Book: Islamic Law in Theory: Studies on Jurisprudence in Honor of Bernard Weiss

This volume is a successor to Studies in Islamic Legal Theory, a compilation edited by Bernard Weiss himself that was well-received among specialists in the field.

The fact that the present volume was conceived as a Festschrift for the editor of the original is a testimony to the foundational impact of Weiss’s scholarship, the high regard of his colleagues and the convivial scholarly engagement that he fostered, all of which are evident throughout the various contributions. Both compilations evolved from the proceedings of small conferences held in Alta, Utah, referred to fondly by the participants, many of whom were repeats, as ‘Alta One’ and ‘Alta Two’. The volume includes an introduction by Robert Gleave and A. Kevin Reinhart that presents the themes, style and contributions of Weiss’s scholarship, along with a refreshingly personal preface in which Peter Sluglett discusses the trajectory of Weiss’s career and his experiences with him as a colleague. The volume also includes a select bibliography of Weiss’s publications and an index.

The body of the work consists of thirteen studies divided into four parts corresponding to the major thematic concerns of Weiss’s scholarship: 1) Law and Reason, 2) Law and Religion, 3) Law and Language, and 4) Law: Diversity and Authority. As the editors note, many of the contributions cut across multiple categories and could be listed under more than one rubric. Beyond their thematic diversity, the different studies also vary widely in terms of their length, their temporal focus, and the sources and methods that they draw on.

The contribution of A. Kevin Reinhart stands out for the originality of its analysis and its impressive synthesis of a wide range of material. Reinhart examines the implications of the concept of taʿabbud—which he glosses as ‘the incomprehensibility’ or ‘non-rationality’ of ‘Muslim devotional action’—for the Shrīʻa as a whole. He begins by exploring the origins if the distinction between ‘ritual’ and other elements of the Shrīʻa, arguing that it can be dated confidently to the late Umayyad period and possibly to the every origins of Islam.

A. Kevin Reinhart is an Associate Professor of Religion at Dartmouth College specializing in Islamic religion. His research has focused on Islamic law and theology, as well as ritual and ritual theory. He is the author of Before Revelation: The Boundaries of Muslim Moral Knowledge (SUNY,1995), and edited (with Dennis Washburn) Converting Cultures: Religion, Ideology and Transformations of Modernity (Brill, 2007) and (with Hasan Kayalı) Archivum Ottomanicum special issue on “Late Ottoman Religion” (Vol. 19: Harrassowitz, 2002). His Lived Islam: Colloquial Religion in a Cosmopolitan Tradition, is forthcoming.

Robert Gleave is Professor of Arabic Studies at the Institute of Arab and Islamic Studies, University of Exeter, UK. His research focuses on the history of Islamic legal theory, particularly in the Shīʿī school. He is author of Inevitable Doubt: Two Theories of Shīʿī Jurisprudence (Brill, 2000), Scripturalist Islam: The History and Doctrines of the Akhbārī Shīʿī School of Thought (Brill, 2007) and Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory (EUP, 2012).

Table of contents

Introductory Sections
Peter Sluglett, University of Utah, Department of History: Memories of Bernard Weiss & Bibliography of the Writings of Bernard Weiss
The Spirit of Islamic Law. Introduction ,Robert Gleave and A. Kevin Reinhart:

This introductory chapter presents an overview of concepts covered in this book, which describes contribution of Bernie Weiss (BW) to the study of Islamic law and his place in the field. The trajectory of BW’s scholarship follows a line less possible today; the depth of his work inter alia suggests the value of that venerable model. BW spent the part of his career mastering the issues of language in Islamic theology and speculative jurisprudence. His modest The Spirit of Islamic Law is in fact a distillation of all he had learned in Islamic law and of his profound Mitdenken with many of Islamic jurisprudence’s great minds. Two features of BW’s work stand out. His concern with language and his apprehension of the truth that uṣūl and fiqh are religious enterprises, notwithstanding BW’s decision to focus on the ‘positive law’ rather than the ‘morality’ aspect of sharīʿah -studies.

