Islamic Law and Culture, 1600-1840

By Haim Gerber | Go to book overview

CHAPTER TWO
ISLAMIC LAW AND THE WORLD
OF SOCIAL PRACTICE

We have seen in the Introduction to this study that one traditional charge leveled at Islamic law was that it was never in fact living law, that is the actual law of Middle Eastern societies in this period, possibly that it was never even intended to be a living law (outside the area of personal status that was more or less enforced in most Muslim societies). The jurists are said to have cut themselves off from the world of reality and clung to their own closed intellectual world of fiqh. The importance of this point in evaluating the true nature of traditional Islamic society cannot be overestimated. The clinging to theoretical standards, pretending that they were real, while letting reality be determined by morally degenerate values, has always been pointed out as a malaise afflicting post classical Islamic Middle Eastern society. But the point is that this malaise has been assumed rather than independently demonstrated. It is becoming increasingly clear today that this view was, and still is, greatly exaggerated.

Some studies written in recent years support a thorough revision of these two generalizations, at least in as much as our period is concerned. In what follows I propose that the evidence bearing on the objective problem of the application of the Shariʿa in this period should be reviewed, before we investigate the relation of the muftis we shall study to the practical and intellectual world around them.

I would like to further our understanding of this issue by considering the involvement of the muftis with the world of social reality. The importance of this issue may well be questioned: the mufti was, after all, a legal expert, who was supposed to give a purely legal answer to whatever question was presented to him. Why should his involvement be of interest in a legal study, whether or not the information reveals traces of real social history? My answer is that in the history of the fiqh many muftis were in fact theoretical scholars who used the fatwa as a literary device in their composition of doctrinal law books. It is important to demonstrate that the muftis being studied here, particularly al-Ramlī and Ibn ʿĀbidīn, were real muftis. Moreover,

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