Printed in Muslim World Book Review, Leicester, (21:1; Oct.-Dec. 2000), pp.3-12.

 

 

 

Legal Rationality vs. Arbitrary Judgement:

Re-examining the Tradition of Islamic Law

 

 

Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. By Baber Johansen. Brill, Leiden, 1999. Pp. 521. ISBN: 90-04-10603-0.

 

The Formation of the Sunni School of Law: 9th -10th Centuries.  By Christopher Michelet. Brill, Leiden, 1997. Pp. 244. ISBN: 90-04-10952-8.

 

Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din Qarafi. By Sherman A. Jackson. Brill, Leiden, 1996. Pp. 249. ISBN: 90-04-10458-5.

 

Islamic Law and Culture: 1600-1840. By Haim Gerber. Brill, Leiden, 1999. Pp. 156. ISBN: 90-04-11319-3.

 

A Bibliography of Islamic Law, 1980-1993. By Laila Al-Zawani & Rudolph Peters. Brill, Leiden, 1994. Pp. 239. ISBN: 90-04-10009-1.

 

The Rise and Decline of the State. By Martin van Creveld. Cambridge University Press, Cambridge. Pp. 439. ISBN 0-521-65629-X.

 

 

 

Much of the academic research on Islamic law has been carried out under the shadow of Max Weber’s elusive notion of ‘rationality’, that uniquely Western propensity for being detached, formal, logical, legal, bureaucratic, capitalistic, scientific and secular which renders its history as the norm for universal sociology. Needless to say that from the Weberian perspective, modern, secular law appears to be the supreme embodiment of this salubrious rationality which is presumed to be lacking in other legal traditions. Islamic fiqh, which regards divine revelation as its source and derives its norms from it, is, accordingly, adduced as a paradigm of sacred law that is not amenable to rational legal calculus and mundane logic. Even the practice of Islamic law is deemed symptomatic of ‘qadi justice’ (Kadijustiz), the erratic and subjective form of adjudication on the basis of extra-legal - ethical, religious, political, sentimental and utilitarian – considerations, which is the reverse of the legal formalism and substantive rationality of the West. Islamic Law, being unstructured and transcendent, sustained by faith and intuition and driven by culture and mores than by formality and procedure, is thus a complete antithesis of Western law.

 

Though Weber himself may not have been responsible for the derisive term Kadijustiz (it was coined by R.Schmidt in 1908) and may not have regarded it as paradigmatic of the Islamic tradition, its hold on the Western imagination is certainly due to his standing as the ideologue of modernity and rationality. Little wonder that it became part of the cultural consciousness of the West and gave its legal practitioners some cause for self-acclaim. Lord Justice Goddard of the English Court of Appeals, for instance, complained that ‘the court is really put very much in the position of the Cadi under the palm tree. There are no principles on which he is directed to act. He has to do the best in the circumstances, having no rules to guide him.’ Justice Felix Frankfurter on his part remarked that the Supreme Court of the United States ‘is not a tribunal unbounded by rules. We do not sit like a Kadi under a tree dispensing justice according to considerations of individual expediency.’

 

Despite the lure of these arboreal images, recent scholarship, it is evident from the works presented here, refuses to endorse this inherited wisdom and demonstrates on the basis of detailed and solid historical analysis that both the theory of Islamic law and its practice in the Muslim environment merit, morally, intellectually and culturally, far more respect than has been accorded to them in various Western discourses. More than that, these stimulating and imaginative studies seek to remove some of the conceptual and intellectual confusions that vitiate the works of so many of the otherwise perceptive and diligent scholars of Islamic law. Indeed, against the intent of the authors and despite their strict avoidance of ‘grand theory’, these historical inquiries do raise some meaningful questions about the nature of modernity and rationality, pointing even towards a fertile ground for the cultivation of a civilizational theory itself. Pre-eminently, however, these monuments of scholarly labour are a tribute to the sobriety of the historian’s vision that brings lofty meta-theory down to earth. History, however, is a dubious mistress. And to pay homage to these scholarly enterprises is not to relinquish the Muslim’s right to distil these temporal narratives for transcendence and meaning. Nor is it to stop questioning the sovereignty of the historical vision within the context of Islam.

