Approaches and the state of the field

Ahmad Atif Ahmad, Editor

The editors of this volume are comfortable acknowledging that, since it is not the first, this is ‘one more’ survey of scholarship in the field of Islamic law and jurisprudence.

Approaches and state of the field

When seen as ‘law’, what we call ‘Islamic law’ started as something of an academic en­deavour in a small number of cities in the second/eighth and third/ninth centuries in the Muslim world. Kufa and Baghdad in Iraq, and Medina in the western end of Arabia, were paramount among the cities.

The academic field of Islamic law in the Anglophone world, as surveyed by the editors, is too multi-directional to obey simple classification. Some participants in the field elect to provide new interpretations of old institutions of Islamic law. These participants include scholars who commit to the revamping of the Islamic legal tradition or adding to its substance and scholars whose commitments lie outside of the Islamic legal tradition (e.g. in feminist theory, European or American interpretations of human rights, statist, or Marxist or liberal philosophies, among others). Other participants think of the historical doctrines of Islamic law as ‘history’, plain and simple, while their use of modern language pushes them to provide a modern interpretation for their historical material. There are academic contributors to the field who think of ‘law’ in Islam as secondary to piety and religious devotion and those for whom academic philosophy, anthropology and quantitative social science (of various types) ought to govern our discussions of Islam and Islamic law.

The journey of Islamic law as an academic subject in the Anglophone world is long and may by now merit an academic investigation in a separate volume. For our purposes, we note that the field’s recent developments reflect a heightened degree of recognition that the subject has been ‘mistreated’ in the European and American academy, despite good inten­tions. A scholar of Islamic law today is able, though not all of them do it and not to the same degree, to look at her or his subject unfettered by the ready assumptions of 19th- and early 20th-century modernity that assumed that Islamic law is a relic of earlier times, which has only museum-like relevance in our time. The metaphor of ‘renaissance’ in certain academic subjects often applies to stretches anywhere from 20 years to a century. It is not imprudent to apply this metaphor to studies of Islamic law in the last two decades of the 20th century and the two decades that are about to close in our current 21st century.

The current renaissance in the study of Islamic law is evidently not a mere reaction to political events. It arises out of a broader acquaintance with the sources of the subject and at­tempts to balance earlier approaches that forced the art and science of the law in Islam to sur­render to external standards of scrutiny.

This collection of 26 chapters is written from different stances and spans multiple styles. Some chapters are clearly experimental, and others are more traditionally reflective of existing scholarship. Some authors think of their work as ‘innovative summary’ of the stan­dard works, and others see it as a personal commentary. The Handbook is certainly not an encyclopedia or a dictionary with the promise of repetitions and recapitulations of the exist­ing literature. Authors reference their work in a manner approporiate to the literature with which they are conversant. This involves endnotes, bibliography lists reflecting the sources of their material and/or further reading lists.

In choosing representative contributions to this Handbook, the editors considered the na­ture of the field of Islamic law as the editors understand it, as juxtaposed to existing practices of scholarship in that field. Islamic jurisprudence, the art of legal reasoning and explanation, is the able, invisible hand behind any legal doctrines in Islam, and ‘personal responsibility’ and the ‘nexus of worshipper and worshipped’ are at the heart of what distinguishes this ‘Is­lamic law’ from all laws today. Abou El Fadl starts this volume with an introduction to the key concepts and institutions of Islamic law, and in this context, he wrestles with the foun­dational question of what type of law is Islamic law. Abou El Fadl contends that Islamic law is not simply a set of normative commandments but a deliberative method of applied practical reasoning.

1) Jurisprudence and ethics

2) History and interpretation: scholars

3) History and interpretation: society and politics

4) State and power

The Handbook's chapters

Part I

The first of the volume’s four divisions addresses an aspect that distinguishes Islamic law from many comparable systems of law and moral instructions. This aspect encompasses debates in jurisprudence on the nature of religious, legal and moral commitment in the Islamic tradi­tion. Standing on a nexus between human nature, on the one hand, and moral and religious obligation, on the other, obligation for believing Muslims has implications in this world and the next. It appeals to an understanding of God as a lawgiver and a holder of rights, while remaining distinct from His creation. Whether ‘divine command’ theory and ‘natural obli­gation’ theory is adequate to explain the nature of Islamic reasoning is an open question for one of the volume’s contributors.