Chapter 1
The Wisdom of God’s Law: Two Theories: Ahmed El Shamsy, University of Chicago, Department of Near Eastern Languages and Civilizations

The question that this chapter explores is whether and how Muʿtazilī ethics influenced the theorization of Islamic law and the development of conceptual tools for legal reasoning. Legal theory is integrated into a theological system and revelation is granted a space to develop a form of causality. The structuring principle of the causality that is established by revelation is human benefit, maṣlaḥah. On this subject, al-Khaffāfs position is echoed by his fellow Shāfiʿī al-Qaffāl al-Shāshī, whose work Maḥāsin al-sharīʿah that both al-Khaffāf and al-Qaffāl evidently shared. Al-Khaffāf and al-Qaffāl lay out a double rationality of the law. The first kind of rationality relates to truths that are intelligible of divine revelation. Within the vast realm of the rationally possible, a second type of rationality exists, namely means-ends rationality: God’s wisdom gives rise to laws.

Chapter 2
La notion de wajh al-ḥikmah dans les uṣūl al-fiqh d’Abū Isḥāq al-Shīrāzī (m. 476/1083): Éric Chaumont, Centre National de la Recherche Scientifique

The influence of the master George Makdisi, Henri Laoust are still important in the study of medieval Islamic theological and legal thought and today it brings to many researchers to greatly overstate the importance of “traditionalism” in medieval Sunni Islam. This chapter shows Shirazi was split between two divergent doctrines on legal theory ( Usul al-fiqh), these two doctrines are not Ash’arism and Salafism but Ash’arism and mu ‘tazilisme. It also show that Shirazi’s probably still remained undecided and thus can be explained the “opportunism” apparent doctrinal which sometimes reflects his work. Reading the texts Shirazi and distinguishing each discipline (Usul al-Din, Usul al-fiqh and fiqh) to which they belong, it seems unwarranted to say the least, absurd in reality, to consider it as a Salafi. The original text of the chapter is in French.

Chapter 3
Ritual Action and Practical Action: The Incomprehensibility of Muslim Devotional Action: A. Kevin Reinhart, Dartmouth College, Department of Religion

This chapter traces the development of words and concepts associated with “ritual” and their presence in Islamic law more generally, drawing from the Qurʾān, ḥadīth, and another early text. It discusses the location of “ritual” in Islamic legal works and establishes that there is an astonishing stability in the taxonomy of normative action from the very beginnings of Islamic legal thought. The chapter consists of translations of two rare presentations which show how Islamic law looks when considered as a whole, along with some commentary. It discusses what one believes to be the distinguishing feature of ritual from the point of view of Islamic legal theory, namely its irrationality, and its “non-rationality”. The chapter briefly discusses the place of intentionality in ritual and considers the implications for the Islamic legal system of including ritual within it, and of Islamic ritual as part of a “legal system”.

Chapter 4
The Ethical Obligations of the Muqallid Between Autonomy and Trust: Mohammad Fadel, University of Toronto, Faculty of Law: Istafti qalbaka wa in aftāka al-nasu wa aftūka

This chapter surveys the views and arguments of various premodern scholars of uṣūl al-fiqh on the ethical dilemma facing muqallids as a result of the ethical pluralism generated by uṣūl al- fiqh’‘s individualist ethical paradigm. It begins with a general discussion of the epistemological context in which taqlīd is operative and its relationship to moral obligation. The chapter explains the different views expressed on the question of how the ethical obligation of an individual is to be determined in a context of moral controversy. It then argues that the pre-modern solutions to this problem, because of their focus on epistemology, are highly unsatisfactory. On the account of taqlīd the chapter proposes, the muqallid that plays a central role in maintaining the integrity of Islamic law by monitoring would-be mujtahids to ensure that they conform to Islamic ethical ideals.

Chapter 5
Saḥnūn’s Mudawwanah and the Piety of the “Sharīʿah-minded”: Jonathan Brockopp, Pennsylvania State University, Department of History

The Mudawwanah, one of the key texts for Mālikī law, poses several problems; its internal structure, its relationship to other early legal texts, and the history of its compilation have all confounded historians of Islamic law for centuries. Previously, this text was used to help demonstrate that Islamic law did not develop a single perception of legal authority, but that competing ideas of legal authority were already present in the earliest legal texts. This chapter suggests something a bit bolder, that through analysis of the Mudawwanah and other early legal texts, one may perceive of an alternate origin for Islamic law itself, not merely in the crucible of the courts, where pragmatic need drove speculation and expansion of law, but also in the ḥalaqah, the shaykh’s circle, where the “sharīʿah-minded” reflected on God’s law as a means of interacting with the divine.

