For Professor Anthony

Chapter1andpartof7-Sadeghi-LogicofLaw-Making.pdf

Home >Literature homework help >For Professor Anthony

more information - www.cambridge.org/9781107009097

A General Model

1.1. Revisability and Indeterminacy

When a contradiction comes to light in a belief system, the system tends to make adjustments to remove the discrepancy. Some component(s) of the system must be given up and replaced to maintain overall coherence. But which? Let us assume a belief system made up of several compo- nents: the body of laws of a legal tradition (madhhab); the reasons given for those laws; general legal-methodological principles stipulating what counts as a valid reason; and theological, linguistic, philosophical, and historical tenets. In principle, any of these components might be rejected and replaced. In practice, however, some components are held relatively immune to rejection, as exemplified by the immunity granted in Muslim legal discourse to such “higher level” assumptions, respectively theolog- ical and historical, as the authority and authenticity of the Qur’a﻽n. That much is unsurprising. More interesting is the study of what happens to the less immune, more revisable parts of the system, especially such “lower level” components as (1) the laws themselves (e.g., “drinking date wine is forbidden,” or “is licit”); (2) the exegetic rationales for the laws (statements of the sort, “this Qur’a﻽nic verse is qualified by that saying of the Prophet,” or “this verse is abrogated by that one”); and (3) general legal-methodological or hermeneutic principles governing and disciplin- ing the use of exegetic rationales (e.g., “particular statements qualify gen- eral ones,” or “a Qur’a﻽nic law is not abrogated by an earlier law”).

Historical investigation shows that these three classes are not equally revisable. One may imagine a continuum of revision approaches. At one end of the gamut, one always holds the needed or desired laws absolutely

The Logic of Law Making in Islam2

immune and adjusts the rationales for specific laws (and, if need be, modi- fies even general methodological principles), making the smallest changes necessary to preserve the laws. At the other end of the gamut is the approach that grants no measure of prior immunity or stability to the laws; rather, it always lets stable methodological principles determine the exegetic ratio- nales and the laws. Historical inquiry may clarify where on the continuum between these endpoints a school or an individual jurist is found.

Moreover, just as the class of exegetic rationales as a whole may be found to be more (or less) revisable and historically unstable than the class of laws as a whole, specific types of exegetic rationale may be more vulnerable to revision than others. Different types of exegetic rationale (qualification, abrogation, etc.) are not used equally in the revision pro- cess.1 Where jurists have a choice of two or several methods of getting the job done, they are liable to consistently prefer one type of argument to another. It should be possible, then, to derive a hierarchy of preference. Doing so would be part of reconstructing a school’s or a jurist’s method- ological approach.

The line of inquiry laid out here requires identifying contradictions and examining how they are resolved. How easy is it to find such cases? Any vast and complex system of jurisprudence can be expected to con- tain contradictions arising from the sheer difficulty experienced by jurists in keeping track, simultaneously, of all principles and rationales and their consequences. Discrepancies of this type may require some effort to detect. Conspicuous contradictions can also arise from specific historical processes. And as a matter of historical fact, Islamic law developed in a way that generated such contradictions on a massive scale.

Islamic law evolved as the judgment of jurists. In the first two centuries of Islam, some of these decisions reflected practices that had always been part of the life of the community, ever since the Prophet Muh￷ammad had introduced them. Other decisions reflected local customs of non- Prophetic origin: tribal law, personal preference, and ad hoc decisions. These laws of non-Prophetic origin sometimes supplemented the Prophet’s laws and sometimes supplanted them.2 Another important feature of law in

1 Revision consists of a rejection followed by a replacement. So it is not only the choice of what is rejected that presupposes a methodological approach but also the choice of its replacement.

2 An example of the latter is the emergence in first-century Medina and Kuالfa of the prohi- bition of women going out to the mosque despite the Prophet’s approval of the practice. Mecca and Basra, by contrast, preserved the status quo. This subject is treated in a sepa- rate work I have under preparation.

1. A General Model 3

this period was that legal opinions clustered along geographic lines. For example, the legal opinions in Basra tended to be closer to one another than to those from Medina, and vice versa.

In this early period, law did not primarily derive from the reports about the Prophet (H￹adıإلth) and his Companions, at least not in the circles from which the earliest surviving legal traditions emerged, namely the H￺anafıربكا and Ma﻽likıربكا schools of law.3 Law and such reports had developed in par- allel and certainly overlapped, but there were also significant divergences

3 This need not be explained as a result of the H￹adıإلth being chronologically secondary to the laws. Rather, the point is that the traditionists (i.e., h￵adıإلth transmitters and scholars) and jurists (fuqahaال’) formed distinct though overlapping groups: most traditionists were not jurists, and a good many jurists were minor or poor traditionists. The two fields could thus undergo changes independently of each other. Indeed, the earliest jurists would have been aware of only a fraction of the reports in circulation. A Kuالfan jurist such as Abuال H￺anıربكاfa worked with a subset of the reports that circulated in Kuالfa, including a small number of traditions that originated in other cities. Knowledge of traditions current in other cities reached Kuالfa gradually, and on a massive scale only in the second/eighth cen- tury. While some sources identify the H￹adıإلth movement with Medina and the ahl al-ra’y with Kuالfa, these two authors have argued that both approaches were present in both cit- ies: Joseph Schacht, Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1967), 228–57, and ‘Abd al-Majıربكاd Mah￷muالd, al-Madrasa al-fiqhiyya li-al-muh￵addithıإلn (Cairo: Maktabat al-Shaba﻽b, 1972), 19–79.

Another reason is that many of the earliest jurists of the early regional schools of law, to which the proto-Ma﻽likıربكاs and the proto-H￺anafıربكاs belonged, did not consider h￵adıإلths as binding in the forceful and consistent manner that became increasingly common after al-Sha﻽fi‘ıربكا. Schacht noted that they preferred the living traditions of their respective cities to h￵adıإلths. From this, Schacht concluded that they did not always consider the Prophet’s sunna as binding. Though, he added that eventually some of them came to identify their living traditions with the sunna of the Prophet, which they now considered binding; see Schacht, Origins, 80. On the other hand, Dutton has argued that Ma﻽lik considered the living tradition of his city, Medina, as a better guide to the true normative practice of the Prophet (i.e., the sunna of the Prophet): for example, an authentic h￵adıإلth may describe a one-off practice of the Prophet, whereas community practice preserves the truly norma- tive practice of the Prophet. Thus, to the question of whether the sunna of the Prophet had always been considered binding, Dutton gives a different answer than Schacht would. Nevertheless, Dutton agrees with Schacht’s observation that h￵adıإلths were not absolutely binding; he just does not completely equate h￵adıإلths with Prophetic sunna. This com- mon ground about the H￹adıإلth, which is confirmed also by Gura﻽ya﻽’s reading of Ma﻽lik’s Muwat�t��a’ and my reading of al-Shayba﻽nıربكا, is what underpins my statement that law was not primarily based on the H￹adıإلth. See Muh￷ammad Yuالsuf Gura﻽ya﻽, Origins of Islamic Jurisprudence (Lahore: Muh￷ammad Ashraf, 1985), 116–20; Yasin Dutton, “‘Amal v. H￹adıإلth in Islamic Law: The Case of sadl al-yadayn (Holding One’s Hands by One’s Sides) when Doing the Prayer,” Islamic Law and Society 3 (1996): 13–40; Yasin Dutton, The Origins of Islamic Law (Surrey: Curzon, 1999), 168–77; cf. Hallaq, The Origins and Evolution of Islamic Law, 102–21. For a different theory, see M. Mustafa al-Azami, On Schacht’s Origins of Muhammadan Jurisprudence (Oxford: Oxford Centre for Islamic Studies, 1996).

The Logic of Law Making in Islam4

between them in proto-H￺anafıربكا and proto-Ma﻽likıربكا quarters.4 By the third/ ninth century, the strengthening of the “H￺adıربكاth Folk” movement had led to much wider acceptance of Prophetic H￹adıإلth as a source that trumped any nonrevealed or nontextual source of law. This concession on part of jurists confronted them with contradictions between the existing laws and the H￹adıإلth. They could no longer ignore h￵adıإلths that did not fit the law. They were thus faced with a choice: they could clear the legal slate and recreate the law in the image of the H￹adıإلth; they could preserve the law and explain away the H￹adıإلth; or they could seek some kind of compromise. Much of the energy and genius of h￵adıإلth-oriented jurists in the following centuries was directed at resolving these contradictions.5 It is by examining just how jurists in the following centuries went about restoring consistency that one can best uncover their methodological approaches. Part of this task involves determining which components in legal deductions are historically more stable than others.

The two extremes of the range of methodological approaches men- tioned previously correspond to differing conceptions of the nature of legal reasoning in the postformative period. (The “postformative period” is defined, for my purposes, as the period after the birth of the H￺anafıربكا legal tradition in the second/eighth century.6) The approach that has her- meneutic principles generate and determine the laws perhaps represents the more usual understanding of Islamic law. According to this concep- tion, represented in Figure 1 (a), the laws logically derive from, or have as their source and starting point, the Qur’a﻽n and the H￹adıإلth. The jurist’s task is to transform the raw materials of the Qur’a﻽n and the H￹adıإلth into the finished product of the laws (ah￵kaالm) that may be readily applied to any circumstance. The transformation is supposed to be effected by fixed hermeneutical methods and legal-methodological principles. The jurist feeds the sources into this methodological machine, turns the crank

4 For the other schools, the question remains open. Al-Sha﻽fi‘ıربكا argued for the absolutely binding quality of Prophetic h￵adıإلths. But it remains an open question whether, in fact, instead of clearing the legal slate and beginning anew with the H￹adıإلth as his starting point, legal inertia did not compel him to rationalize away the H￹adıإلth where they dis- agreed with some of the legal concepts he had inherited. One must examine this question through the chapters on positive law in al-Umm rather than through his Risaالla, which, being on methodology, may conceivably use concrete examples in a selective manner that may not fairly represent the overall character of his jurisprudence.

5 On the impact of H￺adıربكاth-Folk ideology, see also Joseph Schacht, Introduction to Islamic Law (Oxford: Clarendon Press, 1966), 35–6; Christopher Melchert, The Formation of the Sunni Schools of Law, 9th-10th Centuries C.E. (Leiden and New York: Brill, 1997).

6 See Section 2.1.

1. A General Model 5

(performing ijtihaالd), as it were, mechanically processing the sources in accordance with the hermeneutic principles, and finally receives the law at the output. The fallibility and uncertainty of the process and most of the laws it is taken to generate are readily acknowledged, though their subjectivity is not. The process is thought to be objective in the sense that if any other jurist were to turn the crank, the output would be the same or at least within the certified margin of objective uncertainty, thus fall- ing within a bounded set of acceptable legal solutions. The undisciplined, personal discretion of the jurist plays no role. This way of looking at the law allows one to speak of the “discovery” of the law, of “the search for God’s law,” or of “deriving the law” from the Qur’a﻽n and the H￹adıإلth.7

The other end of the gamut, where the laws are constant or, if they change, they do so not because of hermeneutic/methodological consid- erations but rather because of extralegal changes such as new social cir- cumstances or needs, corresponds to an altogether different conception of how postformative law operates, represented in Figure 1 (b). Here, the input to the machine consists not only of the Qur’a﻽n and the H￹adıإلth, but also of the law to be justified – that is, preexisting or newly needed or desired law – which is precisely what the first conception would take to be the end-result of the process. The output consists of a valuation of the textual raw materials that would preserve consistency with the law – in

Binding Texts

Interpretation

(a)

Law

(b)

Interpretation

Exegetic Rationales

Figure 1. Two different conceptions of textual exegesis in legal interpretation.

