Contemporary Islamic legal studies—both inside and outside the Muslim world—commonly relies upon a secular distortion of law. In this article, I use translation as a metonym for secular transformations and, accordingly, I will demonstrate how secular ideology translates the Islamic tradition. A secular translation converts the Islamic tradition into “religion” (the non-secular) and Islamic law into “sharia”—a term intended to represent the English mispronunciation of the Arabic word
The recent establishment of this journal is part of a broader “turn to ethics” in Islamic studies that reveals significant dynamics about how scholars conceptualize Islamic law. That is, there are aspects of the contemporary study of Islamic ethics that result from undercurrents in contemporary Islamic legal studies. I propose that contemporary Islamic legal studies – both inside and outside the Muslim world – often relies upon and reinforces a secular distortion of law, generally, and Islamic law, specifically.1 Correspondingly, these secular depictions of Islamic law shape the form and substance of Islamic ethics. I use translation as a metonym for exploring secular transmutations of the Islamic tradition and Islamic law.2 In doing so, I draw upon Talal Asad’s observation that secularism translates the Islamic tradition and thereby transforms it.3 Accordingly, a secular translation converts the Islamic tradition into a “religion” with “sharia and ethics.”4
This article elucidates the broad, secular forces – discursive and conceptual – that contribute to certain contemporary translations of the historical Islamic tradition. Part 1 discusses non-translations and partial translations of terms in Islamic studies in order to explain the necessity of terminological and conceptual translations. The consequence (intended or not) of not translating is often exotification and misunderstanding. In order to clarify further the consequences of non-translation, Part 2 examines the many meanings of
1 Non-Translations and Partial Translations in Islamic Studies
Non-translations and partial translations, particularly from Arabic, abound in Islamic studies.10 First, there is an unjustified failure to translate Arabic words that often reflects a lack of technical knowledge, problematic disciplinary habits, or scholarly negligence. Terms that should be translated from Arabic, and habitually are not, include “judge” (
Second, there are partial translations that often reflect sloppiness, excessive literalism, unwarranted disciplinary norms, or propagandizing. Examples of partial translations include “shariah court” or “qadi court.” (Notably, these partial translations are more prevalent in English than, for example, in French.) Instead of these partial translations, scholars should use technical terms for differentiating between types of courts, such as “Islamic court,” “court of equity,” or “Ottoman court.” In addition to exotifying, partial translations of Arabic terms often reflect fundamental misunderstandings of how specific concepts or institutions functioned in Islamic history. Many partial translations have no equivalents in Arabic; for example, there is no Arabic term equivalent to “sharia law” (sic), which has the inane meaning of “divine law law” and is often a propaganda term in both academic and popular discourses (Salaymeh 2011). Furthermore, the combination of non-translations and partial translations frames a closed discursive space for specialists who converse with each other. This specialist discourse precludes open and accessible scholarship and conceals conceptual misunderstandings among scholars. Translation makes scholarship more comprehensible to both specialists and non-specialists.
The implications of not translating are predominantly negative: exotification, miscomprehension, miscommunication, and inaccessibility. Yet, many scholars in Islamic studies (claim to) find it so challenging to convey “original” meanings that they do not translate. However, non-translations habitually misrepresent the fluidity of source languages by implying stasis in the meaning of an untranslated term. I demonstrate this point in Part 2’s delineation of the multiple meanings of
Most importantly, not translating insinuates that a term is incomprehensible in the target language and in the target culture. Scholars who do not translate an Arabic term communicate an explanation and an interpretation of the term as “untranslatable.” The notion of untranslatability is commonly motivated by or generative of xenophobia. Not translating a term implies that it is sacred and that it has essential characteristics that make it uniquely “untranslatable” (Reinhardt and Habib 2015). Yet most terms (and the concepts they signify) are neither sacred nor definable in essentialist ways (Salaymeh 2016a). In general, terms have multiple meanings that change over time and vary according to context. Consequently, there are multiple potential translations for terms. Based on her extensive engagement with the notion of untranslatability, Barbara Cassin advocated that “untranslatable” terms necessitate continuous translation, as well as explanation and interpretation (Cassin 2013, 2018). Indeed, producing rigorous scholarship entails (at least) two forms of translation: semantic (from a particular language, such as Arabic) and contextual (from a particular socio-historical context). Translations are more precise and more effective than non-translations or partial translations.