 

Perhaps the best admission to the world of the revisionist, critical and imaginative approach to the study of Islamic law that is represented by these works is through Baber Johansen’s Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh that is a delight for the scholar and a scourge for the dilettante. It is monumental in format, daunting in its erudition, profuse in the use of linguistic variety, fecund in ideas, disciplined in theory and, for all its forbidding display of German thoroughness, immensely rewarding. Though a collection of disparate and previously published articles, and hence lacking in thematic unity and cumulative growth, Johansen’s anthology abundantly compensates this lack of coherence by its encyclopaedic assortment; more than a volume, it functions as a library, a panoramic review of the discipline that spans the entire academic career of the author. The articles collected in the book, reminds the author, stem from the period when he was a professor at the Institut für Islamwissenschaft at the Free University of Berlin. They are written in English, French and German, and range from the adaptation of fiqh in the 10th- 12th centuries to the changing circumstances of urban and agrarian life (Chapters I-II), to the way the fiqh marked off legal from ethical norms (Chapter III), religious from legal status (Chapters IV to VI) and legal propositions from religious judgement (Chapter VII). Though it contains other, more topical discussions on current themes relating to both Sunni and Shi’ite Islam (V.3: Staat, Recht und Religion im sunnitischen Islam: Können Muslime einen  religionsneutralen Staat akzeptieren?; IX: Droit et justice dans l’Etat Islamique: Paysans, ouvriers et fuqaha), the focus of the book is on the Hanafite school of fiqh in the pre-modern period. In sum, it is an academic study meant for other academics, a specialist’s exploration of his own turf that non-specialists may not dare to tread upon. 

 

And yet, the book is also of enormous interest to the general student of Islam and the discerning Muslim reader alike, thanks to the especially written ‘Introduction’ to this volume in which the author supplies a succinct, and immensely lucid, statement about the nature of fiqh, its relationship with theology (kalam) and the history of fiqh scholarship in the West. It is here that Johansen’s analytical genius finds its full rein and it is here that the general reader may encounter the subtlety and profundity of his analytical approach. The tradition of fiqh that is the focus of Johansen’s attention is perceived by him to be a system of ethical and juristic reasoning that is regarded by its practitioners as ‘the normative interpretation of the revelation.’ Or, expressed differently, it is ‘a normative system concerned with human acts’ that seeks to provide the judiciary with ‘the standards for judgements which are legitimate from the point of view of religious principles and ethics as well as of juristic methodology.’ Given the symbiotic relationship of the moral and the religious in the civilisation of Islam, it is not surprising, according to Johansen, that the role of the scholars of fiqh is not restricted to the production of legal rules to be applied by the courts but that their norms address not only the courts but also the religious conscious of the individual Muslim. The system and methodology of fiqh, then, overarch the legal-ethical, public-private, state-civil society divides of the modern man. Or, at least they did till legal positivists within its ranks occasioned a demarcation, linked to the perspective of urban life and the historical developments of the Muslim cities, between the legal and the ethico-religious spheres. This is the gist of Johansen’s historical research and his principal insight. 

 

The classical fiqh, in Johansen’s recapitulation of the historical development, clearly differed from theology which sought to provide rational proofs for religious truths, and which emphasised the authority of philosophical, extra-scriptural, argument in defining God and the universe as the loci and objects of belief. The issue of theodicy, therefore, looms large in the perception of theology as it intersects the two fundamental tenets of Islamic faith, namely, God’s omnipotence and omniscience on the one hand, and the human capacity to choose, to act according to this choice and thus to acquire responsibility for the act on the other. The ultimate insight of theological reasoning, ‘a theocentric system of rational speculation on God and the universe’, thus led to the claim that it is faith (iman), and not the norms guiding the practice of action, that constitutes the unity of the Muslim community. One outcome of the theological debate in early Islam was thus the inclination of many authoritative schools to distinguish between faith and legal norms, between the outward confession (shahada), which guaranteed membership of the Community and on which legal judgements were based, and the inner reality of faith which is accessible to God alone. Faith not law, in sum, determines the constitution and the criterion for membership of the Islamic community.

