Shari’ah: From Diverse Legal Discourse to Colonial Misrepresentation
The Shari'ah in practice
One question, many answers
The rigidity of the mufti and the judge in following [only] the apparent meaning of the reported text (ẓāhir al-manqūl), while neglecting custom (ʿurf) and context (al-qarāʾin al-wāḍiḥa), and his ignorance of the [actual] circumstances of the people necessarily entails the loss of numerous rights and [results in] injustice for numerous people.15
What went wrong?
1 Najm al-Din Yousefi, “Islam without Fuqahāʾ: Ibn al-Muqaffaʿ and His Perso-Islamic Solution to the Caliphate’s Crisis of Legitimacy,” Iranian Studies 50, no. 1 (2017): 9.
2 Tarek Elgawhary, “Restructuring Islamic Law: The Opinions of the ʿUlamāʾ Towards Codification of Personal Status Law in Egypt” (Ph.D. diss., Princeton University, 2014), 18.
3 Jonathan A. C. Brown, Misquoting Muhammad: The Challenge and Choices of Interpreting the Prophet’s Legacy (England: OneWorld Publications, 2014), 35.
4 Since it is not compatible with their conceptualizations of religion (i.e., Western Christianity), Orientalists have long had difficulty understanding Islamic traditions and law. Their constant juxtaposition of the Shari'ah with Western Christianity left many Orientalists and colonizers with the ostensible notion that Islamic law was a closed system that had ‘a grip of iron from which there was no escape.’ This systematic demonization of the Shari'ah could be described as a type of legal Orientalism. See Ebrahim Moosa, “Colonialism and Islamic Law,” in Islam and Modernity: Key Issues and Debates, eds. Muhammad Masud, et al. (Edinburgh: Edinburgh University Press, 2009), 162ff.
5 Cited in Anver Emon, “To Most Likely Know the Law: Objectivity, Authority, and Interpretation in Islamic Law,” Hebraic Political Studies 4, no. 4 (2009): 415-440. Weber, too, coined the term Kadijustiz to describe the supposed capriciousness and irrationality of Islamic law; see Ahmed F. Ibrahim, “School Boundaries and Social Utility in Islamic Law: The Theory and Practice of Talfīq and Tatabbuʿ al-Rukhaṣ in Egypt” (Ph.D. Diss., Georgetown University, 2011), 10.
6 In his book, Politics, Law and Community in Islamic Thought, Ovamir Anjum proposes two dominant visions of community organization. The first is a community or umma-centered vision, which prevailed during early Islamic caliphates and held the ruler directly accountable to the Muslim community (i.e., the umma had the authority to challenge the ruler in the event that he strayed from religious expectations). This is in contrast to the ruler-centered vision, which vested authority in the ruler himself rather than the community. The point in mentioning these visions is to note that, as Anjum argues, neither ever gained full legitimacy and variants of both were practiced throughout different periods; hence, under certain caliphates, sultanates, etc., the ruler sometimes took on a concern for religious affairs and was involved in the implementation of sharʿī rulings. By and large, however, after the failure of the miḥna and the consequential rise in power of the ʿulamāʾ, we find the ruler using his authority vis-a-vis the scholarly elite to gain support for and legitimize his rule, or occasionally as a result of his acceptance of religious law as the principal form for governing. See Ovamir Anjum, Politics, Law and Community in Islamic Thought: The Taymiyyan Moment (New York: Cambridge University Press, 2012); Ira Lapidus, A History of Islamic Societies, 3rd. Ed. (New York: Cambridge University Press, 2014), 174; Wael Hallaq, “Juristic Authority vs. State Power: The Legal Crisis of Modern Islam,” Journal of Law and Religion 19, no. 2 (2003): 252-4.
7 Wael Hallaq, “Juristic Authority,” 246.
8 Anjum, 268.
9 Brown, Misquoting Muhammad, 51.
10 Kenneth M. Cuno, “Reorganization of the Sharia Courts of Egypt: How Legal Modernization Set Back Women’s Rights in the Nineteenth Century,” in Law and Legality in the Ottoman Empire and Republic of Turkey, ed. K. Schull, M. Saraçoǧlu, and R. Zens (Bloomington: Indiana University Press, 2016), 101-104.
11 Jonathan A. C. Brown, “Reaching into the Obscure Past: The Islamic Legal Heritage and Reform in the Modern Period” in Reclaiming Islamic Tradition: Modern Interpretations of the Classical Heritage (Edinburgh: Edinburgh University Press, 2016), 104.