Stronger scholarly bilingualism – for instance, being able to speak and write about Islamic law in a non-Arabic language without using Arabic terms – is necessary for improving the accessibility, reliability, and accuracy of Islamic legal studies scholarship.12 As Cassin observed, “We must know, or approach, at least two languages to understand the ‘language’ that we speak” (Cassin 2018, 132). This type of scholarly bilingualism (or multilingualism) can be developed through comparative studies, such as comparative law. The first two languages that every scholar of Islamic legal studies today should study are those of Islamic law and secular law. Most interpretations of Islamic source texts in contemporary academic discourse (in Arabic or any other language) conflate the languages of Islamic law and secular law. This article attempts to disentangle these two discursive traditions through a translation that integrates explanation and interpretation. Hence, I propose that translating the Islamic tradition from its source languages and socio-historical contexts involves precise translations, rigorous explanations, and critical interpretations. In this article, I provide a precise translation of
Non-translations and partial translations in Islamic studies simultaneously reflect secular ideology and illustrate the power of coloniality. Underlying the notion of “untranslatability” ascribed to many Arabic terms is secular ideology. The terms that are depicted as “untranslatable” (in both scholarly and popular discourse) are usually those that secular ideology renders untranslatable. Previously, I demonstrated that the notions of “origins” and “borrowing,” while frequently used in Islamic studies, reflect both an evolutionary misunderstanding of historical change and a colonial racialization of Muslims (Salaymeh 2016a, ch. 1 & 3; forthcoming-b). Likewise, the usage of “classical” for periodizing Islamic history essentializes the Islamic tradition, while perpetuating a problematic presumption of post-classical decline (Salaymeh 2016a, ch. 5). Decolonial methods – not a scholar’s identity or intentions – are necessary for scholarship to escape coloniality (Salaymeh forthcoming-b). In this article, I illustrate that the Islamic tradition is simultaneously translatable and being mistranslated in ways that manifest coloniality. I draw upon and develop the practice of decolonial translation in order to contribute to my ongoing scholarly project of decolonizing Islamic studies.
2 The Multiple Meanings of
شريعة (sharīʿah) and the Coloniality of sharia
In order to demonstrate that the Islamic tradition is translatable, but being mistranslated by coloniality, it is necessary to focus on a key term and concept. Within a broader discourse in which the basic vocabulary of Islamic studies commonly is not translated, one term stands out for its excessive obfuscation:
The prevalence of the term
In the Islamic tradition more broadly,
In contrast to the Arabic discursive tradition, many contemporary articulations of
What happened, especially over the past century, is not that the shariʿa was abandoned but that it was redefined. In its old form, as a set of practices and institutions, it was maintained but rendered progressively less relevant to social life. In its current form, as a set of rules, it is sometimes not implemented, but it forces itself onto the political agenda throughout the region.Brown 1997, 373
Brown’s observations are applicable to the notion of sharia, but not
The meanings of
3 A Discursive Context of
شريعة (sharīʿah): Tradition
It is not sufficient to analyze a historical term without investigating relations between the term and other terms. We can only translate, explain, and interpret
Several medieval scholars confirm multiple semantic means of
Another term that merits attention is
4 A Discursive Context of sharia: Religion
In this section, I will elaborate why the meaning of sharia is equivalent to “religious law” and why this is a secular translation of the concept of Islamic law (not merely of
There are intense scholarly debates about the meaning and historicity of “religion.” Jonathan Z. Smith famously observed, “‘Religion’ is not a native term; it is a term created by scholars for their intellectual purposes and therefore is theirs to define” (J.Z. Smith 2004, 281). Many scholars argued that the notion of religion cannot be defined sufficiently abstractly to include all the premodern or modern traditions that are portrayed as religions (Tweed 2005; Masuzawa 2007). While there is some scholarly consensus on the temporal (modern) and geographic (Western) beginnings of secularism/religion, scholars disagree on the implications for using religion as an analytical category. Differences in scholarly perspectives on the historicity and generality of religion reflect dissimilar understandings both of religion, specifically, and of analytical categories, generally. Some scholars misconstrue the rejection of the category of religion as the rejection of abstract or transhistorical categories (i.e., nominalism). However, the genealogical critique of religion is not based on nominalism, but rather historicism, critiques of secularism, and decolonial theory, as I will elaborate. Religion (
