The ‘aqd as a craft of place in the space of Islam

To further position the ‘aqd within the nomos of Islam by absenting Western law-religion, some valuable input can be found in Clifford Geertz’s idea of interpretive anthropology.

Like sailing, gardening, politics, and poetry, law and ethnography are crafts of place: they work by the light of local knowledge.... [T]hey are alike absorbed with the artisan task of seeing broad principles in parochial facts... [by means of] a to-know-a-city-is-to-know-its-streets approach to things (Geertz, 1983, p. 167).... [But if] [t]he legal representation of fact is normative from the start;... [t]he problem it raises is how that representation is itself to be represented (ibidem, p. 174).... It is here, then, that anthropology... enters the study of law (ibidem, p. 181) [... as it...] welds the processes of self-knowledge, self-perception, self­understanding to those of other-knowledge, other-perception, other- understanding; that identifies, or very nearly, sorting out who we are and sorting whom we are among (ibidem, pp. 181-182).... [If] “law,” here, there, or anywhere, is part of a distinctive manner of imagining the real... then the whole fact/law problem appears in an altered light. The dialectic... turns out to be between... a language, however vague and unintegral, of general coherence and one, however opportunistic and unmethodical, of specific consequence. It is about such “languages” (that is to say, symbol systems) and such a dialectic that I want now to try to say something at once empirical enough to be credible and analytical enough to be interesting (ibidem, pp. 184-185).

Geertz locates the study of law and anthropology between the self and the other, just as this book (following Bhaskar’s principle of non-identity) assumes the coexistence of absence and presence. Other similarities between this book and Geertz’s approach are noteworthy: from the interpretive nature of rep­resentations to the conception of languages as symbolic systems, vehicles of meaning, and the metaphor of ‘knowing-a-city’ that has been adopted to investigate the ‘aqd in a journey of discovery.

To insert the ‘aqd in its own world, the space of Islam, the codification of the contract according to Western standards, must be absented. No corpus iuris belongs to the ‘aqd; nor can a general theory or a systematic outline of the subject be found in the tradition of fiqh. Nabil Saleh is clear on the point: ‘[u]ntil the 19th century no definition of a contract as such is to be found in the treatises of Islamic law’ (Saleh, 1990, p. 101). Indeed, ‘visual maps’ of the ‘aqd, in the form of ordered corpora, have been crafted only in the last century by Western-educated scholars that have represented (and so culturally codified) the ‘aqd either according to the language of civil law (for instance: Chehata, 1969; Linant de Bellefonds, 1965) or common law (Rayner, 1991). The Almeh ‘has got dressed’ in Western legal clothes, in order to become ‘more proper’ in the style of foreign corpora iuris. Before that, the process of (political) colonisation and later (legal) codification trans­planted Western legal culture into Muslim countries as well, defining new coordinates for Islamic contract law (see later, Chapter 4). It was at that time that the corpus of the ‘aqd was invented (Buskens and Dupret, 2015) under the Western dogmas of the Codified Norm, within a textual polity that radically departed from that of medieval Islam (section 4.3.1). Both these processes (modern scholarship and legal codification) have given rise to new conceptual maps for Islamic contract law and moved the ‘aqd away from the nomos of Muslim jurisprudence; the ‘urbanity’ of the city has been reshaped

Comparing legal traditions 85 by renaming its streets according to Western toponymies (i.e., the categories of civil and common laws).

However, if any representation ‘depends on a difference between what pre­sents and what is presented’ (Eagleton, 1991, p.

If contract law is a ‘craft of place’ that works ‘by the light of local knowledge,’ how can we re-orient the understanding of the ‘aqd in its own place - that of fiqh jurisprudence? With this aim in mind, Bhaskar’s dialectics of non-identity can work as a hermeneutical compass to ‘craft a place’ other-than that of West­ern law-religion. In fact, if common/civil lawyers know-the-city of the contract according to streets that belong to their own traditions, a different ‘map’ must be crafted for a stage other-than the Western one; in particular, the visual space of Western rationality must be replaced with the acoustic space of Islam.

3.2.