Posted on by Mark Movsesian

A New Study of Fatwas in Islamic Law

Even people who know little about Islamic law have heard of the fatwa: an opinion, issued by a qualified scholar, or mufti, on a question of Islamic law. In classical thought, a fatwa is not binding in itself; its authority is persuasive and dependent largely on the learning and reputation of the mufti who issues it. The relationship in Islamic law between fatwas and court judgments, which are binding, is a fascinating one and worthy of sustained study.

A new book from Cambridge, Fatwa and the Making and Renewal of Islamic Law
From the Classical Period to the Present, explores the history of the practice. The author is Omer Awass (American Islamic College). Here’s the publisher’s description:

In this book, Omer Awass examines the formation, history, and transformation of the Islamic legal discourse and institutions through the lens of a particular legal practice: the issuance of fatwas (legal opinions). Tracing the growth of Islamic law over a vast geographical expanse -from Andalusia to India – and a long temporal span – from the 7th to the 21st century, he conceptualizes fatwas as the ‘atomic units’ of Islamic law. Awass argues that they have been a crucial element in the establishment of an Islamic legal tradition. He also provides numerous case studies that touch on economic, social, political, and religious topics. Written in an accessible style, this volume is the first to offer a comprehensive investigation of fatwas within such a broad spatio-temporal scope. It demonstrates how instrumental fatwas have been to the formation of Islamic legal traditions and institutions, as well as their unique forms of reasoning.

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On Temporary Marriage in Islam

In at least some interpretations of Islamic law, there exists the concept of “mut’a” or “pleasure” marriage, a temporary arrangement the duration of which the parties specify in advance. As I understand it, mut’a marriage is limited nowadays to certain schools of Shi’a Islam; Sunni scholars by and large reject it. A new book from Rowman and Littlefield, Marital and Sexual Ethics in Islamic Law: Rethinking Temporary Marriage, explores the present-day understanding of the concept from a variety of Islamic perspectives, including feminist perspectives. The author is Roshan Iqbal (Agnes Scott College). Here’s the publisher’s description:

Roshan Iqbal traces the intellectual legacy of the exegesis of Qur’an 4:24, which is used as the proof text for the permissibility of mut’a (temporary marriage) and asks if the use of verse 4.24 for the permissibility of mut’a marriage is justified within the rules and regulations of Qur’anic hermeneutics. Iqbal examines seventeen Qur’an commentaries, the chronological span of which extends from the first extant commentary to the present day in three major Islamicate languages. Iqbal concludes that doctrinal self-identity, rather than strictly philological analyses, shaped the interpretation of this verse. As Western academia’s first comprehensive work concerning the intellectual history of mut’a marriage and sexual ethics, this work illustrates the power of sectarian influences on how scholars have interpreted verse 4:24. This book is the only work in English that includes a plurality of voices from minor schools (Ibadi, Ashari, Zaidi, and Ismaili) largely neglected by Western scholars, alongside major schools, and draws from all available sub-genres of exegesis. Further, by revealing ambiguities in the interpretation of mut’a, this work challenges accepted sexual ethics in Islamic thought—as presented by most classical and many modern Muslim scholars—and thus opens up space to theorize Islamic sexual ethics anew and contribute to this crucial conversation from the perspective of Muslim feminism.

Posted on by Mark Movsesian

Christian and Muslim Approaches to Law

One of the very earliest recorded encounters between a Christian and a Muslim, a public debate between a Syriac patriarch and an Arab emir shortly after the Arab conquest of Syria, concerns the role of law in religion. Without a body of law, the emir insisted, Christianity could not call itself a religion; Christians should convert to Islam, a real religion that had the Sharia. The patriarch responded that Christians indeed had law, though not as Muslims understood it; Christians had no need to convert. I thought of this debate when I saw a notice for a forthcoming book from Cambridge, Law and the Rule of God: A Christian Engagement with Sharia, by Joshua Rallston (Edinburgh). Law–or, rather, the proper conception of law–is a major point of contention between these two world religions, and a comparative study like this one seems very promising. The publisher’s description follows:

Sharī’a is one of the most hotly contested and misunderstood concepts and practices in the world today. Debates about Islamic law and its relationship to secularism and Christianity have dominated political and theological discourse for centuries. Unfortunately, Western Christian theologians have failed to engage sufficiently with the challenges and questions raised by Islamic political theology, preferring instead to essentialize or dismiss it. In Law and the Rule of God, Joshua Ralston presents an innovative approach to Christian-Muslim dialogue. Eschewing both polemics and apologetics, he proposes a comparative framework for Christian engagement with Islamic debates on sharī’a. Ralston draws on a diverse range of thinkers from both traditions including Karl Barth, Ibn Taymiyya, Thomas Aquinas, and Mohammad al-Jabri. He offers an account of public law as a provisional and indirect witness to the divine rule of justice. He also demonstrates how this theology of public law deeply resonates with the Christian tradition and is also open to learning from and dialoguing with Islamic and secular conceptions of law, sovereignty, and justice.

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A New Book on Salafism

Salafism is a movement within Islam that seeks to return to what it understands as the earliest, and therefore purest, expressions of Islamic law and practice, from the time of the first few generations of Muslim believers. In a sense, it can be seen as a kind of originalism, opposed to the more conventional Islamic law traditionalism that views the earliest expressions as mediated through the writings of succeeding legal scholars.

A new book from Stanford University Press, On Salafism: Concepts and Contexts, by scholar Azmi Bishara, argues that Salafism is best understood as a contemporary phenomenon based, not in early Islam, but in the current social and political context. Here is the publisher’s description:

On Salafism offers a compelling new understanding of this phenomenon, both its development and contemporary manifestations. Salafism became associated with fundamentalism when the 9/11 Commission used it to explain the terror attacks and has since been connected with the violence of the so-called Islamic State. With this book, Azmi Bishara critically deconstructs claims of continuity between early Islam and modern militancy and makes a counterargument: Salafism is a wholly modern construct informed by specific sociopolitical contexts.

Bishara offers a sophisticated account of various movements—such as Wahabbism and Hanbalism—frequently collapsed into simplistic understandings of Salafism. He distinguishes reformist from regressive Salafism, and examines patterns of modernization in the development of contemporary Islamic political movements and associations. In deconstructing the assumptions of linear continuity between traditional and contemporary movements, Bishara details various divergences in both doctrine and context of modern Salafisms, plural. On Salafism is a crucial read for those interested in Islamism, jihadism, and Middle East politics and history.

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A New Book on Human Rights and Islamic States

Several years ago, I wrote an essay on the concept of human dignity in different legal systems, including the Islamic. Most legal systems honor human dignity, but the concept has different meanings, depending on history, culture, tradition, and deep political and religious commitments. I believe the same thing is true for the concept of human rights. The universal acknowledgement of human rights obscures real differences across the globe.

A new book from Bloomsbury, Human Rights Commitments of Islamic States, by Paul McDonough (Cardiff), examines questions at the intersection of international human rights and Islamic law. Looks very interesting. Here is the publisher’s description:

This book examines the legal nature of Islamic states and the human rights they have committed to uphold. It begins with an overview of the political history of Islam, and of Islamic law, focusing primarily on key developments of the first two centuries of Islam. Building on this foundation, the book presents the first study into Islamic constitutions to map the relationship between Sharia and the state in terms of institutions of governance. It then assesses the place of Islamic law in the national legal order of all of today’s Islamic states, before proceeding to a comprehensive analysis of those states’ adherences to the UN human rights treaties, and finally, a set of international human rights declarations made jointly by Islamic states.

Throughout, the focus remains on human rights. Having examined Islamic law first in isolation, then as it reflects into state structures and national constitutional orders, the book provides the background necessary to understand how an Islamic state’s treaty commitments reflect into national law. In this endeavour, the book unites three strands of analysis: the compatibility of Sharia with the human rights enunciated in UN treaties; the patterns of adherence of Islamic states with those treaties; and the compatibility of international Islamic human rights declarations with UN standards. By exploring the international human rights commitments of all Islamic states within a single analytical framework, this book will appeal to international human rights and constitutional scholars with an interest in Islamic law and states. It will also be useful to readers with a general interest in the relationships between Sharia, Islamic states, and internationally recognised human rights.