First, historicism and comparative studies clarify the difference between concepts, practices, or institutions that were invented in the modern era (such as secularism and its corollary religion) and concepts, practices, or institutions that were transformed in the modern era (such as law). Historical studies indicate that there was no concept of “non-religious” or “religious” prior to modernity (Nongbri 2015, 45). Accordingly, many scholars concluded that translating premodern terms as “religion” is misleading (Nongbri 2015, 45; Barton and Boyarin 2016). As many scholars have observed, the notion of religion developed during and after the Protestant Christian Reformation (Martin 2017, ch. 1; Baruch Rein 2007). From historical and comparative perspectives, the category of religion is distinct from the category of law because, as I will elaborate in the next section, law is a transhistorical and transcultural analytical category.21 In contrast, the notion of “religion” is both modern and Eurocentric (Salaymeh 2020).
There is significant historical evidence demonstrating the anachronism of projecting religion and the secular on premodern history. At the beginning of the Islamic movement, people who became Muslim usually did so by accepting Islamic political authority, manifested in the paying of taxes. Specifically, paying the charity tax to the Islamic state was a common and important expression of Muslim identity in late antiquity and beyond (Salaymeh 2016b). New Muslims often joined the late antique Islamic movement as groups, rather than as individuals; in so doing, they committed public acts that likely had little to do with faith or belief. In the late antique Islamic world, the notion of “religion” would have been incomprehensible. As previously illustrated, the Arabic term
Second, critiques of secularism illuminate that secular ideology primarily defines religion (Asad 1993; Scott and Hirschkind 2006; Dubuisson 2007). Much recent scholarship has emphasized that the notion of religion was invented when secularism emerged in early modern Western Europe (W.C. Smith 1991; Fitzgerald 2007a; Cavanaugh 2009; Harrison 2017). (In contrast, secularism did not invent the concept of law.) Timothy Fitzgerald proposed, “what counts as ‘religion’ and what counts as ‘the secular’ are mutually delimiting and defining concepts, the distinction between them continually shifting depending on the context” (Fitzgerald 2007b, 15). Although there is no consensus on its precise meaning and it should not be essentialized, religion was and continues to be constituted in dialogical relationship to secularism. For the sake of clarity and coherence, I define “religion” as “non-secular” (
More specifically, secular state law secularizes traditions by regulating them in three dimensions that are simultaneously related and conflicting. In previous scholarship, my co-author and I proposed a secularization triangle for explaining how secular state law constructs religions in three angles: religiosity (
Third, the category of “religion” is a tool of colonial power that was disseminated largely through colonialism (Peterson and Walhof 2002; Fitzgerald 2007b; Nongbri 2015, 154). As many scholars have documented, the administration of religious courts and the codification of religious law were mechanisms of colonial control (Kugle 2001; Powers 1989). Whereas prior to colonialism Islamic courts functioned as state courts, during and after formal colonialism, Islamic courts became “religious courts” that were differentiated from civil courts (Moosa 2009). For our purposes, the key issue is that the category of religion was part of a colonial strategy of controlling colonized peoples. By way of example, John Bowen noted, “When tasked to advise the Dutch government on its efforts to suppress resistance in Aceh, the Islamicist Christiaan Snouck Hurgronje (1857–1936) recommended that Islam’s legal and political dimensions be suppressed but that its spiritual dimensions be allowed” (Bowen 2018, 134). Not only did colonial figures introduce a distinction between law and religion, they promoted spirituality, or ethics, as a permissible alternative to Islamic law for colonized subjects. Discussing the coloniality of Western knowledge production, decolonial theorist Walter Mignolo warned, “Problems arise when a concept belonging to one civilization is taken as a point of reference for similar concepts in all” (Mignolo and Walsh 2018, 170). This is evident in the case of religion, a modern, Western concept that is not a category of analysis for all societies. The imposition of religion on the premodern Islamic tradition is a form of coloniality.
