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Book: Islam and Law in Lebanon: Sharia within and without the State

In this book, Morgan Clarke offers an authoritative and dynamic account of how the sharia is invoked both with Lebanon’s state legal system, as Muslim family law, and outside it, as a framework for an Islamic life and society.

The modern state of Lebanon, created after the fall of the Ottoman Empire, is home to eighteen officially recognised different religious communities (or sects). Crucially, political office and representation came to be formally shared along confessional lines, and the privileges of power are distributed accordingly. One such key prerogative is exclusivity when it comes to personal status laws: the family legal affairs of each community. In this book, Morgan Clarke offers an authoritative and dynamic account of how the sharia is invoked both with Lebanon’s state legal system, as Muslim family law, and outside it, as a framework for an Islamic life and society. By bringing together an in-depth analysis of Lebanon’s state-sponsored sharia courts with a look at the wider world of religious instruction, this book highlights the breadth of the sharia and the complexity of the contexts within which it is embedded.

Introduction of the Book

This book is an account of the social life of the sharia in Lebanon at the beginning of the twenty-first century. It draws on extensive and in-depth anthropological fieldwork in both Sunni and Shi‘i Muslim settings, and seeks to describe and analyse the diverse modes and contexts in which different actors invoke the sharia, God’s right path through life, as legalistically conceived within the Islamic tradition. I turn from lessons in the mosque, to sessions in Lebanon’s state-sponsored sharia (family law) courts, and on to the projects and institutions of one of the country’s then most famous Islamic personalities, Ayatollah Muhammad Husayn Fadlallah (d. 2010). This breadth of scope seeks to capture something of the breadth of the sharia itself. It has been said that the sharia is a ‘total’ discourse, potentially addressing every aspect of life, even if, importantly, the sharia does not comprise the totality of Islam. This book thus provides a sustained examination of what it means to take seriously a transcendent normative ideal, as a model for one’s own life and as a model for the lives of others.

While often glossed as ‘Islamic law’, the sharia can be seen as providing not just legal, but also ethical precepts, as well as defining correct worship. Given that the content of those precepts is a matter of interpretation and debate, I thus prefer to talk of ‘sharia discourse’: the mass of texts, conversations and institutions focused on the divine sharia. There are many excellent academic studies of the employment of such sharia discourse as law for the settlement of disputes in a wide range of historical contexts, very often based on court records. An important strand of this work has been interested in comparing the classical Islamic legal tradition with law in the West. Contemporary instances of sharia as state law have, however, an ambivalent status. Sometimes taken as representative of the tradition, they are also often seen as distinct due to the ruptures of colonial and indigenous modernity. These contemporary instances generally take the form of the use of sharia discourse as family law within a larger, more or less secular legal system, as is the case in Lebanon. There is thus a rich literature on Muslim family law, which understandably focuses on issues of gender and reform and has more obviously pragmatic implications. For reasons I come to, Lebanon has not been so thoroughly studied as other countries in this regard, and it is one aim of this book to help address that. Among other things, I give an account of how marriage, divorce and other family legal issues are treated in the Lebanese Sunni and Shi‘i sharia courts. Another equally fascinating body of work, much of it by anthropologists, has examined Muslim piety and ethical practice in what is sometimes styled as ‘everyday life’ beyond the courts. This literature is not always interested in sharia per se, but the sharia provides a hugely important resource for Muslims seeking to lead a virtuous life and it is this aspect of sharia-minded practice that I am thinking of here as ethical.

These literatures are to a large extent separate. In this book, by contrast, I have tried to consider sharia as both ethics and law, and further, the relations between the two. While a study of Lebanon’s sharia courts lies at the centre of the book, I also explore the ways in which the sharia is invoked outside the courts, in the mosque and in the offices of religious authorities whose legalistic ethical interventions shape virtuous Muslim practice. I thus bring together different sorts of ethnographic material as well as different sets of theoretical concerns. My overall aim in doing so is both to make a substantial and novel contribution to the study of Islam, family law and the communitarian state in Lebanon and, more ambitiously, to address larger themes about the nature of the sharia more generally. More than that, as an anthropologist, I think my findings and ideas relevant to still more general conversations about the human condition, in particular the relationship between transcendental values–‘religious’ or otherwise–and social practice.

Academic understanding of Islam has made genuine advances over the last century and more. Recent work, sensitive to the possible pernicious effects of Western depictions of Islam, has stressed the flexibility and progressive nature of Islamic discourse, in contrast with an alleged previous caricature of the Islamic tradition as static and conservative. This is important. But it is obvious that Islamic actors and discourse can in fact be both, sometimes rigid and unsympathetic, sometimes open-minded and flexible. How that can be so–a question not so often asked–is a key concern of this book. Instead of the sharia’s flexibility, I thus like to think (loosely) in terms of what biologists call plasticity. Characteristics will be expressed differently in different environments. Some environments tend to express the sharia’s flexibility, while others tend to harden it. In Lebanon, non-state, ‘ethical’ uses of the sharia are more likely to favour the former, I contend, and state legal ones the latter. This is therefore an ecological approach to the sharia, one with which an anthropologist, used to field study, can be happy.

