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Locating the Sharīʿa. Legal Fluidity in Theory, History and Practice

LOCATING THE SHARIA – Book Sample

Introduction- LOCATING THE SHARIA

The genealogy of this volume begins, as many volumes do, at a conference at the University of California Santa Barbara in February 2014 titled “Locating the Shariʿ̄a: Creating New Sources for Knowledge and Inquiry.” Its aim was to honor the scholarly contributions of Dr. Khaled Abou El Fadl and Dr. Sherman Jackson in the field of Islamic Studies and, more specifically, Islamic law.

 In addition to exploring the indelible impact of these two scholars on the field of Islamic law, the conference provided a periscope into the drastic evolution the field has undergone in the past few decades. With this insight in mind, instead of producing a conference volume of the proceedings, or a festschrift in honor of Dr. Abou Fadl and Dr. Jackson, which is rightfully due, the decision was made to produce a volume on the field of Islamic law itself—its method- ologies, its contradictions, its possibilities and its future.

It is not an exaggeration to say that the field of Islamic law has been bur- geoning over the past century in Western Academia,1 producing an increas- ingly dynamic and polyvalent intellectual scene that has evolved through, and at times away from, the early methodologies and inquiries characterizing the field.

The preeminent early scholars of Islamic Law, Ignaz Goldziher (1850– 1921) and Joseph Schacht2 (1902–1969) introduced two central inquiries to the field that would continue to engage scholars for generations. The first exam- ined origins—questioning the development of Islamic law, its sources, and the eventual institutional form it took within the madhhabs. The second inquiry explored the divergence, or the gulf, that was noted to exist the theory of Islamic law (uṣūl al-fiqh) and positive Islamic law ( fiqh).3

Goldziher tackled this first issue in 1890 in his seminal work Muhammed- anische Studien.4 In it he argues that Islamic law developed after the death of the Prophet and was an amalgamation formulated from Judeo-Christian and Roman legal practices.5

Most illustrative of this Judeo-Christian appropria- tion present in Islam were ḥadit̄ h, which he argues gained prominence in the second century post-Hijri and can be directly traced to pre-Islamic or Judeo- Christian practices.6 As for the Roman influence within Islam, it can be iden- tified in the development of the School of Opinion (ahl al-raʾy) which stood in contradistinction to the School of Tradition (ahl al-ḥadit̄ h).

 Turning to the sources of the law, the most spurious for Goldziher were ḥadit̄ h which con- spicuously arose in the first two centuries after the death of the Prophet and were freely invoked by the jurists. Though Goldziher does not cast aspersions on ḥadit̄ h altogether, and notes that early jurists did attempt to weed out fabri- cations, the rate at which ḥadit̄ h literature grew quickly outstripped the critical capacities of ḥadit̄ h scholars, allowing for the existence of in increasingly dubi- ous corpus of ḥadit̄ h.7

Building on Goldziher’s answer to the origins of Islamic law, Schacht in his Introduction to Islamic Law asserts that in the first century after the death of the Prophet, ‘Islamic law’ as it is known today did not exist; rather, rudimentary forms of customary law existed by adopting pre-existing legal, administrative and political practices of newly conquered Muslim lands.8

It was not until the second century in Iraq that an identifiable Islamic legal architecture emerged. To reclaim authority and displace the centrality of customary practice, promi- nent jurists of these legal schools projected ḥadit̄ h onto early figures of Islam, endowing ḥadit̄ h with a sense of normative authority they otherwise lacked.

 The notion that the ḥadit̄ h were en masse fabricated, retroactively projected, and then accepted and promulgated as authentic was the most controversial element of Schacht’s thesis, matched only by his second controversial asser- tion regarding the closing of the doors of ijtihād in the 4th/10th century.9 His two claims, taken together, both cast doubt on the authenticity of the Islamic legal paradigm, and negated the importance of scholarly contributions after the 4th/10th century.

