Islam, Modernity, Violence, and Everyday Life

Islam, Modernity, Violence, and Everyday Life

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Islam, Modernity, Violence, and Everyday Life

Ahmad Atif Ahmad

ISLAM , MODERNITY , VIOLENCE , AND EVERYDAY LIFE

Copyright © Ahmad Atif Ahmad, 2009. All rights reserved. First published in 2009 by PALGRAVE MACMILLAN® in the United States—a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN-13: 978-0-230-60984-6 ISBN-10: 0-230-60984-8 Library of Congress Cataloging-in-Publication Data is available from the Library of Congress. A catalogue record of the book is available from the British Library. Design by Scribe Inc. First edition: February 2009 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

CONTENTS

Preface and Acknowledgments Introduction

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1 Theoretical Considerations

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2 On the Cusp of Modernity: Reading Ibn ‘Abidin of Damascus (1784–1836)

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3 Egyptian Society in the Writings of Muhammad al-‘Abbasi al-‘Mahdi (1827–97)

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4 Social Custom as a Source of Law in Modern Muslim Societies

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5 War

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6 Apostasy

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7 The Right to Privacy

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8 Incommensurable Values?

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Notes

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Bibliography

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Index

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PREFACE

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ACKNOWLEDGMENTS

As I worked on the essays that became the chapters of this volume, I noticed the growth of the naïve practice of the comparison of cultures, which began to gain wide currency in the American public discourse after 9/11. This practice has allowed self-appointed comparativists to speak of similarities and dissimilarities between Islamic and Western cultures, or Islamic and Western values, or Muslim and Western attitudes and psychological orientations. Even though I have not made my interest in this issue the sole focus of my work on these essays, the essays offer much to discredit the common practice of comparing Islamic and Western cultures and values. The essays are published here as chapters of one book, with an introductory chapter addressing the central question of the legitimacy of these comparisons and their implications. I shall further explain the affinity among the book’s chapters and their commonality in the introductory sections of the book. During the writing of this volume, I have accumulated debts to many people who inspired me with ideas, questions, and challenges that contributed to the content of the volume, including students and colleagues as well as friends from outside of the academic circles. All insights from academic and nonacademic readers on drafts of this work were of paramount value. I received especially valuable feedback from colleagues in the Department of Religious Studies at the University of California, Santa Barbara (USCB), after I presented the central argument of this work in the department’s colloquium in October 2007. My colleagues are scholars of religion who are interested in similarities and dissimilarities among religious traditions and their interactions with their sociopolitical contexts. In the colloquium, some of my colleagues expressed alarm at the negative potential of discrediting the systematic study of religion as a consequence of accepting a stringent version of my critique of the comparison of cultures as depositories of religious and moral ideals. As I see myself to be

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involved in the same scholarly enterprise of the inherently comparative study of religion and society in the American academy, I explained to my colleagues that this work is by no means an attempt to equate scholarly inquiries into religious and political traditions with the self-satisfied comparativist approach that allows some to declare sets of values commensurable or incommensurable. The latter is the object of my critique in this volume. I am particularly grateful to my colleagues at UCSB for their feedback, which helped me sharpen the central argument I present here. Last but not least, I must acknowledge Jennifer Kepler, my production editor at Scribe. Jennifer exercised tremendous patience with my long and complex sentences, some of which ended up being broken down in the book’s final version, and endured other measures of hardship during her work on the book. Having applied her editorial experience to my manuscript, Jennifer ends up with claim to much of the clarity the book possesses, and I am filled with true pleasure as I acknowledge her assistance here.