 

Needless to say that the fiqh, at least since the time of Al-Shafi´i, takes a resolutely different perspective. Against the claims of theology that the exercise of universal reason leads to the acknowledgement of God’s existence, it holds that human beings have access to God through the divine revelation. Further, the intentions and motives of human beings are accessible only through the observation of their acts and enunciations, their deeds and utterings. People cannot be judged about their beliefs and convictions (unless, of course, these are publicly enacted and hence become objects of common observations and experience); the human judge has to adjudicate according to appearances and observable facts and leave inner convictions and conscience to God. It is obvious that herein lie the seeds of an empirical and legal form of positivism which, by positing distinction between the inner and the outer man, paved the way for the transformation of the legal and ethical ideal of the fiqh into a formal law and a body of juridic stipulations. Hence, while in both fiqh and theology, the person is conceived of as an actor, and while in both of these systems ‘the fulfilment of obligations through acts is largely seen as a test, a probation (ibtila’) of the human beings and reward is granted to the person who successfully stands the test by executing acts of obedience to God’, the fiqh ultimately came to articulate its objectives, perspectives and methods independently of theology.  

 

The rupture between law and theology, the severing of the legal from the ethical and religious, had in Johansen’s judgement, quite perceptible consequences: ‘The classical fiqh was not a theology. It was a “sacred law” with a strong insistence on ethical and religious norms and a systematic distinction between them and the legal norms. Its transformation into codified and legislatively enacted law deprives it of its ethical and ritual dimension and transforms it into a state law from which the norms concerned with the individuals’ ethical responsibility and religious conscience are absent.’ One may, of course, construe this development in terms of Weber’s sociological theory and regard this separation of the formally juridical from the ethico-legal as an earlier example of the paradigm of  urban and commercial rationality that finds its full expression only in the age of Western modernity. Be that as it may, in the case of Islam, one cannot view the formalization of the fiqh as law as an exclusively positive development, without any sense of  loss and regret. If the Islamic experience is anything to go by, we may assume then that any increase in rationality, be it through legal formalization or through other advances of instrumental reasoning (Zweckrationalität in Weber’s terminology), is accompanied by a corresponding loss of the ethical and noumenal sensibility.

 

Paradoxically, the fuqaha themselves were aware of this danger. Or, as Johansen clearly articulates this: ‘the inroads of a religious discourse based on the authority of rational argument into a system of norms legitimised through scriptural authority is clearly feared by jurists like Shafi´i.’ Further, he recognises that the jurists clearly distinguish two type of norms: legal norms which, being external and formal, are the subject of the judiciary’s judgement, and ethical norms which concern the individual and God. Hence, there exists a particular tension between God’s and the qadi’s judgement; the latter is always fallible and ‘contingent.’ Between his historical decision, vitiated, among others, by the frailty of human intellect and the unreliability of human memory, and the absolute divine judgement falls the shadow of uncertainty. True, the qadi may avoid subjectivity and arbitrary judgement through a strict adherence to the procedure and the maximum exertion of his intellect, but these may only guarantee ‘the legal validity of the qadi’s judgement but not its veracity.’ Because the qadi translates a transcendent norm into a temporal decision, he must always uphold the difference between the absolute truth and validity of the revelation and the fallibility of human interpretations. The fiqhi discourse, in other words, is always informed by an epistemological scepticism, it is forever cognizant of the moral and intellectual hiatus between the revelation and its interpretations. This also accounts for the prevalence of normative pluralism within its ranks: as long as one accepts the premiss that norms have to derived from the texts of the revelation, one is free to interpret them through exercise one’s, decidedly fallible, reason. Classical fiqh, it would appear, is the exact opposite of modern fundamentalism!