7 A more sophisticated development of this position would be to say that a jurist’s dis- cretion plays the role of offering laws that serve as hypotheses that may be refuted or confirmed by the evidence. Thus, the testability of the laws makes them responsive and accountable to the evidence of the Qur’a﻽n and the H￹adıإلth. This would still allow one to speak of the “search” for God’s law and its “discovery.” It would allow one to speak of an objective margin of uncertainty inasmuch as the evidence and the hermeneutic techniques leave some limited room for maneuver. It would allow one to speak of “deriving” the law from the evidence if one is an inductivist, but not if one is a deductivist.

The Logic of Law Making in Islam6

other words, an assessment of the form: this h￵adıإلth was abrogated, that general statement should be understood in a restricted sense, this tradi- tion is not authentic, and so on; to wit, mainly a selection of exegetic rationales. The effect of such an exercise is to prove the consistency of the preexisting or newly desired laws with the binding texts (Qur’a﻽n and H￹adıإلth).

One set of interpretive rules may be more powerful than another set in terms of the ability to determine the laws. Thus, the previously provided conceptualization of the possible methodological approaches can be related to the inherent logical capacities of groups of hermeneu- tic principles to determine the laws. (As defined in the first paragraph, “hermeneutic principles” specify how the different types of exegetic rationales can be used. For example, they may set forth the proper way to use analogy, abrogation, or qualification.) To that end, let us think of a hermeneutic-methodological approach as having a fixed selection of hermeneutic principles. Every jurist has some such principles that are implicit in the way he/she operates, regardless of whether he/she states them explicitly or is even conscious of them. Moreover, it is possible to speak of the hermeneutic-methodological approach of a school of law in a given time interval as an approach that typifies the approaches of the jurists working in that legal tradition in that period. One could then locate different methodologies on a spectrum. At one end of the spectrum, the approach is so stringent that it allows no latitude in what the law must be: a mechanical application of the hermeneutic principles to the textual evidence produces a unique legal outcome. This inflexible, deter- ministic approach corresponds to the vision of Islamic jurisprudence in which law is the outcome of the process of interpreting the foundational texts. At the opposite end of the spectrum, there is unlimited latitude in the legal outcome; the hermeneutic principles are so flexible that exegetic rationales can be found to show any conceivable law as consistent with the textual sources.8 Because any and all candidates for the law can be harmonized with the texts, the hermeneutic principles cannot be said to determine any law, and the law cannot be the outcome of the process of interpretation. Interpretation serves to justify the laws rather than deter- mine them. Thus, the test of the hermeneutic flexibility of a hermeneutic- methodological approach is how likely it is that any arbitrarily chosen

8 This would be an “unfalsifiable” system, to use Karl Popper’s term, as no conceivable outcome could be ruled out. See Karl Popper, The Logic of Scientific Discovery (London: Hutchinson, 1959).

1. A General Model 7

candidate for a law can be justified within the system. To be sure, neither of these extremes necessarily existed in reality, but every methodology that has existed can be placed somewhere on that spectrum. So, one can study how different jurists’ or legal schools’ places on that spectrum com- pare to one another or change over time.

We have just seen how revisability relates to hermeneutic flexibility. However, one does not investigate the two issues in exactly the same way. To learn whether one component of juristic argumentation (e.g., the reasons given for the laws) is more or less revisable/unstable than another component (e.g., the laws), historical investigation suffices: for example, one simply tallies up the laws and the reasons given for them after trac- ing them over time. The study of hermeneutic flexibility, however, shifts the attention from historical analysis of how the law developed to logi- cal analysis of the methodological approaches, aiming to determine the degree of freedom or flexibility they inherently possess. Historical analy- sis, of course, is needed to reconstruct a jurist’s methodological approach. That is to say, by studying that jurist’s reasons, one may be able to deter- mine the hermeneutic principles, if any, inherent therein. But once the methodology is known, in principle no historical analysis is needed to determine the flexibility and capacities of that methodological system. Given knowledge of the methodological approach, the level of flexibility can be determined through logical analysis. Accordingly, one may form a sense of the ways the law could have developed, a sense of the extent of the space of logical possibilities, which (depending on the given meth- odological approach) may be larger than what history has actually made use of.

What is the best way of reconstructing a methodological approach and, in particular, determining the level of hermeneutic flexibility? What kind of a test case is most suited for the purpose of historical analysis?

To begin answering that question, it helps to consider how the logical structure of a methodological system affects actual legal thought, setting bounds within which historical reality can unfold. A hermeneutically flex- ible methodology allows jurists to maintain any legal position they advo- cate by neutralizing seemingly contrary evidence. In particular, the law advocated could be one that the jurist prefers for reasons unrelated to the binding foundational texts – for instance, because it is the established law or because as a new law it would better fit current social conditions and values. But if a methodology rigidly maps the evidence into unique law, leaving little latitude in the choice of the law, then the jurist is typically forced to abandon any legal outcome other than the one determined by

The Logic of Law Making in Islam8

the methodology. So, hermeneutic flexibility correlates with the freedom of the jurist to neutralize conflicting textual evidence.

Moreover, as mentioned earlier, maximal hermeneutic flexibility allows jurists to justify any candidate for the law. Generally, the candidates most difficult to justify tend to be those that oppose the apparent meaning of the absolutely binding texts (the canon, for short). These tend to form the toughest test cases of hermeneutic flexibility. Therefore, optimal test cases for baring methodological commitments are those in which the binding texts seemingly clash with a jurist’s position, or with what a jurist would have ruled if it were not for the binding texts. Such a confrontation can result from different processes. An obvious one has been explained already, namely the conflict, after the triumph of H￺adıربكاth-Folk ideology, between the apparent meaning of some Prophetic reports (h￵adıإلths) on the one hand, and the inertia of the laws of a legal tradition, such as the H￺anafıربكا school of law, on the other hand. In such a case, the inherited law disagrees with the apparent purport of Prophetic reports. Cases in which the majority position on a point of law changes are also revealing from a methodological standpoint.

1.2. A General Model of Decision Making and Exegesis

1.2.1. Motivation: The Islamic Case According to Joseph Schacht, postformative Islamic jurisprudence was marked by what he called the régime of taqlıإلd, which began setting in around AD 900. In this period, retrospective justification of the early legal positions of the schools summed up the work of jurists; the origi- nality of jurists lay not in the revision of the laws, which were static, but in the process of justifying existing law.

Even during the period of taklıإلd, Islamic law was not lacking in manifestations of original thought in which the several schools competed with and influenced one another. But this original thought could express itself really in nothing more than abstract systematic constructions which affected neither the established decisions of positive law nor the classical doctrine of the us￱uإلl al-fikh.9

The new rigidity characterized not only the legal schools when viewed as wholes, but also even individual jurists. To be sure, there were those who claimed the right to form legal opinions independently from their school’s juristic precedents. “But these claims, as far as positive law was

9 Schacht, Introduction, 71–2.

1. A General Model 9

concerned, remain theoretical, and none of the scholars who made them actually produced an independent interpretation of the sharıإل‘a.”10 Figure 2 best captures Schacht’s theory of legal change.

Inevitably, the result was an increasingly widening gap between the law and the changing social reality.

Islamic law, which until the early ‘Abba﻽sid period had been adaptable and grow- ing, from then onwards became increasingly rigid and set in its final mould. This essential rigidity of Islamic law helped it to maintain its stability over centuries which saw the decay of the political institutions of Islam. It was not altogether immutable, but the changes which did take place were concerned more with legal theory and the systematic superstructure than with positive law. Taken as a whole, Islamic law reflects and fits the social and economic conditions of the early ‘Abba﻽sid period, but has grown more and more out of touch with later develop- ments of the state and society.11

Unsupported by detailed diachronic case studies, these views on post- formative law represent first impressions. Though first impressions can convey a large kernel of truth, they can also be misleading. After all, not- withstanding some exceptions, postformative Muslim jurists were moti- vated to minimize their differences with the established precedents of their respective legal traditions. The importance of the precedents and authority of a jurist’s legal tradition in Islamic jurisprudence is well- known.12 In this respect, a Muslim jurist was not fundamentally different from a scholar of Jewish law or an American jurist.13 For “the creativity

10 Schacht, Introduction, 72. 11 Schacht, Introduction, 75. 12 See, for example, Wael Hallaq, “Was the Gate of Ijtihaالd Closed?” International Journal

of Middle Eastern Studies 16.1 (1984): 10–11. 13 The authority of the past in legal traditions is well-known. That it is a general feature of

law, and not just Islamic law, has been noted in the field Islamic legal studies by Sherman

Received law

Law advocated

Figure 2. Model of postformative decision making: the laws remain as they were before.

The Logic of Law Making in Islam10

of exegesis consists not only in its ability to adjust to new circumstances not contemplated by the canon but also in the interpreter’s claim that there is no innovative or transformative activity involved whatsoever: the interpreter merely elucidates the plenitude of truth already latent in the canon”14 – a truism applicable not only to the canon, but also, to a lesser degree, to the interpretation of precedent. Accordingly, if a jurist did in fact diverge from the beaten path, he might not have gone out of his way to advertise that fact. It follows that the impression of a basically static law is suspect ab initio if not verified by diachronic case studies.

Schacht was right to highlight the salience of retrospective justifica- tion. However, his generalization that “none of the scholars” produced an independent interpretation is too sweeping. Others have shown (and this book confirms) that sometimes individual jurists departed from the estab- lished school position, and sometimes the school consensus changed.15 While it is true that retrospective justification constituted a significant part of jurists’ work, leaving the matter at that would beg the question of why laws changed or remained the same.

We know that while jurists did retain and justify most received laws, they also abandoned or modified a good number of them. Since the

Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihaالb al-Dıإلn al-Qaraالfıإل (New York: E. J. Brill, 1996), 80–2 and 73.

14 Bernard Levinson, Legal Revision and Religious Renewal in Ancient Israel (Cambridge: Cambridge University Press, 2008), 16. The author uses the word “canon” in more or less the same sense as I do.

15 For change in the laws in the postformative period, see, in addition to the examples in this book, for example, the following: Hossein Modarressi, Kharaالj in Islamic Law (London: Anchor Press, 1983); Baber Johansen, The Islamic Law on Land Tax and Rent (London: Croom Helm, 1988); Khaled Abou el-Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001). For more on Schacht’s views and a debate about them, see especially the following works of Wael Hallaq and Sherman Jackson: Hallaq, “Was the Gate of Ijtihaالd Closed?”; Wael Hallaq, “Us￱uإلl al-fiqh: Beyond Tradition,” International Journal of Middle Eastern Studies 16.1 (1984): 3–41; and Jackson, Islamic Law and the State, 69–141. Hallaq’s essays are reprinted in Wael Hallaq, Law and Legal Theory in Classical and Medieval Islam (Cambridge: Cambridge University Press, 2001). More recently, see the following valuable contri- bution: Wael Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge: Cambridge University Press, 2001).