5 Coloniality and Decolonial Translation
As the above analyses confirm,
One source of coloniality’s epistemic hegemony is “the myth of modernity,” which alleges that European civilization is superior because it developed enlightened progress; this modernity myth ignores contemporaneous and intertwined Western colonialism (Dussel 1993, 75; Mignolo 2009, 277; Mendieta 2009, 235). I propose that “the myth of modernity” is based on a coloniality trinity alleging that (a) secularism is the rational and superior alternative to religion, (b) the state is a secular nation with complete territorial sovereignty, and (c) the law is univocal state law. In other words, secularism is an ideology that colonizes (a) traditions by rendering them religions, (b) states by rendering them nation-states, and (c) law by rendering it positive law. Coloniality transforms the plurality and diversity of Islamic law into religious law (i.e., sharia). The “coloniality trinity” can be dismantled through decolonial translations. Joshua Price suggested, “In the hands of an astute translator, a [decolonial] translation can offer just this kind of counter-narrative that deconstructs colonial systems of meaning” (Price 2015, 67). A decolonial translation can replace the universality of the coloniality trinity with pluriversality.26 Accordingly, a decolonial translation destabilizes the coloniality trinity’s claim to universalism by recognizing pluriversal options to each pillar of the coloniality trinity: (a) multiple traditions; (b) multiple types of states or non-state forms of governance; (c) multiple expressions of law.
By insisting on pluriversality, decolonial translations destabilize the epistemic hegemony of the coloniality trinity. Mignolo emphasized, “Decoloniality focuses on changing the terms of the conversation. Dewesternization, instead, disputes the content of the conversation and leaves the terms intact” (Mignolo and Walsh 2018, 130). Put differently, a dewesternized conversation is substantively equivalent to a colonial conversation because it disputes the Eurocentrism, rather than the coloniality, of the conversation. Likewise, non-translations or partial translations of Arabic terms are forms of dewesternization because they dispute the Eurocentrism of the conversation, rather than disputing the very terms of the conversation. In comparison, a decolonial conversation changes the terms by defining them in opposition to the coloniality trinity. By way of example, coloniality sets the terms of conversation within its trinity: secularism, state, law. Dewesternization (i.e., anti-Eurocentrism) emphasizes religion (sharia, norms, ethics), state, law. Although the dewesternized conversation contains Arabic terms, those terms conform to, rather than dispute, the content of the colonial conversation. In contrast, decoloniality destabilizes the coloniality trinity by redefining and changing the terms: Islamic tradition, Islamic law, coloniality, secular ideology, secular state, and secular law. Indeed, a decolonial conversation may offer entirely different terms and concepts: indigenous, colonizer, epistemicide, etc. In a decolonial conversation, there are pluriversal alternatives to secular law and its symbiotic other, religious law.27 A decolonial translation (1) identifies and disputes coloniality’s role in setting the terms of (scholarly) conversations, (2) changes the meaning of the terms in the coloniality trinity, and (3) shifts conversations outside the coloniality trinity.28 Put differently, a decolonial translation emphasizes what Cassin describes as “the multiple in relation,” meaning a translation that promotes plural understanding (Cassin 2013). An important decolonial alternative to “sharia” is a multidimensional and plural concept of Islamic law.