INTRODUCTION THE OSTENSIBLY ONE-DIMENSIONAL THESIS THAT a clash of cultures and polities involving Muslim and Western societies may be inevitable has been subjected to extensive debate. The thesis was attacked vehemently but proved resilient; it was subsequently rehabilitated and popularized, mutating into different versions in the process. Whether it is meant to anticipate and explain clashes before they occur or to explain existing clashes between Muslims of different stripes and Westerners who claim to stand for Western values, the essence of the thesis is the same: due to incongruities between Islamic and Western values and worldviews, the clash of those who adhere to these values and hold these worldviews is inevitable. One can still state a fairly mild version of the rehabilitated thesis without abandoning its deep prejudice: a cluster of ideas and sensibilities are often, whether accurately or otherwise, associated with Muslim and Western identities (individual or collective), bespeaking a degree of incongruity between Muslim and Western worldviews, and may indeed be underlying the actual clashes between those representative of Islamic and Western worldviews in the worlds of politics and culture today. Some avoid the language of clash altogether and speak of the incommensurability of Islamic and Western values. Although this might seem more reasonable, the claim of the incommensurability of Islamic and Western values plays into the hand of one version or another of the clash thesis. To judge two sets of values to be incommensurable is to say that they lack a common measure. Hence, one cannot understand Islamic values in terms of Western values since they are incommensurable—that is, they lack a common measure. The idea of the incommensurable has its origins in mathematics: the Greek would deem a quantity like / (the ratio of the perimeter of a perfect circle to its diameter) an incommensurable, because it is somewhere between 3.14 and 3.15 (close to 3.1415927), and cannot therefore be compared to a number like 3 or 4. The incommensurability of values ultimately denotes the incongruence of value systems as they present themselves, in the present, with interpretations of the past

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cultures in which they originate. Set aside the issue of the incommensurability of single abstract values (such as liberty or equality) or bearers of value (such as career), important as these may be for many contemporary philosophers. The issue at hand is the incommensurability of value systems or sets of values, each one as a whole, and in this context, incommensurability is applied to Islamic and Western values in particular. The popular version of the thesis (endorsed, to be sure, by intellectuals of weight, such as Harvey Mansfield) assumes that the above-mentioned incongruities owe their origins to religion and religious laws.1 The religion in question is the religion of Islam, whose rigid legal character is anathema to a core of values that can be ascribed to Western civilization. Note that the clash is presumed to take place between Western and Muslim societies, not a specific conceptualization of eithƒer Western or Islamic values. Muslim societies possess a religion, so the thesis goes, which makes their marriage to Western modernity difficult. This assumption has an obvious daring quality. Societies tend to have complex relationships with their religions, and for one to be able to generalize about a society’s relationship to its religion(s), one must claim quite a bit of knowledge of this society and its structure. Reflecting on the two societies I know best (the Egyptian and the American), one representing each end of the presumed clash, I cannot take seriously any argument that either one of the two societies is more religious than the other. Both societies have their fair share of the ultrareligious (Muslim, Christian, others), the religious, the areligious, the irreligious, and the antireligious. To argue for incongruities triggered by religion (again, read the religion of Islam) in this context, one must provide a more nuanced account of how the various attitudes toward religion in Muslim societies play into the purported incongruities. Still, one may attempt to salvage the claim that religion underlies the purported cultural incongruence by saying that the Egyptian (or any other Muslim) society, as it stands today, reflects influences from the West that do not represent its real, authentic self. The assumption here is that modern Muslim societies have become westernized and more accepting of Western worldviews than they used to be before their extensive contacts with modern Western societies. According to this argument, the Egyptian society, in its “pre-Westernization” phase, must have been more religious than its current self and, in its religious phase, must have enjoyed less of what is considered Western forms of freedom than it does today. Also according to this argument, more congruence between Muslim and Western societies can be identified in the twenty-first century as a reflection of Western influences on Muslim societies in the modern