Jackson’s book is exceptionally important, and it remains the most lucid discussion of legal change in the postformative period, though he misunderstands Hallaq. Jackson thinks incorrectly that his own position that the door of ijtihaالd was nearly shut and Hallaq’s view that it was open are in genuine contradiction. In fact, they are not. Because the two authors use the word ijtihaالd in different senses, they are not talking about the same door. By ijtihaالd, Jackson has in mind reasoning that bypasses the authority of the legal school, while Hallaq’s ijtihaالd subsumes, in addition, reasoning within the frame- work of the school’s precedents.

1. A General Model 11

commitment to received law was not absolute, the question is raised as to why some laws were retained and justified retrospectively while oth- ers were not. Consequently, instances in which the law was preserved unaltered require just as much explanation as cases in which it changed. Furthermore, there are cases where the retrospectively justified law is one of several competing options provided by the school’s repertoire of legal precedents, raising the question of what guided its selection. In such cases, again, commitment to received law fails to explain why a particu- lar law was retrospectively justified. While many a jurist upheld the idea of commitment to received law, especially when it was ascribed to the founder of the legal tradition, such a norm does not explain the reality of legal continuity and change.

In short, to reject the reality of absolute commitment to received law creates an explanatory gap: a general explanation that accounts not only for change but also for continuity is needed. A satisfactory description of postformative jurisprudence should explain how it came to be that the laws were retained in some cases (and justified) but not in others and why of these two phenomena, the first one, retention, took place on such a significant scale.

Another issue arising from these observations is that of the nature of legal reasons, that is, the reasons jurists gave for the laws they advo- cated. What was the relationship of such reasons to the laws, be they old laws or new ones? Since the reasons were often based on foun- dational texts, forming a bridge between the texts and the laws, this question pertains to the nature of exegesis, raising the question of how changing laws related to fixed binding texts. These are indeed the ques- tions with which the present chapter began. Thinking about them with clarity requires a general conceptual framework for inquiry and some terminology.

1.2.2. A General Model of Decision Making and Exegesis I now come to the underlying framework of the book: a model that can be used to study any legal or exegetical tradition that involves the inter- pretation of a binding foundational text. It turns out to be difficult to discuss the causes of change and continuity with clarity without devel- oping technical terms based on some general model. This has to do with the fact that the causes that may shape the laws are manifold. They can interact with one another in a variety of ways, which means that there are numerous distinctions to be made for which there is no vocabulary in ordinary language. Nevertheless, the complexity of the model ought to

The Logic of Law Making in Islam12

be kept to the minimum necessary for any given purpose. Accordingly, I offer what I believe is the simplest model necessary for speaking about exegesis, continuity, and change in broad terms. I first develop the model for an individual jurist’s decision making and then discuss how it can be extended to describe a legal community. Investigators interested in more specialized issues or higher precision will find that this model needs to be refined for their purposes.

Before devising the model, it helps to be reminded of its purpose. The aim is to enable a discussion of the relationship between a jurist’s legal decisions and the factors that shape them. Thus, it must be possible to use the model to give the relationship between certain inputs and outputs as shown in Figure 3. The inputs are the factors that can potentially shape a jurist’s legal position. The output is the product of the process, namely the legal decision itself – that is, the jurist’s position on the status of an act, object, or state of affairs – for example, whether a specific act is forbidden, a particular kind of contract entails an obligation, a certain situation creates a right, or an act validly fulfills a duty. One may use dif- ferent shorthands to refer to this output: the legal outcome, the ruling, the legal position, or simply the law. The main factors that can potentially affect the outcome and thus constitute the inputs can be enumerated as follows:

The canon Received law Contemporary conditions and

values

Decision

Law advocated

Figure 3. The factors shaping a jurist’s decision are the inputs. The output is a decision on a point of law.

1. A General Model 13

The first factor listed here that might shape a jurist’s opinion is his or her reading of any absolutely binding foundational texts. In this book, “the canon” is the shorthand used to refer to the body of such texts. By definition, the canon refers to foundational texts that are considered not just authoritative, but absolutely binding. Many a legal tradition around the world today takes a constitution as its canon. In classical Islamic law, the canon included the Qur’a﻽n and accepted reports about the Prophet (h￵adıإلths), and, therefore, these are the things to which the term “canon” usually refers in this book. Certain H￺anafıربكاs would have included in the canon also the opinions that the founder of the H￺anafıربكا legal tradition, Abuال H ￺anıربكاfa, had in common with his disciples. Different jurists might dis- agree over whether a specific text belongs to the canon, that is, whether it is absolutely binding. In the model to be given, what counts is the opinion of the individual jurist whose decision making is being modeled.

The word “canon,” of course, is used by different authors in a variety of senses. One definition is not better than any other, though it may be less or more convenient for a particular purpose. In this book I need a shorthand for “absolutely binding foundational texts,” and I have chosen the signifier “canon.”

This word is thus given a technical definition, like a number of other terms in this book, such as canon-blind law, hermeneutic flexibility, received law, legal reasons, legal inertia, values, postformative, and even “law” in some contexts. Since many readers misunderstand technical def- initions altogether, some guidance seems necessary. A technical definition of a term is nothing but a description of the sense in which an author uses the term in a specific work or particular context. It thus instructs

1) The canon (body of absolutely binding foundational texts) and its interpretation.

2) Received law – that is, the legal heritage and precedents, including the known legal decisions of past and present jurists.

3) Present conditions and values {

• Personal attributes of the individual jurist, such as his/her values, personal circumstances, and idiosyncrasies.

• Present social attributes: circumstances, needs, and values of the larger society.

• Present disciplinary attributes: tendencies, practices, and circumstances specific to the field of law, community of jurists, or more generally, the law-making class.

The Logic of Law Making in Islam14

readers to interpret the term in a specific way. Accordingly, a reader who remembers a definition for “canon” other than mine and reads it into my uses of the word will surely misunderstand my sentences. Rather, read- ers should simply substitute “absolutely binding foundational texts” for every instance of “canon” in this book. For example, “the canon shifted” translates into “there was a shift in the choice of texts that were consid- ered absolutely binding.” Likewise, “two jurists may draw the boundar- ies of the canon differently” translates into “two jurists may disagree on exactly which texts are absolutely binding.” Technical definitions are usu- ally signaled by sentences of the form “by x I mean y,” “x refers to y,” or “I define x as y,” and they make it incumbent on the reader to substitute y for every instance of x.

The second factor I listed that may influence the ruling is the jurist’s knowledge of the received law. This refers to the decision history – that is, the record of legal precedents within the legal tradition, defined as the known rulings of earlier and contemporaneous jurists. For example, if a jurist’s task is to state whether date wine is permissible, the rulings given previously in his school of law on that subject constitute the set of relevant legal precedents. The influence of the received law normally militates against legal change, as jurists often place a premium on dia- chronic continuity and attach authority to the majority view. Affinity with received law is thus related to legal inertia. “Inertia” here refers to the tendency of the laws to endure over time. The use of the term is not meant to convey passivity: societies enforce the laws that are retained due to legal inertia, and jurists vigorously uphold them and argue for them, often providing new and varying justifications. The issue is the inertia of laws, not people.

The third factor that may conceivably affect a jurist’s decisions consists of the values, needs, and circumstances of the jurist at hand, of the com- munity of jurists, and of the larger society at the time of the decision. This category encompasses the force of current social circumstances, institu- tional realities, social mores, class interests, political pressures, financial motives, the jurist’s own values, and the values pervasive in the law- making class, not including the desire for legal continuity or the attitude toward the canon, which are accounted for separately. Here, the word “values” refers to relatively vague and diffuse tendencies, such as “egal- itarian” or “patriarchal” attitudes, as opposed to specific and concrete rules such as the laws of marriage or the manner in which inheritance is divided. That “the weak must be protected” may form part of a jurist’s or a community’s values, but knowing this is one thing, and knowing how it

1. A General Model 15

is translated into law or handled when it clashes with other values, bind- ing texts, or existing laws is another.

So far, the prototypical model as shown in Figure 3 has the form of an unstructured black box, without any hint of how the inputs may relate to the outcome. The task is to introduce some structure so as to make it easy to compare the roles of the different influences on legal decisions for jurists who may have very different approaches. To that end, one may disentangle the contributions of the different factors by isolating them one by one.

As the first step, I isolate the contribution of the canon from all other factors (see Figure 4). (These other factors are the received law, which exerts a pressure for legal continuity, and present conditions and values at the time the jurist is making his/her decision.) Thus, I define, counterfac- tually, the canon-blind law as the legal position that a jurist would have advocated if he/she had been unaware of the evidence of the canon.16 Canon-blind law, therefore, lumps together factors other than the canon. The extent to which the actual legal outcome differs from canon-blind

16 The definition is counterfactual because the premise of its if-clause is not satisfied in real- ity, since jurists do know the canon.

The canon

Hermeneutic-Methodological Approach

Law advocated

All other factors (“Canon-blind law”)

Figure 4. An individual jurist’s hermeneutic-methodological approach.

The Logic of Law Making in Islam16

law is a measure of the influence of the text and its interpretation. If the actual legal outcome were automatically the same as the canon-blind law, then it would follow that the jurist’s interpretation of the canon has no influence upon his or her legal decision at all. If, on the other hand, the actual legal outcome were fully determined by the interpretation of the canon, then it would often differ from the canon-blind law.

When speaking of the influence of the canon on the law, one should recognize that if a text exerts any influence, it does so only after it has passed through some interpretive lens. That lens, which I call here the hermeneutic-methodological approach, processes not only the text, but also other concerns that I have lumped together as the canon-blind law. Therefore, as shown in Figure 4, the hermeneutic-methodological approach takes two things as its input and mediates between them to generate the law: (1) the canon and (2) canon-blind law.

One needs to differentiate, however, between textual interpretive activ- ity that takes into account such things as the decision history in the legal tradition or the social conditions faced by jurists – in other words, all the factors subsumed under canon-blind law – and textual interpretive activity that does not depend on such factors, being limited to linguistic knowledge or rules of interpretation that do not take such factors into account. As a shorthand, the latter may be called the pure hermeneu- tic approach (Figure 5). It consists of principles of hermeneutics, if any, whether held consciously and explicitly or not, that do not depend on the jurist’s knowledge of the received law or the conditions and values at the time of the jurist. It may capture, for example, procedures of language parsing that do not depend directly on the aforementioned factors. The jurist’s pure hermeneutic approach may determine some laws and legal decisions: it may make a certain type of contract invalid or a particular act forbidden. It may also leave some points of law indeterminate or only partially fixed. The legal status of these undetermined cases will be deter- mined by canon-blind law.

The ground has now been laid to define a parameter that is funda- mental to the question of how textual exegesis relates to continuity and change, namely the degree of hermeneutic flexibility. This parameter is a property of the pure hermeneutic approach. It is a measure of the degree to which a jurist’s pure hermeneutic approach determines the laws and legal decisions (Figure 6).

