Human agency and the urban designs of the ‘aqd

Considering the transformative praxis of the ‘aqd in the history of the Muslim world, this chapter has offered a general overview of a continuity-through- change that has identified three ages under the names of Verbal Trade, Codi­fied Norm, and Typewritten Market.

If the urban design of Rome was mentioned at the start of this chapter as metaphoric representation of this stratification through history (see sec­tion 4.1), the third level (3L) of totality has been further developed here by moving from the static dimension of being to the dynamic nature of becoming, where ‘[t]he whole produces and enables its parts.... Structures too do not exist individually, but rather in their relationship with other structures con­stituting the whole. This generates the idea at the level of totality of holistic causality, which involves a causal relationship between structures in a whole’ (Norrie, 2009, p. 16). Looking back at the three ages of the city of the ‘aqd, each of them can be dealt with as a partial totality, contributing to the whole of the understanding of the Islamic contract in a narration where continuity prevails over division.

In this regard, focusing on the deep transformations (not only at a norma­tive, but also at an epistemological and anthropological level) that the ‘aqd has experienced from the reality of medieval trade to those of state codification and global capitalism, its ‘coordinates’ can be commented on in relation to the variance of its textual polities (fiqh, codifications, and Shari‘ah-compliance cer­tificates).

In a document from 1991, the text is entered on a contract form, which has printed margins and lines for text..................................... No rotation occurs in the

orientation of the new writing; the text proceeds downward in regular horizontal lines, moving margin to margin until completion. In these contemporary documents the writing is constrained in a manner famil­iar to Western legal instruments; the spiral is harnessed and the lines are straightened and centered. These sorts of changes are also evident with typing, as in the shift from spiraling imamic letters to the standard margin and paragraph form of republican correspondence. The physical alteration from spiral to straight-ruled text is clear at a glance, but what is its significance?

(Messick, 1993, p. 234)

‘Physical differences between spiral and straight texts involve more than a sim­ple matter of design, of curved versus not curved.... [In fact, they] are an important clue to differences in textual construction’ (ibidem, pp. 236-237). By quoting Ernst Cassirer (1955, p. 84), Messick contrasts two modes of spa­tial organisation - the ‘geometric’ and the ‘mythical’ spaces (Messick, 1993, p. 237) - where the different relationship between form and content signifi­cantly resembles the differentiation made by McLuhan between, respectively, the visual and the acoustic space. The rational, abstract, and geometric space of the scopic regime of modernity (Jay, 1988; see section 1.3.3), with its assump­tions of order, continuity, systematisation, contrasts an acoustic space made of ‘curved’ reflections, echoing a source that is replicated, where the form can­not be detached from the content, lacking in a centre (chosen by man) and in margins (artificially imposed by human rationality).

Chapter 3 of this book focused on the construction of the ‘aqd in fiqh litera­ture as a distinctive ‘craft of place’ (section 3.1), whose distinctive epistemol­ogy reflects the acoustic space of Islam (section 2.4.5). By locating this place in-time, this chapter has shown how much the ages of the Codified Norm, and later, that of the Typewritten Market have radically transformed the normativ­ity of Verbal Trade of classical Islam: contractual rules (and texts) have embod­ied the visual logic of ‘straight norms’ and later the binary logic of ‘certified norms,’ as derived from the epistemology of financial and legal technology.

Correspondingly, the ‘architecture’ of the city of the ‘aqd has radically changed: construction techniques have been modernised according to West­ern standards (the legal transplants in Muslim countries) and the standards of global capitalism. At the same time, the urban design of the city has been trans­formed: the original ‘maps’ to the ‘aqd, as shaped by classical juristic schools (section 3.2), have been replaced by new (Western) coordinates. A passage that Messick refers to the town of Ibb, by comparing its urban evolution with the move from spiral to straight texts in Muslim societies, can describe the evolution of the Islamic contract as well.

As was true of madinas from North Africa to Central Asia, the old walled town of... [the ‘aqd] was a labyrinth of closely packed multistoried houses on narrow and winding alleys and culs-de-sac. The new quarters, by contrast, are characterized by relatively straight-line, wide thorough­fares with some space left between the buildings. The growth of these newer parts of... [the ‘aqd] is governed, in theory, by a municipal zon­ing and building “code,” which involves plans for the expansion of the town and endeavors to regulate standards of construction.