However, I do correspondingly still hold that environment is not all: the sharia does have its own distinctive qualities which favour characteristic forms of expression. That is, there are some things that are crucial to it, without which it would surely be implausible to claim of some thing that it is genuinely of the sharia. One such necessary characteristic, to my mind, is the divinity of the sharia’s ultimate source: it is God’s law, and thus in theory perfect. However, human attempts to understand and apply this perfect law are necessarily flawed, to a greater and lesser extent. The human science of Islamic legal studies, fiqh, is thereby of ten distinguished from its object, the divine sharia. And consequently there is an intrinsic tension between the divine ideal and its mundane instantiation whose consequences I trace through this book.

This tension can be expressed in many forms and leads to others. My central organising theme is the contrast between the employment of sharia discourse within the state and outside it. This comes to me from my fieldwork: only certain portions of the sharia are applied as family law in Lebanon with the backing of the executive arms of the state; only a limited set of Lebanon’s Islamic religious professionals are employed to do so. There are many who invoke the sharia in contexts outside those sanctioned by the state, and the contrast between working for the state or the state-backed official religious establishment and working independently of it is one that I found frequently discussed. Whether or not to work for the potentially unjust ruler is a long-standing dilemma in the Islamic tradition; our contemporary environment of nation states poses the question in its own way. It also provides a characteristically modern way of imagining an alternative, a putative ‘Islamic state’ that would in some way instead form an integrated and legitimate whole.

The tension between state and non-state does not, however, map simply onto the distinction between ‘law’ and ‘ethics’ that I have just invoked and that now needs further comment. In the modern Western tradition, now globalised in the form of the nation state, one does indeed think broadly of law as the domain of actionable norms subject to the tribunals and sanctions of the state, and ethics as the domain of personal and inter-personal norms beyond. These are the senses in which I rather loosely employ the terms in this book, and which do make sense in the context of modern Lebanon. But while this monopolisation of law by the state may be axiomatic for Western ‘bourgeois legality’, it is not necessarily so for other traditions, including the sharia, which gives ultimate legal sovereignty instead to God. One can, for example, marry and divorce to God’s satisfaction independently of the state. A key and related distinction made by the Muslim actors I worked with is thus between ‘sharia’ (al-shar’) and ‘law’(qanun), by which they mean human-made state law. A form of law other than that of the state is not only imaginable, but readily available in sharia discourse. It can be acted upon without, even contrary to, the sanction of the state, as we will see. This does not preclude the possibility that sharia discourse might itself be employed as state law, nor indeed that the sharia itself contains distinctions between different sorts of norms, ones that could be glossed as ‘legal’ and ‘ethical’ in meaningful ways. But such differentiation does not turn on the notion of the state in the same manner. When I talk of law and ethics here, then, I do so in a correspondingly open-ended way, as a means to expand the scope of my research into the uses of sharia discourse, rather than in a rigid or doctrinaire fashion.

The distinction I heard drawn between divine sharia and human law also has its echoes in others. Through the book, I trace a ramifying series of other such binaries, many valorisations of different approaches to legal practice: flexible versus wooden; easy versus strict; humanity versus bureaucracy. In putting such contrasts and tensions at the centre of my account, I not only follow the lead of my informants, but I also fore-ground the dynamism that ensues. Dissatisfaction at imperfect practice of the sharia leads to attempts (not always successful) to do otherwise, which are in their turn subject to critique, in what one could see as a dialectical process. I thereby seek to avoid a static depiction of sharia discourse, seen by recent academic scholarship as pejorative. However, I do so not merely by privileging examples of the sort of change and flexibility that appears attractive to a Western liberal audience. In short, I aim to provide an analysis of sharia discourse that is realistic as well as genuinely dynamic, one that I hope will resonate with similar such studies in other contexts. In the rest of this introduction, I start by expanding on these themes, before explaining more of the distinctively Lebanese context of my project and the nature of my sources.

About the Author

Morgan Clarke is Associate Professor of Social Anthropology at the University of Oxford and a fellow of Keble College. He previously held a Simon Fellowship at the University of Manchester and a British Academy Postdoctoral Fellowship at the University of Cambridge. He has conducted fieldwork in Lebanon since 2003, and is the author of Islam and New Kinship: Reproductive Technology and the Shariah in Lebanon (2009) and many articles on the anthropology of Islam and the Middle East.

Table of Contents

Part I. Contextualising Sharia Discourse in Lebanon:
1. Court, community and state – a legal genealogy
2. The consequences for civility
3. Becoming a shaykh
4. Lessons in the mosque
Part II. Sharia within the State:
5. Introducing the sharia courts
6. Marriage before God and the state
7. Bringing a case
8. Rulings and reconciliation
9. The judge as tragic hero
10. The wider world of the sharia
11. Reform and rebellion
Part III. Sharia outside the State:
12. Becoming an ayatollah
13. Making law from the bottom up
14. The limits of authority
Conclusion.

Bibliographic Information

Title: Islam and Law in Lebanon: Sharia within and without the State

ٍAuthor: Morgan Clarke

Publisher: Cambridge University Press

Language: English

Length: 350

ISBN: 978-1107186316

Pub. Date: May 16, 2018

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