One jurist’s pure hermeneutic approach might determine all the legal outcomes in the areas of the law that are treated in the canon. For every act, it will specify its legal status – whether it is forbidden, obligatory, or

1. A General Model 17

something else – and what its legal consequences are. This is a maximally inflexible approach. The upshot of this approach is that the influence of the canon-blind law on the legal outcomes is completely curtailed: factors such as the desire for legal continuity or the need to accommodate new social conditions make no difference to the decisions.

Another jurist’s pure hermeneutic approach might determine the sta- tus of some acts but leave some others undetermined. This is a relatively more flexible approach. In this situation, the cases left undecided will be determined by the canon-blind law. The upshot is that some laws are decided by a pure reading of the canon and others by such factors as the legal tradition’s decision history or current conditions and values.

Yet another jurist’s pure hermeneutic approach might be so loose as to be incapable of determining the status of any act. It does not answer any legal question. Therefore, it can accommodate any conceivable legal outcome. It is consistent with murder being permissible and with murder

The canon All other factors

(“Canon-blind law”)

The Pure Hermeneutic Approach

Law advocated

The Hermeneutic- Methodological

Approach

Figure 5. The pure hermeneutic approach consists of the jurist’s hermeneutic principles and patterns, if any, that deal with the text at the most basic level, prior to consideration of factors such as the decision history or present circumstances and values. Canon-blind law determines the legal status of acts and cases that the pure hermeneutic approach leaves fully or partially undetermined.

The Logic of Law Making in Islam18

being forbidden. This is a maximally flexible approach. The upshot is that the law would be determined completely by the canon-blind law. It would be canon-blind law that would settle the status of murder.

The concept can be illustrated with a simple example. Suppose the canon consists entirely of ten sentences of the form “You shall X,” where X refers to an action. Consider two pure hermeneutic approaches, H1 and H2. H1 states that a You-shall-X clause makes X obligatory, while H2 says that X could be obligatory, neutral, or forbidden. Clearly H1 settles the legal status of the ten acts. It is thus maximally inflexible. On the other hand, H2 does not determine anything, leaving it to canon-blind law to settle the outcomes. It is thus maximally flexible. A pure hermeneutic approach, H3, that makes all the acts mentioned in the canon permissi- ble is maximally inflexible, as is an approach, H4, that makes every other act obligatory and the rest forbidden. A pure approach, H5, that leaves the status of the first five acts indeterminate while making the rest per- missible lies somewhere in the middle of the two extremes of maximal flexibility and inflexibility.

It must be clear by now that hermeneutic flexibility comes in degrees, ranging over a gamut, depending on how many cases are left

The Canon

The Set of All Cases (Acts, Contracts, etc.)

Different Pure Hermeneutic Approaches

Cases Un- determined by H2

Cases Un- determined by H3

Figure 6. Different pure hermeneutic approaches leave the legal status of different numbers of cases undetermined. A maximally flexible approach, such as H1, leaves all cases undetermined, fixing none. Approaches H2 and H3 are pro- gressively less flexible, leaving progressively smaller sets of cases undetermined. A maximally inflexible approach (not shown) leaves no case undetermined. Acts left undetermined by the pure hermeneutic approach are fixed by canon-blind law.

1. A General Model 19

indeterminate, as illustrated in Figure 6. Moreover, the degree of herme- neutic inflexibility is related inversely to the influence of canon-blind law. One may think of these two factors as being on a seesaw: they move in opposite directions, and the peak of one corresponds to the bottom of the other. In sum, one may speak of a hermeneutic-methodological approach as being characterized by a parameter called the influence of canon-blind law. The value of this parameter is completely determined by the degree of hermeneutic flexibility and vice-versa.

The pure hermeneutic approach may additionally be characterized by a parameter called the degree of bias for the apparent meaning of the canon. It distinguishes a jurist who places a premium on the apparent meaning of the text from one who sets little store by it. Five clarifications are needed: first, to be sure, in many cases there will be no such thing as the “apparent meaning” of the canon, but in some cases there will be – a trivial example being that the Qur’a﻽n apparently does not forbid prayer and does not make adultery or theft obligatory. Second, the apparent meaning of the canon, when it does exist, is generally a probable indica- tion of original intent, not a certain one. Third and related, not following the apparent meaning of the canon does not signify disrespect for the texts or insincerity in exegesis, since many a jurist has internalized the fact that the legal outcome is often different from what one might suspect from an unsophisticated first glance at the binding texts. Fourth, bias for the apparent meaning of the canon can reduce the hermeneutic flexibility of the pure hermeneutic approach. Fifth, in the classical legal terminol- ogy, “apparent meaning” (z￱aالhir) is used in reference to an isolated expres- sion with the understanding that it can be set aside once other statements in the canon have been examined; however, I tend to use the term in ref- erence to all the relevant statements considered together. This concludes, for now, the discussion of the hermeneutic-methodological approach and the canon.

So far, among the influences on the legal outcome, the effect of the canon and its interpretation have been isolated from the canon-blind law. But the canon-blind law is not monolithic, and it may be further analyzed. As shown in Figure 7, the canon-blind law is shaped by two major types of forces that may be separated: the influence of the legal precedents in the form of legal inertia and all other factors.

The prevalence of legal continuity and inertia means that normally the canon-blind law is the same as the received law. Any factor that may overcome legal inertia and upset this normal state of affairs and make the canon-blind law deviate from the received law is subsumed under

The Logic of Law Making in Islam20

the heading precedent-blind, canon-blind law. More precisely, I define this term, counterfactually, as the legal position that a jurist would have advocated if he/she did not know the decision history and the canon. Equivalently, it is what the canon-blind law would be if the jurist did not know the decision history. Thus, the extent to which the canon-blind law differs from the precedent-blind, canon-blind law is a measure of the influence of received law: if canon-blind law is always the same as received law, then legal inertia is absolute, and present conditions, such as new social circumstances and current values, make no difference to the law. On the other hand, if the legal heritage and decision history is trumped by such current realities, then canon-blind law will be the same as precedent-blind, canon-blind law.

It is now possible to summarize, synthesize, and augment the key points by means of Figure 8, which puts the different pieces of the model together. In this schema, the law, or more precisely what a jurist decides the law ought to be, is the output. It is the outcome of the interaction between the canon-blind law and the canon as mediated by the jurist’s hermeneutic-methodological approach. The schema, it should be stressed, portrays an individual’s mind – the factors in the individual’s mind that affect his or her decision. It does not model occurrences outside his or her mind. For example, the canon may have helped shape the decision history of the legal tradition; but this will not be reflected in the diagram since it

Canon-blind law

Received law Precedent-blind, canon- blind law (Present

conditions and values)

Threshold for overcoming inertia

0 max

Figure 7. The factors shaping canon-blind law.

1. A General Model 21

characterizes not the decision making of the jurist who is being modeled, but that of previous jurists.

I use canon-blind law as no less and no more than a shorthand for the following counterfactual definition: the law that the jurist would advo- cate if he/she did not take the canon into consideration in his/her delib- eration. It is the outcome that would be arrived at without awareness of the canon – the decision that the jurist would reach if the memory of the canon were erased from his/her mind, by surgery as it were. Because jurists generally know the canon, canon-blind law is by definition a coun- terfactual concept. Nevertheless, often it can be inferred by studying the actual legal decision or the social context. For example, if the jurist’s decision goes against the apparent meaning of the canon, in some cir- cumstances that could be a sign that he/she would have reached the same

The Hermeneutic-Methodological Approach

Bias for the apparent meaning of the canon 0 max

The canon

Law advocated

Canon-blind law

Received law Precedent-blind, canon- blind law (Present

conditions and values)

Threshold for overcoming inertia

0 max

Bias for canon-blind law 0 max

Hermeneutic flexibility 0 max

Figure 8. A general model of a jurist’s decision making.

The Logic of Law Making in Islam22

decision with or without the canon. If so, the canon-blind law is repro- duced in the actual legal outcome.

It is for initial simplicity and clarity that in this definition I used “law” in the singular. Properly, canon-blind law may include a set of laws all of which would be about equally acceptable or desirable choices for the law. A hypothetical example would be a jurist who, if unencumbered by con- siderations of the canon, would have thought of these two laws as equally good: (1) women can attend all public prayers except the noon prayer; (2) women may attend all public prayers except the afternoon prayer.17

Canon-blind law, in turn, results from a choice or compromise between received law and precedent-blind, canon-blind law. “Received law” cap- tures, in the first instance, the established doctrine of the school at the time of the jurist in question. I use precedent-blind, canon-blind law as a shorthand for the following counterfactual definition: the law (or laws) that the jurist would advocate (or consider acceptable) if he/she took nei- ther precedent nor the canon into consideration in his/her deliberation. Precedent-blind, canon-blind law embodies interests such as personal and cultural values, current societal needs and conditions, and so on, but not legal continuity, respect for legal precedent, or the canon.

Where the received law is already one of the options accommodated in precedent-blind, canon-blind law, one would expect, if legal continu- ity holds any value for the jurist at all, that the canon-blind law should

17 This formulation, too, is chosen for its simplicity, but a finer model is possible. In partic- ular, it makes much more sense to think of canon-blind law as consisting of a range of candidates with different degrees of desirability, where “desirability” refers to the coun- terfactual canon-blind state in which the jurist does not know the canon. As a hypotheti- cal example that is inspired by a real case study, suppose the issue is whether women can go out to the mosque to pray; the most desired solution (prior to the consideration of the canon) is that they cannot do so at all (desirability = 10 out of 10), and the least desired one is that they can do so without restriction (0 out of 10). In between the two, there are numerous other possibilities with different degrees of desirability. For example, the solution that only elderly females can go out and only for the daytime prayers may not be ideal, but it is close enough to it (let us say, 9 out of 10) to be perfectly acceptable. Suppose the hermeneutic-methodological approach has a bias for canon-blind law. Suppose, also, that while the system is flexible enough to accommodate the ideal canon-blind law, it can accommodate the nine-out-of-ten solution with much greater ease and logical facility, in the sense that legal reasons can be produced for it in a more straightforward and nat- ural manner. Then, depending on the strength of the bias for the ideal canon-blind law, one may opt for the less than ideal, yet acceptable solution. In other words, one of the parameters of the methodological approach is how the trade-off between justificatory simplicity and the bias for the canon-blind law is decided and how much compromise is deemed acceptable. Moreover, for the sake of simplicity, I have ignored various feedback loops that in reality connect various components of the model.

1. A General Model 23

be the same as the received law. Where there is no relevant received law, as when a completely new situation arises, canon-blind law will be triv- ially precedent-blind (i.e., it will be the same as precedent-blind, canon- blind law). More interesting is the case of conflict, that is, where received law clashes with precedent-blind, canon-blind law. This can happen, for example, when an old, established law does not match present val- ues or circumstances. In such a case, the interest of continuity would weigh in favor of the received law, while interests other than continuity (i.e., those embodied in precedent-blind, canon-blind law) would weigh against it. How this tension is resolved is an important characteristic of a jurist’s decision making. Recognizing the value of continuity for legal traditions, one may think of received law as the default value of canon- blind law.18 The question is how pressing the other interests (embodied in precedent-blind, canon-blind law) must become before they override the received law. The level of that threshold is an index of a jurist’s legal conservatism.

