The Justice of Islam: Comparative Perspectives on Islamic Law and Society.

Author:El Fadl, Khaled Abou

THE JUSTICE OF ISLAM: COMPARATIVE PERSPECTIVES ON ISLAMIC LAW AND SOCIETY. By Lawrence Rosen. Oxford: Oxford University Press. 2000. Pp. 248. Cloth, $80; paper, $29.95.

This book reminds me of the image of the arrogantly condescending and blustering tourist in Cairo who drifts into a store that has taken the trouble of prominently displaying the price of their commodities in nicely typed tags. Nevertheless, the tourist walks in, reads the price tag, and then proclaims, "Okay, what is the real price?" The poor store employee stares at him with incredulity, and simply repeats the price on the tag, and, in response, the tourist emits this knowing and smug smile as if saying, "I know you guys, you never mean what you say; everything in Arab culture is negotiable, everything is subject to bargaining, and I will not be fooled." Of course, the tourist misses the point. The price on the tag is the real price, and there is no expectation of haggling, bargaining, or any other reconstruction of reality. Before arriving in Cairo, however, the tourist has already received a steady dosage of advice about the Arab bazaar. Everything, the tourist is told, in the Arab market is negotiable; so never take any of the advertised prices at face value, and argue and haggle to your heart's content.

Lawrence Rosen's (1) book is not intended to give advice to tourists about how to get the most for theft money; it is nothing short of an attempt to explain the Islamic and Arab conception of justice. The author explicitly adopts the bazaar as the relevant model for understanding Islamic conceptions of justice, whether old or new, rural or urban, social or legal, or Muslim or Arab. But like our haggling tourist, whether intentionally or not, he ends up essentializing and deprecating his subject into a caricature that, although based on some truth, is largely a fictional invention.

Rosen's book is difficult to summarize. It is a collection of previously published articles that were put together in a poorly integrated book. As a result, there are many repetitions and contradictions throughout. In fact, one can trace the development of the author's thought on some issues because it is obvious that the articles were written over a considerable span of time with various temperaments and orientations. Rosen seems to have added a paragraph to the beginning of each chapter in an attempt to draw a common thread between the various sections of the book. But it is clear that these beginnings are forced upon the text in an attempt to convince the reader of a systematic project and a thematic continuity that does not exist. While the reader might possibly accept that eleven of the twelve chapters of the book are reflections on the anthropology of law, the last chapter, which deals with Muslims in American courts, is at best tangential to the narrative of the book.

There are many methodological and factual errors in The Justice of Islam, but I will be able to address only some of them. I will also avoid dealing with problems that do not directly pertain to the author's substantive arguments. But, at the outset, I feel compelled to note that Rosen's book does not inspire much confidence. He gets the transliteration of many Arabic words wrong, confuses colloquial with classical Arabic, (2) and fails to consult or cite practically any primary sources on Islamic law. Nearly, all his knowledge of text-based Islamic law is derived from secondary sources. As I demonstrate below, there is no clear research methodology to this book. Rosen is prone to reaching what seem like culturally based conclusions and then, working backwards, he tends to cite anything that he believes supports his arguments. Depending on his conclusions, he cites the Qur'an, secondary sources on classical Islamic law, reports attributed to the Prophet Muhammad, contemporary Middle Eastern law, his own anthropological research, and even anecdotal stories conveyed by friends. There is, however, no clear and systematic methodology in his utilization of these sources. What seems to dictate Rosen's reliance on one source or another is a largely selective--even opportunistic--system of citation in support of his arguments about Muslim and Arab culture.

The main thesis of Rosen's book is that justice in Islam does not focus on equality, but on equivalence. Islamic law is embedded in a highly negotiable culture in which Muslims bargain for equivalence. In this context, the status or role of persons, much more than facts, plays the pivotal role in law and adjudication. Islamic law is inseparable from its cultural context--a context that is not so much concerned with rules and determinable results, but with conducible obligations, and a dynamic process of social bargaining. Rosen contends that the Arab bazaar offers the best model for understanding Islamic justice and law. The bazaar is an active and dynamic place where there is constant haggling, bargaining, and shifting alliances. While it appears that the bazaar is messy and perhaps chaotic, in fact there is a cultural context that makes the bazaar functional and logical. It is, to use Rosen's expression, "ordered anarchy" (p. 143). If one understands the particularity of culture, the bazaar will cease to be so alien, strange, or irrational. In this context, Rosen makes the important observation that Islamic law is far more flexible and malleable than is commonly assumed. In fact, Rosen argues that Islamic law is similar in some important respects to the common law system, but with some important differences that he sets forth in his book.