 

It would be apparent by now that Baber Johansen’s characterisation of the fiqh is  perceptive and insightful to the point of inspiring the Muslim reader to embark on his own, normative reflection and contribute to the current debate in a creative manner.

This volume is part of the series of monographs, Studies in Islamic Law and Society, that has been judiciously edited by Ruud Peters and Bernard Weiss and elegantly produced by the reputable publishers, Brill. Judging by this, and the other volumes presented here, the scholarly community cannot but be thankful to all those who are involved in this enterprise. The series is sure to set new academic standards for this discipline and become standard textbooks in the future. As for Johansen’s highly gratifying work, one wishes that his synoptic introduction, which is of much broader interest, becomes available as a separate monograph. At any rate, along with Fazlur Rahman’s singular, “Functional Interdependence of Law and Theology” (In Theology and Law in Islam. Edited by G.E. von Grunebaum. Weisbaden, Otto Harrassowitz, 1971. Pp. 89-97) it must be read and discussed by aspiring Muslim theorist and historian of Islamic law.

 

Another monograph in the series which, despite its fundamentally historical and academic focus, also touches on the wider debate on Islam and social theory is Sherman Jackson’s Islamic Law and Constitution. Jackson starts his inquiry with the observation that Muslims today have, for all intents and purposes, accepted the modern nation-state as a fact of life and that their strategy for dealing with it now revolves around its ‘islamization’, around making ‘Islamic law’ as the law of the state. In other words, ‘the Islamic state’ is a nation-state ruled by Islamic law. That this doctrine, which advocates a facile superimposition of Islam on the state, has serious intellectual flaws, that it pays no attention to the ideological difficulties that stem from ‘a fundamental conflict between the theory underlying the nation-state and that of the Islamic legal tradition’, is an other claim made by the author; a claim with which this reviewer is in full agreement, having himself expressed it on numerous occasions. The point of discordance quite simply is that the modern state, whether a nation-sate or a multinational confederation, proclaims itself to be the sole repository of legal authority and zealously guards this monopoly which is the very essence of its sovereignty. Thus, while in modernity, law becomes law only through the will of the state, only when it is formally enacted by the state legislature, in the Islamic tradition it precedes the state. Or, stated differently, what is and what is not legally binding is the exclusive preserve of the modern state, whereas the Islamic tradition does not recognize the state as the sole legal authority.

 

During the ‘classical’ times, reminds Jackson, this process of acquiring and passing on legal authority took place totally outside the apparatus of the state: it was handed down personally by one individual to the other, by the teacher to the student. The modern idea of state-sovereignty, the state’s claim to be the sole legal authority, is thus a thorn in the flesh of Islamic establishment. Further, recent developments seem to have accentuated the Sunni-Shi´ite disparity in this respect. For not only has the Shi´ite clergy managed to acquire a more formal and hierarchical structure during the past few centuries, the establishment of the Shi´ite state in Iran also renders the task of the modernization of Shi´ite law, of turning it into a state-law, far less intractable than is the case in Sunnism which lacks both a hierarchical superstructure and an ideological state. However, some Sunni efforts, especially in the Gulf state, to compensate for this lack of central authority, ‘to overcome the unwieldiness and ambiguity of classical Islamic law by reducing the multitude of authoritative legal interpretations to a single standardized code’ through codification is rightfully frowned upon by Jackson. He not only substantiates his criticism by invoking the authority of Schacht, who once asserted that ‘Islamic law being a doctrine and a method rather than a code ….  is by its nature incompatible with being codified, and every codification must subtly distort it’,  but also remarks ‘that  those Muslims who advocate codification are either willing to abandon certain characteristics of classical Islamic law or are simply unaware of the inherent contradiction between codification and the traditional shari´ah.’ The curse of the modern state is, then, that it displaces, for all intents and purposes, the fuqaha’  as the main, indeed, the exclusive repository of legal authority.

