The bridge of Babel: from the negation of fiqh (2E) to the comparison of the ‘aqd

By dealing with the issue of translating the revelation of Islam, this chapter has considered how the construction of its space must move from the non-identity of law-religion.

As the concept of absence lies at the core of Bhaskar’s Dialectic (1993), so the deep sense of the myth of Babel is grounded in the absence of a universal language for all human beings.

an overall vision of the ways in which human being in western societies is marked by a sense of what is lacking - or, of course, absent. At its heart, Bhaskar’s dialectic... involves a vision of a world in which domi­nant social and economic power suppresses human possibilities, and the resulting lack is then repressed in its philosophy. Dialectic is at once a reflection on the philosophical effects of such power relations and a pointer to how things could begin to be different. Absence is a concept that denotes both a geo-historical and a philosophical problem.

(Norrie, 2009, pp. 22-23)

In the Introduction to this book, Orientalism was presented as a signifying practice related to a dominant vision of a world: the improper body of the Arab Girl, the decadent setting of its urban space, and the corrupted destiny of her corpus (metaphor of Islamic law - rectius, of its Orientalistic representa­tion) stemming from the positum of Western presence.

Challenging this positum, this chapter has concentrated on the absence of Western religion (replaced by din as Islamic bios: section 2.3) and law (substi­tuted by the iurisdictio offiqh: section 2.4) in the Muslim world. It is through the negation (2E in Bhaskar’s dialectic) of Islamic law-religion and its non­identity with the West (a ‘real’ absence opening a ‘sea of meaning’ of which the Western positive is a tiny ripple on the surface) that fiqh normative pluralism can be thought of as an echo of the Word into the world in the translation of the revelation. But how does the non-identity offiqh-din as absence of Western law-religion affect legal comparison? Indeed,

jurists adopt different methods to elaborate what they call “law,” and approach differently the question of what is “lawful.” It is not unusual for the Western orientalists, as well as jurists engaged in comparative studies, to mention the “total absence” of developed theory in fiqh. This statement overlooks the fact that this theory, as it was developed by Western law, simply could not exist in fiqh. What so often appears to the Western mind as an involvement in concrete and minor details was only a painstaking elaboration of quite another type of legal theory.

(Smirnov, 1996, p. 343)

The total absence of a Western theory of law explains how its rationales make no sense for the tradition of fiqh. What may look contradictory to Western eyes becomes coherent in Islam as the fundamental rationale for a collective iurisdictio echoing the revelation. It is, in fact, the logical primacy of absence (the One Ring of non-identity) that can lead us to the second edge (2E) of negativity (fiqh-din as negating Western law-religion). ‘[T]he hiatus, the mar­gin, the void, the hidden, the empty, the anterior, the exterior, the excluded, the omitted, the forgotten and the feared’ (Bhaskar, 1993, p. 238) translate the intelligibility of an absence of Western visual coherence, completeness, and non-contradiction (the ideal corpus iuris) into the pair fiqh-dn, whose juris­prudence relies upon incompleteness, contradictions, plurality, and inclusion of differences; in summary, upon the non-corpus of an acoustic space.

the motive of all dialectics..... It is the single most important category,

more general than negation because it [includes] the absent without a present or positive; it connotes more directly the negating process whereas negation suggests merely the outcome or result. Negativity embraces the dual sense of the (evaluatively neutral) absence and the (pejorative) ill, united in dialectical critical realist explanatory critique, the aim of which is precisely to absent ills.

(Bhaskar, 1993, p. 238)

This absenting the ills of Orientalism provides the background for the negativ­ity of the ‘aqd - to wit, for the ‘total absence of Western contract law’ in the Islamic legal tradition. Indeed, it is from the etymology of ‘absence’ - which ‘derives from the Latin “to be” (esse) and “away from” (ab) - “away from being” or “being away from”’ (Norrie, 2009, p. 24) - that the ‘real non­being’ of the ‘aqd can be disclosed by means of translation. Above all, absence allows for a process of duality (embedded in negativity) from which the prac­tice of comparison can be nurtured: precisely what we will do in Chapter 3 regarding the ‘aqd.

