Some conceptual help from three companions

Before entering the first proposition of his Tractatus (‘The world is every­thing that is the case’), Wittgenstein remarks that his book will ‘be under­stood by those who have themselves already thought the thoughts which are expressed in it - or similar thoughts’ (1922, p.

These and other similar thoughts in dealing with the One Ring of (a) law and religion, (b) in an Orient-Occident comparative approach, suggest that, to proceed in our travel, we should ask for the help of other ‘companions’ to better clarify the methodology of this volume.

With this in mind, I will refer in the following pages to three questions that closely relate to the aspirations, contents, and objectives of our research journey: how can we compare the ‘aqdin a frame of absences? (section 1.3.1); what is Islam? (section 1.3.2); and how should we deal with law and religion in Islam, beyond the Western secular-religious Temple? (section 1.3.3). These queries and their answers are going to be respectively linked to the scholarships of three great thinkers; namely, the philosopher Roy Bhaskar (1944-2014) and his dialectical critical realism as overarching ‘philosophy of philosophy’ (Bhaskar, 1994, p.

1.3.1. How to compare? Non-identity, dialectic, and transformative praxis (Bhaskar)

Our attempt to understand the meaning of the ‘aqd necessarily raises one initial question about how to compare contract-s as legal categories that exist between doctrinal elaboration (where they stand as archetypes of human inter­actions) and actual social practice (with the concrete manifestation of those interactions). Indeed, the issue of ‘how to compare,’ which is already problem­atic within the Western legal tradition of common and civil law, becomes even more challenging when dealing with Islam, when interpretive concerns enter the discussion regarding the law-religion relationship. In the Introduction, I have already stressed the nature of legal categories, both as abstract construc­tions, ‘archetypes,’ and material bodies, ‘corpora) of intellectual elaboration; moving from theory to practice, socio-legal studies similarly refer to the dis­tance between the black letter of written law, ‘the law in the books,’ and the substance of living law, ‘the law in action.’ At the same time, when we look at the contract as an entity that belongs to the reality of human life, the elabora­tions of legal scholars themselves are constantly influenced by this reality too. It is this interdependence between theory and practice, within the multiplicity of human life, that now requires further elaboration in the dialectical compari­son between the Islamic ‘aqd and the Western contract.

To cope with all this, the fundamental reference for this volume lies in the teachings (and in the terminology which has already been used, without mentioning it explicitly) by philosopher Roy Bhaskar, especially in quest for non-identity when dealing with law-religion.

In the 1970s, Roy Bhaskar was the initiator of the movement of ‘critical realism’ in the philosophy of the being, ontology, and social sciences. The term ‘critical realism’ was not originally used by Bhaskar himself, who first dedicated his attention to ‘transcendental realism’ (A Realist Theory of Science, 1975; see also Archer, Bhaskar et al., 1998) and later moved towards what he defined ‘critical naturalism’ (The Possibility of Naturalism, 1979) in relation to human sciences. ‘Critical realism’ is an elision between the former and the latter (Collier, 1994, p. xi) that has come to indicate Bhaskar’s philosophical movement in the form of a major renewal in social scientific method, occur­ring by the rejection of both the couple positivism/empiricism and the postu­lates underlying post-structuralism, relativism, and interpretivism. In the quest for a radical renovation in the philosophy of social sciences, a key advance was further made by Bhaskar through what he named ‘dialectical critical real­ism,’ as initiated by his Dialectic: The Pulse offreedom (1993), whose principal themes were resumed later in Plato Etc.: The Problems of Philosophy and Their Resolution (1994).⁵

Bhaskar explains how the core objective of his dialectic relates to a totalising critique of Western philosophy,⁶ arguing that ‘determinate absence was the void at the heart of the Western philosophical tradition; that it was this concept that was crucial to dialectic, a concept which in the end Hegel could not sustain’ (Archer, Baskhar et al., 1998, p.

Bhashar’s dialectics of non-identity, in my opinion, can address and provide meaning to the absences (what-is-not in the polyvalent relation with what-is present in the Western tradition) that have been already mentioned regarding the law-religion of Islam and the ‘aqd.

In particular, what is important for the purposes of this book is the primary attention given by Bhaskar to the first moment of dialectics (1M), in terms of non-identity and absence, that allows us to recognise ‘the unity of theory and practice in practice’ (ibidem, pp. xix-xx), where it is human agency - as made possible by social structures, themselves made possible by the reproduction of human agencies - that defines its own (self-)transformative praxis by connect­ing permanence and change within a general frame of alterity.

