Carrying the One Ring in the practice of trade: revelation, tradition, and reality

Western and Muslim jurists, respectively immersed in the nomos of their own distinct spaces, may appear ‘proponents of competing paradigms [that] prac­tice their trades in different [normative] worlds.’ This paraphrase of a pas­sage from The Structure ofScientific Revolutions by philosopher Thomas Kuhn (1962, p.

The metaphor of the One Ring, representing the interpretive challenge related to the non-identity of law-religion in the West and Islam, has initially led our attention towards the need to ‘know thyself’ (gnothi seauton) of the Temple of Apollo and its daemons; hence, towards the cognitive construction of a normative world that separates the secular from the religious, as in the visual display of El Greco’s Christ Cleansing of the Temple.

The problem this book is concerned with (how to understand the ‘aqd (a) in the intersection between law and religion and (b) in an Orient-Occident comparative perspective) requires us to expel the Western ‘dominance of the visual’ as standard ‘practice of trade’ when dealing, dialectically, with Islam. This chapter has tried to explain precisely how to proceed towards this aim. If Western comparatists may naturally tend to (re-)view Islamic fiqh as an improper corpus iuris by looking at it through the perspective of their own vis­ual space, it is, on the contrary, by following Bhaskar’s four-dimensional dialec­tic (section 1.3.1) that non-identity can emerge as a conceptual pre-condition to understand the law-religion of others - i.e. its alterity. At the same time, it is the logic of diversity and plurality that belongs to the mutually constitutive relationship between Islam and Muslims (Ahmed, section 1.3.2) that suggests approaching Islamic law-religion according to an acoustic, rather than visual, space (McLuhan, section 1.3.3).

Within this conceptual background, the One Ring of non-identity will accompany us while we try to proceed towards the city of the ‘aqd. A journey in which the ‘aqd itself, as a vehicle of legal meaning, will become an instru­ment to shed light over the totality (3L) of the Islamic nomos, both in its constitutive and transformational relationship with Muslim praxis (4D) and in its dialectics with the Western legal tradition, by absenting the latter from the former (2E of negativity).

This methodological path, grounded on the tenets of alterity, totality, and transformative praxis, finds a corresponding outline in the contents of this book. With regard to the destination of our journey, in fact, the pursuit of lis­tening to the language of Islam involves the need to ‘present Islamic [contract] law in such a way as to demonstrate its values rather than the values of the [Western] observer’ (Calder, 1996, p. 979), in a space where

[t]he centripetal (if rather distant) focus of scholarly comment was rev­elation. That consideration suggests a preliminary definition of Islamic law: it is a hermeneutic discipline which explores and interprets revela­tion through tradition. The last two words of that definition are the most important. For the most obvious shaping factor, in any work of Islamic law, is its engagement with the past of a particular tradition, and its loyalty to it. So much is this true that... Islamic law is a discipline that explores tradition, and uses tradition to discover (and limit) the meanings of the revelation.

(Calder, 1996, p. 980)

Within this background, moving from an assumption of non-identity of law­religion (1M), this book will investigate firstly the meaning of the ‘aqd by adhering to the religious background of fiqh juristic discourse as absent in the West (2E).

activity of exploration, interpretation, analysis and presentation of the law. [...]... There are two major types of fiqh literature, that known as furu‘ al-fiqh (branches) and that known as usul al-fiqh (roots). The former sets out... concepts and rules that relates to conduct... [from] acts of worship (‘ibdddt)... [to the domain of human relations, mu‘dmaldt]. The whole is a conceptual replica of social life, not neces­sarily aspiring to be either complete or practical, but balanced between revelation, tradition and reality, all three of which feed the discussion and exemplify the concepts. The literature of usul identifies the divinely revealed sources of the law (Qur’an and Sunnah), auxiliary sources (like consensus, ijmd‘), and the hermeneutics disciplines that permit the com­plex intellectual cross-reference between revelation, tradition and reality which is exemplified in a work of furu‘.