In its broadest sense, Rosen's argument is sensible and even convincing: Islamic law has often been stereotyped as a rigid and inflexible system of law that is disembodied from any cultural context, seen primarily as a text-based speculative system of law that has little to do with the sociological practices of its adherents. Rosen, on the other hand, considers Islamic law to be thoroughly context based and culturally bound. Far from being a rigid and nonresponsive system, it engages the cultural paradigms of its adherents in an active and dynamic fashion.

Much of Rosen's conclusions seem to be based on his observations of court proceedings over a number of years in the Moroccan city of Sefrou. Sefrou is an old but small city of about 70,000 people that is to the south of Fez (p. 4). From his fieldwork in this small city, Rosen generalizes about the nature of Islamic and Arab justice throughout the ages and across the Arab world. He realizes, however, that considering the broadness of his claims, this is an inadequate study sample. (3) Therefore, Rosen cites and discusses classical Islamic law doctrines, the Qur'an, traditions attributed to the Prophet, and some contemporary Arab law codes in support of his arguments. Nevertheless, he does not attempt to explain the ways in which it can be said that the text of the Qur'an, for instance, is representative of anything in contemporary Arab culture. He does not explain the relationship between classical Islamic law doctrines and modern cultural practices, or even the ways that the various and divergent existing Arab cultures can be said to be Islamic or not Islamic. Furthermore, he does not seem to distinguish between urban or rural, rich or poor, coastal or inland, secular or temporal cultural contexts. Rather, Rosen is quite prone to lump the complex and diverse realities of Arab and Islamic cultures into one indistinct mass of negotiability, and bazaar-like existence. (4) But using Rosen's own categories, one can say that there is no bazaar rather, there is a suq (marketplace), and there is no single type of suq in the Islamic or Arab world, but many varied and diverse suqs. In Cairo alone, for example, there is the suq that one might find next to the Azhar University in Asbakiyyah, which serves the students of the theological seminary; there is also the suq that caters primarily to Western tourists in Khan al-Khalili; there is also the suq that caters to the middle class in the Tahrir area; and the suq in Bulaq that serves a clientele of impoverished communities. Each one of these markets has its own culture and system of conduct that is not generalizable to the other. Most importantly, these various markets are not simply reflective of a broad category that we can call Islamic justice, but are the product of a variety of influences, including some inherited Islamic values, particular localized Egyptian practices, modern commercial regulations, and Western and international commercial influences.

On numerous occasions in his book, Rosen makes remarkably sweeping generalizations about the nature of Arab and Islamic culture, often in a fashion that borders on the incredulous. In many ways, Rosen posits himself as the see-it-all, know-it-all anthropologist who can dive unfettered to the depths of the Arab mind and reality and inform the readers, and probably Arabs themselves, about the true nature and thought of these people that he labels as Arabs. In addition, Rosen assumes that anything Islamic is also Arab, and that anything Arab is also Islamic, so that if he observes what he believes to be a cultural orientation in a particular Arab setting, he is quick to generalize from that specific context to the whole of the Islamic legal tradition. But even more, some of his generalizations are inexplicably offensive and, in fact, his attempt to pretend that these generalizations allow a greater sympathy and understanding of Arab culture is disingenuous, at best. Although he consistently professes deep sympathy with Arabs and Muslims, the ultimate image that he constructs is largely unflattering.

There are so many examples of these generalizations that it is impossible to adequately cite or discuss all or even most of them. Therefore, I will survey only some of Rosen's broad generalizations about Moroccans, Arabs, Muslims, and, ultimately, Islamic law...

To continue reading