Moreover, it opens up... the critique of the fixity of the subject, in... the “identity thinking” of the “analytical problematic”’ (Archer, Baskhar et al., 1998, p. xxii). Moving through a (2E) second dialectical edge of negativity or negation, analogous to Hegel’s second stage of antithesis, and a (3L) third level of totality, not, however, comparable to Hegel’s idea of synthesis,⁷ the whole circle of dialectical critical realism is closed - and unified, while kept open to change - in the (4D) fourth dimension of (self) transformative praxis, where the human sphere implies and reconciles the other three moments in social life qua totality of action, constituted by ‘four dialectically interdependent planes: of material transactions with nature, interpersonal relations, social structures and the stratification of the personality’ (ibidem, p. xxiii). Here, ‘the moral evolution of the species, like the future in general, is conceived of as open. Its dialectics are the site of ideological and material struggles, but also of absolute reason (the unity of theory and practice in practice) and it incorporates DCR [dialectical critical realism]’s dialectic of desire to freedom’ (ibidem).

The reader can recognise in the previous lines important concepts that have been already mentioned in the Introduction to this book, such as non-identity, unity of theory and practice in practice, agency, and transformative praxis, in accordance with Bhaskar’s terminology. These concepts can be related, for instance, to the interplay between legal theory and practice in the unity of social agency; the transformative nature of this interplay in time and space; as well as to a postulate of non-identity of law-religion in the dialectical rela­tion between East and West. Within this general conceptual framework, the concepts of negativity (2E), totality (3L), and transformative praxis (4D) will reappear as essential conceptual tools respectively in Chapter 2, Chapter 3, and Chapter 4.

But, when we assume a unity-in-diversity of the ‘aqd that ‘can be coher­ently linked to the core postulates of Islamic religion’ (see the beginning of this chapter), what do we mean by ‘Islam’? Which idea of Islam are we going to embrace on our journey? In this regard, a second milestone must be added to the methodology of this book.

1.3.2. What is Islam? Unity as plurality in the Muslim world (Ahmed)

As we have noted, in any community, representations play the role of sig­nifying practices by fostering truths which can project underlying ideology.⁸ For instance, a certain representation of Islam was implicit in the portrait of Gerome’s Almeh. With regard to the imaginative geographies of Orientalism (Said, 1978), we also referred in the Introduction to Schacht’s scholarship as a paradigmatic example of the assumption of a divergence between the sacred Law of Islam and Muslim social reality, where ‘[a]t the very time that Islamic law came into existence, its perpetual problem, that of the contrast between theory and practice, was already posed’ (1964, p. 209). As remarked, a com­mon fate of decadence and corruption (ibidem, p. 199) seems to associate here the destiny of the Arab Girl and the ‘scholarly and social construct’ of Islamic law (Buskens and Dupret, 2015, p. 31), where an ideal Islam was detached from the reality of the Muslim world - against the tenets of the ‘unity of theory and practice in practice’ that belongs to Bhaskar’s dialectics (see previ­ous section).

‘[T]hose who have themselves already thought the thoughts which are expressed’ (Wittgenstein, 1922, p. 27) in the previous lines may find, at this point, a second core reference in Shahab Ahmed’s What is Islam? The Impor­tance of Being Islamic (2016). With an all-embracing critique, Ahmed puts under review widespread assumptions in representing Islam (both in non­Muslim and Muslim contexts) and their underlying ideologies. By means of a wide-ranging landscape of materials which cover both popular references and erudite sources, he radically revaluates an array of suppositions applied in interpretative and social sciences in thinking Islam. Monolithic categories like ‘religion,’ ‘culture,’ ‘law,’ and ‘civilisation,’ in Ahmed’s opinion, are all unable to recognise intrinsic diversities in the unity of Islam. To describe this unity, I would use the formula ‘Islam-Muslim-world’ (an expression that I will repeat in Chapter 4), so as to reflect the persistent continuity in practice of Islam, despite the non-identity (hence, change) of (Islamic) theories and (Muslim) practices.

What is of particular significance for our research is Ahmed’s pursuit of a conceptualisation of Islam both as a theoretical object and an analytical cat­egory of analysis

that maps meaningfully onto Islam as a human and historical phenom­enon - a human and historical phenomenon characterized and consti­tuted, not merely by immense variety and diversity, but by the prodigious presence of outright contradiction. [Previous]... existing conceptu­alizations of Islam - whether as religion, as culture, as civilization, as discursive tradition, as core beliefs, as whatever-Muslims-say-it-is, as a law-centered phenomenon, as so plural and various as to be “islams-not­Islam,” etcetera - have in various ways failed to convey the fullness of the reality of what it is that has actually been (and is) going on in historical societies of Muslims living as Muslims.