If the original 1M unifies non-identity and alterity, the 2E of negativity can enhance the causality of co-determined co-constitution in the process of com­parison (with the ‘being’ and the ‘non-being’ put in their becoming). Compari­son itself, when located in human history, translates the totality of the ‘aqd as third level (3L; here, Chapter 3) of analysis into the transformative praxis of the contract as fourth dimension (4D; Chapter 4) of dialectical engagement.

Hence, comparing the Western and Islamic traditions from a dialectical perspective allows us to study the ‘aqd in a mutual non-identity. When nega- tion/negativity (2E) is applied to Islam in relation to the West, it generates a dialectics of ‘process, transition, frontier and node [no longer just a ‘stage’ for an ‘imaginative geography’ that replicates the Occident: see Introduction], but also generally of opposition including reversal’ (Bhaskar, 1993, p. 392; quoted in Norrie, 2009, p. 29). More specifically, 2E (fiqh) negativity in the form of a legal tradition in comparison with the West does three things: first, it ‘emphasises the tri-unity of causality, space and time in tensed rhythmic spa- tialising process;’ second, it thematises ‘the presence of the past;’ and third, it asserts the importance of its ‘existentially constitutive process’ (ibidem).

“[T]here is a sense in which we, and entities generally, may be said to contain possible futures within us, and these may be vital to our being” (DPF: 143). But these possible futures “are so qua product-in-process, that is as possibilities existentially constituted by their geo-histories” (ibid.). Therefore, there is a sense “in which the most interesting case of the present as a future is mediated by, or even dependent upon the presence of the past” (ibid.).

(Norrie, 2009, p. 34)

Accordingly, the negativity of ‘non-being has ontological priority over being’ (Bhaskar, 1993, p. 39), since ‘one cannot grasp the nature of any entity with­out seeing what it is not, as well as what it is’ (Norrie, 2009, p. 35). Looking at the Orient from the Occident, the negation/negativity of the Islamic legal tradition takes priority over the Western one. Absence comes prior to presence; the Occident of Western contract law cannot be understood without the Ori­ent of the ‘aqd, and vice-versa, as they are mutually entailed. More precisely, the transformative negation (a real absenting as process) relies on a ‘constella­tion of possibilities’ in Bhaskar’s account of totality as a third level (3L) of dia­lectic - where absence and presence interact (in this book, Islamic and Western contract law in their comparative investigation).

By this, Bhaskar means a sense of being as the totalised whole of being and non-being in their constellational relation. The priority of absence stems from the fact that in a dynamic world, there is always more to come than what presently exists, and, given that what is presently absent shapes what is to come, this gives it priority. What is present to us may look compelling, but its presence as well as its future is powerfully shaped by what it lacks. Absence always exercises its hidden power through shaping what is, and making it move on, become what it is not. It is observed in absenting process (becoming), but also in existing product (being), and this conditions, shapes and determines how absenting occurs. This gives us the dialectical realist formula of the absenting of absence and gives absence its asymmetric priority over presence.

(Norrie, 2009, p. 38)

By adhering to Bhaskar’s dialectics, Chapter 3 will outline the ‘aqd in its mul­tiple pluralities (Ahmed) - a totality not to be ‘observed,’ but rather, to be ‘listened to’ (the acoustic space of Islam: McLuhan) in a dialectical relation with the Western corpus of contract law.