The component labeled “the hermeneutic-methodological approach” concerns the methodology of interpreting the canon. It is governed by many parameters that determine what the jurist finally makes of the canon and the canon-blind law. Among them, three are shown in the fig- ure as sliding scales: the degree of bias for canon-blind law, the degree of bias for the manifest meaning of the canon, and the level of hermeneutic flexibility. Hermeneutic flexibility indicates the degree to which the jurist’s hermeneutic method is capable of reconciling an arbitrary candidate for the law with the canon. Thus, a maximally flexible methodology is one that can harmonize the canon with any conceivable candidate for the law, thereby allowing canon-blind law to determine the law. A minimally flexible methodology, on the other hand, always assigns just one legal outcome to the evidence of the canon. A bias toward canon-blind law can be accommodated only if there is enough hermeneutic flexibility.

The degree of bias for the apparent meaning of the canon is not equiv- alent to the level of hermeneutic inflexibility as it might at first sight appear. This is clear from the definitions given for the two. For example, take a pure hermeneutic approach that makes every conceivable act law- ful. Such a methodology is maximally hermeneutically inflexible, yet it clashes sharply with the apparent purport of the canon, which apparently

18 On legal inertia, see Alan Watson, Society and Legal Change, 2nd ed. (Philadelphia: Temple University Press, 2001); Alan Watson, The Evolution of Law (Baltimore: John Hopkins University Press, 1985).

The Logic of Law Making in Islam24

does declare some deeds unlawful. However, while hermeneutic inflexi- bility does not entail a bias for the apparent meaning of the canon, the reverse does hold: a bias for the apparent meaning of the canon does tend to increase hermeneutic inflexibility.

As a crude model, the schematization leaves out various factors and relationships. One of the factors, which may be called the “legal- methodological language,” subsumes a variety of formal tendencies and constraints with limited bearing on what exactly the law should be in any given case. It can be understood by means of the metaphor of natural language, which offers a range of linguistically valid sentences without pinning down exactly which one we actually say in a given situation. As a concrete example, the legal-methodological language may include a jurist’s tendency to eschew subjective, fuzzy criteria in favor of objec- tive, cut-and-dry ones. Another example is the requirement that a Muslim jurist categorize acts as forbidden, undesirable, neutral, desirable, or obligatory. The legal-methodological language constrains the jurist to apply to the act of murder one of these labels, but it does not determine which. This legal-methodological language, if it were shown in the dia- gram, would be operative at every tier (precedent-blind, canon-blind law; canon-blind law; and advocated law).

How is the model to be used? As it stands, with the various param- eters and settings left undecided, the model has limited explanatory power, since most conceivable states of affairs, including contrary ones, can be made to fit into it. For example, in order to obtain the situation described by Schacht that is represented in Figure 2, in which the law simply equals received law, it suffices to consider the threshold for over- riding received law as impossibly high, the bias for canon-blind law at the maximum, the bias for the apparent meaning of the canon at the minimum, and hermeneutic flexibility at the maximum. If one disagrees with the Schachtian model, however, one can set the parameters in a dif- ferent way. For example, for a postformative jurist whose reading of the canon made a difference to his ruling, hermeneutic flexibility will not be at the maximum. Other states of affairs can be accommodated, too, as long as one is able to vary the parameters at will. It is in fixing the settings of these parameters that the historian limits the states of affairs that are consistent with the model, creating a testable theory endowed with explanatory power. The model thus does not predispose the inves- tigator to arrive at a particular characterization. Two historians may use this model to arrive at opposite and incompatible results, or one may use it to describe two different legal traditions with different dynamics. This

1. A General Model 25

makes it a suitable framework for inquiry and a useful tool for compar- ative legal studies.

1.2.3. From an Individual to a Community The model was given for an individual jurist, but a modified version of it can be used to characterize a legal tradition at a point in time. To that end, several of its components would need reformulation. A key modification involves the output, which must be changed from the law advocated by an individual jurist to simply “the law” – that is, the laws espoused by the legal tradition as a whole at a specific moment in time. In the case of a premodern legal school, this would be the legal position of the majority of the jurists in the madhhab. In American Constitutional law, it would be the official position of the Supreme Court. The key point is that an individual’s decision may or may not represent the legal community, as it may be peculiar, whereas “the law” usually does represent the majority of a law-making class and is consequently potentially less sensitive to the idiosyncrasies of individuals and, in some circumstances, more amenable to prediction and explanation.

The methodological characteristics that the model seeks to describe by parameters such as the level of bias for the apparent meaning of the canon, the degree of bias for canon-blind law, and the degree of herme- neutic flexibility are readily extended to the communal case, but now they represent attributes of the majority of jurists whose decisions count. If there is a typical way in which jurists operate in a given legal tradition, then the model of a typical jurist also characterizes the mainstream of the tradition. The concept of canon-blind law for the community now refers to the law that the law-making class would affirm if its members did not know the canon. Precedent-blind, canon-blind law would be understood along similar lines. The idiosyncrasies of individual jurists would no longer be a factor feeding into precedent-blind, canon-blind law unless the law-making class were an individual – that is, a dictator – in which case there is no need for a communal model to begin with, since the orig- inal model of an individual decision maker will suffice. As for the canon, the fact that different jurists may draw its boundaries differently does not necessarily make the concept meaningless for a class of jurists, since they may hold the bulk of the canon in common.

In the case of an individual jurist, one of the parameters is a threshold signifying how easily precedent is overridden by precedent-blind, canon- blind law, for example, by new social circumstances. For a community, this index signifies the inertia of the established laws. It is for the historian

The Logic of Law Making in Islam26

to determine how high or low the threshold is for a particular legal tradi- tion at a given point in time. The level of the threshold depends strongly on the institutional specifics of the law-making process and its social con- text. For example, all other factors being equal, if legal change required the consensus of a group of people rather than a simple majority, that would raise the threshold, making it more difficult for new needs and circumstances to effect legal change. Moreover, a larger law-making class could mean a higher threshold for legal change, since in a larger commu- nity more time may be needed for a new opinion to become the majority opinion. In addition, all other things being equal, small law-making and interpretive communities are more sensitive to the idiosyncrasies of indi- viduals and the accidents that brought them to power. Needless to say, all other things are not equal, and the factors affecting the ideological makeup of the law-making class and the degree to which its members are accountable to a social base usually are more decisive than the size of the class.

In summary, the following parameters may characterize an individual jurist:

• The degree of hermeneutic flexibility • The degree of bias for canon-blind law • The degree of bias for the apparent meaning of the canon • The degree of legal inertia

If these parameters have typical values for jurists in a particular legal tradition, then the typical values can be said to represent the mainstream of the tradition rather than just an individual jurist. This book uses case studies to determine these parameters for jurists in the mainstream of the H￺anafıربكا legal tradition and it also identifies specific jurists who deviate from the mainstream. The H￺anafıربكا-specific model appears in Section 1.4.1 and includes the H￺anafıربكا-specific version of the general schema introduced in Figure 8.

1.3. Exegetic Rationales and Degrees of Hermeneutic Flexibility

Theories about the causal relationship between laws and legal reasons – the reasons given for the laws – are closely linked with how textual inter- pretation is conceptualized. A key factor is the degree of hermeneutic flexibility in the interpretation of the canon. One can assess hermeneutic flexibility by studying the manner in which exegetic rationales are used.

1. A General Model 27

An exegetic rationale refers to a statement of the sort “this verse was abrogated by that verse,” “this statement qualifies that one,” or “this act is forbidden in analogy to the prohibition in that verse.” An exegetic rationale operates on the canon and, when combined with other exe- getic rationales and legal principles, entails certain legal effects, such as, for example, the decision that “drinking wine is forbidden.” Therefore, exegetic rationales serve as a bridge between the canon and the law advocated. The degree of hermeneutic flexibility reveals in which direc- tion a jurist crosses the bridge, from the canon to the law or the other way, and whether the function of legal reasons is to generate or justify the laws.

Exegetic rationales cannot be deployed in an arbitrary manner. There are certain rules that govern the manner in which they can be used. For example, one may have the rule “Prophetic statement x can be said to abrogate Prophetic statement y only if there is proof that the Prophet said x after y.” This rule governs the way in which a particular type of exe- getic rationale, namely abrogation, can be used. The collection of all such rules that are applied by a jurist I call his or her hermeneutic principles. Hermeneutic principles, in other words, constrain and discipline the use of exegetic rationales. The degree of hermeneutic flexibility is a function of the hermeneutic principles.

Hermeneutic principles may be explicit or implicit. In the genre of classical Muslim legal theory (us￱uإلl al-fiqh), many hermeneutic prin- ciples are made explicit. On the other hand, in the genre of positive law (furu al-fiqh) many such rules are implicit – one can infer them ‘إل empirically by the manner in which jurists use exegetic rationales. (For this reason, one might prefer to refer to them as hermeneutic “patterns” rather than “principles.”) As could be expected, the herme- neutic principles in the two genres are not always identical. The her- meneutic principles in positive law tend to be laxer than those in the genre of legal theory. In other words, legal interpretation in actuality is more hermeneutically flexible than one might come to expect from the discipline of legal theory.

The key issue here is that the same type of exegetic rationale, such as abrogation or qualification, could be employed, depending on one’s hermeneutic principles, in ways leading to varying degrees of hermeneu- tic flexibility. This section discusses some of the ways in which differ- ent hermeneutic principles – that is, different standards for how exegetic rationales may be used – can affect flexibility. I consider, briefly, various possible standards for the use of abrogation, qualification, and analogy.

The Logic of Law Making in Islam28

(1) Abrogation. Classical Islamic jurisprudence held that during the Prophet’s lifetime one injunction may have abrogated an earlier one. But unlike modern cases of constitutional amendments, it was not always certain which of two contrary texts abrogated which or in fact whether abrogation was the proper way to explain a discrepancy. If one’s meth- odology puts no limits on the way abrogation can be used, then almost any statement from the Qur’a﻽n or h￵adıإلth conflicting with the canon-blind law can be assumed abrogated. That would make for high hermeneutic flexibility, helping maintain canon-blind law against contrary scriptural texts or reports. On the other hand, other methodologies may require that there be evidence in support of abrogation. Such methodologies will vary in flexibility depending on what standards of evidence they demand. If what is required to claim that a law is abrogated is that there be some h￵adıإلth against it, then hermeneutic flexibility is lessened since if one wants to save a law, before one can dismiss the h￵adıإلth against it as abrogated, one has to find a h￵adıإلth in support of it. There will be some conceivable laws that will not be justifiable in this way, which means that now there is less latitude than in the previous case. But there is nevertheless quite a bit of latitude left, since whenever there are contradictory h￵adıإلths, one has the discretion to decide which represents the binding law and which the abrogated one. The latitude may be further reduced by removing that discretion; for example, by demanding that a h￵adıإلth that is claimed to be abrogated be proven to refer to a time before that of the h￵adıإلth against it. Another potential source of latitude is in the standards for determining what level of contradiction is needed before one may claim abrogation. If a direct contradiction is required to claim abrogation, that leaves less lat- itude than if all that is required is that two texts appear contrary in spirit. Even less latitude is left if one demands that there be an early report that explicitly characterizes the rule as abrogated.