(Ahmed, 2016, p. 542)

The fundamental support that Ahmed can provide to our research lies in his radical invitation to look at (or rather, to listen to, as I will propose in sec­tion 1.3.3) the unity of the Muslim world, not despite, but through its diversity and plurality; in brief, to look at the unity of Islam as plurality in terms of the Islam-Muslim-world. With this in mind, Ahmed, in his book, gives profound semantic value to the inherent diversity and outright contradictions of Islam as Islam in order to proceed in its reconstruction ‘not by elimination of differ­ence but by inclusion of difference’ (2016, p. 542).

In seeking to conceptualize Islam in terms that map onto the human and historical reality wherein Muslims have authored and lived with contra­diction as Islam,... [his] book has sought to locate the logic of differ­ence and contradiction as coherent with and internal to Islam - that is, to provide a coherent account of contradiction in and as Islam (ibidem, p. 542) [...] [by drawing] attention to... the mutually constitutive relationship between Islam and Muslims: on how Islam makes Muslims as Muslims make Islam (ibidem, p. 543).

By fully recognising the plural contradictions co-existing in the unity of Islam (a unity-of-diversities that corresponds to its continuity-in-change), Ahmed departs from the self-feeding depiction of Islam as ‘religion,’ ‘culture,’ ‘law,’ or ‘civilisation.’ All these archetypes are unable to convey the fullness of human realities where, precisely, ‘Islam makes Muslims as Muslims make Islam.’ In this regard, I subscribe to Aaron W. Hughes’s opinion that Ahmed’s early death in 2015 was

a tragedy for the field in that he was one of the few scholars... to take seriously the concept that the study of Islam is not an insider club, but must illumine and be illumined by relevant cognate fields. This... will be its legacy providing, of course, that scholars of Islam pay attention to it and not simply pick-and-choose what is important for their own particularist purposes, to wit, to show how Islam is somehow unique or sui generis.

(Hughes, 2017)

Ahmed’s fundamental legacy for our journey lies precisely in the recognition that, only by carrying the One Ring of the dialectics law-religion in a concep­tual frame of Islam-Muslim-world and its intrinsic non-identity, can we unveil ‘what a contract is in Islam; how some qualities of the Islamic contract... can be deemed consistent within a great synchronic and diachronic variation of contexts; and why this unity-in-diversity (continuity-in-change) can be coher­ently linked to the interaction between law and religion in Muslim jurispru­dence as part of the intellectual, cultural, and social history of Islam’ (see the beginning of the Introduction to this volume).

We have already embraced Hughes’s suggestion that the study of Islam ‘is not an insider club’ and that the understanding of the ‘aqd cannot be pursued ‘for its own particularist purpose,’ to show how the Islamic contract ‘is some­how unique or sui generis.’ In contrast, by moving from a much broader land­scape and referring to apparently distant images and fields of studies (from the Sphynx to Rome; from the Arab Girl to Christ Cleansing the Temple as meta­phors of Orientalism), the purpose of this book is to move towards the ‘aqd as something whose rationales can be disclosed only by ‘knowing ourselves’ (see section 1.1); that is to say, by means of a dialectical engagement between the Occident and the Orient in the frame of non-identity. At this point, to better disclose ‘the mutually constitutive relationship between Islam and Muslims,’⁹ a third fellow must join our enterprise, so that we can better ‘know ourselves’ by broadening our view towards sociology and media studies in the cognitive perception of the world by the modern West.

1.3.3. How to deal with law-religion in Islam? Visual vs acoustic space

(McLuhan)

In the final section of the Introduction, while commenting on the nature of normative worlds, this book pointed to some underlying issues in the Western way of looking at Islam by noting how ‘[s]eeing comes before words.... We only see what we look at.... In the end, all images are man-made’ (Berger, 2008, pp. 7-9). The construction of our world is grounded on representations as signifying practices that also define, by opposition, the world of others - i.e. its alterity. In this regard, two visual images (Gerome’s Almeh and El Greco’s Christ Cleansing the Temple) have already been used to illustrate the cultural construction of Islamic law as decadent and corrupted,¹⁰ as opposed to the Western corpus iuris of Lady lustitia and the Renaissance buildings.

