Islam, the body of law, and the living text of Sari‘ah

Our voyage of discovery started from a fortuitous meeting with the Arab Girl at the gate of the city of the ‘aqd. The decadent picture of The Almehi, para­digm of the Western practice of Orientalism (Said, 1978), has been translated into a metaphor for the assumptions of Western scholarship in representing the nature of Islamic contract law.

Fighting against the daemons of the Western Temple of modernity (Chapter 1), this book has proposed an alternative path towards the understand­ing of the ‘aqd, grounded on a dialectics of non-identity (1M) (Bhaskar, 1993) in carrying the One Ring of law-religion. Through this methodological tool, the plural unity of Islam (Ahmed, 2016) has been located within an acoustic space whose rationales, departing from the visual rationality of the Western world (McLuhan, 1989), can offer an interpretative key to the logic of Muslim fiqh in the echo of divine will in the lives of Muslim believers. The replica of social life as an inherent purpose of fiqh in a balance between revelation, tradition, and reality (Calder, 1996) has been the pathway that this book has followed in the discovery of the Islamic contract. In turn, the absence of a corpus for the sacred law of Islam (Chapter 2) (2E) has defined the ‘craft of place’ for the city of the ‘aqd that we have visited through the multiple itineraries of the doctrinal tradi­tions offiqh jurisprudence (Chapter 3) (3L) and in a transformative praxis (4M) affected by an extended totality in contact with non-Islamic elements, the West­ern world, and global finance (Chapter 4). Within this transformative praxis, the continuity-through-change of the ‘aqd has been outlined in relation to the different ages of Verbal Trade, Codified Norm, and Typewritten Market, each typifying some essential characters of the nature of the Islamic contract in-time.

Moving from one era to the other, the absence of a ‘legal body’ for the ‘aqd in the time of medieval trade has been contrasted with to the ‘invention’ of this body during the codification period (section 4.3.1), paired with that of Islamic finance in the time of contemporary capitalism (section 4.4.1), in a mix of continuity, contamination, and re-adaptation to changing contexts.

Looking back at the central assumption of this book - i.e. that the distinc­tive nature of the ‘aqd must be inferred from the interdependence between law and religion in Islam - a final reference to Messick can support the conclusions of our journey. Referring to the scholarship of Muhammad b. ‘Ali al-Sawkani (1759-1834), the towering intellectual figure of early 19th-century Yemen, Messick underlines how in the Muslim world ‘the shari‘a, and Islam generally, survives not so much in concrete writing (“in the bodies of pages and regis­ters”) as through embodiment in the lives of individuals, in the living “text” they transmit and interpret’ (1993, p. 43). Accordingly, ‘[a]cademic knowl­edges such as shari‘a jurisprudence were understood to be embodied’ (ibidem, p. 249) in the oral opinions of scholars, and only later registered in the books offiqh literature. In a very similar way, as noted regarding the specificities of verbalism in Islamic contract law (sections 3.5.1 and 4.2.2), the Muslim world bears witness in its acoustic space to ‘[a] culturally specific paradox [that] informed the grounding of spoken words in written texts’ (ibidem, p. 252).

From the recording of Revelation to the documentation of property rights [and of contractual transactions as well], attempts to inscribe orig­inal speech, considered authentic and true, resulted in textual versions of diminished authority.... Associations of the spoken word with presence, truth, and justice, and of the written word with absence, falsehood, and injustice, held mainly in connection with the various authoritative texts of the discursive core....

(ibidem)

The paradox of a ‘written tradition’ built on a ‘corpus of recitations’ is embod­ied in a movement where - by the ‘reading,’ rectius ‘recitation’ (qira'ah) of the Qur’an (section 2.4.2) - the dictum (hukm) of Word revelation proceeds to what is ‘true,’ ‘real,’ ‘just,’ and so ‘right’ (haqq) in the Muslim world (sec­tion 2.4.4). Correspondingly, the human word itself becomes, in this acoustic epistemology, the echo of what was revealed; a ‘living’ text fostered by the transmission of fiqh tradition and ‘embodied’ in the actual lives of Muslim believers. Far from the representation of the ‘body of God’ in Christian reli­gion (see Chapter 1), the Temple of Islam gives ‘body to God’s Word' in the actions of human beings. Hence, from the divine Word to the dimension of worldly transactions, fiqh tradition in medieval Islam acted as a ‘tool of media­tion’ - a ‘surface of reflection’ for the Message - in an interplay of ideal-real where contractual rules were necessarily linked to local, contextualised reali­ties. In summary, the ‘local knowledge’ (Geertz, 1983, p. 167; see also sec­tion 3.1) of the ‘aqd was ‘embodied’ in the real lives of Muslim believers, with the Law being multiplied in a ramified echo - the polyphony of the Word-in- the-world. In this context, the ‘aqd, as factual performance of God’s will (sec­tion 3.6), could be said in multiple, divergent, plural ways in the tradition of fiqh, as it is the result of the action of listening to the revelation - the reality of Muslim lives being the specific arena for its polyphony.

However, as noted in Chapter 4, the acoustic space of Verbal Trade was later substituted by the transplant of Western visual rationality (the Codified Norm, expression of the cultural encounter with the modern state, replicated in Muslim countries) and later the epistemology of capitalism (the Typewritten Market of global Islamic finance).