6 Decolonial Translations: Islamic Law and Secular Law
As previously noted, some scholars of Islamic law insist that
There is no consensus on the meaning of law and there is no objective, neutral, or empirical definition of law. Brian Tamanaha explained, “law involves multiple social-historical phenomena that have taken on different forms and functions in different times and places and therefore cannot be captured by a singular definition of law” (Tamanaha 2017, 38).30 Similarly, William Twining asserted, “to assume that law, or even state law, has a common nature or core involves reductionist and essentialist tendencies” (Twining 2009, 66). Many legal theorists have advised against attempting to define law.31 Instead, many scholars advocate using a “folk definition” of law, which means deferring to how a particular group or society designates law.32 One might add that when people demarcate laws, they often use legal language, such as engaging with legal sources or legal reasoning. From the perspective of philosophy of law (or legal theory), it is a given that there are different types of law, including both state law and non-state law.33
Some scholars have cautioned that an over-inclusive conceptualization of law would encompass so many norms as to render the category of law meaningless.34 However, scholars should not police the boundaries of the category of “law” because differentiating between laws and norms is a socio-political, rather than analytical, process. Groups within societies compete to draw an ambiguous and shifting line between laws and norms. Throughout Islamic history, jurists, scholars, and lay Muslims competed over where and how to distinguish between law and norms. Simon Roberts warned that some societies may not want their normative orders to be characterized as law.35 Roberts’ point is valid and can be addressed by deferring to how social (or historical) actors identify their legal/normative orders.36 In our contemporary moment, the modern nation-state holds the most concentrated power to draw the line between laws and norms; not coincidentally, most modern nation-states do not accept non-state law as law (Michaels 2005, 1249–50). From the perspective of decoloniality, as Boaventura de Sousa observed, “the uncoupling of law from the nation-state is a necessary, not a sufficient condition for the recuperation of the emancipatory potential of law” (Santos 2012, 68). Decolonial comparative law challenges the legal univocality of the modern nation-state by insisting on decolonial meanings of law, rather than accepting the state’s depiction of non-state law as “norms.”
Some scholars may object that “law” is an English term and that it cannot be translated to other languages, such as Arabic.37 It would be nominalist (and incorrect) to look for one term in Arabic that is equivalent to “law” and to claim that the absence of a comprehensive term is evidence that law did/does not exist in the Islamic tradition. As Tamanaha explicated,
this is the classic problem of translation among languages, which has been grappled with and overcome (to greater and lesser degrees of success, and with regular misunderstandings) throughout the history of human cross-language interaction. The problems entailed by translation are not a barrier to a conventionalist approach [i.e., law is what people identify as law]. There will be approximations and misfits, but that just means that care must be used, not that it cannot be done.Tamanaha 2001, 169
Tamanaha’s observation that the concept of law should be translated is in line with the work of legal translators. Susan Šarčević, a specialist in legal translation, observed, “Like comparativists, translators need to use methods of comparative law in their search for potential equivalents and to test their adequacy by comparative conceptual analysis” (Šarčević 2012, 188). Likewise, Cassin’s work, in the Dictionary of Untranslatables: a Philosophical Lexicon, confirms that “law” is translatable (Cassin 2014, 550; 2004). Law is translatable so long as the source society defines the phenomenon analogously to law in the target language.
A specific example may elucidate these subtle dynamics. Orthodox Islamic legal texts delineate five categories of laws: obligatory, recommended, permitted, discouraged, and prohibited. Some contemporary scholars allege that these are ethical or normative, rather than legal, categories. In doing so, they rely upon a narrow, positivist understanding of law as differentiating between legal and illegal. Legal positivism distinguishes law from ethics based on the notion that only law is enforceable (typically, through a state mechanism).38 However, the concept of law in the Islamic tradition is multivalent and not dependent on enforceability. Scholars with juridical objectives developed these five classifications. A modern, secular perspective views these five categories as exclusively ethical or as more ethical than legal.39 Inadvertently, the recent scholarly turn to ethics reinforces the secular definition of law by transforming dimensions of Islamic law into Islamic ethics. In most cases, when scholars reject the category of “Islamic law,” they project essentialized and inaccurate conceptualizations of law. Juxtaposing philosophy of law and the premodern Islamic juristic tradition shows that colonization transformed parts of the Islamic legal tradition, but did not eradicate it.