(2) Analogy. Inherent to analogical reasoning is a certain amount of hermeneutic flexibility depending on the stringency of the constraints on its use. For example, the absence of an exact rule as to when one has to use analogy, as opposed to when one merely may use it, allows for greater flexibility. Other contributors to flexibility could include the absence of a precise rule to identify what to analogize to (given the choice of sev- eral things sharing a feature with the case at hand) and the absence of a way to determine the unique effective cause after one has determined the basis of the analogy. This last can be illustrated by an example: Suppose jurists wish to analogize on the basis of the Qur’a﻽nic prohibition of wine

1. A General Model 29

to determine what other substances are prohibited. They have to deter- mine the attribute of wine that lies behind its prohibition, the “effective cause” (‘illa). Is it that it is mind-altering? Or does it have to do with the sort of intoxication that makes one prone to rowdiness? Or perhaps the fact that it is an intoxicant made of grapes is the crucial factor? The a priori list of possibilities is large, and principles may be applied to exclude potential effective causes. The more effectively the rules govern- ing analogy narrow down the effective cause, the less hermeneutically flexible they are.

(3) Analogy combined with qualification. Some jurists feel free to qual- ify (takhs￱ıإلs￱/taqyıإلd) a general statement or term in the canon on the basis of an analogy. Unless regulated carefully, use of this approach moves a jurist toward the flexible end of the spectrum, since if there is a general statement that runs against a canon-blind law, one may “neutralize” it by qualifying it to the point that little remains of its prima facie con- tent. That is so because the flexibility often involved in the formulation of analogies enables the jurist to magnify the effect of qualification by extending the range of a qualifying statement.

(4) Qualification. In the case of two h￵adıإلths, one saying the Prophet said x and the other saying the Prophet said the opposite of x, jurists often take one h￵adıإلth to embody the general rule and the other to apply only to specific circumstances, thus suspending the general rule in cases where those circumstances exist. Unless a methodology lays out in advance a procedure for going about this, there is a great deal of latitude in the legal outcome depending on which statement one takes as the general rule and just how broadly or narrowly one construes the circumstances to which the other statement applies. The degree to which the treatment of these situations is disciplined affects the degree of flexibility.

(5) One may also consider the question of systematization, by which I mean making different parts of the law look as similar as possible. This can be done, for example, by patterning a problem in the law of marriage or divorce on an aspect of the law of sale. One jurist may ruthlessly apply the consequences one would expect from the law of sale in order to work out all the details of the divorce question at hand. Another jurist may accept the patterning but introduce exceptions to it on various grounds, for example, on grounds of what is more convenient or more just. Yet a third jurist may reject the patterning altogether. The first approach leaves relatively little latitude, while the latter two suggest greater flexibility. Although not treated in this book, systematization merits research.

The Logic of Law Making in Islam30

1.4. A Characterization of the H￺anafıربكاs

1.4.1. Results Despite clear and important variations among H￺anafıربكا jurists, they oper- ated in a typical way. So, the general model of an individual jurist’s deci- sion making from Section 1.2.2 can be used to speak about a typical jurist. That makes it possible to characterize the mainstream of the legal tradition. Obtaining such a characterization requires conducting case studies on points of positive law in order to determine the parameters of the general model (namely the degree of hermeneutic flexibility, the degree of bias for canon-blind law, the degree of bias for the apparent meaning of the canon, and the degree of legal inertia). Based on the case studies in this book, in Chapters 3, 4, and 5, certain conclusions can be supported.

Mainstream H￺anafıربكا jurisprudence was nearly maximally hermeneu- tically flexible. It was nearly maximally biased for canon-blind law, and thus the decisions on points of positive law were little affected by the interpretation of the canon. The law advocated was the same as the canon-blind law. Near maximal hermeneutic flexibility made it possible to accommodate canon-blind law even where it clashed with the appar- ent import of the canon. With the impact of the canon out of the pic- ture, the general model for the H￺anafıربكا mainstream simplifies to the model shown in Figure 9.

Hermeneutic flexibility refers to the reading of texts, underscoring the wide range of interpretative options afforded by the hermeneutic meth- ods. It does not imply the flexibility of laws. In fact, there were severe constraints on law. The point is that these constraints did not derive from the canon or from hermeneutic techniques. Legal continuity exerted the principal constraining influence; so, canon-blind law (and hence the law) usually consisted of received law. To be sure, legal change occurred: there were deviations from the received law. However, such divergences were not brought about by the reading of the canon. Rather, their causes should be located in pressing changes in the circumstances or values of the community of jurists. That is, the canon-blind law sometimes differed from the received law in favor of the precedent-blind, canon-blind law.

The more usual understanding of the role of the hermeneutic prin- ciples as tools for deriving the laws from the canon must thus be aban- doned. 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

1. A General Model 31

of the process in fact consisted of legal reasons, including exegetic ratio- nales, that justified the canon-blind law.

The priority of laws over legal reasons is confirmed by logical analy- sis showing that juristic arguments leave the laws indeterminate and by the observation of the extensive role of ad hoc justifications. It is also shown by the historical pattern of the relative stability of laws compared to legal reasons: Laws often temporally preceded the reasons cited for them. Different jurists often cited different reasons (and different exegetic rationales) for the same law. Sometimes a jurist was sure of a law but not sure of its underlying reason. Even more striking is what happened when something went wrong with a legal reason, for example, when a statement formerly thought to be an acceptable h￵adıإلth was found to be no such thing or when the reason was found to contradict other legal reasons upheld in the system. When a reason was thus disqualified, the law it supported was not abandoned as one might expect. More typically, jurists would come up with a new and better reason for the same legal

Canon-blind law

Law advocated

Received law Precedent-blind, canon- blind law (Present

conditions and values)

Threshold for overcoming inertia

0 max

Figure 9. Model of a mainstream H￺anafıربكا jurist’s decision making. Due to max- imal hermeneutic flexibility, the jurist’s reading of the canon plays no causative role in the decision. With the elements related to textual hermeneutics thus elim- inated, the general model reduces to this simplified scheme.

The Logic of Law Making in Islam32

effect. Therefore, even though legal reasons logically precede the laws, there is an important sense in which they are secondary to legal effects: reasons are actually devised to explain (usually existing) legal effects.

The maximal hermeneutic flexibility of the H￺anafıربكاs had two impor- tant historical consequences. First, by reconciling the received law with the canon, it enabled the H￺anafıربكاs to hold on to their legal heritage despite their acceptance of the H￺adıربكاth Folk’s program. This was an important accomplishment given the wide divergences between received law and the h￵adıإلths, as well as the conflicts between h￵adıإلths. Second, in cases where they felt compelled to change the law to fit new values or require- ments, hermeneutic flexibility ensured that the canon would not become an obstacle. Thus, hermeneutic flexibility served the purpose of continu- ity in the former case and change in the latter.

My claim that H ￺anafıربكا jurists’ reading of the canon did not affect their rulings requires some explanation. By it, I mean, for example, that when a H ￺anafıربكا jurist prohibited wine, murder, and adultery, this was not because the canon prohibits these things, even though it is true that the canon prohibits these things. Rather, these H ￺anafıربكا prohibitions reflected the canon-blind law, which equaled the received law thanks to legal inertia. Jurists upheld the prohibitions not because they were in the canon but because they were the received law and were not overruled by new social concerns (i.e., by precedent-blind, canon-blind law). In other words, the H ￺anafıربكا jurists’ prohibitions had two causes: (1) these prohibitions were part of the H ￺anafıربكا heritage, representing the estab- lished precedent of the school, and (2) there were no pressing social circumstances or changes of values of such intensity as to outweigh the desire for continuity. Nothing motivated H￺anafıربكاs to seriously rethink the prohibition of wine, murder, or adultery, as they still found these prohibitions tolerable.

Furthermore, this is not a claim for the irrelevance of the canon to H￺anafıربكا law. It is abundantly clear, for example, that the fact that the Qur’a﻽n and the Prophet banned wine is the cause for the H￺anafıربكا prohi- bition of wine. My claim concerns only the path of causation. This path did not include the postformative H￺anafıربكا jurists’ reading of the canon. Rather, the ban became a legal precedent during the formative period (specifically during the Prophet’s lifetime). This precedent endured for over a century and was incorporated into early H￺anafıربكا law (not every Prophetic precedent was). From this point on, it would endure due to the inertia of the laws of the school and the lack of countervailing changes of values, needs, or circumstances.

1. A General Model 33

These conclusions describe the H￺anafıربكا mainstream. But there were occasional rebels within the school as well, such as Badr al-Dıربكاn al-‘Aynıربكا and Ibn al-Huma﻽m. They appear to have taken a somewhat less flexi- ble approach than the mainstream, giving greater weight to the apparent meaning of the canon.

While this book does not consider the other schools, I offer the con- jecture that they were nearly maximally flexible like the H￺anafıربكاs. Note that this hypothesis does not rule out the possibility that, say, al-Sha﻽fi‘ıربكا adopted less flexible methods and conformed more closely to the appar- ent meaning of the canon. Assuming he did so, that says nothing about the way in which Sha﻽fi‘ıربكا jurists in the postformative era operated. The question remains: did members of the Sha﻽fi‘ıربكا school adopt al-Sha﻽fi‘ıربكا’s position on a given question because of their reading of the Qur’a﻽n and h￵adıإلths, or did they do so because of legal inertia?

The specific legal questions examined include a number of points bear- ing on women’s participation in group prayers: the status of women-only group prayers led by a woman, women’s prayer with men, women lead- ing men, whose (if anyone’s) prayer is nullified when a woman prays next to or in front of men, and distinctions that depend on the type of prayer, the time of day, the age of the woman, and so on. On some of these points, the apparent meaning of the canon was at variance with the received law, hence with the canon-blind law. Yet jurists successfully maintained the canon-blind law. In cases where they did change the law, it was not the apparent meaning of the canon that motivated this. One knows this because the changes moved the laws even further away from the apparent meaning of the canon, generally toward greater restrictions on women. Since the changes were not motivated by the canon, one can conclude that it was generally social circumstances, possibly changing values, that brought about the changes.

Several points may help ward off potential misunderstandings. First, in establishing hermeneutic flexibility, part of my task is to show that a jurist’s interpretation is not the only possible one – in other words, that the legal conclusions do not necessarily follow. The point of such an exercise is not that anything is wrong with the jurist’s arguments or deci- sions or that he should not have supported the law that he did. After all, showing that a law does not follow necessarily from the canon and that alternative interpretations are possible is not tantamount to showing that it is a bad law or that it is irreconcilable with the canon.

Second, lack of bias for the apparent meaning of the canon does not mean that the canon was not considered as binding. It also does not mean

The Logic of Law Making in Islam34

that jurists disrespected or disregarded the canon. Nor does it mean that the canon was interpreted in an insincere manner. The competence and sincerity of jurists is not in doubt. The importance of the canon in the act of interpretation is self-evident, and its role in the establishment of public reason is fundamental (Chapter 7).

