Introduction Matthew Erie’s pathbreaking book on the status of Islamic minorities in China will be of interest to legal anthropologists, legal historians, legal sociologists, and political scientists. China and Islam: The Prophet, the Party, and Law is timely and innovative. The steady rise of China on the world scene has drawn global attention to the state’s treatment of religious minorities. And the historical Muslim presence, which is localized in specific areas of that vast country and, according to official census figures, now amounts to more than 23 million worshippers,1 attracts only more attention. Since Islamic law is a core component of Islamic identity, how it may survive within a pervasive secularist legal ideology is a question worthy of deep exploration. Moreover, as Islamic extremism has spread globally, one may wonder whether this has also spilled into China. Some of the anti-government riots, which have in recent years occurred in primarily Muslim areas, make this latter question all the more important if, in Erie’s words, “to be Muslim in post-2009 China is to be a suspect class.”2 The Methodology Erie did his fieldwork in the city of Linxia, China’s “Little Mecca,”3 populated by the largest Muslim minority in China, the Hui ethnic group, located in the province of Gansu. This area has been all but entirely Sunni since Shia Muslims virtually disappeared as early as the sixteenth century.4 Given the complexity of his project, Erie had to take a multilayered approach to dig beneath the surface of the law as it is written in texts and expounded in judicial decisions. In order to evaluate the actual interplay of Islamic thinking and Chinese law, he had to pay special attention to how law and society influence each other. This meant exploring materials that pertain to social science, sociology, and religious studies as well.5 In Erie’s book, Linxia’s Muslim community stands out as a diversified Chinese minority. Its religious ancestry dates to Arabian and Persian immigrants, to converts of Islamic missions into China, to religious-political transnational alliances, and also to modern converts to the Salafiyya movement.6 Chinese Muslim minorities have traveled a long path that cuts across Islamic history, Chinese tradition, and modernity—a journey that has led them to develop their own systems for education, finance, adjudication, and mediation. Confirming What We Know Erie’s history of Islam and Islamic law in China is a source of both confirmation and unexpected discovery to scholars in the field of Islamic studies. The book confirms some of the main dynamics that have characterized the relationship between religion and state, and more specifically between Islam and modern states. Yet we learn that Chinese Islam seems to have found its own way to survive, at least in Linxia. Islamic landlords governed majoritarian Muslim regions for centuries. Just as in places like Saudi Arabia, where the founder of the Wahhab movement endorsed the powerful family of Saud in exchange for military support, even in China many local rulers used Islam as a powerful tool of self-legitimization. This phenomenon in turn furthered the territorialization of Islam itself, as it made Islamic law part of the law of the land within specific territorial compounds. By the time the Chinese Republic was established in the early twentieth century, Islam had already been entrenched in certain areas of China. Republicans centralized powers and progressively disempowered Islamic territories, where state laws replaced religious laws over time. The mechanism deployed to marginalize Islamic law was basically the same that Western colonies exploited when they governed vast Islamic territories: they qualified Islamic law under the rubric of customary law, and then tried to codify it in order to bring it under the control of state institutions. Modern legal orders use this strategy to replace or undermine preexisting, competing legal systems, for theoretical as well as practical reasons. Theoretically, religious law challenges state sovereignty in a way that customary law does not. Practically, codification crystallizes customary law, making it more predictable for the state, shifting its adjudication from religious to state courts, and ultimately replacing it with generally applicable state laws. The Dutch, the French, and the British had taken a similar approach in Muslim areas when they tried to neutralize Islamic law.7 But, as Erie notes, those European countries were colonizing other peoples beyond their borders, whereas China sought to manage its own peoples within its own territory. To some extent, China behaved as a colonizer, as Erie underlines throughout his book. But there is another part of the picture, which Erie seems not to consider thoroughly: the assimilation of religious law into state law and then its progressive modernization also took place within the newborn Arab states, after the colonial powers had left them. Limiting or downgrading religious law is not simply the product of the colonialist mindset; it seems common to all efforts to replace preexisting legal frameworks. After all, even the Protestant Reformation in Europe secularized Catholic religious laws and institutions first, and changed them afterwards.8 In this respect, China is more the norm than the exception. The political role of Islam declined long before the Chinese Communist Revolution. What communists added was an unequivocal, direct conflict with Islamic tradition, which they tried to replace with their own legal and philosophical new order. Their impulse was rather state ideology than fear of political Islam. This explains why the Chinese regime has routinely tried to prevent the spread of Sufism, which is a branch of Islam that normally focuses much more on spirituality than on secular subjects;9 although Sufism has hardly any political roots, it nonetheless presents a challenge to the state’s political