12 This position only allowed for switching positions amongst the established schools of law and, even so, did not allow mixing schools if it led to transgressive combinations (talfīq); Brown, “Reaching into the Obscure Past,” 105.
13 Muhammad Qasim Zaman, The Ulama in Contemporary Society: Custodians of Change (Princeton: Princeton University Press, 2007), 19.
14 Ibid., 18-9.
15 Cited in Ibid., 19.
16 Anver Emon, “To Most Likely Know the Law: Objectivity, Authority, and Interpretation in Islamic Law,” Hebraic Political Studies (2009): 431-2.
17 Ibid., 432.
18 Emon, “To Most Likely Know the Law,” 434.
19 Ibid., 435.
20 Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta: Lockwood Press, 2013), 3.
21 Fekry, 28.
22 Academics have varied in their interpretations of why Baybars may have decided to create this system. Some have said it was a response to demands of the growing population and the need to accommodate refugees from all four schools of law, while others have said it was an attempt to renew the authority and legitimacy of the Mamluks as the guardians of orthodoxy. For more, see Yossef Rapoport, “Legal Diversity in the Age of Taqlīd: The Four Chief Qāḍīs under the Mamluks,” Islamic Law and Society 10, no. 2 (2003), 211.
23 With the exception that the Shāfiʿī school held exclusive authority in matters of the public treasury and orphans’ property; Rapoport, 210.
24 Ibid., 222.
25 Ibid., 227.
26 Although the Mamluks are often credited for establishing the quadruple legal system, Ahmed F. Ibrahim interestingly points out that the Fāṭimids beat them to it almost a century prior when the vizier Ibn al-Afḍal appointed Mālikī, Shāfiʿī, Ismāʿīlī, and Imāmī chief judges; see A.F. Ibrahim, “Al-Shaʿrānī’s Response to Legal Pluralism: A Theory of Legal Pluralism,” Islamic Law and Society 20, no 1/2 (2013): 115-116.
27 Guy Burak, “The Second Formation of Islamic Law,” Comparative Studies in Society and History 55, no. 3 (2013): 582.
28 Kenneth M. Cuno, 96-7.
29 Zaman, 19-20.
30 Ibid., 20.
31 Wael Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge: Cambridge University Press, 2004), 126.
32 Ibid., 127.
33 Qur’an 5:89.
34 Some scholars used the concepts of rājiḥ and aṣaḥḥ interchangeably, while others differentiated between the two. Al-Nawawī, for example, used the term aṣaḥḥ to distinguish between two equally rājiḥ (preponderant) opinions. For others like Ibn al-Ṣalāḥ, tarjīh was the process by which one arrived at the ṣaḥīḥ opinion. See Hallaq, Authority, 133ff. Although Mālikīs also used the process of taṣḥīḥ frequently, they preferred the term mashhūr to describe the most authoritative opinions. See Ibid., 147ff.
35 Hallaq, Authority, 138-9, 147.
36 Mohammed Fadel, “The Social Logic of Taqlīd and the Rise of the Mukhtaṣar,” Islamic Law and Society 3, no. 2 (1996): 197.
37 Hallaq, Authority, 239.
38 Wael Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 357.
39 Noah Feldman, The Fall and Rise of the Islamic State (Princeton: Princeton University Press, 2005), 59.
40 Ibid., 60.
41 Rudolph Peters, “From Jurists’ Law to Statute Law or What Happens When the Shari'a is Codified,” Mediterranean Politics 7, no. 3 (2002): 88.
42 Ibid., 88.
43 Peters, 88; Feldman, 61.
44 Felicitas Opwis, “Changes in Modern Islamic Legal Theory: Reform or Reformation?” in An Islamic Reformation, eds. M. Browers and C. Kurzman (New York: Lexington Books, 2004), 32.
45 Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2013), 3-4.
46 Opwis, 32.
47 Wael Hallaq, “Can the Sharīʿa be Restored?” in Islamic Law and the Challenges of Modernity, eds. B. Stowasser and Y. Haddad (Walnut Creek: Altamira Press, 2004), 22-3.
48 Feldman, 69; Moosa, 168.
49 Feldman, 66. Consider one simple example: Islamic law had a range of potential punishments for the person who committed homicide, while colonial laws only had one: the death penalty. Moosa, 167.
50 Judith Tucker, Women, Family, and Gender in Islamic Law (Cambridge: Cambridge University Press, 2008), 20.
51 Ibid., 223.