Babel, languages, and the sacred law of Islam

Whether or not Tolkien took inspiration for his masterpiece from sacred texts, one is immediately struck by the similarity between Barad-dur, the Dark Tower, and a well-known symbol of evil in the Bible; namely, the Tower of Babel.

[t]he biblical myth... tells us that humankind has long dreamed of a shared ‘perfect’ language.... But the myth also highlights an even more fundamental feature of human communication: ‘language’ exists only in the form of specific ‘languages’.... Translation builds bridges between [these] languages... [and] permits and encourages adaptation to new cultural contexts and needs: it changes languages as it bridges them.

(Duncan, Harrison et al, 2019, p. 7)

DOI: 10.4324/9781315145761-3 Thus, if Babel is a curse for the interpreter, the practice of translation becomes a blessing when it allows peoples of different lands to communicate and to merge the spaces of their cultures. The bridge of translation is never built on a shared perfect language; on the contrary, it is by transferring the complex systems of the interrelated meanings of which each language is made that intercultural communication can possibly occur. For this reason, following the teachings by Umberto Eco (2003), translation never happens ‘word by word,’ but ‘world to world;’ for a good translation to emerge, words must be located within their own encyclopaedia (Eco, 1999, p.

Profound encyclopaedic issues can indeed arise when one questions whether ‘religion’ and ‘law’ mean the same thing in the Western and Islamic legal tradi­tions. In fact, as noted by Giovanni Sartori, ‘words are tools of thinking (not merely of communication), and are by no means neutral, for they powerfully orient, in and by themselves, our perceptions and interpretations’ (Sartori, 1975, p. 13). If different law(s)-religion(s) do not share a uniform space but co-exist in the bridge of non-identity (Bhaskar, see section 1.3.1), how should/ could we translate their wor(l)d(s)’s meanings while crossing the bridge? Should we assume, for instance, that Islamic law is inherently religious? And, if so, which kind of secular law (if any) can describe the ‘aqd in the Muslim world - the one of customary business practice?² A fortiori, which is the implicit mean­ing of ‘religious’ and ‘secular’ that we are applying?

To reply to all these questions, one should preliminarily consider the status of the Qur’an by comparing the centrality of God’s Word in Islamic religion to that of Christianity. The New Testament reads: ‘In the beginning was the Word, and the Word was with God, and the Word was God’ (John 1:1); here, ‘the Word’ translates the Greek logos, widely interpreted in Christian religion as referring to Jesus (the ‘Word made flesh’ who ‘dwelt among us:’ John 1:14). There are two remarkable differences between this logos and that of Islam, and so too, their respective normative worlds. First, the Christian nomos has been shaped in Western modernity according to a binary code that separates the religious of Corpus Christi from the secular of the Corpus Iuris Civilis (see here section 2.2; see also endnote 3 of the Introduction). Second, if the Chris­tian ‘Word made flesh’ has led to the translation of the Bible from Greek and Latin and, later, to modern languages (the sacred Word being embodied in Jesus, and not in the texts of the Gospels), the logos of Islam attributes to the Word of Allah and to His nomos quite a different status.

The Qur’an stands in contrast to... Christian linguistic veils and layer­ings.... [It] was revealed word by word to Muhammad through the intermediary of the angel Jibril (Gabriel): in consequence, it is ‘inimita­ble’. This does not mean that the Qur’an is not allowed to be translated; but it does change how the translations are used and understood. Mus­lims must get to know the Qur’an in Arabic, and (unless they are unable to do so) use the Arabic text for religious purposes........ A translation could not take place of the sacred book, as translations of the Christian Bible have done in hundreds of languages.

(Reynolds, 2019, p. 63)

Of course, although the sacred Qur’an cannot be translated, its meaning can be explained from Arabic to other languages so as to carry its Message to all of humanity. This precisely reflects the etymology of ‘translation’ as derived from the Latin translatio and the verb tranferre, ‘to carry from one place to another’ (Reynolds, 2016, p. 14). Translation can be rendered in Arabic with naql (verb naqala), whose root, N-Q-L, means ‘to transfer,’ ‘to shift,’ ‘to move from one place to another,’ and so ‘to move from one language to another.’ A second word is tarjama (root T-R-J-M), which stands for ‘interpretation’ and ‘explanation,’ from which derives tarjumdn, meaning ‘translator,’ in the sense of ‘explainer of speech in another language.’ The word entered European lan­guages during the Middle Ages, from the Medieval Latin dragumannus to the Old French drugeman, the Italian dragomanno and the English ‘dragoman’ to indicate, from the 16th to the 20th century, the person acting as official interpreter and guide between Turkish, Arabic, and Persian-speaking countries and European kingdoms.³ Dragomans were mediators and important actors in Orient-Occident political relations - a connotation that underlines how ‘all translations involves diplomacy’ (Reynolds, 2016, p. 6).

Moving from one legal world to another, without the good training of a dragoman, legal scholars may keep their own meanings when dealing with semantic worlds that are very distant from their own paradigms,⁴ making wrong evaluations and coming to erroneous conclusions.

