This dissertation uses the case of Pakistan to argue that the compatibility of shari'a and democracy depends on the design of institutions through which Islamist moral arguments are processed and which shape their interaction with liberal detractors. Instead of extrapolating Islamist intentions from theoretical tracts deemed canonical or from their official statements, this dissertation examines the link between ideas and institutions by mining a wide-range of English and Urdu-language texts from Pakistani courts, parliament, law journals, the advisory Council of Islamic Ideology and Women's Status Commissions, transnational rights advocacy NGO and Islamist publications, newspapers and TV debates, and 40-years of articles on democracy and state Islamic lawmaking from two leading madrassa journals. An analysis of 3 case studies of Islamic lawmaking reveals that the judiciary has been able to foster "authentic deliberation" between liberals and Islamists (which Guttman and Thompson define as reciprocal reasoning with civility and respect), leading to the moral accommodation of Islamists in the constitutional democratic order as well as steady advances in constitutionally-guaranteed fundamental rights. However, deliberation through political institutions - a legislature dominated by the executive branch, which has been alternately controlled by military dictators and civilian heads of internally undemocratic political parties - has led groups in power to pass desired laws without giving the minority side reasons internal to their moral framework, leading the losing side to declare the law "un-Islamic" and to later collaborate with military rulers to attain their desired change. By adopting the lens of "internal" vs. "external" reasoning to analyze the moral deliberation between liberals and Islamists during episodes of Islamic lawmaking, which is used by scholars of moral and political theory, particularly in the deliberative democracy tradition, I am able to suspend judgment about the content of Islamist positions. This allows me to show that their moral critique of liberalism is directed at the kind of liberalism advocated by transnational rights NGOs, which John Gray has described as the conception of liberalism as a "rational consensus on values," and that they have been the most ardent champions of what Gray has termed "modus vivendi" liberalism and which is indeed the arrangement embodied in Pakistan's constitutional and legal system, which has a dual commitment to shari'a and individual rights. Particularly, from 1978-85, there was a major structural shift in judicial reasoning when the mechanism of "Islamic judicial review" was introduced through shari'a courts, which were empowered to strike down laws as un-Islamic on citizen petition, or on their own initiative, and which were staffed by a minority of `ulama and a majority of common law judges, who were compelled to reason within the fiqh tradition (and depart from consensus-based opinions of the fuqaha only as a last resort, if there was no way to reconcile them with modern circumstances). From the accounts of legal scholars, the constitutional role granted to shari'a since the 1980s has led to a liberalization of colonial-era laws, while the judiciary has continued its steady expansion of women's rights in Muslim divorce law and in areas of law that do not entail a direct conflict with fiqh-based provisions. Superior court judges have pursued this liberalism through "creative compromise;" in public statements they have affirmed the constitution's commitment to gender equality but when dealing with the fiqh tradition, they pursue gender equality as a legal effect (pragmatism) rather than as a premise on the basis of which the fiqh tradition should be "reconstructed." While the latter is a Muslim modernist position and has been the demand of transnational rights advocacy NGOs since the 1980s, "gender equality" was never recognized as a premise in the fiqh tradition, much like other moral and religious traditions which posit the family as the basic social unit, and derive the mutual rights and duties of men and women from their role in the family. Contrary to the common representation of Islamists, in-depth evidence from Pakistan, especially in the last decade when judicial and media independence increased, shows that the main `ulama and Islamist electoral parties have shown flexibility in their positions, sometimes appropriating long-standing demands of women's rights campaigners for their own electoral platforms (to prove that they are women-friendly), while western-funded rights advocacy NGOs have maintained their original position that gender equality must be used as a premise to re-frame all laws, including fiqh-based laws.
| Identifer | oai:union.ndltd.org:columbia.edu/oai:academiccommons.columbia.edu:10.7916/D8C8286Z |
| Date | January 2015 |
| Creators | Khan, Tabinda Mahfooz |
| Source Sets | Columbia University |
| Language | English |
| Detected Language | English |
| Type | Theses |
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