(Messick, 1993, p. 246)

By narrating the changing realities of the Islamic contract, the Arab Girl would probably ascribe this meaningful depiction to the evolution of the urban design of her city, from ‘a labyrinth of closely packed multistoried houses’ (i.e. the labyrinth of plural opinions in fiqh tradition) to the impact of ‘a munici­pal zoning and building code’ (i.e. of state codification in the definition of contract rules). The global economy has put in force an additional layer of construction regulations by which the city of the ‘aqd is governed today: that of international standards and market certifications.

At the same time, as the physical layout of Arab towns shows, although old and new urban designs are recognisable as different spaces, they contribute to the history of the same city; if this chapter has a merit, it can be found precisely in its ambition to represent this unity-of-diversities for the Islamic contract, in relation to its transformative praxis.

Hence, if maps are narratives (section 3.2), the modern and contemporary evolution of Arab towns can mirror that of the new ‘space of knowledge’ (Foucault, 1970) for the ‘aqd: a space where Muslim actors have become used to seeing (the visual space of Western modernity), rather than listening (to the acoustic space of Islam).

Within the sphere of formal knowledge, specifically within the discourse of the shari‘a, the codification shift... had a structure parallel to that occurring between spiral and straight texts [as much as that from the lab­yrinth of alleys to linear streets in Arab towns]. In a manner analogous to the change in the form/content relation of spatial ordering in writ­ing, the (casuistical) old discourse differs from the (abstractly rational) one. Whereas the former developed principles within cases (form follow­ing content), the latter elaborates principles independently of and prior to the cases to which they are subsequently applied (content following form). In the disenchanted thought of shari‘a legislation, the old pri­macy of the concrete instance has given way to a new primacy of the rule.

(Messick, 1993, p. 250)

In the end, as the Conclusions will recognise, this book, too, is subject to this new space of knowledge, from which the understanding of the ‘aqd can no longer escape.

Notes

1 ‘This implies the irreducibility of perspective... and the necessity for continual perspectival switches, as one permeates a totality from an exponentially increas­ing multiplicity of angles, together with the necessity for rational self-reflexivity’ (Bhaskar, 1994, p. 77; italics in the original text).

2 ‘Law in the books’ and ‘law in action’ are classic categories used in the sociology of law to remark the distance between theory and practice - i.e. between the black let­ter of written law and the substance of living law (see section 1.3.1); in Chapter 1 this approach was already subject to criticism with reference to the assumptions underpinning Schacht’s scholarship.

3 ‘Just as 3L has a special affinity with 1M, 4D has a special resonance with 2E, since agency, which is intentional causality, consists in absenting; that is, more specifi­cally, the transformative negation of the given’ (Bhaskar, 1994, p. 100).

4 I adapt here a passage referring to Islamic finance law taken from Cattelan, 2021, p. 76.

5 In this section of the book, I heavily draw from the article that I published in Arab Law Quarterly (Cattelan, 2021); I thank here the journal for the permission to reproduce (see also endnote 30).

6 Focusing his attention as an ethnographer on local papers produced in a distinctive geographical space, the town of Ibb (a provincial capital in Safi‘i Lower Yemen), with long-term field work conducted between 1974 and 1976, plus six further months of research in 1980, Messick studies handwritten documents as vehicles of a wide spectrum of personal and political relationships, with special regard to the hegemonic role of the text-makers in relation to their specialised legal and religious knowledge (which is vital to the interpretation, composition, and implementation, the ‘embodiment’ of Sari‘ah in the society of Ibb).

7 In her legal, historiographic research, Salaymeh underlines the need for a paradigm shift in dealing with Islamic law - a term that ‘can be misleading because in actuality Islamic law is generated by multiple groups and institutions (legal polycentricity) and non-Islamic legal traditions coexist with Islamic ones (legal pluralism)’ (2016, p. 3). It is good to note how, in introducing her book, Salaymeh states how the

interplay between innovation and tradition has lasting echoes in Muslim juris­prudence. Generations of Muslim legal actors, historians, and leaders who succeeded the Prophet interpreted scripture and precedents in ways that simul­taneously renewed and perpetuated legal traditions. They created a dialect of Islamic law; this book is an exercise in listening to its discourses.