 

While codification is a modern idea, earlier jurist were apprehensive of developments which might produce problems similar to, if not identical with, that of codification. For the fuqaha, accustomed as they were to the plurality of legal schools and of their relative autonomy, the idea of a close association between one particular madhhab and the ruling power presented itself as an issue of ‘rights’. For they justifiably argued that were the state to erect its government on the doctrines of one particular school of law, the outcome would be the displacement, or at least marginalisation, of those who were not part of the ‘coalition’. Or, viewing it from the European perspective, the close affiliation of the regime with a particular denomination brings unfair advantages to that church and is regarded as an infringement of the principle of state-neutrality in matters of conscience or religious liberty; in short, a situation not dissimilar to the one experienced by some minority faith-communities (usually immigrants) in secular polities which have their own state-churches. It is within such an environment that Shihab al-Din al-Qarafi wrote his treatise, around the year 660/1262, which has been characterised by Jackson as ‘a scholarly protest against certain abuses of power and its confluence with authority in early Mamluk state.’ It must be realized that as a member of the Maliki school, a political minority in Cairo at that time, al-Qarafi was protesting against the policies of the chief justice of the regime who refused to implement rulings handed down by judges from other schools whenever they contradicted his Shafi´i view. Of course, the regime by this time had already forged an alliance with the Shafi´is .

 

Against this background, Jackson has produced a highly suggestive study that revolves around three pivotal concepts: constitutionalism, tyranny and power. Constitutionalism, according to his perspective, refers to the value of and mechanisms for promoting and sustaining the rule of law. While classical Islamic law seeks to ensure that the rule of law be maintained, it has to confront the problem of legal pluralism. It is this very problem of how to maintain the rule of law in the face of multiple, but equally authoritative legal interpretations backed by differential levels of power that both defines al-Qarafi’s search for constitutionalism and explains it. Tyranny, for Jackson, stands for the appropriation of law and legal authority for one’s own ideas, and, because of this, denying ‘rights and freedom’ to others to which they are legally entitled. For al-Qarafi the problem to be faced is that law itself may become a vehicle for promoting tyranny. As for power, it relates to the ability to force obedience, ‘regardless of what is believed concerning the power-wielder’s right to be obeyed.’ (Jackson’s position on the power-authority nexus is, I believe, untenable. For, if by ‘power’ he refers to that ‘which disguises itself as authority’, then the latter concept is redundant! ‘Coercion’ probably is a better choice for him.) Al-Qarafi’s sought to solve the problem of power and madhhab disparity by attributing ‘corporate status’ to these legal schools: by virtue of this arrangement the opinions of all the schools are protected as constituent of the larger edifice of orthodox Sunni law.

 

With the consolidation of the madhahib also comes the regime of taqlid, by means of which each school is able to maintain genetic links with the mujtahid-Imams and ancient authorities of the past. However, taqlid in these circumstances does not imply any propensity for ‘blind following’ or ‘servile imitation’, but represents ‘a more rather than less advanced phase of legal development.’ For, Jackson contends, the formal qualification required of one who sought to engage in taqlid now exceeded those required of earlier mujtahids, and what was borrowed from ancient Imams was not the content of their judgements but their authority. In short, taqlid represents ‘a routinization of charisma’, a consolidation of the authority of the ancient mujtahid-Imams, and an effort to check the unimpeded growth and interpretative profusion of the Islamic fiqh. Not surprisingly, the most important consequence of this transformation form ijtihad to taqlid is the shift in the basis of legal authority from that of the individual jurist to that of the school of law or madhhab as a whole. If authority and not content, who rather than what, is accepted as the force that backs legal interpretations but if, as in our times, the madhahib are no longer understood as the sole or even main repository of legal authority, then, the aim of modern scholarship, according to Jackson, ought to be ‘to identify more precisely those loci that have come to operate as the alternative to the madhhab and to describe in more detail the scope, nature and various manifestations of the competition that result therefrom.’ Naturally, this also raises other questions about the relationship between the modern state (not to be confounded with current regimes), which somehow has come to be accepted by Islamists of all persuasions as the ultimate locus of legal authority, and the legacy of the traditional madhahib.

