A tragedy of politics or an apolitical tragedy?

• Author: Fadel, Mohammad
• Position: Essay

1. INTRODUCTION

   Fifty years after the publication of Joseph Schacht's and Noel Coulson's introductions to Islamic law, they continue to be widely read, despite an explosion of Islamic law scholarship in subsequent decades that superseded much of their work. Islamic legal studies have thus faced a paradox for some time: current scholarship has long moved beyond Schacht's and Coulson's positions as reflected in their respective introductions, but because there is no alternative introductory text, they have continued to occupy a place of special pre-eminence, despite the fact that virtually all current scholars of Islamic law would agree that these works do not adequately reflect subsequent scholarship.

   Wael Hallaq, one of the leading Islamic law scholars of the post-Schacht and Coulson generation, aims to solve this dilemma with the recent publication of Shar[i.bar]'a: Theory, Practice, Transformations. Shar[i.bar]'a may very well be the most ambitious work written in the English language on Islamic law. It is a thorough survey of Islamic law and its relationship to Muslim societies from the rise of Islam to the present era. Students will find his outline of Islamic law substantially more accessible than the comparable section in Schacht's Introduction. Teachers and students will especially welcome his highly informative discussion of Islamic law in Malaysia and Indonesia, which have not traditionally received the attention of Western scholars of Islamic law. Likewise, his treatment of the transformations of traditional legal orders, including, but not limited to, Islamic law since the eighteenth century, is comprehensive and to my knowledge unrivalled by any other survey. With its unmatched breadth and depth, Shar[i.bar]'a will undoubtedly be recognized as the new standard introduction to Islamic law and Islamic legal history in English, and in coming years I expect it to have as great an impact on the kinds of questions students and scholars of Islamic law pursue as the works of Coulson and Schacht had on previous generations.

   Shar[i.bar]'a represents the culmination of Hallaq's highly productive scholarly career, one which virtually provoked a revolution in the modern study of Islamic law. Beginning with the publication in 1984 of his landmark essay "Was the Gate of Ijtih[a.bar]d Closed?" Hallaq has pursued an ambitious and iconoclastic scholarly agenda that challenged the received truths of Islamic law, whether in theoretical jurisprudence or the development of substantive law. In 2005, Hallaq published a history of the origins of Islamic law, and he has also published outside of the narrow boundaries of Islamic law, most notably, a translation and introduction to Ibn Taymiyya's refutation of Greek logic.

   With the exception of one article that he wrote early in his career, (1) Hallaq has shown little scholarly interest in Islamic political thought or in Islamic law in the modern era. After September 11, 2001, however, Hallaq's writing has become increasingly focused on Islamic law in modernity, and in particular on the global and local political forces of modernity and how they have formed (or deformed) Islamic law. (2) Indeed, although the work under review begins with an overview of Islamic law from its origins with the Prophet Muhammad, it is primarily Hallaq's attempt to provide an interpretation of Islamic law and its place in the modern (and post-modern) world.

   Methodologically, Shar[i.bar]'a represents a fundamental break with Hallaq's previous scholarship as he attempts, ambitiously, to set out a new approach to studying Islamic law, one that goes beyond what he calls "legal Orientalism." In Shar[i.bar]'a Hallaq endorses the methods of legal anthropology and social historians, on the one hand, and Michel Foucault's theory of modernity and the state, on the other, as antidotes to what he identifies as the pervasive constraints of legal orientalism.

   Hallaq's determination to defend the integrity of Islamic moral and legal traditions in the face of the sometimes vicious attacks they have received in popular and academic discourses since 9/11 distinguishes his writing radically from Coulson's and Schacht's at times condescending approach to Islamic law. Unfortunately, many of his arguments have the unhappy effect of reinforcing a central tenet of the "war on terrorism": there is an irreconcilable conflict between Islam and modernity. Indeed, one might read Hallaq's narrative as merely a sophisticated inversion of the moral conclusions of the legal orientalism he so heavily criticizes. Thus, what legal orientalists had seen as defects in Islamic law, Hallaq describes as its enduring strengths or even as evidence of its moral superiority to modern law; it is only our modernist bias that precludes us from appreciating these features of historical Islamic law. The goal of Hallaq's narrative is to make the reader appreciate the moral accomplishments of Islamic law and come to the realization that its fate in the modern world--dominated by an instrumentally overbearing state when it is not marginalized outright--is essentially tragic; his narrative is ultimately a tale of how a more efficient, but amoral capitalist-based modernity overwhelmed traditional Islamic societies.