Chapter 6
Sins, Expiation and Non-rationality in Ḥanafī and Shāfiʿī fiqh: Christian Lange, University of Utrecht, Department of Religious Studies and Theology

This chapter focuses on the vexed question of the historical relationships between reason and revelation in Islamic law. Theological and legal issues intersect when the law touches questions of faith, sins and salvation. Islamic theology offers a variety of ways to ensure salvation, faith being of course the conditio sine qua non. However, the theologians, discussed other means by which God’s forgiveness for sins can be achieved and the Muslim be assured a place in paradise. The chapter is conceived as a contribution to the study of kaffārāt, a topic which invites further investigation. It suggests that the rejection of qiyās in the kaffārāt among the Ḥanafī uṣūlīs of the late-classical period shows an elective affinity with a certain theological preference, that is, a position of Heilsungewissheit peculiar to the Māturīdite doctrine of salvation, with echoes of earlier, Muʿtazilite views.

Chapter 7
Jurists’ Responses to Popular Devotional Practices in Medieval Islam: Raquel M. Ukeles, National Library of Israel, Curator, Islam and Middle East Collection

This chapter takes as its starting point Bernard Weiss’s central idea that jurists consistently upheld the textualist approach to determine the law. Weiss defines textualism specifically as “an approach to the formulation of the law that seeks to ground all law in a closed canon of foundational texts and refuses to accord validity to law that is formulated independently of these texts”. This central idea of Weiss’s Spirit of Islamic Law undoubtedly is correct both when it comes to canonical acts of worship, and when it comes to devotional practices more generally. The chapter brings texture to Weiss’s notion of textualism and, ultimately, shows that jurists’ attempt to preserve the supremacy of the text as the exclusive way to determine legal norms motivated some jurists to be creative and responsive interpreters as well as active religious leaders.

Chapter 8
Finding God and Humanity in Language: Islamic Legal Assessments as the Meeting Point of the Divine and Human: Paul Powers, Lewis & Clark College, Department of Religion

For as long as Western scholars have studied Islamic law, they have struggled to understand the relations between its “religious” and “legal” aspects. This chapter joins these efforts in exploring the details of the juristic integration of religious and legal concerns. The argument is that pre-modern Muslim jurists’ understandings of the nature of language, including divine speech, displays important continuities with jurists’ understanding of the nature of human action as encompassed by language. The rules of Islamic law are a meeting point – for jurists – between the divine and the human, a meeting that takes place in the realm of language. Jurists had a two-part task both of discerning, in the words of the revealed texts, God’s intentions and rules governing human actions, and of identifying human actions by assigning to them names, and thus lining up the words of God’s rules with the words naming human actions.

Chapter 9
Literal Meaning and Interpretation in Early Imāmī Law: Robert Gleave, University of Exeter, Department of Arabic and Islamic Studies

This chapter identifies elements of the legal reasoning that are found in early Imāmī legal texts which, implicitly or explicitly, rely on a concept of literal meaning. The distinction between ḥadīth and fiqh was blurred in the Imāmī literature of the tenth and early eleventh centuries. Many of the most influential ḥadīth “collections” were in the form of either works of fiqh or commentaries on works of fiqh. Furthermore, the Imams were understood to be jurists, and hence their statements reflected not only simple statements of the law, but also elements of legal reasoning in which reasons in support of particular legal doctrines were given. Early works of Imāmī fiqh, such Ibn Bābawayh’s al-Muqni display little in the way of legal reasoning – legal doctrine is pronounced but rarely explained in any meaningful sense.