Ahmed Izzidien opens this section with an inquiry that makes two steps, rather than one step, backwards from legal reasoning (hence not standing at the door of theological in­quiry, but) moving toward an earlier inquiry, that of first philosophy, where a human may wonder what, where and why: What is this world; where is it; and why am I in it? This first substantive chapter directs the reader to an often forgotten side of Islamic law as a law that ties itself to the experience of a believer, rather than an individual subject, an emancipated citizen, or a globetrotter.

Following this is a chapter by Wael Hallaq, who meditates on the concept of God’s rights — a complex concept rarely dissected with erudition. Hallaq tackles what it means to contemplate ‘harm’ to God — the one Being unaffected by the conditions to which the law applies. If God is out of an equation of the law, it is no longer Islamic law, however. This puzzle occupies the chapter’s author, reaching what is close to a satisfactory resolution only when we realize that the modernity-imprisoned mind that keeps looking for equivalents for God’s rights (in state rights, group rights, collective rights) and fails to see the rich threefold nature of of haqq (Arabic for truth, right and God) will most likely need to be trained to sus­pend many of its judgements for a fruitful engagement with the world of Islamic law.

Omar Farhat aims to provide what he takes to be an accurate, though in our eyes creative, interpretation of how ‘obligations’ ought to be understood in Islamic legal reasoning. His contribution, ‘Balancing this world and the next: obligation in Islamic law and jurispru­dence’, strongly emphasizes the role of legal reasoning and directly addresses ‘obligation’ without confining it to considerations of politics, social standards, or national and transna­tional institutions. For Farhat, the interest of humans is considered simultaneously against the need both for order in an ethical and spiritual world and a universal teleology of humanity and life. This complex consideration explains the central notions of ‘maslaha’ (benefit, utility, the common good) — about which we hear later when the purposes of the law are discussed in the second division of the volume — as well as ties us back to Izzidien and Hallaq’s view of the role of the divine in ascertaining the humanity of the human being.

The fourth of this section’s chapters is an ambitious treatment by Mariam al-Attar of whether divine command theory (DCT) and natural law explanations are adequate tools to understand obligation in Islamic jurisprudence. Attar’s answer is in the negative. This chapter alerts the reader to how similarities between Islamic law and jurisprudence, on the one hand, and other legal and moral systems, on the other, are not limited to modern views. Islamic law is easily the oldest current, functioning legal tradition in today’s world (and if one bows to the notion that Roman law is still alive today, it would be the second oldest). In its long journey, Islamic law compared and contrasted to other (ancient, medieval and early modern) systems of law and ethics. The notion of ‘submission’, often seen as an equivalent to ‘Islam’ itself, is explained here to show many rough edges. A Muslim submits to God, the world’s nature, and his or her own nature in one act. This rich position leaves external attempts at explaining ‘obligation’ in an Islamic world order bound to be inadequate. Leaning toward a modernization of the existing Islamic jurisprudence, Attar suggests that it be moved closer to social explanations and liberated from human-divine postures. On principle, the editors leave this stand as it is, referring the reader to their own writings to allow her or him to identify points of overlap and comparisons between the editors’ own views and those of the authors of this collection.

A practicum concludes this first section, one that considers both pre-modern and modern contributions by Muslim jurists to the dilemmas of ‘bioethics’. Ayman Shabana starts this chapter by emphasizing the modernity of the term (bioethics) and its open-ended character. At the bottom of the analysis is a recognition that medicine offers: 1) the potential of over­coming some of nature’s vagaries and defects as it applies to the human body; and 2) a para­dox for the human intellect, which recognizes that humans are not well-positioned to heal other humans on their own. In practice, all know that medicine fails even as it succeeds, but the human weakness and hope for an amelioration of their condition and a removal of their physical suffering conspire to make them ready to bow to medicine’s authority at all moral and spiritual cost. Islam does recommend medicine and applauds its practitioners, but it is also mindful of its limits. Shabana views the proliferation of fatwas on bioethics as a welcome addition to the texture of an already rich field. His chapter wraps up one of the field’s pillars (the personal side in Islamic law) and segues to the next division, which covers the authorities of Islamic law, shifting the volume toward a historically and theoretically bent presentation of Islamic law’s scholars.