ideology. The confrontation between the state and Islam has sometimes yielded severe limitations on freedom of religion, especially on proselytism, although state prosecutions have never really eradicated this practice.10 Yet the prosecution of proselytism is not the only policy that the Chinese implemented. Since the 1980s, the state has reestablished part of the legal autonomy that had been taken away from religions and it has given them back their expropriated properties. But even with these reforms, the state has continued to keep a close watch over Islam. For example, it has created Islamic advisory bodies as institutional bridges between religion and the state. Islamic clerics now must undergo a training process that is supervised by state institutions and ends with their placement on the local institutions’ payroll.11 The result is precisely what the state hopes: to pull religious doctrines closer to state policies in order to forestall the opposite. Unexpected Discoveries And yet state authorities have not completely succeeded in replacing Islam with the official ideology. This is where the book uncovers surprising dynamics, leading Erie to suggest that “Islamic law and modern state law are not inherently antagonistic.”12 Beyond the rhetoric of Islamic law as an immutable, universalistic body of rules, scholars have developed deep awareness of the nuances and the accommodations that have characterized Islam’s history. But how Islam has reacted to and interacted with communist authorities is worthy of special consideration. Under the pressure of state policies that have labeled Islam “customary law” and confined it to Islamic areas, Islamic law has not simply lost terrain. Islamic law has also changed its face and transformed itself into a layer of social rules. It is still applied within social relationships as the connective tissue for Muslim-majority areas of the country, though without official acknowledgment from the state. Chinese authorities have tried to outmaneuver Islamic law’s nature, scope, and content but they have been unable to exorcise it from the social sphere. Given its inherent malleability and receptivity to adjustment and accommodation for the sake of both its preservation and its common good, Islamic law has not faded away. Perhaps even more importantly, local Islamic authorities have not disappeared. When they lost control of Islamic law at the judicial level, they were able to carve out spaces of visibility for themselves. State authorities still need to consult them for the sake of preserving social stability when implementing policies or drafting judicial decisions. This accommodation shows both the resilience of Islamic social order and the pragmatism of Chinese institutions: what Islamic law has lost in terms of legal cogency, it has preserved in the form of political agency. Now, much of Islamic law survives within the symbolic sphere, as it is mainly the ritualistic part of Islamic law that remains today concretely applied.13 But this dynamic has politicized ritual Islamic rules rather than depoliticized Islam.14 Religious rites are now the terrain within which Islam retains social and political leverage. The book reveals just as compellingly how the intermingling of Chinese ideology with Islamic politics has created a specific pattern of growth for Chinese Islamic law and institutions. Chinese Islam is mainly a regional player, with a steady pace of growth (consider that the number of Chinese mosques increased from 20,000 in 1994 to more than 35,000 in 2010),15 less a result of conversion than fertility. This phenomenon distinguishes the Muslim minority from the rest of the country, which follows the one-child policy,16 but it confirms Chinese Islam’s distinct ethnic connotation, as it spreads through bloodlines rather than proselytism. Interpreting Linxia’s practices as ethnic customs is an important element in the preservation of Muslim heritage. It keeps Islam beyond Chinese religious radars. Calling religion into question would probably raise conflicts with the Chinese state, which has deliberately chosen to adopt the “discursive omission of Islamic law.”17 This ethnic twist has become even more important lately, following the Uygur riots that have been taking place over the last seven years.18 Many of Linxia’s Hui have exploited ethnic rifts by banning Muslim Uygurs from their mosques,19 an exception to the Islamic norm that sees all Muslims as members of the ‘Umma—the Arab word that identifies the whole universal community of believers. These adjustments reflect themselves in the type and content of Islamic law that survive. They are more the result of the hybridization of state and religious interests than the coherent development of an Islamic thinking that does not have easy access to Islamic original sources, as many Hui clerics lack a full grasp of Arabic. The changes in Islamic law stem from outside pressures, rather than from doctrinal developments from within. Matthew Erie has written a new page for anybody who is interested in China or Islam, at a time when everybody should probably be well-read in both. Footnotes 1. Matthew S. Erie, China and Islam: The Prophet, the Party, and Law 9 (2016). 2. Id. at 15. 3. Id. at 93. 4. Id. at 136. 5. Id. at 93 (internal quotations omitted). 6. Id. at 159. 7. Dawood I. Ahmed & Tom Ginsburg, Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions, 54 Va. J. Int’l L. 1, 18 (2014). 8. John Witte Jr., Law and Protestantism: The Legal Teaching of the Lutheran Reformation 19 (2002). 9. Erie, supra note 1, at 119. 10. Id. 11. Id. at 313. 12. Id. at 41. 13. Id. at 131. 14. Id. at 133. 15. Id. at 11. 16. Id. 17. Id. at 115. 18. Id. at 2. 19. Id. at 128. © The Author(s) . Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: email@example.com.
American Journal of Comparative Law – Oxford University Press
Published: Dec 1, 2017
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