(ibidem, p. 1)

The ‘echo’ of the interplay between innovation and tradition shows some concep­tual similarities with the approach taken in this volume; in Salaymeh’s work, how­ever, ‘listening to the discourses offiqh’ does not imply any understanding of Islamic law within its own acoustic space, which is, instead, a core feature of this book.

8

[T]here are several cases in which the early doctrine of Islamic law diverged from the clear and explicit wording of the Koran. One important example which has remained typical in Islamic law is the restriction of legal proof to the evidence of witnesses and the denial of validity to written documents. This contradicts an explicit ruling of the Koran... which endorsed the current practice of putting contracts into writing, and this practice did persist during the first century and later, and had to be reconciled with legal theory.

(Schacht, 1964, pp. 18-19)

8 ‘[T]he jurists never modified their attitude toward written documents.... The per­sonal word of an upright Muslim was deemed worthier than an abstract piece of paper or a piece of information subject to doubt and falsification’ (Wakin, 1972, p. 6).

10

The first is a movement from Text to text, that is, from law on the books to the document; while the second is from the world (as event) to text, from a specific human undertaking, such as a sale, to the document. Behind a given document text is the law, in front of it is the world: a document represents a bringing together of socially constituted and enduring legal forms and individually con­stituted and ad hoc negotiated terms.

(Messick, 1989, p. 35)

9 Much of this section derives from another article that I published in Arab Law Quarterly (Cattelan, 2017); once again, I am grateful to the journal for the permis­sion to reproduce.

10 I mention here, all together in the same sentence, the three ‘fellows’ whose meth­odological inputs have constantly influenced the development of this book (see sec­tion 1.3), so as to highlight their importance for a proper methodological approach to legal devices.

11 Horii refers, specifically, to Chehata, 1969, p. 56; Wichard, 1995, p. 87. See also Cattelan, 2017, pp. 253-254.

12 As Schacht explains, they can be seen as the

use of legal means [external declarations] for extra-legal ends [illicit pur­poses]... The ‘legal devices’ enable the persons who would otherwise, under the pressure of circumstances, have had to act against the provisions of the sacred Law, to arrive at the desired result while actually conforming to the letter of law.

(1964, pp. 78-79)

13 Schacht relates the historical origins of the field of hiyal to the teachings of Kufan authorities, prior to Abu Hanifa; in particular, Ibrahim al-Nakha‘i (d. ca. 96/717) and the already mentioned Sa‘bi:

Schacht assumed that the Hanafi understanding of hiyal originated in connec­tion with oaths. The Makharij of both Shaybani and Khassaf begin with a series of traditions from Kufan authorities prior to Abu Hanifa, which form a basic argument for hiyal in general Schacht posited that either Abu Hanifa or,

more likely, Ibrahim al-Nakha‘i (d. ca. 96/717), a famous Kufan jurist and the­ologian who plays a central role in these Kufan traditions, caused the notion of hiyal to move from the field of oaths into other spheres of the law.

(Horii, 2002, pp. 318-319)

14 The textual polity of Muslim medieval trade can be summarised in relation to three essential features, each interconnected with the other: (1) a real-life approach to Islamic law in relation to human actions; (2) a particularistic casuistry as intrinsic nature offiqh literature (on this point, see Chapter 2); (3) the elaboration of plu­ralistic solutions in context (see Cattelan, 2021, pp. 82-84).

15 I repeat here an extract from Chapter 3 (specifically at section 3.1) that I find par­ticularly significant for the specific point of discussion.

16 I use here the term ‘invention,’ similarly to Buskens and Dupret, in the specific sense of ‘the creation of a legal corpus:'’ for issues of translation of the label ‘Islamic law,’ see section 2.1 in this book.