 

In sum, Jackson’s work, which constantly oscillates between academic research and current debate, legal theories and social reality, historical narrative and normative theory, is rich in ideas, critical in outlook and moderate in tone. Despite the narrowness of its historical focus, it provides an intriguingly original approach to the study of Islamic law and its hermeneutical complexities, and must therefore become part of the compulsory reading of every serious student of Islam.

 

Haim Gerber’s monograph, a broad, panoramic view of law and culture in Ottoman times, is as much of a historical survey as it is an extended rejoinder to the earlier generation of - Orientalist – scholars whose study of Islamic law, in his forthright phraseology, ‘was indeed riddled with some very serious misconceptions, myths and biases.’ Relying on the legal opinions (fatwas) of two Arab and one Turkish jurisconsults (muftis), the seventeenth century Palestinian Khayr al-Din al-Ramli, Muhammad Amin Ibn ‘Abidin who lived in Damascus in the late eighteenth and early nineteenth century, and Ebu Suud al-Imadi, chief jurisconsult (Şeyhülislam) of the Ottoman Empire, who lived in the sixteenth century Istanbul, Gerber examines some important aspects of the Muslim legal life of those times with the purpose of offering ‘a reconsideration of the general structure of Islamic law as a thought world.’ That the Ottoman period is generally neglected and the muftis of those times, such as the ones discussed in his work, are never mentioned but in passing in academic works is due to ‘a strong, though often implied, academic ideology’; indeed, ‘opinions passed on this period of Islamic law often seemed based on biased preconceptions rather than on documented findings.’ Clearly, there’s a strong and perceptible revisionist slant to Gerber’s study, but it is a revisionism that is the outcome of familiarity with the original sources.

 

The present work, a companion volume to Haim Gerber’s earlier study on Ottoman law (State, Society and Law in Islam: Ottoman Law in Comparative Perspective. Albany; State University of New York Press, 1994), follows the same path of research and comes to almost identical results. The new material examined here not only elaborates the general portrait of the Ottoman law sketched in the former work, it also substantiates the author’s theoretical claims. What was true for the centre of the empire is now shown to hold even for the provinces. And Gerber’s straightforward conclusion is that ‘Islamic law at this time was structured very much like Western law – mutatis mutandis: It was well structured, based on far-reaching logical reasoning, and yet it possessed flexibility and the ability to change.’ Further, his resounding refutation of the Weberian thesis of Protestant Ethic and Western rationality reads:

 ‘Ottoman bureaucracy in the sixteenth century was more rational than its European counterparts (which hardly existed in a form more developed than the king’s household); legal reliability prevailed to no less a degree than in the West, and it is highly doubtful whether the sixteenth-century Islamic merchant class fell short of its Western counterpart in any economic or psychological way. Muslim merchants who risked their lives and fortunes in commercial ventures from Bursa to Iran in the seventeenth century seem to have possessed that mysterious ingredient sometimes called ‘Protestant ethic’ in larger quantities than did either Christian or Jewish businessmen of that town. Moreover, it was precisely the urban society of the Ottoman empire which developed corporate groups in the form of merchants’ and artisans’ guilds possessing founding deeds and formal recognition by the state, the very phenomena sometimes taken by scholars as the budding of modern civil society and democracy. But most important in the present context, Islamic law, by being jurists’ law, constituted an autonomous institution that was not controlled by the state.’ (p. 147)

 

Apart from its academic merits and pioneering efforts at documentation and analysis, Gerber’s work is thus distinguished by the force of its argument against civilizational stereotypes and Eurocentric conceit. And his passionate disdain for essentialist, polemical theory is as generously meted out to the architects of the Orientalist discourse as it is to the ideologues of the West. As such, it assures its place both on the academic shelf and in the ideological debate. And it is extremely gratifying for the students of Ottoman history.