(Calder, 1996, p. 981)

By interconnecting revelation (Chapter 2), tradition (Chapter 3), and reality (Chapter 4) in the study of the ‘aqd, this book aspires to depict the tradition of Muslim fiqh as ‘a conceptual replica of social life,’ whose diversities, differ­ences, and pluralities have been never represented in Islam by means of ‘a valid and sensible corpus of laws.’ By absenting this representation in a dialectical perspective, the ‘aqd will be presented, on the contrary, in accordance with the acoustic space of the revelation of Islam.¹⁸ A space that negates Western visual rationality (Chapter 2 = 2E) in a totality of unity-in-diversity of the Islamic legal tradition (Chapter 3 = 3L) that has connoted the reality of Islam in its transformative praxis as the Islam-Muslim-world (Chapter 4 = 4D).

More in detail, to maintain the ‘cross-reference between revelation, tradition and reality’ while moving from the normative world of Western law-religion to the nomos of Islam, Chapter 2 will discuss some fundamental aspects of cognition (about what-is-known and how-to-know) in relation to the language of Islamic law as part of the religion of the revealed Word. Here, preliminary issues of translation will be addressed from a semiotic perspective - where the Latin translatio highlights the link to the verb transferre (‘to carry [meaning] from one place to another’) as a process aimed at negating the language-source within the language-target, so as to reconcile them in the totality of meaning that can be derived. The transfer of meaning of the contract from the visual space of the Occident to the acoustic space of the Orient will be the first chal­lenge of our journey towards the land of Islam (the biblical Tower of Babel mimicking the insidious traps of Lord Sauron’s Tower: see section 2.1).

After these first steps into the nomos of Islamic law, Chapter 3 will investi­gate the Muslim fiqh of contract, in comparison to the Western legal tradition. By re-framing the place of the ‘aqd in ‘crafting’ an imaginary city within the universe of Islam, the book will present the various theories of the Islamic contract (a totality of stratification and differentiation) as ‘echoed’ by classi­cal juristic schools (madhahib, pl. of madhhab: in the Sunni universe, Hanafi, Maliki, Safi‘i, and Hanbali schools) in the absence of a unique corpus iuris. In the frame of the acoustic space of Islam, these concepts will be related to the internal and external dimensions of the action of Muslim believers with regard, respectively, to the psychological formation (section 3.4) and the material occurrence (section 3.5) of the ‘aqd.

To conclude this tripartite study, Chapter 4 will then contextualise the ‘aqd in the realities of the Muslim world in relation to the textual polities (Messick, 1989, 1993) that Islamic law has experienced over the centuries within its own transformative praxis.

By identifying the continuity of the ‘aqd within a synchronic and dia­chronic transformative praxis, our journey will terminate with final considera­tions about the meaning of saying the ‘aqd (instead of ‘seeing it’ from the perspective of the scopic regime of Western modernity). As we will find, the destination of our journey will no longer be the discovery of the ‘place’ of the Islamic contract, but rather, a new way of ‘seeing,’ rectius ‘saying,’¹⁹ it - by listening back to The Almeh within the acoustic space of Islam.

Notes

1 Law and religion studies have grown in recent decades as a distinctive field of research, after the seminal contribution by Harold J. Berman’s book Law and Rev­olution. The Formation of the Western Legal Tradition (1983) (see also Berman 1974, 1986, 2008). In relation to the topic of this volume, a chapter of Law and Revolution deals precisely with ‘Mercantile law’ (pp. 332 ff.), with a discussion on the interaction between religion and the rise of capitalism and the new system of commercial law in the West. Regarding the development of law and religion stud­ies, see also John Witte, Jr. (1997, 2006) and Witte and Alexander (2008). For a useful introduction, see Sandberg (2011).

2 As a domain of global intellectual history, fiqh can certainly be described as a ‘mon­ument de l'esprit humain digne de la plus entiere admiration' (Linant de Bellefonds, 1965, p.