We have already seen, in section 1.1, how visual representations are gener­ally absent in the Muslim tradition and how this absence should be interpreted in the light of the non-identity between Western/Islamic law-religion (in a reflexive frame), through Bhaskar’s dialectics.

But can this visual absence also be related to ‘the logic of difference and contradiction as coherent with and internal to Islam’ (Ahmed, 2016, p. 542)? In other terms, can the visual absence find its own meaning as interdependent with a logic of differences and divergences that belongs internally to Islam? And, accordingly, can this shed further light on the nature offiqh, by acknowl­edging ‘the fact that a valid and sensible corpus of laws... [was] not what... [Muslim] jurists had in mind’ (Calder, 1996, p. 979)?

As this volume will try to explain by the investigation of the ‘aqd, within Islamic law-religion the human being seems to ‘inhabit a nomos - a normative universe’ (Cover, 1983, p. 4) where ‘looking at’ as an act of will (a choice reflecting the centrality of man’s visuality) is replaced by ‘listening to’ as an act of intellect in the form of understanding God’s Word (see Chapter 2).

This paradigm shift (Kuhn, 1962) from a visual to an acoustic cognitive space may be better clarified by an image taken directly from the Arab world. Let us, therefore, imagine ourselves alone in the desert, after we have strayed away from the path that would have led us to an oasis and provided us with fresh water. Dunes of sand make the landscape nearly identical in all directions - a scenario that was certainly part of the collective imagination of pre-Islamic Arab peoples. Our sight is practically useless in such a situation: no territory borders, no street boundaries can help our itinerary; even worse, we cannot choose an itinerary, since we cannot see any. It is precisely at this point, when our life seems at stake, that a Word descends to give orientation and provides the Right Path (San‘ah) to salvation. For the Message to be comprehended, we need to listen carefully for a correct understanding (fiqh) of the Path. Here, choosing is no longer an option (salvation depends solely on listening to the Message); instead, human intellect is asked to discern the Word properly. The Path may look distant; sometimes practicable other times impracticable; viable while requiring effort. In the attempt to understand it, not only do different opinions about its meanings become legitimate but they are also beneficial to enrich the construction of a collective nomos that aims to echo the Word to provide Guidance to the Muslim community in the world.

Concordant and discordant rules overlap as coexistent words that can con­tribute to the understanding of the Message of the only Word. As different surfaces echo the same voice with different intensity and tone, so the route to salvation is offered to the believer according to different legitimate interpreta­tions. The image of a consistent corpus iuris (in visual terms) is then replaced by overlapping iurisdictiones, from the Latin ius dicere, in acoustic terms. lus- dicere, ‘to say the law,’ in the law-religion of Islam, embodies the echo of the dictum of the revelation; it is by listening to the revealed Word that Muslim iurisprudentia, fiqh as the ‘science of law,’ operates in social reality by ‘echo­ing’ divine transcendental rules, ahkdm, pl. of hukm (see section 2.4.5 on this specific point).

The suggestion to move from looking at our normative world to listening to the language of Islam was already mentioned at the end of the Introduction by referring to the distinction between visual and acoustic space by the influential media theorist Marshall McLuhan (1989).

In his research, McLuhan examines the way in which visuality comprehen­sively affects human subjectivity, community, and understanding in the West. Below the surface of Western culture, the visual space lies as the dominant symbolic form; not by chance, terms that are commonly used in social research imply an action of ‘looking at’ (e.g. ‘paradigm,’ ‘worldview,’ ‘point of view,’ ‘perspective:’ see Introduction, endnote 16) and witness a primacy of visual metaphors that cannot render the meaning of the normative knowledge (fiqh) of Islam coming, in contrast, from ‘listening to’ God’s Word.

The deep interconnection between Western rationality and the ars perspec­tiva (the ‘science of optics’) emerges also from the seminal work of Erwin Panofsky (Perspective as Symbolic Form, 1991; original German version, 1924),¹¹ one of the most widely commented essays in 20th-century aesthet­ics with regard to art theory, Renaissance paintings, and Western modern codes of depiction.¹² Panofsky highlights how ‘[i]n order to guarantee a fully rational... space,... “central perspective” makes... rather bold abstractions from reality’ (1991, pp. 28-29) in a geometrical visual space that depends on the eye of the beholder. This implies a choice of ‘looking at’ as an act of will, expression of human autonomy; not by chance, El Greco’s Christ follows the rules of the ars perspectiva precisely in depicting Christ’s action in a space that is dependent on the eye of the spectator. Rationality, abstraction, and geo­metrical visual space, all reflecting the centrality of human eyes and autonomy, combine in El Greco’s Christ, whose setting is a Western Temple ruled by what Martin Jay defines as the ‘scopic regimes of modernity.’