Part II

Recognizing the simple fact that the Quranic revelation and the Prophet’s example were the umbrella under which Islamic law operated, the rubric ‘History and interpretation: scholars’, opens with a chapter on how the two textual sources (Qur'an and Sunnah) were addressed by the authorities of the law in its early days. In this chapter, Amr Osman provides a complex treatment of how these texts could be both a good starting point and often a misleading in­dicator of what the law is from certain jurists’ viewpoint. This chapter is followed by Labeeb Bsoul’s treatment of the schools of law, the madhhabs, also focusing on their early beginnings and characteristic qualities. Delfina Serrano Ruano’s chapter on ‘Qadis and muftis’ follows these two contributions, providing a description of institutionalized authority in society that both relied on the authority of the schools of law, discussed by Bsoul, and asserted its com­mitments to the values instilled in the textual sources discussed by Osman. Ruano, however, makes an extra trip away from the judges and muftis (producers of the law) themselves in the direction of describing the evolution of the institutions of adjudication and ifta'. It becomes clear that judges and muftis played the double role of being community leaders and conflict resolution experts as well as functionaries of the pre-modern states in which they lived. Ruano also allows a few descriptive comparisons between these institutions in pre-modern times and their equivalents in the modern centuries.

In two chapters, titled ‘Consensus’ and ‘Superior argument’, Ahmad AtifAhmad attempts to cover juristic agreement and disagreement from multiple angles. Ahmad understands con­sensus to be a tool to establish a core for juristic knowledge and conversation. Scholarly consensus, by itself, must be taken only as an indication of a presumptively correct response to a human condition, which, when subjected to change, affects the consensus itself. Ahmad also understands disagreement to be natural and a result of human reflection, but he thinks that many modern discourses have exaggerated the value of every individual’s standpoint to satisfy a (mostly theoretical) fear of ‘hegemony’ over the individual. In the real world, there are good and bad arguments. Bad arguments do not stand the test of time. They work for a while, and then they fail. Only arguments that take into account the human long-term need to be reconciled with one another. The discussion in Islamic theoretical jurisprudence of tarjTh (determining the superior argument) shows medieval jurists’ interest in discussing ar­guments in a cosmic and universal format, to be distinguished from modern discussions of tolerance and consensus-building in a purely pragmatic worldview.

Employing a strict historicist approach to the subject, a classic presentation by Felicitas Opwis of the question of ‘the purposes of the law’ — the maqasid — in the Islamic tradition follows. Professor Opwis is an erudite scholar, combining early training in Germany and a subsequent training and long career in the United States, who is engaged with both the European and American scholarship in Islamic law. She is also a close and attentive reader of medieval and modern Arabic juristic texts. In her presentation, she aims at a faithful interpre­tation of both the pre-modern and modern conceptions of the purposes of the law in Islam, uncovering how the social, the political and the organizational elements of the law are always in the background of legal reasoning.

Ahmed Fekry Ibrahim then attends to the question ofjurists’ disagreement and legal plu­ralism. While his chapter touches on the role of state and power and their influence on legal reasoning, his focus remains ‘the scholars’ who are simultaneously the producers of the law and their internal critics. This chapter’s themes overlap with the earlier chapter on ‘superior argument’, but Ibrahim’s treatment considers theological and epistemological commitments ofjurists from the angles of public knowledge and addresses a reader who inhabits the mod­ern view of pluralism and takes it more seriously.

In the next chapter, Intisar Rabb discusses a central aspect of the legal reasoning of schol­ars, the formulation of legal canons. Like canons of statutory constructions (discussed, for example, in Theodore Crawford’s The Construction of Statutes), these canons are abstract, generalized principles that are supposed to aid the scholar in devising laws. Unlike these can­ons, however, legal canons in Islamic legal reasoning are ‘reductive’ statements of aggregated legal doctrines and hence subsequent to legal doctrines (even though they are employed by new jurists as points of entry to legal reasoning). Islamic legal canons are also considered only ‘generally true’ — allowing room for exceptions to attend to what distinguishes aberrant and grey-area cases.

This rich section is concluded with a contribution by a veteran scholar of Islamic law, whose early work on the 13th-century Maliki Cairene, Qarafi, examined the connections between scholars, public and social knowledge, and the state. His contribution to this volume is a dialogue with the presumptuous posture of enlightenment, ‘reason’, and an assessment of the negative cost it inflected on the Islamic legal tradition in its modern incarnation. Jackson makes a forceful argument for the right of the Islamic legal tradition, seemingly taken for granted by other philosophical and religious traditions, to understand its basic tools, such as reason, meaning and view of the world and its priorities, without having to make constant efforts to meet others halfway.