Often, when faced with an unknown phenomenon, we react by approxi­mation: we seek that scrap of content, already present in our encyclopae­dia, which for better or worse seems to account for the new fact. A classic example of this process is to be found in Marco Polo, who saw what we realize were rhinoceroses on Java. Although he had never seen such ani­mals before, by analogy with other animals he was able to distinguish the body, the four feet, and the horn. Since his culture provided him with the notion of a unicorn - a quadruped with a horn on its forehead, to be precise - he designated those animals as unicorns... [which appeared] rather strange - not very good examples of the species, we might say - given that they were not white and slender but had “the hair of the buf­falo” and feet “like the feet of an elephant.”

(Eco, 1999, p. 57)⁵

The second case relates to the meeting of the first Australian colonists with the platypus, a ‘strange animal’ which seems to ‘have been conceived to foil all classification, be it scientific or popular,’ by qualities that belong either to ‘a beaver, a duck, or a fish’ (ibidem, p. 58).⁶

The first Australian colonists to see the platypus found themselves in the same quandary: they saw it as a mole, and in fact they called it the “water mole,” but this mole had a beak, and therefore it was not a mole. Something perceptible outside the “mold” supplied by the idea of mole made the mold unsuitable - because to recognize a beak as a beak we would have to presume that the colonists had a “template” for the beak.

(ibidem, p. 59)

Of course, Marco Polo shouldn’t have described the rhinoceros as unicorns, just as Australian colonists shouldn’t have seen a mole in the platypus, but their interpretations made sense, and therefore had meaning, according to their own encyclopaedia. Mutatis mutandis, comparative lawyers may tend to deal with foreign normative worlds by repeating their own encyclopaedia, and then, may experience misperceptions. These problems of (re-)cognition and (misinter­pretation in legal scholarship have been highlighted by Janet E. Ainsworth, who remarked how legal paradigms constitute ‘a preconceived conceptual framework that can cause misinterpretation... [since they] tend to make the scholar observe what the paradigm predicts, sometimes literally causing the scholar to see things that do not exist’ (1996, p. 30).⁷ But, ‘[n]o matter how neutral and objective descriptive legal categories may appear, they are them­selves creatures of a historically and culturally contingent social world, bearing the normative patina of the context from which they were derived’ (ibidem, p. 31). And so, as a natural result, ‘[j]ust as fish always in the sea have no con­sciousness of being wet, scholars always immersed in the ocean of their own normative order may well be unaware that this order permeates the very con­ceptual tools that they use in attempting to understand the other’ (ibidem).

Dealing with Islamic law, legal comparatists may behave exactly like ‘fish always in the sea’ by seeing a unicorn in the place of a rhino or a mole in the place of a platypus; by applying Western categories in defining what ‘law’ and ‘religion’ are, they may ground their research on the wrong place.

In this regard, let’s look once again at Schacht’s description, mentioned in the Introduction, of ‘[t]he sacred Law of Islam [a]s... the totality of Allah’s commands that regulate the life of every Muslim in all its aspects; it comprises on an equal footing ordinances regarding worship and ritual, as well as politi­cal and (in a narrow sense) legal rules’ (1964, p.

In doing so, a point must be remarked: he does not contest at all the binary code of modernity; rather, by negating its applicability to Islam, this paradigm is re-affirmed as an exclusive quality of the West (see later, section 2.2). As a drawback, in front of this ‘water mole,’ the social reality does not exist any­more; rather, Schacht’s Islamic law witnesses ‘a continued decadence since the time of the caliphs of Medina... and it takes the corruption of contemporary conditions for granted,’ due to the ‘contrast between theory and practice’ (ibi­dem, p. 199; italics added).⁸ Lacking in any secular connotation and deprived of substantial social application, Schacht himself - in something of a paradox, with the title of his Introduction to Islamic Law - must admit that, within his representation of law and religion in Islam, ‘[i]t might therefore seem as if it were not correct to speak of an Islamic law at all, as if the concept of law did not exist in Islam... [if not as] part of a system of religious duties, blended with non-legal elements’ (ibidem, pp. 200-201). That water mole may have been, in the end, a platypus.......................................

Unsurprisingly, due to his persistent legacy in Western academia, Schacht’s feeling of misplacement still seems to endure today in legal scholarship, with Buskens and Dupret (2015), for instance, claiming that law did not belong originally to Islam but was ‘invented’ (by transplant) during the colonial move. If there are margins of truth in this assertion (see later, section 2.4.5 as well as 4.3.1), a more accurate discussion of the point certainly requires carry­ing the One Ring of non-identity beyond the Western Temple that we visited in Chapter 1. In particular, we need to expel the daemons of our law-religion (section 1.1) to advance the absence (Bhaskar: section 1.3.1) of religion (sec­tion 2.3) and law (section 2.4) in Islam as the proper place to discuss the nature of Muslim normativity. It is in this sense that the position of the sacred and the profane in what we mean by ‘religion’ must be preliminarily discussed.

2.2.