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. …