Part III

Just as there would be no Islamic law without its scholars, there would be no law without a society that accepts, and at times, resists and complements the work of the law’s scholars. Islamic law appeared in diverse societies across a vast array of historical moments. This third section of the Handbook starts with the societies that hosted Islamic law’s beginnings. In what environment did Islamic law take its early forms? asks Lena Salaymeh, providing a pan­oramic overview of controversial possibilities of what traditions or sets of ideas and practices ‘influenced’ Islamic law or, in the writing of some scholars, shaped its parameters from the start. Salaymeh’s early work has argued that identifying a Near Eastern (social, moral and political) context modifies the question of influences into a more sophisticated and meaning­ful inquiry about the law’s early environment. The historical depth of this environment cov­ers ancient Egyptian, Persian and Mesopotamian (Hamurabi’s code, most famously), Greek, Syriac and Roman traditions as well as the more communal and less geographically dominant Jewish law. The Islamic tradition of theoretical jurisprudence (usul al-fiqh) has preserved early discussions about the sense in which Islamic law is meant to incorporate earlier practices of religious traditions that Islam as the final revelation is meant to scrutinize and complement (according to a religious doctrine Muslims have). This question, addressing the authoritative­ness of the laws of those who came before (sharu man qablana), leaves to us non-controversial practices such as animal sacrifice in the time of pilgrimage as well as practices about which jurists disagreed, such as whether the length of a hiring contract may be left undetermined until a later stage in the hiring.

Ayman Shabana then provides a history-conscious, yet broadly theoretical, treatment of how social laws are considered as part of the Islamic legal tradition. It may be surprising to many to learn that Muslim legal theorists and theologians thought about parallels between natural and social laws, or laws of nature and laws of social interaction, and measured both against what they took to be stable norms of Islamic law. Shabana offers cases and legal sce­narios from the formative period of Islamic law, modern time, and times in between. His chapter, overall, prepares the way for the subsequent four chapters, which cover the questions of war, Muslims living as a minority, family law, and modern reflections on males and fe­males in legal and moral life in Islam.

If Shabana’s chapter covers a Muslim’s interpretation of social and natural laws as the laws of Islam are augmented and developed, Ahmed Al-Dawoody attends to ‘jihad’, a term of unusual misfortune, truth be told. It is in the eye of the beholder, Dawoody exclaims, but it is also a term with a history and a term with connections to other terms, such as jurisdiction and sovereignty. Its simplification, whether deliberate or just an honest mistake of necessity, is a target for the chapter. When seen in the usage of those who bothered to think about it, it is an element of social and political life in Islam. Exercising ‘jihad’ is both a source of con­structive and destructive energy. It is, in any case, much more than its common understand­ing permits and much less of an unusual practice among nations that live with a moral code.

The commonality of ‘emigration’ — reckoned to be an exception rather than a rule — prompts Said Hassan to attend to what came to be called ‘jurisprudence for minorities’. A strong strand in the pre-modern Islamic legal tradition (not limited to Hanafi jurists) acknowledged that a Muslim’s life as a minority could not be burdened by the same ex­pectations given to a Muslim living among a normal, Muslim community. In an age of global shifts, tosses and turns, drawing on the old tradition became a necessity, rather than a luxury, in order to provide new norms for a large number of Muslims now living without the standard support of social networks and Islamic mores. New limits are now imposed on geographical borders (important for the abodes theory, where the world is divided based on moral Muslim norms and government support for them) and even modern (17th-20th- century) notions of territoriality. This chapter allows the reader to understand Islamic law’s treatment of a subject, which is bound to appear mysterious to a (Weberian-type) spectator with no comprehension of how Islamic legal reasoning built its own limits to allow itself to function without breach to reason and practical considerations.

Irene Schneider and Ziba Mir-Hosseini, to conclude this section, investigate family law and male-female interaction under the umbrella of Islamic law past and present. These two chapters allow the reader to juxtapose different versions ofjustice, equality, what is practical and what it not in human affairs, and the frictions of ideals and realities. The chapters also point to an inevitable limitation that accompanies ‘Islamic law’ as a discourse and as a hu­man exercise. The producers of the law are, from an important and neglected angle, not that different from the practitioners of medicine whose limitations are brought to relief by the theologians and the scholars of the law. That is, jurists will simply fail to diagnose and prescribe to human nature to fulfil its social potential the way medical doctors fail to address the human body’s need for a full life. These two chapters conclude the third section, leaving the final section to a discussion of ‘state and power’.

Part IV

This last section begins with an experimental chapter by Ovamir Anjum, cutting to the bare chase of the questions of authority in Islamic political life. Anjum’s chapter reflects a double investment, one in modern sociological approaches to questions of power and one in a textualist view of Islamic law that harkens back to its revelatory and prophetic elements as recovered by moderns. This chapter does remind readers who follow the volume’s progres­sion of links between the sources of the law and political theory and practice and between the pre-modern traditions’ richness and attempts to capture it and absorb it in a limited number of principles and maxims.