3 Schacht’s words are mirrored in French scholarship by Bousquet and Bercher in saying that ‘le Fiqh, c'est la quintessence de l'Islam, sa creation la pluspersonnelle' (as reported by Linant de Bellefonds, 1965, p. 17, note 18).

4 This perspective shares great similarities with the opinion expressed by Laoust in introducing his translation of the work by the Hanball jurist Ibn Qudama:

la meditation des traites de Fiqh qui ont forme des generations de fideles, loin d'etre une vaine discipline, comme des jugements trop superficielspeuvent le laisser croire, est indispensable a quiconqueporte quelque curiosite a une etude historique ou soci- ologique des peuples musulmans, a plus forte raison quand de tels traites conservent une indeniable valeur d'actualite.

(Laoust, 1950)

5 Valuable guidelines to Bhaskar’s dialectics can be found in the collection of essays Critical Realism: Essential Readings (Archer, Bhaskar et al., 1998) as well as in Norrie, 2009. Regarding the concepts of ‘absence’ and ‘negativity’ see also sec­tions 2.3 and 2.5 in this book. For an attempt to rethink Islam and Muslims in a multi-faith world according to Bhaskar’s philosophy, see Wilkinson, 2014.

6 ‘The net project of Dialectic and Plato Etc. is to attempt an anti-Parmenidean revo­lution, reversing 2,500 years of philosophical thought’ (Bhaskar, 1994, p. xi).

7 Bhaskar’s third level must be intended as a more open totality than Hegel’s closed synthesis, so to allow an in-depth awareness of continuity in/of change. Bhaskar’s totalit-ies are internally connected but also open to interact with other totalities (hence, they recognise intrinsically their pluralities being ‘one and the other’) - e.g. (total) Islam occurs in (individual) Muslims, (collective) peoples, (Western) repre­sentations, as well as the (global) world.

8 On the meaning of ideology, see Eagleton, 1991; see also endnote 15 of the Introduction.

9 This passage, I believe, reveals a deep intellectual connection between the thoughts of Ahmed and those of Bhaskar in conceiving ‘how Islam makes Muslims as Mus­lims make Islam’ within a totality that embodies a continuity in/of change open to other totalities: individual Muslims, collective peoples, others’ Western representa­tions, and the global world too (see endnote 7 in this chapter).

10 According to Schacht’s representation, as highlighted in the Introduction, ‘Islamic law is conscious of its character as a religious ideal; it believes in a continued decadence from the time of the caliphs of Medina, ‘the caliphs who followed the right course’, and it takes the corruption of contemporary conditions for granted’ (Schacht, 1964, p. 199; italics added).

11 Neher (2005) shows how the idea of symbolic form was taken over by Panofsky from Ernst Cassirer’s philosophy of culture. A passage from Panofsky’s essay is par­ticularly explanatory:

if perspective is not a fact of value, it is surely a fact of style. Indeed, it may even be characterised as (to extend Ernst Cassirer’s felicitous term to the history of art) one of those ‘symbolic forms’ in which ‘spiritual meaning is attached to a concrete, material sign and intrinsically given to this sign.’

(1991, pp. 40-41)

12 Panofsky specifically links the invention of ars perspectiva to modern Western Renaissance (1991, p. 27). In wondering ‘whether and in what way antiquity itself might have developed a geometrical perspective’ (ibidem, p. 37), Panofsky com­pares modern perspectiva to Vitruvius’ scenographia (‘the perspectival representa­tion of a three-dimensional structure on a surface’: ibidem, p. 38) but admits that ‘not a single surviving antique painting possesses such a unified vanishing point’ (ibidem). In contrast, McLuhan attributes an intrinsic visual nature to all the West­ern construction of space: ‘since the collapse of the oral tradition in early Greece, before the age of Parmenides... [s]uch is the power of Euclidean or visual space that we can’t live with a circle unless we square it’ (McLuhan, 1989, p. 68). It is sig­nificant to note here how this is precisely what one of the most famous drawings of the Italian Renaissance, Leonardo da Vinci’s Vitruvian Man (circa 1490; preserved today at the Gallerie dell’Accademia, Venice), reminds us: an ideal representation of the human body (hence, of Western man) in geometrical proportions, where the body (not by chance) is inscribed both in a circle and a square.