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An Intellectual History of the Ja’fari School

The Ja’fari School represents the principal method of jurisprudence in Shi’a Islam and the official source of Islamic law under the Iranian Constitution. It is comparatively less well known among students of Islamic law in the West, who tend to focus on the four Sunni schools of fiqh. A new book from Harvard, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law, offers an intellectual history of the school’s founder, the eighth century scholar Jaʿfar al-Ṣādiq. The author is Near Eastern Studies Professor Hossein Modarressi (Princeton). Here is the description from the publisher’s website:

Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law examines the main characteristics of the legal thought of Imam Jaʿfar al-Ṣādiq, a preeminent religious scholar jurist of Medina in the first half of the second century of the Muslim calendar (mid-eighth century CE). Numerous works in different languages have appeared over the past half century to introduce this school of Islamic law and its history, legal theory, and substance in contexts of Shīʿī law.

While previous literature has focused on the current status of the school in its developed and expanded form, this book presents an intellectual history of how the school began. The Jaʿfarī school emerged within the general legal discourse of the late Umayyad and early Abbasid periods, but was known to differ in certain approaches from the other main legal schools of this time. Namely, the Jaʿfarī school expanded the tools for legal interpretation generally and contracts specifically, to a degree unmatched by any of its counterparts in the Muslim legal tradition. In addition to sketching the origins of the school, the book examines Jaʿfar al-Ṣādiq’s interpretive approach through detailing his position on a number of specific questions, as well as the legal canons, presumptions, and other interpretive tools he adopted.

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Kamali on Hudud Crimes in Islam

In classical Islamic law, Hudud crimes are those committed against Allah and for which Allah has mandated punishments that man cannot alter. The schools differ on the precise definition, but Hudud crimes include apostasy, illicit sexual intercourse, some forms of theft, and drinking alcohol. Punishments for Hudud crimes are severe, but classical Islamic law insisted on high standards of proof that made convictions very difficult.

A new book from Oxford, Crime and Punishment in Islamic Law: A Fresh Interpretation, by Mohammad Hashim Kamali, one of the foremost scholars of Islamic law writing in English today, argues for what he calls a “fresh” reading of the sources on Hudud offenses. Here is the description from the publisher’s website:

In Crime and Punishment in Islamic Law: A Fresh Interpretation, Mohammad Kamali considers problems associated with and proposals for reform of the hudud punishments prescribed by Islamic criminal law, and other topics related to crime and punishment in Shariah. He examines what the Qur’an and hadith say about hudud punishments, as well as just retaliation (qisas), and discretionary punishments (ta’zir), and looks at modern-day applications of Islamic criminal law in 15 Muslim countries. Particular attention is given to developments in Malaysia, a multi-religious society, federal state, and self-described democracy, where a lively debate about hudud has been on-going for the last three decades. Malaysia presents a particularly interesting case study of how a reasonably successful country with a market economy, high levels of exposure to the outside world, and a credible claim to inclusivity, deals with Islamic and Shariah-related issues.

Kamali concludes that there is a significant gap between the theory and practice of hudud in the scriptural sources of Shariah and the scholastic articulations of jurisprudence of the various schools of Islamic law, arguing that literalism has led to such rigidity as to make Islamic criminal law effectively a dead letter. His goal is to provide a fresh reading of the sources of Shariah and demonstrate how the Qur’an and Sunnah can show the way forward to needed reforms of Islamic criminal law.

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Rashid Rida and Islamic Reform

Rashid Rida was an Islamic reformer, active in the early part of the 20th Century, who advocated reopening the gates of interpretation of Islamic law in order to address issues of modernity–including new scientific discoveries and technologies being imported from the West. A book out this summer from Columbia University Press, Modern Things on Trial: Islam’s Global and Material Reformation in the Age of Rida, 1865–1935, describes his influence in Islamic law and civilization. The author is Leor Halevi (Vanderbilt). Here’s the description from the publisher’s site:

In cities awakening to global exchange under European imperial rule, Muslims encountered all sorts of strange and wonderful new things—synthetic toothbrushes, toilet paper, telegraphs, railways, gramophones, brimmed hats, tailored pants, and lottery tickets. The passage of these goods across cultural frontiers spurred passionate debates. Realizing that these goods were changing religious practices and values, proponents and critics wondered what to outlaw and what to permit.