INTRODUCTION

3

era, rather than any (inherent or accidental) similarity between Muslim and Western societies in the recent past. If only Westernization of Muslim societies were to be allowed to go further, more harmony between Western and Muslim societies would be achieved. Among other assumptions, this argument presupposes that modern forms of religiosity in Muslim societies are a straightforward continuation of the forms of religiosity of the premodern era. The argument could not accept that modern forms of religiosity in Muslim societies, such as the Egyptian society, are, in many cases, just that—that is, they are modern. These modern forms of religiosity do not perfectly continue premodern patterns of religiosity in the same societies. Indeed, it may be argued that only recently has the Egyptian society, for example, been penetrated by new forms of religiosity (associated with the now familiar name Muhammad ibn ‘Abd al-Wahhab [d. 1766] and his movement), which religiosity championed the rejection of traditional religious authority— that is, rejecting the traditions that represent the deep infrastructure of religiosity in this and other Muslim societies. In other words, some new forms of religiosity in modern Muslim societies stand on a rejection of long-standing premodern traditions in Muslim societies. Incidentally, the purported new forms of religiosity happen to provide the strongest evidence for a stark divergence and potential clashes between Western and Muslim cultures. Another faulty assumption presupposed in the clash and incongruence argument is that Western modernity could only move non-Western societies in one direction, an inevitably positive one, where more equity and liberty can be gained. Much evidence points to the contrary. In fact, it would be more reasonable to emphasize, as many postcolonial studies have done, the extent to which Western modernity has disenfranchised non-Western peoples, stripping them of rights their predecessors enjoyed in their premodern societies. The above argument, most importantly, presupposes that Muslim societies could simply not have devised institutions similar to those associated with Western societies before any contact with the West, let alone devising superior ones serving the same functions without some of the undesirable side effects suffered in Western contexts. The above argument would have us believe, for example, that Muslim societies could not have granted their populations any significant freedom without Western influence or aid. Aside from the thorny question of how freedom may be understood in an abstract manner, the comparison of Western and Muslim societies, even with admittedly Western standards for what is better and more appropriate for moderns in mind, cannot yield the conclusion

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that premodern Muslim societies were opposites of Western societies in their overall orientation. Those who would like to argue that Muslim societies must be opposites of Western societies unless influenced by them should provide historical evidence for the incongruence of Muslim and Western values as they manifested themselves in these societies in the past. This evidence must, for example, point to how premodern Muslim societies could not enjoy Western freedoms, such as the autonomy of the individual, and how the “importation” of these Western values has left individuals in Muslim societies better off or freer than their premodern counterparts. This would be a taxing undertaking. Meanwhile, students of medieval Islamic history who study modern Islamic movements can point out how modern Islamic history witnessed a retraction and a regression in many freedoms granted to individuals in the medieval Islamic world owing to, inter alia, modernistic tendencies to unify the Muslim populations and mold the whole into one. To bring up Wahhabism (being a reform movement of an emphatically modern quality), many freedoms enjoyed by individuals in premodern Muslim societies could no longer be enjoyed under a (reformist) modern Wahhabi Islam, because of its disregard for heterogeneity in society and insistence on conformity to specific forms of orthodoxy. In this case, modernity, even in its abstract ideals and qualities, took away forms of freedom from Muslim societies, rather than allowing them a larger space for freedom. Apart from addressing the questions of modernity, the incommensurability debate tends to branch into other trajectories, most notably when the question of violence is addressed. Consistent with the claims of the rigidity of Muslim laws and cultures and their incompatibility with modern, enlightened freedoms, Islam—in the clash and incommensurability argument—is seen to endow its followers with a measure of fierceness, allowing these followers to justify violence against their enemies through wars and oppressive laws punishing religious dissidents after labeling them as apostates. This is an old claim in Christian literature, traceable to the early days of the rise of Islam and its spread in the Middle East,2 and it is often leveled by those involved in violent atrocities against Muslim populations as a red herring to distract from their own excessive violence. The modern version of this claim is as blind to the details of both the theory and practice of the moral, legal, and political issues involved in the laws of war and apostasy in Islam as the medieval version of it had been. To tackle the persistence of this prejudice, this volume will address the question of violence in Islamic law and history.