13 Jay makes explicit the interconnection between modernity, visual space, and the ars perspectiva in the light of

an immense literature on the discovery, rediscovery, or invention of perspective - all three terms are used depending on the writer’s interpretation of ancient visual knowledge - in the Italian Quattrocento. Brunelleschi is tradi­tionally accorded the honor of being its practical inventor or discoverer, while Alberti is almost universally acknowledged as its first theoretical interpreter. From Ivins, Panofsky, and Krautheimer to Edgerton, White and Kubovy, schol­ars have investigated virtually every aspect of the perspectival revolution, techni­cal, aesthetic, psychological, religious, even economic and political.

(Jay, 1988, p. 5)

14 The impact of printing, with the domination of graphical over phonetic words, represents a core element in the investigation of communication technology and the role of media in the construction of our cognitive space by Marshall McLuhan. On the topic, see, in particular, his Understanding Media: The Extensions of Man, 1964, and The Medium is the Massage: An Inventory of Effects, 1967, written in col­laboration with graphic designer Quentin Fiore (the title is a play on McLuhan’s motto ‘the medium is the message,’ re-adapted to denote the ‘massage’ effect of each medium on the human sensorium).

15

To summarize, visual space structure is an artefact of Western civilization.... It is a space perceived by the eyes when separated and abstracted from all other senses. As a construct of the mind, it is continuous, which is to say that it is infinite, divisible, extensible, and featureless.... It is also connected (abstract figures with fixed boundaries, linked logically and sequentially but having no visible grounds), homogeneous (uniform everywhere), and static (qualitatively unchangeable).

(McLuhan, 1989, p. 71)

Correspondingly, in Western civil codes, the contract is an abstract form, with fixed boundaries in its theoretical elaboration, while linked logically and sequentially with the theory of obligations, homogeneous in all its aspects and static, as its definition is assumed unchangeable over time. The visual-rational nature of the Western contract perfectly reflects, in the end, McLuhan’s paradigm.

15 In this sense, tribal societies of the past certainly shared an acoustic space of social knowledge by means of oral transmission.

The dominant organ of sensory and social orientation in pre-alphabet societies was the ear - ‘hearing was believing.’ The phonetic alphabet forced the magic world of the ear to yield to the neutral world of the eye. Man was given an eye for an ear.

(McLuhan and Fiore, 1967, p. 44)

16 ‘Acoustic space structure is... both discontinuous and nonhomogeneous. Its resonant and interpenetrating processes are simultaneously related with centers everywhere and boundaries nowhere’ (McLuhan, 1989, p. 71; please compare this description with that of the visual space in endnote 15 in this chapter).

17 This remark about the presentation of rules in Islamic law through a cognitive pro­cess of (acoustic) simultaneity will be elaborated in Chapter 2.

18 I have readapted here, indirectly, a famous quote from Marcel Proust: ‘My destina­tion is no longer a place, rather a new way of seeing’ (‘Ma destination n'est plus un lieu, mais une nouvelle fa^on de voir’). The quote is actually a shortened version of the citation source of Proust’s Remembrance of Things Past (1922-1931) (from the original French version A la Recherche du Temps Perdu, 1913-1927), volume 5 (The Captive, 1923) where the narrator is commenting at length on art, rather than travel:

The only true voyage of discovery, the only fountain of Eternal Youth, would be not to visit strange lands, but to possess other eyes, to behold the universe through the eyes of another, of a hundred other, to behold the hundred uni­verses that each of them beholds, that each of them is; and this we can contrive with an Elstir, with a Vinteuil [i.e. with great artists]; with men like these we do really fly from star to star.

(Proust, 2006, p. 657; on this point, see also the Conclusions of this book)

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