The modern era... has been dominated by the sense of sight in a way that set it apart from its predecessors.... Beginning with the Renais­sance¹³ and the scientific revolution, modernity has been normally con­sidered resolutely ocularcentric. The invention of printing, according to the familiar argument of McLuhan and Ong,¹⁴ reinforced the privileging of the visual abetted by such inventions as the telescope and the micro­scope.... [T]he visual has been dominant in modern Western culture in a wide variety of ways. Whether we focus on “the mirror of nature” metaphor in philosophy with Richard Rorty or emphasize the prevalence of surveillance with Michel Foucault or bemoan the society of spectacle with Guy Debord, we confront again and again the ubiquity of vision as the master sense of the modern era.

(Jay, 1988, p. 3; on the primacy of ‘visual culture’ in the West see also Mitchell, 1994)

Accordingly, as McLuhan remarks, ‘[t]he rational man in our Western culture is a visual man’ (McLuhan and Fiore, 1967, p. 45); to the extent to which vis- uality and rationality become interchangeable in this cognitive frame, ‘[v]isual space is uniform, continuous, and connected’ (ibidem). The ordered body of law in the Western tradition necessarily assumes norms to be inter-connected in a uniform and continuous corpus iuris: in a nutshell, in a visual-rational per­spectiva about law. The scopic regime of modernity lies a priori in the power of graphical words as verbal images; the alphabet as ‘a construct of fragmented bits and parts which have no semantic meaning in themselves, and which must be strung together in a line, bead-like, and in a prescribed order’ (McLuhan and Fiore, 1967, p. 44). The definition of borders, their criteria of separation as well as connection, delimitation, regulation, and certainty of boundaries in the graphical alphabet as the language of our world, impose ‘a medium that depends solely on the eye for comprehension’ (ibidem); a paradigm of knowl­edge and understanding grounded on looking at the world/reading the law. As a result, our normative world is a construct of the mind where we choose what to see too.¹⁵

In contrast, moving from a completely different rational setting, being stranded in the desert necessarily entails a paradigm shift where ‘[t]he dom­inant organ of sensory and social orientation’ (McLuhan and Fiore, 1967, p. 44) becomes the ear. The world of the eye, which is fully ordered accord­ing to human will, is substituted here by the primacy of the divine Word, a realm of understanding that is inaccessible to the sight (whose ‘neutral world,’ shaped around human rationality, is useless; in the desert, on the contrary, ‘hearing... [is] believing’: ibidem).¹⁶ Within this acoustic space, information spreads with no boundaries, within no defined borders, and human intellect is asked to understand the revelation.

What do you mean by “acoustic space”? I mean space that has no center and no margin, unlike strictly visual space, which is an extension and intensification of the eye. Acoustic space is organ and integral... whereas “rational” or pictorial space is uniform, sequential and continuous and creates a closed world with... [no] resonance... the ear, unlike the eye, cannot be focused and is synaesthetic rather than analytical and linear. Speech is an utterance, or more precisely, an outering...; the auditory field is simultaneous, the visual successive.

(McLuhan, 1969)¹⁷

The desert - a space with no centre and no margin - asks the believer to rely on the verbal language, the utterance, the outering of the revelation; the human being is asked to choose to hear (this is the only option for salvation) and then to listen to - hence, discern carefully - the Word in its potentially indefinite echo. It is the totality (3L, in Bhaskar’s terms) of this echoing, with no boundaries and no centre, its own discontinuity, replication, non-linearity, overlapping, and superimposition, that defines a unity made of differences and contradictions (Ahmed) beyond the absence (2E, negativity) of the Western, rational visuality. Embracing this totality entails an effort (ijtihad) to under­stand the divine revelation, an act of devotion that belongs to the core of Muslim agency in its transformative praxis (4D).

In summary, the non-identity of law-religion in the Occident and the Ori­ent, defined through the four dimensions of Bhaskar’s dialectics, requires a departure from a praxis grounded on a visual space towards a praxis echoing the acoustic space of the Word in the social reality of the Muslim world. It is only within this paradigm shift that ‘the mutually constitutive relationship between Islam and Muslims’ (Ahmed, 2016, p. 543) can define what Islam- Muslim-world is by listening to the language of Islam.

1.4.