Chapter 10
“Genres” in the Kitāb al-Luqṭah of Ibn Rushd’s Bidāyat al-mujtahid wa-nihāyat al-muqtaṣid: Wolfhart Heinrichs, Harvard University, Department of Near Eastern Languages and Civilizations:

The term “genres” this chapter has been borrowed from literary studies, but is meant to refer to the semantic categories of the smallest discussion units in Ibn Rushd’s chapter. It is hoped that a study on this level of the text sheds some light on the ways in which legal discourse proceeds. Ibn Rushd’s book lends itself particularly well to this approach, because it is a khilāf work and the author thus feels inclined at times to explain why a khilāf came about. The work of the great scholar, in whose honor this Festschrift has been compiled, is characterized by sustained close reading and Mitdenken of the sources, so the author cherishes the hope that the approach he has used, simple though it is, might be of some interest to him. The chapter on lost property is divided into 41 semantic units.

Chapter 11
Is There Something Postmodern About Uṣūl Al-Fiqh? Ijmāʿ, Constraint, and Interpretive Communities: Joseph Lowry, The University of Pennsylvania, Department of Near Eastern Languages and Civilizations:

This chapter maps Stanley Fish’s concept of interpretive communities on to discussions of consensus and legal disagreement in premodern works of Islamic legal theory. The goal is to see to what extent the descriptions offered by Fish and by authors of works of uṣūl al-fiqh of the conditions of disagreement within a given community of interpreters exhibit similarities. On its surface, premodern Islamic legal theory can appear postmodern: its recognition of interpretation as central to the legal enterprise; its unembarrassed invocation of and reliance on Arabic literary theory and poetics; its careful assessment of the linguistic limits of communication; its insistence on the provisional nature of legal interpretation; and especially its theorizing of doctrinal diversity. According to the author, some basic characteristics of postmodern thought and postmodern legal theory must be identified and acknowledged as fundamentally different from key aspects of premodern Islamic legal thought and legal theory.

Chapter 12
Rudolph Peters, Universiteit van Amsterdam, Department of Arabic & Islamic Studies: Body and Spirit of Islamic Law: Madhhab Diversity in Ottoman Documents from the Dakhla Oasis, Egypt

This chapter talks about diversity of Islamic law and considers it from a different angle so as to examine legal diversity from a bottom-up perspective. It focuses on how legal practice dealt with this diversity on the ground. If Bernard Weiss applied the term “spirit of Islamic law” to the theory of the law and especially the process of finding the law, the author uses the term body as a metaphor for legal practices and the documents recording them: contracts, judgements and fatwas. The corpus, which the author has used, is a family archive from the Ottoman period found in the Egyptian town of al-Qasr in the Dakhla Oasis. The chapter examines to what extent the qāḍīs of al-Qasr were incorporated in the Ottoman Ḥanafī judiciary and, why qāḍīs of other madhhabs than the Shāfiʿī madhhab, issued documents in the al-Qasr court.

Chapter 13
Tracing Nuance in Māwardī’s al-Aḥkām al-Sulṭāniyyah: Implicit Framing of Constitutional Authority, Frank E. Vogel, Harvard University, Islamic Legal Studies Program

The normal or canonical list of Western scholars to whom we turn for understanding Sunni fiqh constitutional thought has been Gibb, Lambton, and now Crone. Bernard Weiss in his Spirit of Islamic Law very aptly captures how scholars now understand the emergence of a sharīʿah controlled by scholars of fiqh and articulated as fiqh. In Mawardi’s book, we see a fiqh scholar – writing a book of fiqh, not kalam or adab -for the first time successfully declaring that fiqh dictates the legitimacy of the state and defines its functions, not the reverse. In other words, it represents a daring assault on a summit – and, on attaining it, defines and legitimates, by criteria stated by it. This chapter proposes a complete re-reading of al-Aḥkām al- sulṭāniyyah, to sketch out several of the methods or strategies that Māwardī deploys in his effort to launch a fiqh constitutional system.

Bibliographic Information

Title: Islamic Law in Theory: Studies on Jurisprudence in Honor of Bernard Weiss

ٍEditors: Robert Gleavs and A. Kevin Reinhart

Publisher: BRILL

Language: English

Length: 370 pages

ISBN: 9789004264809

Pub. Date: May 2014

Islamic Law in Theory: Studies on Jurisprudence in Honor of Bernard Weiss