LAW: Dispensing Justice in Islam: Qadis and Their Judgments/Intent in Islamic Law: Motive and Meaning in Medieval Sunni Fiqh
Rosen, Lawrence, The Middle East Journal
LAW Dispensing Justice in Islam: Qadis and their Judgments, ed. by Muhammad Khalid Masud, Rudolph Peters, and David Powers. Leiden and Boston, MA: Brill, 2006. xiv + 541 pages. Bibl. to p. 569. Index to p. 591. $195.
Intent in Islamic Law: Motive and Meaning in Medieval Sunni Fiqh, by Paul R. Powers. Leiden and Boston, MA: Brill, 2006, xii + 213 pages. Bibl. to p. 228. Index to p. 236. $117.
Reviewed by Lawrence Rosen
Islamic law is often regarded by students of the Muslim world either as terribly arcane or as the expression of strict religious and political control. What is seldom understood is the way Islamic law operates as a living, if quite varied, system presently affecting more than a billion people. Because Orientalists have been joined by those working in contemporary courts, the capacity of each to enrich the work of the other has the potential to revise many of our assumptions about this vital topic. The two books under review form an intriguing entry to these issues. While Intent in Islamic Law, which focuses on the medieval period, carries a central theme - the role of "intention" in Islamic law - across a number of legal domains, Dispensing Justice in Islam offers numerous examples of courtroom practice whose manifestations invite the reconsideration of some of the dominant ideas in Islamic legal studies generally.
Readers might wish to begin with Dispensing Justice in Islam, skipping the volume's introduction initially and concentrating on the case studies themselves. Here several themes come to the fore. Since, as Leslie Pierce notes, Orientalists have commonly overlooked the importance of local circumstance in Islamic law, she, among others, demonstrates that in the 16th century Ottoman period no single standard of conduct was applied to all men and women, judicial dissent from mufti advisors was (as Christian Müller also shows for Mamluk Jerusalem) more often the rule than the exception, and judges were not, therefore, bound by scholarly opinion. While the works of the various schools of Islamic law formed an important backdrop, far more important, both historically and at present, has been the role of custom and procedure. For while Orientalists fail to regard custom as one of the "sources" of Islamic law, Muslims quite clearly do. Indeed, Delfina Serrano shows that, in the Almoravid period in Morocco and Spain, the positions of qadi and mufti were often interchangeable, while Aharon Layish shows that Libyan judges commonly ignore scholarly opinion, and Muhammad Khalil Masud that even qadis were treated as if they were advisory muftis rather than entering enforceable judgments. All of these studies reaffirm the implication that the actual role of scholarly opinions is more complex than binding. While none of the authors explicitly notes what others have demonstrated - that in most instances, Muslims regard custom as Islamic, not something set apart from it - all of the archival and field-based studies suggest that judicial "creativity" (as Alien Christelow and Masud show) is crucial to actual decision-making.
Procedural elements are no less important. The materials on Yemeni contracts presented by Brinkley Messick not only show no reference to the opinions of muftis, but they also reveal the paramount role of procedure in giving Islamic law its legitimacy. Ron Shahem's demonstration that non-Muslims often shopped for the most favorable forum, including using Muslim courts, couples with Erin Stiles' demonstration, stemming from work in Zanzibar, of the key role played by clerks and other personnel in formulating issues for the court and hence the qadis ' actual decisions. John R. Bowen's study of Indonesia fits precisely with work elsewhere and at other periods in showing that the assignment of burdens of proof and levels of proof are characteristically more germane than references to substantive legal norms alone. Both he and Maribel Fierro, then, can assert that courts very frequently work in favor of women, though as Abdul-Karim Rafeq argues for Ottoman Damascus, one cannot understand the actual disposition of something like waqf cases without understanding the broader power equation affecting the courts. Even in those present-day situations - as in Peter's analysis of the Nigerian court cases that deal with a woman being stoned for adultery, or Baber Johansen's study of recent blasphemy trials in Egypt - earlier versions of Islamic law still have a bearing on contemporary decisions. When one sees their operation in the Ottoman records or present decision-making, it is hard to claim that procedures and cultural assumptions would have been any less vital to legal legitimacy in the past than they are at present.