   This narrative, however, all too often oversimplifies complex legal, social, and political problems, and too readily indulges casual comparisons between Islamic law and modern law to be convincing. While some simplification is required in order to make a general survey of this sort accessible to non-specialist readers, Hallaq's narrative, too, often results in either incomplete or misleading accounts of Islamic substantive law. The principal flaw in Hallaq's analysis is his apolitical conception of Islamic law. Given the centrality of politics to his narrative, he needed to provide a normative account of Islamic politics, something Shar[i.bar]'a does not do; without such an account, however, we are unable to judge the normative legitimacy of the modern state from the perspective of Islamic law.

   This review will proceed in three parts: an overview of the book's structure and contents, a discussion of Hallaq's theoretical framework, and a brief discussion of factual errors.

2. THE STRUCTURE OF SHAR[I.bar]'A: THEORY, PRACTICE, TRANSFORMATIONS

   Part one, "The Pre-Modern Tradition," provides an account of the origins of Islamic law; the development of its jurisprudential theory, us[u.bar]l al-fiqh; the rise of the principal institutions of that legal system, viz., the school of law, madhhab, and the law school, madrasa; the relationship of law and society; and an account of political legitimacy rooted in the concept of the "Circle of Justice." Part two, "The Law: An Outline," provides an overview of the basic elements of Islamic substantive law, with chapters covering Islamic ritual law, contracts, family law, property, offences, jihad, and courts. Part three, "The Sweep of Modernity," begins with a theoretical introduction and then discusses in detail the fate of Islamic law in the Indian subcontinent, Southeast Asia, and the Middle East and North Africa in the wake of European colonialism. A description of the modernization of law in the newly independent nation-states of the Muslim world following World War II follows. Hallaq concludes with a discussion of contemporary Muslims' search for a new theoretical jurisprudence to replace the interpretive methods of the historical tradition of us[u.bar]l al-fiqh outlined in part one.

   Despite the book's substantial advances relative to Schacht and Coulson, many aspects of the book are deeply problematic. As Hallaq himself notes in his preface, this book represents a significant departure from his previous scholarly activities (p. vii). Surprisingly for a scholar whose prior writings focused on legal theory, Hallaq chose here to follow the lead of legal anthropologists and social and legal historians of the Ottoman period, turning also to the work of Michel Foucault to theorize the modern state and its power relations, something Hallaq believes was absolutely necessary not only to understand the fate of Islamic law in the modern world, but also to have a better understanding of the operation of Islamic law in the premodern world.

   For Hallaq, the problem with traditional Islamic legal studies--with its focus on legal theory--was that it was theoretically impoverished. It never recognized that terms such as "law" were themselves problematic concepts. Confusion over the meanings of these terms is "responsible for a thorough and systematic misunderstanding of the most significant features of the so-called Islamic law" (pp. 1-2). While orientalists had found premodern Islamic law to be deficient because it lacked a distinction between law and morality, Hallaq argues that it was the orientalists' parochial conception of law--one that was a product of their experience of modernity's distinctively amoral legal order (pp. 2-3) that led them to this conclusion. Once this modernist bias is purged, it becomes possible to accept Islamic law on its own terms. When we do so, Hallaq argues that this feature of Islamic law, the fusion of law and morality, is in fact one of its greatest advantages: "Islamic law's presumed 'failure' to distinguish between law and morality equipped it with efficient, communally based, socially embedded, bottom-top methods of control that rendered it remarkably efficient in commanding willing obedience and--as one consequence--less coercive than any imperial law Europe had known since the fall of the Roman Empire" (p. 2).

   Hallaq also takes another orientalist theme--the contradiction between law and practice--to be a manifestation of orientalism's modernist bias. Orientalists understood the "gap" between legal doctrine and social practice to be evidence of a lack of integrity in the legal system. For Hallaq, however, this "gap" represents Islamic law's own internal ethic of...