In this book, Leor Halevi tells the story of the Islamic trials of technological and commercial innovations of the late nineteenth and early twentieth centuries. He focuses on the communications of an entrepreneurial Syrian interpreter of the shariʿa named Rashid Rida, who became a renowned reformer by responding to the demand for authoritative and authentic religious advice. Upon migrating to Egypt, Rida founded an Islamic magazine, The Lighthouse, which cultivated an educated, prosperous readership within and beyond the British Empire. To an audience eager to know if their scriptures sanctioned particular interactions with particular objects, he preached the message that by rediscovering Islam’s foundational spirit, the global community of Muslims would thrive and realize modernity’s religious and secular promises.

Through analysis of Rida’s international correspondence, Halevi argues that religious entanglements with new commodities and technologies were the driving forces behind local and global projects to reform the Islamic legal tradition. Shedding light on culture, commerce, and consumption in Cairo and other colonial cities, Modern Things on Trial is a groundbreaking account of Islam’s material transformation in a globalizing era.

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Popular Sovereignty in Islam

We start the week with an interesting-looking book from Harvard on how Islamist movements have adopted popular sovereignty–an idea unknown in classical Islam–as a main element of their political programs. In classical Islam, Islamic law was the domain of scholars, who had authority to guide the ruler, or caliph, in governing the umma. But many contemporary Islamist movements distrust, or at least diminish, the role of scholars. Instead, these movements argue that the Muslim people have the authority to instantiate God’s law and govern society in a godly way. This is a real transformation in Islamic thought, with major implications. The book is The Caliphate of Man: Popular Sovereignty in Modern Islamic Thought, by political scientist Andrew March (University of Massachusetts-Amherst). The publisher’s description follows:

A political theorist teases out the century-old ideological transformation at the heart of contemporary discourse in Muslim nations undergoing political change.

The Arab Spring precipitated a crisis in political Islam. In Egypt Islamists have been crushed. In Turkey they have descended into authoritarianism. In Tunisia they govern but without the label of “political Islam.” Andrew March explores how, before this crisis, Islamists developed a unique theory of popular sovereignty, one that promised to determine the future of democracy in the Middle East.

This began with the claim of divine sovereignty, the demand to restore the sharīʿa in modern societies. But prominent theorists of political Islam also advanced another principle, the Quranic notion that God’s authority on earth rests not with sultans or with scholars’ interpretation of written law but with the entirety of the Muslim people, the umma. Drawing on this argument, utopian theorists such as Abū’l-Aʿlā Mawdūdī and Sayyid Quṭb released into the intellectual bloodstream the doctrine of the caliphate of man: while God is sovereign, He has appointed the multitude of believers as His vicegerent. The Caliphate of Man argues that the doctrine of the universal human caliphate underpins a specific democratic theory, a kind of Islamic republic of virtue in which the people have authority over the government and religious leaders. But is this an ideal regime destined to survive only as theory?

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The Oxford Handbook of Islamic Law

9780199679010Oxford has released a new collection of essays on Islamic law, The Oxford Handbook of Islamic Law, edited by Anver Emon (University of Toronto) and Rumee Ahmed (University of British Columbia). Looks like a helpful addition to the literature. Here is the publisher’s description:

A landmark study of the most significant topics in field, The Oxford Handbook of Islamic Law is the first of its kind to offer a systemically sustained critical interrogation of the study of Islamic law to date. With entries from leading scholars, this volume delivers a historiographical examination of Islamic law, familiarizing readers with some of the most important names and ideas in the field.

While capturing the state of contemporary legal studies by chronicling how far the field has come, the Handbook’s unique strength lies in how each entry explains why certain debates recur in certain areas of study, while also indicating fundamental gaps in our knowledge of this legal tradition. Moreover, each entry charts out bold new avenues for research that map out the future study of Islamic law. The Handbook will be an essential resource for scholars and students of Islam and Islamic law for years to come.