17 There is no doubt, in fact, that

[t]he positivist conception of Shari‘a as law was foreign to the understanding that Islamic scholars themselves had of the tradition that they transmitted. How­ever, at present this view has become dominant to the extent that students at institutions for Islamic higher learning take courses in ‘Islamic law’ and ‘Islamic legislation,’ and that Islamists and other activists strive for the introduction of ‘Islamic law’ in Islamic states.

(Buskens and Dupret, 2015, p. 32)

18 For other examples referring to the states of Kuwait, Bahrain, North Yemen, and United Arab Emirates, see Saleh, 1990, pp. 106-107.

19 Art. 127: ‘The contract is non-existent if the subject-matter of the obligation is impossible to perform, the impossibility being absolute;’ Art. 128: ‘The subject­matter of the obligation should be determined specifically; it should exist at the moment of the contract; it should be determined as to its quality, its quantity and its genus in such a way that the contracting party should not be left in excessive ignorance which might lead to aleatorygharar;’ Art. 129: ‘The contract is consid­ered valid even if the subject-matter of obligation is non-existent at the time of the making of the contract on condition that its existence is possible in the future and determined in such a way as to protect the contracting party against any ignorance liable to lead to aleatorygharar;’ Art. 130: ‘The subject-matter of the obligation should be: licit; in accordance with the public order and morals.’

20 He submitted the completed draft for discussion in 1942, and the Code was finally enacted seven years later.

21 By looking at al-Sanhuri’s work more in terms of legal comparison than of a radical reform of Islamic law, Ayoub interprets the Egyptian Civil Code as the result of al-Sanhuri’s objective to mark a delineation between the spheres of din (religion) and dawla (state). The key element of his project, using French comparative law as a method of legal inquiry, was a ‘nationalist agenda of creating a unified legal order’ where there was no ‘future for Islamic law in the emerging legal state apparatus outside of civil law structures’ (Ayoub, 2022, p. 133).

22 This work contains the course of lectures given by al-Sanhuri in the Department of Legal Studies at the Arab Studies Institute, Cairo, in 1953-8.

25

Between 1921 and 1927 Sanhuri pursued his doctoral studies at the University of Lyon. Towards this end, he produced two doctoral dissertations: the first, published in 1925, was entitled Les Restrictions contractuelles d la liberte indivi­duelle de travail...; and the second, entitled Le Califat, son evolution vers una societe des nations orientales, was published in 1926.

(Shalakany, 2001, p. 207; see all Part I: Genealogical Introduction: Two Theses, pp. 207-215)

26

The word sabab has a number of meanings in modern Arabic, one of which is ‘subjective motive’: it can signify the cause of something (al-‘alam sabab al-surakh: the waving of the flag is the cause of screaming); but is also can signify, as in Sanhuri’s usage, the subjective motive behind the act (talab al-‘ilm sabab al-safar: the desire for knowledge is the cause of travel).

(Arabi, 1997, p. 201, note 3)

27

The New Egyptian Civil Law adopted the modern theory of cause as a heritage from the previous Civil Law and from the practice of the Egyptian judiciary. The jurisprudence and judiciary in Egypt, prior to the promulgation of the New Civil Law, had already prepared the ground for... admitting the new fertile theory.

(Masadir, vol. 4, p. 27, quoted in Arabi, 1997, p. 204)

28

While there is no doubt that a centuries-old tradition of intellectual elaboration on social matters characterizes the Islamic civilization, from the ethical and legal dimension of the science offiqh... to the contributions to sociology, history and economics by great thinkers like Ibn Khaldun, Ibn Taymiyya and Al-Ghazali, the origins of contemporary Islamic economic studies, as a collective enterprise of research achievements which is recognizable (as well as recognized) within aca­demic circles, cannot be traced back beyond the ’60s and ’70s of the last century. (Cattelan, 2018, p. 4)

23 For a critical approach to the concept of ‘reality’ in the Islamic financial market, valuable insights can be found in Beeferman and Wain, 2016.

24 For this section, I have drawn heavily from my article, published in 2021 in Arab Law Quarterly (particularly, pp. 75-76, 84-88). I am grateful to the journal for the permission to reproduce (see also endnote 5).

25 Reproduced with permission from Cattelan, 2021, pp. 88-90.

26 Messick (1993, p. 231) refers here to a notion introduced by Foucault (1970).

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