As I outlined above, there are significant theoretical indications that law is translatable. Likewise, the Islamic texts summarized in Part 2 indicate that Muslims recognized a concept of law at the beginning of the Islamic movement. Hence, it may be helpful to provide a broad and flexible elaboration of law at this point. Law is a discourse and praxis in which historical precedents, exegesis, and legal opinions interact. Law is the product of interpretations of and interplays among legal texts, jurists, judges, bureaucrats, and other legal actors. Several groups and institutions generate law (legal polycentricity) and several legal traditions often operate within one political entity (legal pluralism). Political struggles, sociopolitical changes, and geographic conditions shape the form and the content of law. At any given historical moment and in any precise geographic location, law is the outcome of specific conditions and broad patterns.
Law is translatable in a decolonial conversation that nurtures epistemological alternatives to coloniality. Coloniality’s epistemic hegemony and violence are manifest in the attribution of essentialism and stasis to traditions from the global South. Accordingly, it is crucial to recognize that decoloniality does not ascribe notions of essence or purity to any of its analytical categories. Neither the Islamic tradition nor secularism has essential features; nonetheless, at a macro level, both have logics or orientations that make them distinct from other traditions. The Islamic legal tradition is the multi-vocal outcome of Muslims who study and interpret Islamic scriptural sources in an attempt to comprehend the abstract concept of (Islamic) divine law; Islamic law is law produced with the objective of being part of the Islamic movement. In the Islamic legal tradition, tradition is the centripetal force and contingent conditions are centrifugal forces. The Islamic legal tradition is not static and it is not equivalent to Islamic orthodoxy. By comparison, “secular law” is a modern category that refers to a legal tradition based on secular ideology. The secular legal tradition is the outcome of secular actors studying and interpreting secular legal texts. Secular law is a discourse and a praxis generated by interpretations of secular texts by secular legal actors. Secular law is not static or homogenous; it varies depending on its specific temporal (within modernity) and geographic manifestations. In the secular legal tradition, the secular state is the centripetal force and contingent conditions are centrifugal forces. Nonetheless, “secular” and “Islamic” are not mutually exclusive categories, which is why a law can simultaneously be secular and Islamic. (I have previously identified the contemporary fusion of secularism and the Islamic tradition as secularislamization (Salaymeh forthcoming-a).)
I have proposed that the emergence of secularism and its corollary, religion, led to the conversion of
Scholars writing about Islamic law today are constantly comparing Islamic law to secular law, whether implicitly or explicitly.40 In doing so, they colonize the concept of Islamic law through the notion of sharia. A decolonial translation decolonizes concepts through the translation of terms. Decolonial translations can illuminate paths of resistance to the hegemony of the coloniality trinity (the secular state, its religion, and its secular law). A decolonial translation contributes to a decolonial discourse by highlighting translanguaging, what Mignolo and Freya Schiwy described as “a way of speaking, talking, and thinking in between languages…. a form of border thinking, opening new epistemic avenues beyond the complicity between national languages and cultures of scholarship established in the modern/colonial world-system” (Mignolo and Schiwy 2003, 23). One such colonial culture of scholarship is the recent expansion of Islamic ethics as a field of study: the burgeoning of the field of Islamic ethics is, at least partially, the result of the conversion of Islamic law into religious law (or sharia). A decolonial translation of the Islamic tradition recognizes Islamic law as distinct from secular law. In turn, this decolonial conversation about Islamic law contributes to decolonizing Islamic studies.
