Sides of the Law

I haven't spoken about last week's attack on a gay club in Orlando, but I'm going to try to do so now in light of one scholar's response about how we can live collectively with deep differences. 

I didn't talk much about the attack because I'm not gay, like those targeted by the terrorist, or Muslim, like those targeted by the state, and I believe the challenge for people in that position is not to speak out but listen carefully and be open to what we hear.

A problem with this approach is that it can often seem like doing nothing at all. But standing with gay, and Muslim, people in my life is something, to echo recent some thoughtful words, I don't want to leave undone.

I don't know how to do that now.

I do think, however, that it is one part of a field of moral and political questions about the recognition of others and other spaces even as we work toward common purposes.

With that in mind I read this piece by Jonathan Brown about gay marriage, Islamic law, and "safeguarding each other's rights in a pluralist society." 

Brown's work has attracted the praise it has from academics, Muslim ʿulamāʾ, and non-scholars in part for his ability to bring complexities into focus with the posing of simple, meaningful questions, qualities this article shows. Yet, I think it has some problems that I'll try to address by posing some different questions and frames to Brown's analysis of fiqh, Islamic legal thought.

The question I asked is: what we can premodern Islamic legal thinking teach us about living with abiding differences.

This is a question Brown is interested in, but here he is asking something else: what limits did premodern Islamic jurists placed on their tolerance for protected minority (dhimmī) communities, and what does this mean for Muslims in America, who might dissent considerably from public policies but who are not in the same legal framework.

He covers the extensive range of practices jurists recognized or agreed to put up with among dhimmīs that Islamic law cannot abide. Jurists recognized sibling marriages among Zoroastrians. Muslim judges helped Christians evaluate the price of wine stocks. Centuries of Muslim rule did not change Iberian tastes for ham.

Brown is not saying no Muslim rulers had legal justification to stop minority practices they disapproved of, he is saying that he has found jurists tolerating those practices because of the way the sharīʿa defers to non-Muslim communities to constitute realms of their own under Muslim subordination.

Nevertheless, he concludes, juristic thinkers could not have countenanced gay marriage, as we think of it, even among non-Muslims under Muslim protection.

This isn't the point in contemporary America, he stresses, because US law is not meaningfully influenced by Mughal India or Mamluk Egypt. In a liberal, Muslim-minority society like ours, everyone must respect others' rights to organize communities peacefully according to their own consciences, vigilantism should never be tolerated, and the state should not force gay acceptance on those who peacefully will not accept. 

It isn't that I object to any points he makes, and my research has not taken the same range his has, so I have no claim that he's missed anything.

I would rather make a slightly different generalization than him and say that what jurists have accepted of non-Muslims is a factor of what they encountered.

I don't think it would be unreasonable historical fiction to imagine Muslim legal authorities having space for same-sex marriage rites of Episcopalians or Reform Jews. They just did not to encounter and rule over these communities historically, so they could not have considered it. 

More important than historical fiction, however, is the range of historical experience. Brown tells us that Muslim rule accommodated traditions much more widely different than those named in the Qurʾān, despite the dangerously popular misconception. Not only were fellow monotheists undisturbed because of Muslim regard for their scriptures, Muslim states regarded Hindus, with their multiplicities of devotion, and Confucians, with their disinterest in the gods, as dhimmīs.

The lesson I would draw from this, and have been trying to articulate in my own work, is about the exteriors of the state in premodern politics. Examples I am working on: even as Chinese states were sometimes rigidly defined by Confucian orthodoxies, outside official life, people partook of plurally different spiritual life-ways. One person could take part in many traditions. 

Similarly, the multifaith Muslim empires practiced precolonial forms of modesty that can be instructive to us in may ways. They  looked to different communities to co-constitute shared spaces like markets and military ventures without the enforced binding of Westphalia-style regimes.

I don't think Western or colonial-inspired notions of politics, centered on the state, liberal or not, have much of any exteriority. 

To understand these past exteriorities, I think we can look differently at how law divided inside and outside spaces and people. So in this, I am focusing less on the limits of its tolerance strictly speaking.

My thinking about these examples differs somewhat from Brown's, but I think we have a common critique of the idea that metaphysical certainties invariably connect to violence: modern history has so little of the first and so much of the second. So this secularist credo needs rethinking.

Similarly, we might both agree that liberal ideas about how to accommodate difference in part account for atomistic and conformist forces in modern life. We should be open to different ways of understanding difference.

That process of consideration doesn't come easily when are not safe. This kind of thinking does not sit easily in the cycles of violence and alarm that surround us. Scholars of religion can have some perspective on these situations and the assumptions that give rise to them. It is not always their place to speak up, but it is to reflect critically.

Belonging on Campus

Like in 1968, college students are bringing discourses about social justice into confrontations with each other and faculty and administrators, though it'd be difficult to imagine Neil Young writing a song about it. It'd be difficult to imagine Beyoncé choosing a college setting to work with images of protest.

Nevertheless, I think student protests importantly reflect trends beyond campus, and they have inspired no shortage of comment. Mine will focus on what they reflect about academic discourses, university governance, and what they say about fundamental assumptions about the nature of personal experience and the need for inclusion.

Typically when journalists and commentators talk about student protests of the present moment, they want to talk both about gravely serious political issues and what they regard as the juvenile sensitivities of the especially privileged. That is to say, outsiders say current student movements both do and don't matter.

Teaching on two very different campuses this year, I haven't written or talked much about the topic as much as I've thought about it. Recently, however, a piece in The New Yorker came up on my newsfeed focused attention among friends as none of the other pieces before it. It deals only with liberal-arts campuses, but it engages much broader issues and frames.