INTRODUCTION

5

This volume emphasizes the inadequacy of many treatments of the questions of Islam’s relationship to modernity, the degree to which it guarantees respect for the autonomy and privacy of individuals, and the place of violence in Islamic legal and political thinking. These inadequate treatments, which feed into claims about the incommensurability of Islamic and Western values, also require an argument calling the reader’s attention to the limitations of the simple assumption that “religiosity” and religious laws in Muslim societies can be deemed responsible for a clash of cultures that involves Muslim and Western societies. The proposed argument must first complicate the question of the incongruence of (religious) Islamic values and Western values by demanding a clarification of what religious law or the purported religious character of Muslim cultures stands for. What can we say about the “essentially religious” character some associate with Muslim cultures or laws? And how does this relate to the “complex” structures of Muslim societies, whether their leaders and individual members are religious or not religious? Second, as the logic of the incommensurability of values is subjected to interrogation, one must posit another question: how can evolutionary values (the elusive entities that evolve over time in social context) be identified or pinpointed as if they were stable entities to be described or compared and contrasted? Finally, in addition to complicating the task of comparing cultures, my argument goes further to interrogate the context in which the confused incommensurability argument can be made with all its hidden assumptions about Islam, about its relationship to modernity, about violence in Islamic law and history, and about the freedoms enjoyed by individuals and groups in Muslim societies. This volume’s chapters center on addressing Muslim societies, past and present, with an emphasis on the questions of modernity, violence, and private and everyday life. MODERNITY The complexity of Muslim societies on the eve of their exposure to Western modernity, rather than the rigidity of Islamic law, may be responsible for these societies’ hesitation to allow a larger space for adopting (Western) modern ways of life. Muslim societies on the cusp of modernity—that is, Muslim societies of the eighteenth and nineteenth centuries, when interaction between Western modernity and Muslim societies reached a heretofore unprecedented degree of intensity—could not simply either westernize or modernize themselves because they had previously achieved a level of complexity that required slow adaptation to the changes brought by Western modernity (Chapters 2 and 3). This is not

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to say that premodern Islamic legal theory could not accommodate modern transformations through acknowledging newly adopted social customs in Muslim societies as a source of law (Chapter 4). Chapter 2 emphasizes the writing of Muhammad Amin ibn ‘Abidin of Damascus (1784–1836), an encyclopedic thinker who enjoyed the status of a religious authority trusted by the public, as well as knowledge of how the government of his time functioned. My reading of Ibn ‘Abidin in Chapter 2 aims to allow my readers to consider my critique of the incommensurability thesis in light of a description of a Muslim society on the cusp of modernity. This chapter will bring forth more materials about the structure of Muslim societies than normally permitted by the thin references to Muslim cultures one encounters during debates about Islamic and Western worldviews. Chapter 3 takes the reader to the Egypt of the second half of the nineteenth century. My source in this chapter, the legal responsa of Muhammad al-‘Abbasi al-Mahdi (1827–97) provides a picture of another complex Muslim society—the Egyptian, in this case—to highlight its everyday practice of its Muslim identity, if one must use this language, and the degree of freedom people enjoyed under the rule of Islamic law. A companion to Chapter 2, Chapter 3 also fulfills the same aim of providing a description of Muslim societies more detailed and less simple than the one frequently encountered in common depictions of Muslim societies. In Chapter 4, I introduce the aforementioned Ibn ‘Abidin’s theory of the impact of social and market standards or customs (‘urf) on law, which considers the social customs of (1) long-standing and (2) broad circulation in Muslim societies a source of law, if they can be (3) reconciled with legal and moral principles of textual (Qur’anic and Sunnaic) provenance. For the purpose of illustrating further applications of this doctrine, I address the question of equality in procedural privileges in divorce cases involving men and women in modern Muslim societies. The question here, based on this doctrine, is whether modern Muslim jurists would accept to erase all distinctions in procedural privileges between men and women who seek to end their marriages. I briefly discuss the implications of this application and its impact on other provisions of Islamic law. Concluding with a discussion of the broader conceptual and practical implications of the doctrine of custom as a source of law in the Islamic legal system, the chapter serves as a rebuttal of the notion of Islamic law’s unique inflexibility in the face of change. As I agree with Ibn ‘Abidin’s conceptualization of the nature of lasting “change” as inherently slow, cumulative, and deliberate, I find his theory instructive for the purpose of addressing the general question of Muslim societies’ adoption of the ways of Western