Of course, to explore the place of the ‘aqd in the space of Islam, we will ‘need a map, one that registers the many features of the landscape: contours, boundaries, and conceptual marshy areas’ (Reynolds, 2016, p. 3). More pre­cisely, we are going to craft the place of the ‘aqd (section 3.1) to map its absent body through the ‘voices’ of the Islamic legal tradition as transmitted in the madhahib, the schools of fiqh jurisprudence. In this regard, if the blessing of Babel relates to the fact that ‘[translation builds bridges between languages’ (Duncan, Harrison et al., 2019, p. 7), enabling people to understand each other, our entering the city of the ‘aqd may be rendered by a significant image of Walter Benjamin’s regarding the construction of a vessel.

Fragments of a vessel that are to be glued together must match one another in the smallest details, although they need not be like one another. In the same way a translation, instead of imitating the sense of the original, must lovingly and in detail incorporate the original’s way of meaning, thus making both the original and the translation recognizable as fragments of a greater language, just as fragments are part of a vessel. (Benjamin, 1996, p. 260)

From the myth of Oedipus and the Sphinx (Introduction) to the biblical story of the Tower of Babel, acting as dragomans whose ship has been shaped in the format of the One Ring, as already announced at the end of Chapter 1, our destination will no longer be a place but a new way of listening to the ‘aqd in the echo of the revelation.³¹

Notes

1 Babel in Hebrew stands for the Akkadian Babilu and the Greek Babylon, the cos­mopolitan capital of the ancient Sumer people (the Bible refers to the ‘land of Shinar,’ Genesis 11:2), imagined by the contemporary as ruled by a confusion of languages. Not by chance, the Hebrew name Babel was close to the word balal, which meant ‘to confuse, confound.’

2 This is the well-known thesis by Joseph Schacht (please refer to Chapter 1), based on the assumption that ‘[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). Consequently, the ‘secular law’ of Islam coincided for him with the ‘customary commercial law which developed, beside the ideal law of strict theory, in the Islamic countries in the Middle Ages’ (ibidem, p. 210). The hiyal (‘legal stratagems’) become, in Schacht’s view, the core evidence of the contrast theory/practice; for a critique of this interpretation, see section 4.2.3.

3 I wish to thank my friend, Dr Maria Luisa Langella, for mentioning to me the role of dragomans in Orient-Occident relations and the origin of the word ‘dragoman’ from tarjama.

4 The word ‘paradigm’ (from the Greek paradeikunai, ‘show side by side’) entails an idea of understanding that reflects the visual rationality of the West: section 1.3.3.

5 He went on to give even more detail:

It has one horn in the middle of the forehead very thick and large and black.... It is very ugly beast to see and unclean. And they are not so as we here say and describe, who say that it lets itself be caught in the lap by a virgin girl: but I tell you that it is quite the contrary of that which we believe that it was (Polo, The Description of the World...).

(quoted by Eco, 1999, pp. 57-58)

6

On the average about fifty centimeters long and roughly two kilos in weight, its flat body is covered with a dark-brown coat; it has no neck and a tail like a bea­ver’s; it has a duck’s beak, bluish on top and pink or variegated beneath; it has no outer ears, and the four feet have five webbed toes, but with claws; it stays underwater (and eats there) enough to be considered a fish or an amphibian. The female lays eggs but ‘breast-feeds’ her young, even though no nipples can be seen (the male’s testicles cannot be seen either, as they are internal).

(Eco, 1999, p. 58)

6 One should note, again, how the use of terms like ‘paradigm’ (here, endnote 4), ‘framework,’ ‘observe,’ ‘to see’ confirms the scopic regime ofmodernity (Jay, 1988) of Western visual rationality (section 1.3.3) and affects our way of thinking of the ‘law’ and the ‘real’ - a point to which we will return in dealing with the nature of fiqh (see later section 2.4).

7 Schacht’s conception itself largely draws on Max Weber’s definition offiqh as a sacred law, a legal system characterised by the lack of practical outcomes, with ‘the predilec­tion for the construction of a purely theoretical casuistry’ (Weber, 1922, p. 458).