The article gives space to people to share their own stories and views with refreshing freedom from the moralizing judgments like those of Jonathan Chait and Jonathan Haidt among others. That first one gave me an eye-rolling headache. 

I also appreciated an article on FiveThirtyEight analyzing what student demand-lists actually are as data. This piece gives a needed contrast to the common alternative of an author taking a few comments and generalizing about generational consciousness. It turns out that students are much less often demanding trigger warnings and comfy identity-only spaces and more often demanding institutions honor their own commitments.

However, as important as it is to listen to people and try to understand them on their own terms, I want to try to describe the effects of its institutional situation and its larger political significance.

Following the term of Elizabeth Povinelli, we can think of college students as autological subjects. This term describes a mode of governance that makes people account themselves in different institutional settings and in different terms. American education, with its roots in revivalist Protestant religion, values expressive self-examination, and college-admissions essays demand this to a very high degree from very young people. What did you learn in your gap year in Zambia or Habitat for Humanity? How did you come to accept and complicate your identity as an American Indian or religious Muslim?

The questions take this form, explicitly or implicitly, because of how liberal institutions' governance models conceive of diversity. These impose a duty on included people, if they are other than cisgender, white, heterosexual young men, not only to be good studious college students but also to contribute to the campus community through their particular perspectives. They are rendering goods to cisgender, white, heterosexual old men in faculty and administration. 

It isn't new to say "diversity", "inclusion", and "pluralism" validate dominance through the extension of an offer for recognition and a dictation of the terms of difference. The people in power tell the different how they are allowed to be different.

However, campus diversity-initiatives are more productive in certain ways, they are defining what work "others" need to do to justify their inclusion.

This regime of inclusion does not have a clear idea of what to do with the kinds of identification it demands. This holds for the liberal polis and the universities, in my view. 

University curricula in the humanities and social sciences are still, by and large, oriented toward producing citizens with critical relationship to the Western tradition. Modes of autology promoted through student and faculty selection prize "difference", and academic discourse invests huge moral weight in minor differences of opinion. All these are related, and all are a part of how critique is demanded, routinized, and ignored in places like campuses.

Kids are... kids. They're not mature. They can be incredibly bright, and it's part of our job to help them focus. The world needs changing, and the list of iniquities is as long as the list of student groups organized to address them. Accounting for the chaotic and often dissolute energy of intermittent campus protests does have to do with students, but it also needs account in terms of how institutions shape speech and action.

Campus protests can look similar, and here I'm saying they result from similar structural pressures, but they take place in different situations. Public universities are being ground down by manufactured funding crises while the top tier of private schools are becoming walled gardens to grow the global elite. These divergences result from corporate and bureaucratic management modes that have very little concern for the best interests of education. They urgently need room for the voices of the students they are supposed to serve.

Calling it What it Is?

Recently, the Times published an opinion piece in its popular Stone series that appeared to its premise into question. This series features teachers in university philosophy departments tackling important issues of the day.

However, this week's piece says that what we usually call philosophy is not really philosophy when we restrict it to the particular European intellectual traditions we usually mean by the term.

It argues that philosophy departments ought properly to call themselves Western philosophy departments given their reluctance to hire scholars who teach beyond relatively narrow traditions of inquiry in the Mediterranean and North Atlantic. When they do employ scholars focused on the thought of the non-West, it is nearly always as "comparativists", that is to say, as looking at others for what we might learn about us.  

The article speaks to me personally, albeit a younger me. I used to read Kwame Appiah, David B. Wong, among others, and I would share their discouragement at the disparity between the universalist aims of philosophy-as-such and the microscopically-specific range of that canon as taught in American universities. Recently, I heard its prejudice described as "European folk-reasoning, probably due to Aristotle". In some ways, that was a laugh-line. But, it does strike me as a pertinent observation.

If philosophy is "about" universally-defensible claims about human being, knowing, and doing, why is its canon so narrowly restricted to a few notables of the Greco-Roman-Franco-German tradition?

I don't know, but there are a number of productive ways to address the problem. One can call this disparity between universal problems and technical and specific answers as a testament to the parochializing effects of the colonial project. "Philosophy" has only really been academic philosophy after relatively recent European encounters with others who are said not have universalizable traditions of ethical and political thought.

If we are to transcend this, we must recognize the constricting effects of modernizing processes. Dipesh Chakrabarty has argued this to particular effect in his treatment of the theme of "history", so should we not expand this to the idea of humanistic thought as a whole?

Still others may inadvertently suggest the restriction of the genre of philosophy has to do with our relatively restricted ideas of who a philosopher is. Alasdair MacIntyre mentions that philosophy is an exception to the rule that people who wind up in humanities and social sciences departments tend not to do very well on standardized tests compared to their STEM peers.

He is arguing for the moral-intellectual deficiency of people in those softer areas of study (except for his own), a very questionable bias of his, but one could just as easily say that the idea of thinker as individual genius favors popular perceptions of high-status fields like economics, physics, and philosophy much more than down-market majors like religion. These discourses intersect neatly with fields associated with the expertise of white men.

In my experience, the practice of different fields reinforces their self-image. In religious studies, is a scholar of Tibetan Buddhism really well positioned to criticize the theoretical work of a specialist in Puritanism? Likely not. And so, a weaker argument might survive hiring and tenure hearings. 

On the other hand, a questionable thesis about Frege or Hegel is much less likely to go without contest in a philosophy hiring-committee. It would be subjected to more rigor. Because of the kind of institution The New York Times is, its preferences are clearly for the latter idea of seriousness versus some inchoate idea of diversity.

It is remarkable, then, that such a dissent as this week's should gain traction at all. This has been a question for philosophers among many other scholars, and it bears questioning.