Amirhassan Boozari then provides a view of the state in the modern shi'i experience, which not only built theoretical temples of possible Muslim nation-states, but provided one of the modern world’s most important political developments, the Iranian revolution of 1979. Boozari argues for a cooperativist view of modern Shi'i law and politics that blends law and political authority in a clearly modern sense. This is a sense that is thus far unknown in the Sunni world, which mostly knew of competitions between traditionally trained scholars, political Islamists, and those on a broadly modernist spectrum. The relationship of the jurist (qadi, mufti or a holder of any other public wilaya or jurisdiction) and government is a central theme in this section, starting from Amirhassan Boozari’s chapter onwards.

Guy Burak’s scholarship endeavours to resolve a historical puzzle: Why do the boundaries between the two institutions of ‘judges’ (or qadis) and ‘muftis’ — as inherited in the modern centuries — seem uneven and at times unclear in certain geographic regions. His research took him to the early modern centuries and especially to the Ottoman world. His chapter, ‘Codification, legal borrowing and the localization of “Islamic law”’, considers codes of law (articulations of what the law is in abstract and concise language to be used by judges and law-enforcement bodies), reckoned to be a modern phenomenon unknown in medieval Islamic law, also tracing these codes to premodern origins. His work bears the quality of restraint and economic description on which historians pride themselves.

In the next chapter, Andrew March provides an account of Islamic constitutional reason­ing at the heart of reflections about the modern state in the Muslim world. He argues that this area was clearly ripe for creative treatments by reformers and state functionaries all the same. Reconciling ‘nation’ with a worldwide Muslim community is the central question. It is not that either state power or even aggression (internal or external) was unknown in premodern Islamic history. What is new, rather, is Muslims’ appropriation of a European sat­isfaction with identities below that of a multi-ethnic or regional Christendom (Christendom has never been global). This pushed Muslim political theorists, from Mawdudi (d. 1979) to the contemporary Ghannushi (b. 1941), to ask whether a Muslim nation state can function within the parameters of a worldwide Muslim unit, or whether this unit itself needs to be questioned or discarded.

Mohammad Fadel moves us closer to our recent moment as he takes up the Arab Spring and attempts a theoretical and historical interpretation of the notions of ‘political state’ and ‘legitimacy’ in political order in our ambiguous global condition encompassing many (either) failed or failing national entities. This chapter asks: What kind of new beginning should be expected for political and constitutional reasoning in the Muslim world today? Will recon­ciling the tenets of liberalism with those of paternalist, value-laden views of community be possible?

In the context of a contained community with identifiable borders, Ahmed Al-Dawoody attends to how ‘destruction’ (of human selves, property and freedom) is punished by the law in the particular case where threats to human safety itself accompanies the destruction. The much-abused term ‘terrorism’ is employed in this chapter to cover what Muslim jurists term ‘hiraba, or (if attended by cessation) ‘baghy’ or (if attended by a declaration of the rejection of the tenets of Islam ‘ridda’. Both premodern views of the subject and recent resolution by ‘fiqh academies’ are covered.

While these four categories evolved out of a prior plan the editors devised, they reflect choices the contributors made, which the editors found to be reflective of broader trends in academic scholarship in the field. Classifying the chapters also took the author’s orientation and specific contribution as a starting point for classifying it, rather than work to force each contribution into a ready straight jacket. Each contributor’s specific goals are preserved in her or his chapter, while the chapters, collectively, make up an overall architecture the editors approve for a volume intended to function as a reference book.

Many contributors avail themselves of opportunities of ‘method choice’ and ‘interdisci­plinary outlook’. These are important factors in situating each contribution and understand­ing its function. Reading any tradition with a focus of any type does always jettison other foci. This is another recommendation to consider this volume as something much more than the sum of its parts. Each contributor was asked to observe the standards of due diligence and offer his or her own view of their subject. The resulting collection is presented with the promise that it will not be uni-dimensional, ideological or lacking in breadth of scope.

Audience

This Handbook should be useful to advanced undergraduate students in the humanities and social sciences whose academic focus overlaps with the subject(s) of Islamic law as well as students of law schools who are similarly interested in Islamic law, Islamic jurisprudence and modern law in Middle Eastern and Muslim countries. It also clearly fills a gap experi­enced by graduate students in many academic fields who are unable to consult Islamic law’s primary sources and those graduate students who are considering specializing in the field or fields of Islamic law. For more advanced students or scholars, the Handbook provides a review and an overview of the field from actual examples of contributions by its practitioners. The material in the Handbook may be serviceable as reading material for different college and university courses.