INTRODUCTION

7

modernity in various aspects of social and political life. My goal in combining Chapter 4 with the Chapters 2 and 3 is to delineate, at least, a rough picture of how Muslim societies possess a capacity for both continuity and stability, change and reform. In none of these chapters do I attempt to comment on the merits claimed for modernity or on any critiques of it. I try to distinguish the merits and burdens of Western modernity from its capacity to be received, understood, debated, and appropriated or rejected. Reactions to Western modernity in the Muslim world were by no means uniform. Some intellectuals and nonintellectuals in Muslim societies rejected what they identified as the “values” of Western modernity, therefore, anticipating the incommensurability thesis we are critiquing. This rejection was formulated, in many cases, in exaggerated terms, and was based on the assumption of intrinsic incompatibility between Western and Muslim worldviews, and amounted, for some, to wholesale condemnation of Western modernity as a corrupt and corrupting paradigm for life. One can sympathize with this rejection since, though ultimately misguided in its assumption of a fundamental incompatibility between Muslim and Western values, it appears partly justified as a conscious or unconscious expression of the commitment to the developed Muslim cultures in which the rejectionists originated. On the other hand, many Arabs and Muslims (from the intelligentsia and from the public) welcomed Western modernity as an inevitable end of the “universal evolution” of all human societies. A theory to that effect took awhile for Arab and Muslim intellectuals to articulate, as they began to effectively appropriate the Western language of human rights, natural law, and universal values to their own discourses. One can also sympathize with the camp of universalists who search for cross-cultural, shared values that can be both Islamic and Western, though this sympathy also ought to incorporate reservations on conceptual and historical grounds.3 These three chapters constitute one unit and offer a framework for discussing the relationship between Western modernity and the Muslim world. In these chapters, I attempt to present a treatment of the large question of Islam and modernity, without taking a side by either emphasizing the need of Muslim societies to assert the legitimacy of their own social and moral character, or their need to adapt to the new ideas and the inevitable transformations of life. VIOLENCE The extent to which Islamic law sanctions violence against foreign enemies through war and against individuals through apostasy laws, is exaggerated,

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and the Islamic laws that are usually taken to justify violence against individuals and against collective enemies are more nuanced than often assumed (Chapters 5 and 6). Chapter 5 addresses the question of the laws of war in Sunni Islamic law. In this chapter, I show that the question of the legitimacy of war was addressed by jihad and just war theorists, as well as natural law theorists who were engaged in defining a notion of human society with multiple and often conflicting ideals and schemes. In this regard, it is difficult for the historian who is aware of the range of views and the complex connections established between war and the idea of universally valid norms to pinpoint a general character distinguishing jihad theorists from the rest. This must not please the camp of writers who assert that jihad is a unique phenomenon in human history, a notion not preceded or followed by any idea of its type or class. On close investigation, jihad turns out to be none other than the restrained war, waged for the sake of just claims, and jihad theories address the same puzzling issues that engaged non-Muslim theorists of war in ancient, medieval, and modern times. And given the academic function Muslim jurisprudence served over long periods of time and the different degrees of distance between Muslim jurists and the Muslim governments of their time, jihad jurisprudence provides an example of lesser degrees of comfort with violence than many other examples of war theorization. To avoid giving the wrong impression that I am attempting to replace a condemnation of jihad with an unqualified approval of it, I express, in no unclear terms, my hesitation to endorse war in general, whether it is in the name of justice, humanism, God, or any other. And to avoid giving the wrong impression that I am attempting to replace an unfavorable comparison of jihad with just war and natural lawbased war theories, I hasten to reiterate that a full or pure comparison of legal and political traditions, no matter what its results are, will remain suspect in my eyes. My point in the comparison is much more modest and is limited to pointing to general functional analogies rather than a moral assessment of long and complex traditions. Since jihad is rarely addressed in Western contexts without being connected to the Qur’an and early Islamic history, Chapter 5 speaks to the issue of how these two sources relate to discussions about Muslims’ relationship to their enemies. One of the points I make in this chapter is that political readings of the Qur’an do not possess a higher capacity for legitimacy than any other (say, a spiritual reading), and the same applies to the reading of the history of the Prophet Muhammad and even the history of his immediate political successors, his Companions. This should be effective in exposing the folly of essentializing a political reading of