If, then, we return to the editors' introduction one notes that, quite remarkably, they do not for the most part seem to be listening to their own contributors. In his own essay David Powers continues to assert that "the issuance of a fatwa was a moment when the law was made real" (p. 407), even though hardly any of his authors sustain that assertion. In fact, his essay shows very little cooperation of qadis and muftis. Like Stefen Knost he singles out the present reviewer for criticism, but both simply misconstrue the arguments: Like others working in actual courts the anthropologists' work is not ahistorical (unless one is always required to take everything back to some axial moment in medieval Islamic history), and the idea that such work relates to only one town or village utterly fails to comprehend the nature of comparative work and the theories of culture to which they are attached. Similarly, the editors fail to hear their authors who, while showing great respect for textual sources, nevertheless note, for numerous periods and places, that the texts are not dispositive and that it is wrong to assume that just because texts are the main source left to us from an earlier age communications among judges, local practice, and use of local personnel have not always been crucial to Islamic legal thinking. It is Baudouin Dupret who is most clearheaded in this regard, stating that it is a mistake to analyze practice solely against the texts and historical roots when, as almost all the other studies in the volume also demonstrate, it is the categories the courts employ that are indispensable to an understanding of Islamic law as a system of meaning for those who entangle their lives with it. Thus while the editors have supplied us with a rich array of instances it will be for the reader to set their historicist orientation aside long enough to see what the authors can add to the study of Islamic legal history and operation.
Only a couple of the above authors refer directly to the role of intention in their Islamic legal studies, but Paul Powers is right to carve this issue out for special consideration. Following on the famous hadith that "all acts are defined by their intent," he argues that intent forms a large, sometimes definitive, part of characterizing any act. He disagrees with the argument that in prayer intent (niyya) relates solely to an interior spirituality, supporting the idea that the intent is directly read out of the act itself. In contract and personal status law intent, he argues, partakes of a broader range of terms and differential importance, sometimes allowing a focus on what it is that people mean to take precedence over the form of their engagements, at other times treating inner states as irrelevant, and frequently employing intent to help define the nature of the act itself.
Like other Orientalists, Powers sticks to the texts rather than using comparative and theoretical studies to interpolate between the lines or as an invitation to consider materials that might seem to be outside of "the law" but have been proven vital by scholars working in other parts of the world. Thus to speak of "prevailing social norms" as central to discerning intent without exploring them in cultural domains beyond legal texts is to limit the possibilities for insight. And though he rightly criticizes Johansen for suggesting that commercial matters involve greater concern for intent than do social relationships, his uncritical acceptance of Messick's argument that intent addresses a separable inner state leads him to several ill-informed conclusions about the nature of strict liability (which is about defenses and social values) and confusion about philosophical as opposed to judicial discussions of law. By comparison to other legal systems the language of intent is not, as he imagines, very elaborated in Islamic law, whereas the language of person-assessment is. Still, the author has chosen a set of problems of great importance and has expressed his own viewpoint with great clarity.
If the study of Islamic law, in both its historical and contemporary manifestations, is to match the advances made in so many other disciplines it will indeed be necessary for the textualists and the practice-oriented to attend very carefully to one another's data and to fearlessly avail themselves of one another's ways of framing issues. Whether it is in the everyday life of contemporary Muslims or that of their predecessors, our need to comprehend the categories through which various Muslims grasp the world and orient themselves in it requires us to transcend our own academic boundaries and to allow ourselves to be led by the people's vision of their world. These two studies hold out hope for the synergy that diverse academic histories can bring to bear on the ways in which Islamic law relates to the full range of domains through which Muslims address the world of everyday experience.
Lawrence Rosen is Cromwell Professor of Anthropology at Princeton University and the author of The Justice of Islam (Oxford University Press, 2000) and The Culture of Islam (The University of Chicago Press, 2002).…
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Publication information: Article title: LAW: Dispensing Justice in Islam: Qadis and Their Judgments/Intent in Islamic Law: Motive and Meaning in Medieval Sunni Fiqh. Contributors: Rosen, Lawrence - Author. Journal title: The Middle East Journal. Volume: 60. Issue: 4 Publication date: Autumn 2006. Page number: 819+. © Middle East Institute Winter 2009. Provided by ProQuest LLC. All Rights Reserved.