance, particularly one as politically sensitive as political freedom, based on a limited survey of a few topics in a few works.

Professor Fadel wrote his Ph.D. dissertation on legal process in medieval Islamic law while at the University of Chicago and received his JD from the University of Virginia School of Law. He also served as a law clerk to the Honorable Paul V. Niemeyer of the United States Court of Appeals for the 4th Circuit and the Honorable Anthony A. Alaimo of the United States District Court for the Southern District of Georgia. Professor Fadel has published numerous articles in Islamic legal history, and Islam and liberalism.