8 Referring to a fragment by Walter Benjamin, ‘Kapitalismus als Religion’ (1921; unpublished in Benjamin’s lifetime), Agamben notes that also

capitalism, in pushing to the extreme a tendency already present in Christianity, generalizes in every domain the structure of separation that defines religion. Where sacrifice once marked the passage from the profane to the sacred and from the sacred to the profane, there is now a single, multiform, ceaseless pro­cess of separation that assails every thing, every place, every human activity in order to divide it from itself.... [C]apitalist religion realizes the pure form of separation... an absolute profanation.

(Agamben, 2007, p. 81)

9 Asad (1993) discusses the genealogy of religion as an anthropological category using as his starting point (at pp. 29-30) Geertz’s definition of religion as

(1) a system of symbols which act to (2) establish powerful, pervasive, and long- lasting moods and motivations in men by (3) formulating conceptions of a general order of existence and (4) clothing these conceptions with such an aura of factuality that (5) the moods and motivations seem uniquely realistic. (Geertz, 1973, p. 90)

In Formations of the Secular (2003), Asad investigates ‘the connection between “the secular” as an epistemic category and “secularism” as a political doctrine’ (p. 1) in the rise of modernity in Christianity; the political evolution of the nation­state; its impact in the construction of Muslims as a religious minority in Europe; as well as the colonial background of secularism or its universal humanism (see p. 22) to contextualise the ‘secular’ in Islam.

11

The modern discourse on religion and religions was from the very beginning - that is to say, inherently, if also ironically - a discourse of secularization; at the same time, it was clearly a discourse of othering. My suspicion, naturally, is that some deep symmetry and affinity obtain between these two wings of the reli­gion discourse; that they cojointly enable this discourse to do the vital work of churning the stuff of Europe’s ever-expanding epistemic domain, and of forging from the ferment an enormous apparition: the essential identity of the West. (Masuzawa, 2005, p. 20)

10 Following Gaius Trebatius Testa, a thing was sacred because of its ‘belonging to the gods,’ quidquid deorum habetur, and not because of its '■being of the gods,’ quidquid deorum est.

11 Still today, the etymology of religion is under debate. Agamben’s position traces back to Cicero, while the etymology from re-('again’) ligare (‘to bind’) goes back to St. Augustine, who followed the interpretation by Lactantius in his Institutiones Divinae.

12 I would like to thank Dr Doralice Fabiano for clarifying to me the distinction between sacrum and religiosus in the anthropology of ancient Rome.

13 I.e. the life ‘in the nature of things’ that belongs to the universality of living entities (animals, men and also gods).

14 Narrated by ‘Umar ibn al-Khattab, the second Caliph, as reported by Sahih Mus­lim and al-Bukhari and inserted in the famous compilation of an-Nawawi’s Forty Hadiths.

15 I refer here to the translation of the hadith as reported by Moad (2007, pp. 136­137), with some minimal variations regarding the transliteration of Arabic words.

18

The Arabic terms most commonly used in Islamic literature to characterize the Creator-creature relationship are rabb and ‘abd, ‘Lord’ and ‘slave’. The word ‘Lord’ connotes not only sovereignty but also proprietorship. The Creator is the original owner of all that he creates; he possesses full property rights over his creatures. For this reason, ‘slave’ best conveys the true meaning of ‘abd, notwithstanding the currently widespread preference for rendering less jarring to modern ears. A slave is one owned by another, and that is exactly what man is before God. God’s slaves in fact have no original rights whatsoever, no rights apart from those granted by God, who alone possesses original rights.

(Weiss, 2006, p. 24)

16 Similar texts in Q. 3:47, 59; 6:73; 16:40; 36:82; 40:68. There are eight names for God, among the canonical 99, which direct our attention to Allah as the source of all that is: al-Badt' (Absolute Cause), al-Bàri' (Producer), al-Khàliq (Creator), al-Mubdi' (Beginner), al-Muqtadir (All-Determiner), al-Musawwir (Fashioner), al-Qddir (All-Powerful), and al-Qahhàr (Dominator), each with various connota­tions of creating (Burrell, 2008, p. 141).

