The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition.

Author:Young, Walter E.
Position:Book review

The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition. By Behnam Sadeghi. Cambridge Studies in Islamic Civilization. Cambridge: Cambridge University Press, 2013. Pp. xxi + 215. $99.99, 64.99 [pounds sterling].

Behnam Sadeghi's The Logic of Law Making in Islam is a vital and challenging contribution, replete with clear (if defeasible) argument, novel but rational approaches, and testable analytical models. It enters a larger, modern discourse evaluating the "descriptive" vs "prescriptive" functions of Islamic legal reasoning in the production of substantive legal corpora. Sadeghi himself does not engage these terms, but, as is clear from the start, his assumptions, approaches, and conclusions are at the extreme descriptive end of the spectrum: legal reasoning was used by subsequent jurists only to justify and defend prior rulings, never to discover solutions for novel or contended legal problems.

Though deceptively slender (thanks to the author's economy of language), this volume is brimming with assertions and arguments. Adequately presenting and assessing them all would require a book of its own. Here I will briefly summarize the work before focusing a critical eye on what I consider its most problematic aspects.

In a helpful preface (pp. xi-xvii), the author previews several theses and lists his intended contributions: (1) a "gestalt shift" whereby "techniques ... that are almost universally described in the academic literature as methods for generating the laws are now seen to operate in the reverse direction, with the laws as their starting point"; (2) a "book-length and diachronic study of scriptural hermeneutics in postformative positive law"; (3) a distinct, "framework-driven method"; (4) a characterization of the "mainstream methodology in the Hanafi school"; and (5) the final three chapters' conclusions. Sadeghi acknowledges that his theses "could be tested and refined by additional case studies."

In chapter one ("A General Model," pp. 1-39), the author posits a "continuum of revision approaches" for laws, exegetic rationales, and hermeneutical principles. At one end, jurists derive the law by applying legal theory and method to Quranic and Sunnaic source materials; at the other, laws are predetermined and exegetic rationales are generated subsequently to justify them. Sadeghi then builds a "general model of a jurist's decision making" (fig. 8, p. 21), where the inputs of "canon" and "canon-blind law" (viz., "received law" and "precedent-blind, canon-blind law") inform a "hermeneuticmethodological approach" outputting the "law advocated." The whole is then adapted for a "model of a mainstream Hanafi jurist's decision making" (fig. 9, p. 31), from which both canon and the hermeneutic-methodological approach are excised, leaving only canon-blind law directly outputting the law advocated. Sadeghi explains (pp. 31-32):

The more usual understanding of the role of the hermeneutic principles as tools for deriving the laws from the canon must thus be abandoned. Hermeneutic principles, as applied in practice, were so flexible as to be inherently incapable of generating the laws. Rather, the canon-blind law formed the real starting point in the process of reasoning. The output of the process in fact consisted of legal reasons, including exegetic rationales, that justified the canon-blind law. Chapter two ("Preliminaries," pp. 40-49) offers a quick glimpse at the Hanafi school (including a chronologically ordered list of short bios for all the Hanafi jurists surveyed), the rulings examined in the case studies, and a brief discussion of the normative valuation "undesirable" (makruh). Chapter three ("Women Praying with Men...

To continue reading