INTRODUCTION

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Islamic texts or early history, often innocently practiced by the champions of the incongruence or clash thesis. But I go further to demonstrate that Islamic legal thinking displays a broad range of views on the legitimacy of war, which, while based on the same authoritative texts and similar reasonbased arguments, reach conclusions occupying opposite extremes. Despite their pretence to “neutrality” and evenhandedness, none of the standard treatments of the subject in Western literature strikes the right tone in accounting for this broad range of views. Whether willful or based in ignorance, these inadequate treatments must be discarded when the questions of the Islamic laws of war are subjected to discussion. Chapter 6 addresses the laws of apostasy, often framed as an issue of violence against individuals and a question of religious freedom in Muslim societies. In this chapter, my first point is that the question of apostasy in Sunni Islam should not be confused with the issue of free speech. The way early jurists addressed the question of apostasy (e.g., Shaybani [d. 805]) clearly shows that they thought of it as a question dealing with the borders of the community in a time of war, rather than addressing free speech within one community. Islamic history is full of examples of dissent and free expressions against common norms. These include artistic and philosophical expressions—some of which went as far as vilifying the Islamic teachings and symbols and even mocking the rituals and the Qur’an itself, and many of which clearly opposed the authority of jurists and theologians as involved in a limited exercise with its own limited consumers. In this chapter, I also argue that the theoretical punishment of apostates is severely limited by two principles that are operative in Islamic legal thinking. The first is the principle of giving alleged apostates the benefit of the doubt, as apostasy is a capital crime where doubt vitiates an allegation of the offense more effectively than in normal criminal cases. The second is the principle that ascertaining the occurrence of apostasy is taken to be a tall order, given the requirement of establishing that the offender possessed (1) belief in Islam and followed that by a (2) renouncement of that previous belief. Both of these two assertions must be subjected to investigation, and a case against an individual apostate does not normally survive that investigation. For many Muslim jurists, this makes the punishment for apostasy a little more than a theoretical threat. Without denying that the very theorizing of a punishment of apostasy will be deemed inappropriate by many within a modern audience or that occasional application of that punishment has occurred in Muslim societies, I argue that, without keeping the above facts in mind, any discussion of the questions of freedom of religion and the laws of apostasy in Muslim societies would be flippant and superficial.

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Chapters 5 and 6 respond to a peculiarity in the discussion of Islamic and Western values in the West rather than any inherent quality in the philosophical and historical study of values and cultures. Therefore, I must admit that addressing this issue here is mostly stimulated by persistent political and public discourse arguments rather than any historical or deep structure considerations. As I discuss the question of violence in Islamic law, I call attention to the importance of noting the context in which the accusation of violence is leveled against Muslims and their religion. The irony will not be missed by most readers, as the extent of violence inflicted on Muslims today significantly surpasses any violence inflicted by Muslim individuals or groups. EVERYDAY LIFE Chapters 2 through 4 provide much evidence for the great degree of autonomy granted to individuals, which can be discerned from Islamic juristic writings. Chapter 7 demonstrates that Islamic law protects a right to privacy despite the absence of a direct equivalent to the term “the right to privacy” in Islamic juristic language. The protection of an individual’s right to privacy is balanced against the enforcement of law in Islam, just as the same conditional respect of privacy is found in many Western laws. While recognizing the obvious fact that respect for the privacy of the individual is only one aspect of the large picture drawn by the term everyday life, the latter term is addressed in many of this volume’s chapters, as it overlaps with my treatment of the question of modernity and thus deserves to be seen as one of its parameters. Aside from the questions of modernity—with their temporal limitations—and the questions of violence—with their severe political limitations and capacity to take different forms at different stages in society—a sense of what it means to be a member of a Muslim society in everyday life merits consideration in its own right. I bring attention to this axis of the discussion of Muslim societies and cultures to insist on its lasting nature as an inevitable aspect of Islamic studies in any academy. With much care and critical reflection, scholars must consider Muslim societies and cultures with a genuine desire to understand the qualities of these societies and cultures that reflect their unique sense of themselves. Again, with much self-questioning and constant reflection, they might note the processes through which these societies negotiate authority, how they balance individual and community, and how they maneuver to achieve continuity-and-change equilibrium. I hope the reader will not miss this emphasis while perusing the following chapters.