17 This is precisely the way in which McLuhan describes the acoustic space: a world of ‘simultaneous happening,’ where ‘“[t]ime” has ceased, “space” has vanished’ (McLuhan and Fiore, 1967, p. 63; see also section 1.3.3).

18 A similar definition is given by Johansen: ‘ [f]iqh is a system of rules and methods whose authors consider it to be the normative interpretation of the revelation, the application of its principles and commands to the field of human acts’ (1999, p. 1).

19 On the point of the discovery of the transcendental Law in fiqh, Bernard Weiss remarks how

a fundamental principle of Islamic jurisprudence that the law properly so called - that is to say, the Sharfah - exists independently of all human deliberation, whether legislative or judicial.... The law, is, for the Muslim jurist, ‘out there’ before human beings even exist... for the real ‘locus’ of the law is within God, and God is beyond time and space. Islamic theology, which provides the philo­sophical underpinnings for Islamic jurisprudence, subsumes the law under the divine attribute of speech.

(Weiss, 1990, p. 53)

For this reason, the Law is ‘something to be discovered, not created or developed, by human agents’ (ibidem, p. 61).

20 With regard to the probative value of the revelation,

[f]rom the perspective of the Muslim jurist, legal theory can be regarded as a ‘science of proofs,’ leading to standards that regulate human actions. These standards derive primarily from a discovery, through a defined set of sources and techniques, of the ahkàm, the qualification of actions or, more specifically, God’s determination of the moral value of individual acts.

(Wakin, 1990, p. 33)

21 Notably, the notions of ‘illa and sabab (as theological concepts) will reappear in Chapter 4 (specifically, section 4.3.2) in examining how the encounter of fiqh with Western law has radically transformed their meaning in the process of codification in Muslim countries.

25

Ethics occurs in Islamic theology first and foremost as a matter of the assess­ment or the evaluation of acts... this differs from Western philosophical thought where the ethical occurs first of all in regard to the constitution of an act. Accordingly, in Islamic moral thought ‘ethical’ refers to a knowledge which allows us to locate a particular act on a predefined scale of categories, while ‘eth­ics’ denotes the science which defines the means for such a localisation.

(Stelzer, 2008, p. 165)

22 In introducing his article, Smirnov refers explicitly to the need for the social researcher to care about the incidence that ‘cognitive procedures elaborated by this or that tradition’ can have on the apprehension of the ‘fundamentals’ of justice (1996, p. 337). Not only does this advice recall Ainsworth’s metaphor of the ‘fish always in the sea’ (section 2.1) but also the reflections that have been advanced here, in the Introduction, regarding the role of representations as signifying practices.

23 The term ‘utopia’ was coined by Thomas More in 1516 from the Greek u, ‘no’, topos, ‘place.’

24 In this precise sense, Shahab Ahmed (as we have seen in section 1.3.2) correctly praises divergence and contradiction as fundamental expressions of Islamic legal rationality.

29

Within the framework... we find it absolutely natural and logically valid... that the judge is allowed to choose the most ‘suitable’ norm for the given case from a number of contradictory norms of one madhhab or between different madhhabs. Islamic thought grows diverse and contradictory ‘branches’ simulta­neously from the same ‘root,’ and their incompatibility does not interfere with their overall unity and is not regarded as a drawback or as something abnormal. (Smirnov, 1996, pp. 342-343)

25 If absence constitutes the ground of non-identity, ‘meaning irreducible, real differ­ence in the world and our categories’ (Norrie, 2009, p. 28) (of ‘law,’ and thus, con­sequently, of ‘contract law,’ in this book), it is ‘the move to 2E that most directly implicates absence, for that move is constituted by introducing negativity into criti­cal realism’ (ibid.).

26 Please refer to Chapter 1, endnote 19.

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