 

Before concluding this survey, two other, purely academic works on Islamic law need to be presented to the reader. The one, Christopher Mechlert’s study, The formation of the Sunni Schools of Law, is also the outcome of solid academic research which focuses itself on the important, formative phase of Islamic law. He himself conceives of his enterprise as that of building a more secure chronological basis for future studies of Islamic law. ‘No more should textbook-writers tell us’, Mechlert spells it out bluntly, ‘the eponyms founded their schools, nor specialists admit that they did not found schools but weakly retreat from saying who did.’ He is further confident that he has supplied the answer to the query: ‘where and when the classical schools were formed.’ Thus, Mechlert hopes that his work will ‘provide students of Islamic law with characterisation both of the nature of the schools found at any of the major centres and at any point in the ninth century and of the elements that went into each of the classical schools, characterisations of considerably more precision than what has been available hitherto.’ In short, it is a continuation and extension of the revisionist history of Islamic law initiated by Joseph Schacht and continued by ‘his school’, though the historical focus here shifts to later periods, ninth and tenth centuries of the Common Era. In Mechlert’s view, however, it still belongs to the formative phase of the story of Islamic law as its consolidation and formalisation into the eponym schools had yet not taken place. The fiqhi divide until then, Melchert demonstrates cogently, ran between the adherents of  ra’y and those of hadith. It was their common commitment to piety that, according to the author, made the eventual compromise possible. The book presents a detailed and original account of the general legal history of the period and is sure to figure prominently in the academic debate.

 

The bibliographic compilation by Laila Al-Zwaini and Rudolph Peters is a highly welcome addition to the earlier works in this field, supplements as it does the notable efforts of Schacht, Makdisi and Fierro. By extending its scope to almost contemporary times, and by being as comprehensive as possible, it presents itself as a very useful tool for both researchers and other practitioners in the field of Islamic law. That it is part of the prestigious academic collection, Handbuch der Orientalistik/Handbook of Oriental Studies, merely testifies to the high standards of selection and execution that have gone into its making. Extremely comprehensive, and generously inclusive of Muslim writings, it presents its material in logical categories that are easy to probe. Given this arrangement, it is not surprising that the same item finds its place in more than one category. A competent and commendable effort.

 

The study of Islamic law, these exciting and stimulating studies show, has entered a new phase. The spell of Orientalist polemics has been broken and the paradigm of Weberian rationality consigned to the dustbin of history. However, we are still left with the Weberian question, just as Islam’s exact relationship with modernity is still to be decided. All the modern discourses discussed above, the legal, the sociological, the historical, are informed by the spirit of the state. It prefigures and pervades every discussion, every vision, every theory. Yet, Muslims, especially the ideologues of Islam, have had very little insight into is ‘ontology’ and ‘mythology’; even of the cycle of its birth, growth and the now impending doom are they blissfully ignorant.

Islamic political theory has come about in almost total default of any sustained reflection on this, the most characteristic and singular institution of modernity.

 

In an encyclopaedic and highly fecund study, The Rise and Decline of he State, Martin van Creveld presents the story of modernity as the history of this pivotal institution. The state, he warns, is not to be confounded with government, or political order, which is a universal phenomenon. Articulating an insight that has been with us for some time but which has never been subjected to such a penetrating and unrelenting analytical scrutiny before, he expresses that the state is an abstract entity which can be neither seen, nor  heard, nor touched. It is not identical with either the rulers or the ruled; it includes both of them and claims to stand above them both. It is like a corporation, having a legal persona, possessing rights and duties, and does engage in various activities as if it were a real individual. It differs from other corporations in that it authorizes them all but is itself authorized (recognized) by others of its kind; secondly, in that certain functions, the attributes of sovereignty, are reserved for it alone; and thirdly, in exercising these functions over a defined territory inside which its jurisdiction is both inclusive and all embracing. This is however not a theoretical treatise but a historical account, a profusely documented and coherently presented array of myriad of facts that are far more cogent and overwhelming than any theoretical vision that they may engender. A Muslim thinker may ignore it only his own peril.

 

 

Stockholm                                                                       S Parvez Manzoor

 

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