As noted, “sharia” appears to be an untranslated term, but it is actually a secular translation and conversion of
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. Quintana, María Marta . 2009 Colonialidad del Ser, Delimitaciones Conceptuales. Pensamiento Latinoamericano y Alternativo. Accessed 2021. https://ri.conicet.gov.ar/bitstream/handle/11336/83381/CONICET_Digital_Nro.b2b9a22f-f723-493e-9958-3448d7083781_A.pdf?sequence=2.
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For their feedback on this article, I thank Rhiannon Graybill, Baudouin Dupret, Lahcen Daïf, Nader Hakim, Ralf Michaels, and Yaacov Yadgar.
Secularism, despite its local and historical variations, is an ideology and array of practices that began in the European Enlightenment and may be analysed for general patterns. See, for instance, (Calhoun, Juergensmeyer, and VanAntwerpen 2011). See also (Salaymeh 2020).
A tradition is a changing and pluralist assortment of ideas and practices engaged by groups over time. While I refer to “the Islamic tradition,” it should not be understood as homogenous or singular. I base my definition of tradition primarily on (Bevir 2000). See also (Krygier 1986). “Tradition” is not the opposite of modernity, although I recognize that “tradition” has been used in the discourse of the “modernity myth” (Mignolo 2009).
In his recent book, Secular Translations, Asad commented, “Every translation from one natural language to another – or even within one language – is, in ways both trivial and profound, also a transformation” (Asad 2018, 6).
Notably, a similar – though not identical – observation may be made about Jewish legal studies. I will address the specifics of secular translations of the Jewish tradition, particularly “Hebrew law” (mishpat ʿivrī and the anglicized “halacha”), in a forthcoming piece.
Throughout this article, I use Arabic script for Arabic words. In the Western academy, the dominant transliteration system from Arabic script into Latin characters problematically intertwines representations of orthography and pronunciation. Given that the technology is now available to publish Arabic script in line with Latin characters, I oppose transliteration of Arabic bibliographic references or of textual citations. Transliteration should only be used for pronouns or when absolutely necessary for accessibility. Since this piece is not intended for a specialized audience of Islamic studies scholars, I have provided transliterations for the sake of the general reader who cannot read Arabic. However, I prioritize Arabic script for Arabic terms throughout this piece. Contemporary readers of Arabic are often expected to be able to read Latin characters; I intend for readers of English to have an analogous experience of Arabic script intruding in Latin text.
I distinguished between the meaning of these two terms in (Salaymeh 2014b).
Claude Lévi-Strauss bemoaned that conventional historical linguistics erred in “consider[ing] the terms, and not the relations between the terms” (Lévi-Strauss 1963, 46).
Modernity is a periodization category that refers to a block of time, often dated as beginning in the sixteenth century; modernity is a descriptive concept that does not imply a status or a level of development. The claim that the modern era began in a particular region of Europe and then spread to other parts of the world is a colonial presumption.
Whereas colonialism is the socio-political domination of a territory, coloniality is a mode of thought that legitimizes colonialism (and neo-colonialism) while espousing universalism (De Lissovoy and Fregoso Bailón 2019; Quintana 2009).
I have written about the problematic implications of non-translations extensively (Salaymeh 2011, 2013, 2014a, 2014b); the discussion included here is a brief summary.
On the importance of translation for cross-disciplinary research, see (Salaymeh 2013).
I wrote both an Arabic and an English version of this article; I also thoroughly edited, revised, and expanded upon a French translation of an earlier version of this article. The process of thinking and writing about this topic in three languages sharpened and distinguished the ideas presented in each version.
I relied upon the exegetical reports of Ibn ʿAbbās (d. 68/ 687), Mujāhid ibn Jabr (d. 104/ 722), Zayd bin ʿAlī (d. 122/740), Muqātil ibn Sulaymān (d. 150/767), Sufyān al-Thawrī (d. 161/778), and ʿAbd al-Razzāq al-Ṣanʿānī (d. 211/826). I discussed why I use the term “late antique” and why I concentrate on texts of this period in (Salaymeh 2016a, introduction). With the exception of Ibn ʿAbbās, I used the online database of exegetical sources available at (
Sufyān al-Thawrī also defined the term as
On tradition, see fn 2.