Third, I am not interested in laying down any prescription about what degree of hermeneutic flexibility is appropriate in jurisprudence. The pre- sent work is about the historical reality rather than an imaginary norma- tive utopia. A reader who dislikes hermeneutic flexibility might dismiss Islamic legal practice. Unlike such a critic, I have no firm opinion on the need for hermeneutic inflexibility, and therefore no value judgment is implicit in my work. Moreover, a secular critic who thinks that herme- neutic flexibility delegitimizes Sunnıربكا jurisprudence should consider that it may characterize secular legal traditions as well.

More generally, normative ethics falls outside the scope of this study. This book does not make any argument within law; that is, it does not say that any law is good or bad. It also disregards public policy, theology, and metaphysics; it is concerned solely with legal history, historical inter- pretation, descriptive ethics, and descriptive (as opposed to normative) philosophy of law.

1.4.2. Previous Work in the Field Studies of postformative legal hermeneutics have almost always been based on Islamic works of legal theory and philosophy, us￱uإلl al-fiqh. In these works, Muslim scholars prescribed rules of interpretation and addressed fundamental questions of epistemology and hermeneutics with great elegance and acumen. On these matters, their thinking is well worth study in itself.19 However, one cannot assume that these normative and philosophical discussions describe the historical reality of how the

19 For sources in the English language on the classical Muslim genre of legal theory and philosophy (us￱uإلl al-fiqh), see the following: Bernard Weiss, The Search for God’s Law (Salt Lake City: University of Utah Press, 1992), which is a highly detailed and clear paraphrase of a classical source; Bernard Weiss, The Spirit of Islamic Law (Athens: University of Georgia Press, 2006), which is a good overview of Islamic legal theory in English; Mohammad Hashim Kamali, The Principles of Islamic Jurisprudence, rev. ed. (Cambridge: Islamic Texts Society, 1991), which is a survey of theories and posi- tions in the us￱uإلl al-fiqh; Aron Zysow, “The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory” (PhD diss., Harvard University, 1984); Robert Gleave, Inevitable Doubt: Two Theories of Shıإل‘ıإل Jurisprudence (Leiden: Brill, 2000); and Wael Hallaq, A History of Islamic Legal Theory (Cambridge: Cambridge University Press, 1997).

msyed

Cross-Out

msyed

Cross-Out

The Logic of Law Making in Islam154

retained law is not intolerable; it does not tell us whether the law is actu- ally valued. But what about the opposite of continuity: change?

Given the paramountcy of legal inertia, the historian should take note when inertia is overcome and a law is replaced. With the usual cause for a law – inertia – out of the picture, an explanatory gap opens up. The correct explanation for the new law often includes new social and polit- ical circumstances, possibly including new values. Therefore, new laws that replace old ones can potentially reveal more about a community than preexisting laws.

As an example, one may consider the increasing legal restrictions in the H￺anafıربكا tradition on women’s attendance at public prayers. By the sev- enth/thirteenth century, the trend culminated in a total prohibition. As shown in Chapter 5, neither H￺anafıربكا doctrines and decision history nor concern for textual evidence played a role in bringing about this change. The cause, therefore, must be sought in extralegal and extratextual factors such as a shift in social circumstances or values. The precise nature of the social changes that transformed the law warrants research in nonlegal historical sources.

Legal change may be an important clue to social reality, but it is cer- tainly not the only one. If jurists uphold an inherited law, that does reveal something about their worldview: it means that they probably did not find the law unbearable. If they give a justification for a law, that means they did not find the justification offensive or absurd on the face of it. In addition, even though many inherited laws do not mirror a community’s values, some do, particularly in cases where values have not changed since the corresponding law came into being.

7.7. Conclusion: Seeing Law as Law

Oliver Leaman has lamented that art historians frequently see Islamic art as something other than art. They often explain works of art exclusively in nonaesthetic terms, taking them to represent something else: religion, society, a set of essential ideas or artistic principles, or the symbolic mean- ings some Muslims have attached to them.20 These approaches are born of a scholarly mindset that is replicated in different fields with similar results. Thus, much of what Leaman says about the field of art history can be repeated verbatim with the word “art” replaced with “law” or “ritual.”

20 Oliver Leaman, Islamic Aesthetics: An Introduction (Notre Dame, IN: University of Notre Dame Press, 2004), 1–8, 11–17, 47–9.

msyed

Cross-Out

msyed

Underline

msyed

Text Box

Read from here to below... This is a new chapter.

7. From Laws to Values 155

This common mindset can, for example, lead to the notion that laws are coextensive with underlying religious tenets or social values.

Echoing Leaman, I argue that Islamic law should be understood in the first instance as law.21 This appeal presupposes that law is an independent variable, in that many laws cannot be explained in terms of social val- ues, underlying religious tenets, class interests, the meanings that jurists or believers attach to laws, the interpretive standards of legal theory, or the ideologies of ruling elites. This applies, in particular, to the laws bearing upon gender.

Laws cannot be explained adequately by jurists’ legal theories. This is illustrated by the fact that legal dynamics can be similar in commu- nities that espouse incompatible legal theories. For example, it is well known that Sunnıربكاs held that jurists must rely on the authority of past jurists while Shıربكا‘ıربكاs believed that they should not. (Such reliance is often called taqlıإلd, and abstention from it ijtihaالd.) This might lead one to con- jecture that Shıربكا‘ıربكا law has been historically more dynamic than its Sunnıربكا counterpart. But that is not the case. In reality, Sunnıربكا and Shıربكا‘ıربكا legal tra- ditions were all characterized by legal inertia, yet they often accommo- dated change when necessary. Sunnıربكا and Shıربكا‘ıربكا jurists took very seriously the rulings and arguments of earlier jurists within their schools of law, but this did not always prevent reinterpretation. Taking a narrower view, within Sunnism the legal differences among the schools of law are not reducible to disagreements on legal theory,22 and in any case the canons of interpretation in the genre of legal theory (us￱uإلl al-fiqh) were often disregarded. Moreover, turning one’s attention from that genre to the hermeneutic standards operative in positive law (in the furuإل‘ genre), this book has shown that those standards left the laws indeterminate. Nor is the underdetermination of laws by theory unique to Islam.23 In its failure

21 To my knowledge, in the academic field of Islamic studies, the only other significant attempt to theorize Islamic law as law has been undertaken by Sherman Jackson. See Jackson, Islamic Law and the State, 69–141; Jackson, “Kramer versus Kramer,” 27–51; Jackson, “Fiction and Formalism,” 177–201.

22 Sherman Jackson, “Fiction and Formalism,” 179–80. 23 For hermeneutic indeterminacy in Jewish law, see Haim Cohn, “Legal Change in

Unchangeable Law: The Talmudical Pattern,” in Legal Change: Essays in Honour of Julius Stone, ed. A. R. Blackshield (Sidney: Butterworths, 1983), 16. In American juris- prudence, the theoretical controversy over originalism does not determine legal out- comes. (Originalism holds that interpretation should aim at discovering the original intention behind the text of the Constitution.) A jurist’s position on originalism does not predispose him or her to take a particular position. See Steven Knapp and Walter Benn Michaels, “Intention, Identity, and the Constitution: A Response to David Hoy,” in Legal Hermeneutics: History, Theory, and Practice, ed. Gregory Leyh (Berkeley: University

The Logic of Law Making in Islam156

to conform to what one may predict from legal theory, law appears to have a life of its own.

Law also has a mind of its own in the face of state ideology, ideology being another variable that is inadequate for explaining law. As can be rec- ognized also in our own time, legal dynamics may be similar in countries ruled by diametrically opposed ideologies – which is not to say that ideology cannot shape or influence law. Setting aside special cases, Muslim countries ruled by Islamist elites (like Iran) and secular ones (like Egypt before 2012) are broadly similar in the way they relate to the premodern heritage: none have held on to the institution of slavery, almost all retain a premodern ver- sion of family law that has been modified to increase women’s rights, and almost all have borrowed banking and commercial laws wholesale from some European country. This pattern is noteworthy given that many aca- demics consider the restoration of old laws as the raison d’être of Islamism. The resilience of legal dynamics in the face of state ideology is illustrated starkly in the case of Iran. In the Islamic Revolution of 1979, its American- installed, relatively secular dictator was supplanted by an Islamist theoc- racy at loggerheads with the United States. After an initial period in which the revolutionaries abolished some of the liberalizing family-law reforms as part of their campaign to erase the vestiges of the regime they demonized, the Islamist government came to resume and indeed expand such reforms. Thus, the normal pattern in the modern Muslim world has been one of rad- ical change in the laws of commerce and slavery and incremental evolution in family law, no doubt reflecting the different degrees to which different areas of the law have come into conflict with the new economic and social realities.24 This pattern suggests that legal inertia is operative everywhere: the laws remain as they were, but may change when they clash with the new environment. Cases in which a Muslim country has departed from this pattern by abolishing Islamic law altogether have arisen only in the after- math of war or revolution and have involved coercion by authoritarian ruling cliques or occupation by the Soviets.25

of California Press, 1992), 187–99; cf. Stanley Fish, “Play of Surfaces: Theory and the Law,” in Legal Hermeneutics: History, Theory, and Practice, ed. Gregory Leyh (Berkeley: University of California Press, 1992), 297–9.

24 By the word “evolution” I do not imply progress toward something better. Rather, I mean adapting to better fit the environment. I am drawing an analogy to biological evolution, in which clashes with environmental challenges favor the spread of fitness-enhancing adaptations. The evolutionary analogy is pursued further in Chapter 8, “The Logic of Law-Making.”

25 Kecia Ali has argued that it is not possible to change Islamic family law in a piecemeal fashion. Her argument is based on the assumption that the premodern laws were based

7. From Laws to Values 157

If legal dynamics are not fully reducible to ideology and culture, there ought to be instances of the same mechanism operating in different cul- tures and time periods, thus legitimizing comparative investigations. It may therefore be useful to consider analogues in other legal traditions to some of the processes found in Islamic jurisprudence. I have done so already in the discussion of legal inertia, defined as the tendency of the laws to endure. Now I would like to focus on processes of textual interpretation by noting some similarities in the ways in which the U.S. Constitution on the one hand and the Qur’a﻽n and the H￹adıإلth on the other hand are inter- preted. Despite the use of the present tense, my focus is on the premodern postformative schools of Islamic law. I offer only a brief and preliminary attempt, though such comparisons could form the subject of many mono- graphs. Six parallelisms may be mentioned:

1. The U.S. Constitution and the Qur’a﻽n and H￹adıإلth are texts, not a completely trivial commonality since historically not all legal tra- ditions rely on texts.

2. Statements from the U.S. Constitution and the Qur’a﻽n and some h￵adıإلths are absolutely binding, unless amended (in the American

on certain patriarchal models that Muslims today tend to find unacceptable, for example, models that analogized marriage to sale or slavery. It follows that Muslims cannot have it both ways: they cannot modify some of the laws while retaining others that were origi- nally derived from those same now-objectionable values and models. Their only option is to give up the entire framework along with all of the laws that rest upon it. See Kecia Ali, “Money, Sex, and Power: The Contractual Nature of Marriage in Islamic Jurisprudence of the Formative Period” (PhD diss., Duke University, 2002), 477; Kecia Ali, Sexual Ethics and Islam (Oxford: Oneworld, 2006), 13; Kecia Ali, “Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law,” in Progressive Muslims: On Justice, Gender and Pluralism, ed. Omid Safi (Oxford: Oneworld, 2003), 180–3.