Schacht, and Goldziher before him, threw down the proverbial gauntlet, and scholars of Islamic law after them, in one way or another, were unable to shirk their shadow.

 There were some that supported the case of Schacht and Goldziher and developed it further to elaborate on the ‘foreign’ elements that seeped into Islam,10 but preponderantly, scholars challenged the assertions of Schacht and Goldziher, leading to new inquiries and methodologies within the field of Islamic law. Scholars in this second wave were concerned with four issues: (1) the origins of Islamic law and the madhhabs, (2) the historicity of Islamic scriptural sources, (3) the continuity of ijtihād, and (4) the relationship between theory, as expounded in treatises on uṣūl al-fiqh, and practice, as pro- mulgated in treatises of fiqh.

These four inquiries in some sense have become universal focal points within the field of Islamic law, with scholars continu- ously adding nuance. Though it is not possible to detail the developments in each of these sub-inquiries, a few remarks are fitting.

On madhhabs, they have been described as regional schools,11 guilds,12 constitutional units,13 and most recently interpretative communities14—with each of these characterizations unveiling something of their development, social status, and even political function.

On the debate on the historicity of the sources of law, and more spe- cifically ḥadit̄ h, scholars have not only shed light on the process of early ḥadit̄ h transmission,15 but also demonstrated the existence of early ḥadit̄ h works that were in fact a source of legal guidance,16 and traced the process whereby ḥadit̄ h were canonized alongside the Qurʾān as constituting part of divine guidance.17

As for the question of ijtihād, and the much maligned doctrine of taqlid̄  , be- yond dispelling the misconception that the doors of ijtihād were permanently sealed in the 4th/10th century,18 scholars have demonstrated that taqlid played an important role in the development of the madhhabs and the adjudication of legal issues.19

Even more drastically, some scholars have argued that taqlid̄ actually marks the apex in legal thinking as it allows for scholars to build their argument from pre-existing recognized methodologies.20 In this sense, intra- madhhab taqlid allows for later mujtahids within a school to actually change the doctrine of the school.

 Finally, on the debate regarding theory and practice, scholars have more accurately noted how and why divergences between theory and practice occur,21 shed light on genres of legal literature linking theoretical discussions with practical ones,22 and further investigated the ways in which jurists were influence by practice and custom.

By moving beyond the foundational concerns raised by Schacht and Goldziher regarding the authenticity of the sources of Islamic law, the juris- tic works produced reliant upon them have in turn become reliable reposi- tories of information, and can be used to investigate issues far beyond the questions on origins and theory versus practice.

In recent decades fruitful avenues of inquiry into Islamic law have included studies focusing on other genres of legal writing,23 the relationship between law and other intellectual

disciplines,24 in-depth analysis of specific legal issues,25 a recognition of sys- tems within Islamic intellectual thought beyond simply Sunni legal theory,26 and the development of Islamic law into the late-classical, modern and con- temporary periods, to list a few.

It is no longer possible to characterize the study of Islamic law as merely an inquiry into the origins, or the divergence between theory and practice. Nor is it possible to identify a period of time, or a genre of literature, that is overwhelmingly the focus of scholarly analysis to the neglect of others. But perhaps most remarkably, it is not possible to iden- tify a singular method which characterizes the study of Islamic law. While the textual-philological method as pioneered by Goldziher and Schacht still remains the gold-standard for many scholars of Islamic law, and is championed in graduate programs, studies of Islamic law utilizing sociological, anthropo- logical and ethnographic methods are becoming increasingly relevant, and are contributing to discussions on Islamic law.27

The expansion of the discipline of Islamic law has made embarking on a project of this magnitude far from simple. The tributaries in the field of Islamic law, as much as they cohere around central texts, figures and spaces, also undertake distinct inquiries. This volume does not purport to encapsulate the full methodological and scholastic diversity within the field of Islamic law; rather,

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