Mark Bevir explained, “trans-historical categories are just particular and contingent creations that [historians] define at a sufficiently abstract level to embrace admittedly differing beliefs … we might define ‘the state’ sufficiently abstractly to discuss the beliefs Plato and Marx held about ‘the state’ without implying that they understood such a concept in an essentially similar manner to one another” (Bevir 2004, 112). Likewise, Aníbal Quijano noted, “states are an old phenomenon. However, what is currently called the ‘modern’ nation-state is a very specific experience” (Quijano 2008, 205).
The circularity of this non-essentialist definition of religion is intentional; the term “non-secular” recognizes the role of secularism in defining religion while highlighting the anachronism of applying the term prior to the emergence of secularism.
Case in point, some contemporary militant Muslim groups and Salafi groups conceptualize Islamic law in ways that conform to secular ideology (Salaymeh forthcoming-a).
In addition, I contend that the paired notion of “sharia and ethics” is a secular translation that responds to the Habermasian and Rawlsian demand that religious groups should translate their language into secular, public reason (Sikka 2016).
Bernd Reiter explained, “The call for decolonialization … thus points to the need to move beyond the critique of colonialism and toward the active construction of the pluriverse through the systematic elaboration of different ontologies and corresponding epistemologies” (Reiter 2018, 5).
Mignolo advised, “From the moment you realize that what seems to be reality, objectivity, and truth is nothing but a dominant or hegemonic option, you are already stepping out and inhabiting the decolonial or other liberating options” (Mignolo and Walsh 2018, 224).
Mignolo asserted, “Decoloniality of knowledge demands changing the terms of the conversations and making visible the tricks and the designs of the puppeteer: it aims at altering the principles and assumptions of knowledge creation, transformation, and dissemination. Dewesternization, by contrast, disputes the content of the conversation. It aims to change the puppets and the content of their conversation, not the terms. It disputes the place of the puppeteer not to replace it but to coexist next to the existing puppeteer” (Mignolo 2018, 144–145).
By way of example, Wael Hallaq insisted that
Likewise, Michaels clarified, “Law is a social construct; therefore, the definition of what law is depends on the criteria used, and these criteria can easily be different in different disciplines” (Michaels 2005, 1238).
Tamanaha summarized that “The debate over what law is has never been resolved because different folk concepts circulate and theorists hold contrary intuitions about what is fundamental to law” (Tamanaha 2017, 42). See also (Twining 2010, 497).
Tamanaha asserted, “Law in the first instance is a folk concept because law is what people see as ‘law’” (Tamanaha 2017, 48).
Tamanaha insisted, “more than one form of law has been collectively recognized historically and today” (Tamanaha 2017, 54). Likewise, Twining explained, “a conception of law that is confined to state law (and maybe a few close analogies) leaves out far too much” (Twining 2009, 66). See also (Michaels 2005, 1225; 2015, 44).
Roberts expressed a concern for “losing all sense of what it [law] is” (Roberts 2005, 24).
Roberts asked, “Will all the normative orders that the legal pluralists wish to embrace necessarily be comfortable with their rescue as ‘legal’ orders?” (Roberts 2005, 12).
Roberts advised against dictating to societies that they have laws (Roberts 1998, 105).
It should be emphasized that law should not be translated exclusively as
By way of example, the influential, modern legal philosopher, John Austin, separated legal and ethical authority (Rumble 1979, 151).
As Asifa Quraishi-Landes noted, “it is only because we approach the subject and the literature of Sharīʿa from a modern western perspective that we consistently look to categorize aspects of fiqh as ‘law’ or ‘morality’ or some combination of both” (Quraishi-Landes 2019, 186).
On the implicit comparison of Islamic law to other legal traditions and systems, see (Salaymeh 2016a, 2015).