This argument is based on a misunderstanding of legal dynamics. Here I set aside Ali’s problematic implicit assumption that the models premodern jurists cited in support of the laws had actually generated those laws. For the sake of argument, let us assume that they did. Equally problematically, she also assumes that the laws depend on the reasons given for them, so that if the legal reasons are delegitimized, then so are the laws. In real- ity, however, legal reasons have a secondary status compared to the laws: normally they adapt to accommodate the laws rather than the other way around. Case studies show that if a rationale is disqualified, the laws resting upon it do not necessarily fall. Jurists may tenaciously hold onto a law without accepting the rationales and values that were originally associated with it. In any case, the best proof for the proposition that Islamic family law can be modified in a piecemeal fashion is the fact that it has been modified in a piecemeal fashion in most Muslim countries. Piecemeal change has also been achieved in non-Muslim cultures that possess legal heritages that are no less patriarchal. Ali’s paradigm thus fails to explain the empirical facts – facts that on the other hand fit well with the present book’s conception of legal dynamics.

The Logic of Law Making in Islam158

case) or abrogated (in the Islamic case).26 Although nobody con- siders the American Constitution scripture or its authors infalli- ble, for the American jurist the Constitution is just as binding as the Qur’a﻽n is for the Muslim jurist: a jurist cannot declare any un-amended part of the Constitution as nonbinding. Here and in a number of other cases an essential difference between the two legal traditions – namely, one being religious and the other secu- lar – turns out to be less consequential than it might first appear.

A well known consequence of having fixed, binding texts is that one normally cannot change the sources in order to effect legal change; instead one has to reinterpret the sources.27 Thus, in both the American and classical Islamic cases there is the phenomenon of legal change through reinterpretation. But there is one mecha- nism of legal change in the constitutional case that is not available in the Islamic one, namely constitutional amendments.

Because one can amend a constitution but not the Qur’a﻽n, it may be tempting to assume that legal change can happen more frequently in a secular legal tradition. However, that assumption is likely to prove false. On the one hand, on the American side, constitutional amendments are an unusual way of effecting legal change; in the majority of cases legal change is achieved through reinterpreting the relevant precedents and the existing text. On the other hand, on the Islamic side, while no text or law can be abrogated after the Prophet’s death, the determination of exactly what was abrogated is often a matter of interpretation and is sub- ject to frequent disagreement. This ambiguity thus introduces an extra measure of flexibility in the Islamic case. There is no com- parable gray zone in the American tradition: jurists agree on what amended what. In sum, in both traditions interpretation is the pri- mary mechanism for justifying legal change, and it is not to be taken for granted that the methods of interpretation make change easier in one tradition than the other.

26 Cf. Jaroslav Pelikan, Interpreting the Bible and the Constitution (New Haven and London: Yale University Press, 2004), 8–11.

27 However, prior to the closing of the canon, legal change can take place through changes in the canon, as can be observed, for example, in the h￵adıإلth literature or in the Hebrew Bible. On the latter, see, for example, Bernard Levinson, Legal Revision and Religious Renewal in Ancient Israel. Despite its title, Levinson’s book is about theological change rather than legal revision.

7. From Laws to Values 159

3. In both traditions the interpretations of previous jurists carry a great deal of authority, though not the absolute authority of the canon (the Qur’a﻽n and h￵adıإلths or American Constitution).28 This point is not trivial since one could imagine a world in which jurists normally paid no attention to precedent and worked directly with the foundational texts. (Such an unfettered approach is one of the senses in which the word ijtihaالd is used.) In reality, jurists work within traditions – within the schools of law (madhhabs) in the classical Islamic case.

4. Related to the last point is the counterintuitive fact that if one were limited to reading the canon, one would not be able to predict the law reliably without the benefit of hindsight. In a sense, the legal meaning of the text is fixed by later interpretation. In some cases this meaning differs from what a reader may gather by reading the canon without reference to the jurisprudence constructed upon it and without knowledge of the new social values and conditions that may have occasioned new interpretations. In the striking for- mulation of one author, “no one is sure what the law is today, but later, when the Supreme Court resolves the split, we will have known what the law was all along.”29

5. Furthermore, legal change often tends to take place through adjusting previous laws when possible rather than through build- ing new construals from the ground up. Legal reasoning thus tends to develop in a cumulative and incremental fashion. If jurists wish to change the inherited ruling in a particular case, rather than getting rid of the existing law that governs the case, they will tend merely to qualify it with a different existing law or legal principle or qualify it with a new law or principle of rela- tively limited scope. The jurist thus usually makes the minimum amount of change in the system needed to achieve the purpose. This phenomenon is illustrated and analyzed in Chapter 8, “The Logic of Law-Making.”

6. Each tradition has its own public reason, including requirements for how a legal argument may be formulated. Public reason has features that are distinctive and unique to the tradition. But there

28 Compare Pelikan, Interpreting the Bible and the Constitution, 115–22. 29 David Carlson, “The Traumatic Dimension in Law,” Cardozo Law Review 24.6 (2003):

2287.

The Logic of Law Making in Islam160

are also remarkable commonalities in the patterns of argumen- tation. For example, in a legal dispute the opposing jurists often justify their positions by drawing analogies to different cases, appealing to the plain meaning of the text, or delimiting the scope of a law or legal principle in different ways.

In conclusion, once law is envisioned as an independent variable, its relationship with social reality ceases to be transparent, and legal litera- ture is revealed as a treacherous guide to social reality. While some laws may mirror the values of a community, such as those of jurists, many do not. In attempting to learn about a society from its laws and legal litera- ture, four caveats should be borne in mind:

First, inherited laws can be retained due to legal inertia even if their underlying values are rejected. The adjacency law in the H￺anafıربكا tradition provides a striking example. The values that generated its prototype in the first/seventh century soon became alien and unacceptable to Islamic thinkers; nevertheless, the law itself could be tolerated, and therefore it endured, and has endured until today. This is so because laws have greater staying power than the meanings or values attached to them.

Second, the justifications given for the laws should not be equated with jurists’ motives for supporting the laws. The justifications are tailored to fit the recognized standards of legal argumentation, and in many cases one can show that jurists’ actual motives were altogether different from the justifications they constructed.

Third, statements in legal literature about social conditions and values should not always be taken at face value. The endeavor to justify the laws provides the subtext for some such statements. The law to be justified was at times taken as the touchstone by which other evidence was judged. Just as the binding texts, such as the scripture, were interpreted to accom- modate the law, so was the “text of the world” on occasion reimagined, refracted, and reshaped. In sum, statements of fact in the legal literature should be evaluated against the backdrop of jurists’ efforts to justify the laws.

Fourth, one cannot always assume that everything a jurist wrote rep- resented his personal conclusions and positions, since jurists effectively served as spokesmen for their legal schools.

All of this is not to argue for a complete disjunction between laws and other social realities, including values. When a law changes, it is normally a sign of social or political change of one sort or another. There are also other ways of inferring values, a few of which were mentioned in the

7. From Laws to Values 161

previous section. While these methods are not enough to claim that law mirrors values in general, they do make it plausible to say that law has to reach a tenuous accommodation with values. Putting the matter this way presupposes that law possesses dynamics of its own that make it some- what independent of other elements of social reality such as the values of a community.

Excursus: A Historian’s “Public Reason”

In Section 7.3, I used the term “public reason” in the sense of “the shared standards of argumentation that help to create a framework within which different actors and interests in a community could pursue conflict or cooperation.” This term has been used by a number of authors, most famously John Rawls, in different senses.30 Rawls writes, “There is no settled meaning of this term. The one I use is not I think peculiar.”31 The sense in which I use the term is different from that of Rawls, and it is not peculiar either. The most important difference between Rawls’s usage of “public reason” and mine concerns the community to which it is applied. Rawls dwelt on the concept in the context of the citizens of a liberal, democratic, constitutional state. By contrast, my usage is not limited to a democracy. It could apply to a community of male citizens before suf- frage is extended to women or of free persons before slavery is abolished. Indeed, public reason as I define it is applicable to an arbitrary community, be it a country, a class of oligarchs, a group of jurists, or a professional guild. This difference with Rawls reflects the different interests of the his- torian who aims to describe real communities versus the moral philoso- pher who prescribes principles governing an idealized political order that may or may not exist in reality.

A comparison to Rawls might at first appear superficial on the assump- tion that his “public reason” cannot accommodate comprehensive doc- trines such as Islamic religion or H￺anafıربكا law. This may appear so because for Rawls public reason involves “political” conceptions that “can be pre- sented independently from comprehensive doctrines of any kind (although

30 John Rawls, Political Liberalism, expanded ed. (New York: Columbia University Press, 2005), 212–54 and 440–90. The last part of this expanded edition of the book (440–90) reproduces a 1997 article that constitutes a significant revision of the rest of the book and a fairly clear statement of the ideas. It originally appeared as Rawls, “The Idea of Public Reason Revisited,” University of Chicago Law Review 64.3 (1997): 765–807.

31 Rawls, Political Liberalism, 443.

The Logic of Law Making in Islam162

they may, of course, be supported by a reasonable overlapping consensus of such doctrines).”32 (By “comprehensive doctrines” Rawls means reli- gious or secular ideologies or worldviews that take stances on concrete questions of law and policy – the penal code, marriage laws, whether abortion should be legal, whether there should be a draft, the forms of taxation, and so on. “Public reason,” by contrast, belongs primarily to the more restricted “political” realm, involving the means by which such con- crete questions are determined, including but not limited to constitutional and procedural standards and such notions as the equality of citizens regardless of sex or race. Comprehensive doctrines may treat such prop- erly “political” questions alongside “nonpolitical” ones.) Indeed, since Rawls and I use “public reason” in different senses, it is not necessary that my usage be isomorphic to his.

However, there is a fundamental affinity between our conceptions. The key to seeing this lies in the qualification that Rawls places within paren- theses in the above quotation, namely, that the principles of public reason may “be supported by a reasonable overlapping consensus of [compre- hensive] doctrines.” For Rawls, principles from a comprehensive doctrine can form part of public reason if they are shared by other reasonable com- prehensive doctrines in the community – in other words, if they are part of what he calls an “overlapping consensus.” A country that is comprised of different religious and secular groups may or may not come to agree on political principles that are recognizably characteristic of one religion. However, public reason, as I use the term, is always defined relative to a community, and if the community in question is that of H￺anafıربكا jurists, the overlapping consensus will be characteristically Islamic and indeed H￺anafıربكا.

H￺anafıربكا jurists with different comprehensive doctrines – for example, those with a patriarchal agenda and those who are relatively egalitarian – can then argue for their respective positions on different points of law by use of the shared standards of reasoning. In this way, distinctively reli- gious standards could indeed allow different comprehensive doctrines to compete on a level playing field. For both Rawls and me, public reason can thus have an equalizing effect ceteris paribus within the community to which the term is applied. And for both of us, public reason represents an overlapping consensus of comprehensive doctrines. Most of the incon- sistencies in his concept and mine are consequences of a single difference: the fact that we apply the term to different communities.

32 Rawls, Political Liberalism, 453; cf. 218, 223.