Trajectory and Change in Islamic Law – By Ahmed El Shamsy

Ahmed El Shamsy on Behnam Sadeghi’s The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition

Benham Sadeghi, The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition, Cambridge, 2013, 234pp., $95.00
Benham Sadeghi, The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition, Cambridge University Press, 2013, 234pp., $95.00

The origins of the study of Islam in the West lie in the philological study of texts. This legacy continues to define the field, but in recent decades scholars have adopted new techniques and approaches to Islamic studies primarily from the social and natural sciences. Few have been as active, creative, and successful in this process as Behnam Sadeghi. He has used computer-based stylometric analysis — a method of comparing texts — to assess the historical coherence of individual Qur’anic chapters, carbon dating to establish the oldest known fragment of the Qur’an, and statistical analysis to extrapolate the features of this fragment. In his first full-length monograph, Sadeghi continues this trend, drawing on, among other things, the insights of comparative legal studies and evolutionary biology to elucidate what he calls “the logic of law making” in Islam.

For Sadeghi, Islamic law is not fundamentally different from other legal systems. Rather, its development is marked by features that are universal to all systems of law. He allows that the rules of Islamic law may, at least in part, originate in the sacred canon (the Qur’an and the example of Muhammad), but in general he sets aside the question of the birth of Islamic legal discourse to focus exclusively on its later, classical form within the institutional structure of the orthodox schools of law. Sadeghi’s central hypothesis is that contrary to common assumption the primary occupation of Muslim jurists after the first century and a half of the Islamic period has not been to derive laws from the sacred canon using the hermeneutic principles of Islamic legal theory (usul al-fiqh). Instead, the business of law making is based primarily on school precedents and social context. The rich legal-theoretical literature serves simply to establish a hermeneutic framework flexible enough to allow for the defense of almost any position.

The potential ingredients of Islamic law, Sadeghi argues, can be divided into two basic types: the canon and canon-blind influences. Canon-blind influences comprise legal precedent and precedent-blind factors, such as social pressures. Three issues related to women and communal prayer in one of the four main schools of Sunni law, the Hanafi school, serve as test cases. These three cases lend themselves to evaluating the relative authority of canon and precedent because the position of the Hanafi school in each case seems to contradict the canon. Generations of Hanafis have sought to justify these apparent discrepancies throughout the pre-modern period, but while the Hanafi positions have changed over time, there is no indication that they have grown closer to the content of the canon. Instead, external factors seem to determine the trajectories of laws. Sadeghi likens the growing complexity of the classical Islamic legal edifice to that of living organisms. Both law and organisms evolve over time in a way that is incremental and cumulative: neither type of system can accommodate radical changes, and both generally solve problems by adding new features to remedy old ones rather than to replace them.

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Sadeghi’s work is significant. His detailed analysis of a focused set of legal debates is illuminating in its own right, and his sophisticated discussion of the nature of legal change and justification should make the work a touchstone for any future thinking about this issue. Sadeghi’s overall conclusion — that the business of the typical pre-modern Muslim jurist was focused not on the canon but on the precedent embodied in his school’s doctrine — is certainly true and important, but his elucidation of the logic of change internal to Islamic legal discourse is even more interesting and original.

Sadeghi positions his hypothesis against a view of classical Islamic law as a process of interpreting scripture to derive laws, but he avoids the question of how Muslim jurists themselves have conceived of their work, a question that has ramifications for his conclusion. On the one hand, Muslim jurists tend to maintain that their work is in harmony with the canon, but on the other, they — especially the Hanafi jurists — also explicitly justify themselves as part of a continuous tradition going back, in the Hanafis’ case, to two famous companions of Muhammad, namely, his son-in-law ‘Ali and Ibn Mas‘ud. I can think of no instance of a Muslim jurist claiming that he is developing laws from scratch, based solely on the texts of the canon. Muslim jurists always implicitly or explicitly acknowledge the existence of a non-textual continuity. Sadeghi tends to overlook occasions on which Islamic legal theory has in fact theorized the non-textual, precedent-based arguments. For example, when Hanafi jurists label a prophetic statement as “well attested” (mashhur), they do not mean that it possesses an authentic chain of transmission, as Sadeghi claims, but rather that it is an accepted and well-known statement in the Hanafi legal tradition, even if its formal record of transmission is deficient. In other words, a prophetic statement embedded in a living legal tradition possesses a particular kind of authority that a dead-letter statement lacks.

By Ibn al-Sāʻātī, Aḥmad ibn ʻAlī (Own work) [CC0], via Wikimedia Commons
By Ibn al-Sāʻātī, Aḥmad ibn ʻAlī (Own work) [CC0], via Wikimedia Commons
Sadeghi is right to stress that we cannot understand the development of Islamic law solely through the lens of Islamic legal theory and hermeneutics without examining discussions of positive law. But this does not mean that legal theory has no bearing on positive law. Hanafi legal theorists theorized precedent as an authentic expression of Islamic normativity because of its organic connection to the foundation of Islam, and Sadeghi’s distinction between canon law and canon-blind law is perhaps a little too neat. The conservative tendency of the law to resist change is the result of a natural inertia and theoretical arguments for the legitimacy of precedent.

Furthermore, discussions of the canon in works of legal theory do more than simply justify existing law. As Sadeghi himself shows in the case of al-Ayni, the canonicity of scripture allows jurists to critique the mainstream. Extracanonical factors, such as social, cultural, or economic pressures to change the law, can thus combine with and gain legitimacy from the canon, as in the case of Ibn Taymiyya’s arguments against forced child marriage and triple divorce in the pre-modern era. In the past two centuries, this argument from scripture has been made countless times, exemplified by the calls for renewed legal reasoning (ijtihad) and for rejection of blind legal conformism (taqlid).

None of this is to suggest that the models developed in Sadeghi’s work are too simplistic or narrow to be useful. To the contrary, Sadeghi’s meticulous modeling of the mechanics of law making provides an invaluable vocabulary and classification for identifying and analyzing the factors at play in making Islamic law. One needs, however, to keep in mind that the reality of law making revealed by detailed observation means that the various factors contributing to the process cannot be distinguished as neatly as a diagram might suggest. Here the limits of adapting a natural sciences approach to the humanities become visible.

Ultimately, Sadeghi’s path-breaking account of legal change shows that the law is not a delicate construct in which every element relies on every other element, like a cathedral built out of matchsticks, so that change or reform of one element threatens to bring down the entire structure. Instead, Islamic law as a real-world phenomenon (we are not talking about the mind of God here!) is a massive collection of individual rules that possess an enormous amount of inertia simply because of their existence as rules, not because of any necessary connection among these rules or between each rule and the corresponding scripture. Legal change is much more difficult than the impatient can tolerate — and much more open to piecemeal change or borrowing than the purist can stomach.

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