INTRODUCTION

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In each one of these chapters, I employ textual analysis based on original Arabic sources, as well as theoretical perspectives from different disciplines. Chapters 2 through 7 are presented between a theoretical introduction and an epilogue revisiting the question of the incongruence of Muslim and Western values, therefore, binding these essays together and highlighting the objective of combining them in one volume. Once again, the collection brings together three elements that are often brought up during debates on Muslim and Western values: modernity, violence, and private and everyday life. The objective behind these chapters is to explore difficulties embedded in the general question of characterizing Muslim values and their incongruence with Western values as well as in the three particular questions it specifically addresses (modernity, violence, and everyday life). The resulting recueil identifies two sets of flaws in discourses on the incommensurability of Islamic and Western values. The first concerns inherent and deep characteristics of the discussion on incommensurable values, which make it one of the most difficult questions one may undertake in ethical inquiry. The second consists of misconceptions about the nature of Islamic values themselves, most prominently how Muslim societies can be considered in reference to modernity and violence or the autonomy and privacy of the individual. From another angle, my project identifies difficulties both in the subject of the inquiry (Islamic and Western values) and the subject conducting the inquiry (the ineluctably eclectic participant in the inquiry). To study Islamic values, one must be ready to acknowledge the difficulties in identifying what is Islam and what is Islamic and, indeed, what is meant by values. Islam remains an unlucky (though inevitable) category whose multiple appropriations can only blur it further (does it indicate ideals, peoples, practices, or something else altogether?). Some medieval Arabic sources use the term Islam as contrasted with Jahiliyya, which indicates pre-Islamic cultures, but this contrast mostly identifies a temporal distinction, avoiding the strange aspiration to associate Islam with a set of values or cultural practices. Values are similarly elusive. To be involved in studying values, with their evolutionary character and multiple associations, is to be involved in a project of reading. No reading of Islamic values can escape eclecticism. Scholars and intellectuals often acknowledge the inevitability of eclecticism in their work, but this does not seem to deter them from making the same generalizations that would have been avoided if their acknowledgment of their eclecticism were to be taken seriously.

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Beside eclecticism, many readings of Islamic history and culture in Western contexts suffer from an additional pitfall, namely prolepsis. Prolepsis denotes anticipation. A proleptic reading of history finds in it materials that anticipate what is thought to be the case at a later historical stage. A casual form of proleptic reading is practiced when people interpret history based on their understanding of the present. This, in itself, is problematic, even if one reads the present correctly. Now, if people’s reading of the present is confused or misinformed and this mistaken reading of the present is imposed on the past, a perfect cycle of misunderstanding is formed. Instead of being ready to be surprised by the past, many prefer to look for traces from the past to anticipate what they think they already learned about today’s world. The effect of proleptic readings of Islamic history is ultimately paralyzing since the constructed image of Muslim societies is a product of industries of representation and ruthlessly focused on certain facets that already agree with what is assumed to be the case. A reading of the past, guided by this reading of the present, fully completes a circle of immunity to understanding or appreciation of Muslim cultures and history. Islam, modernity, violence, and everyday life are the central concepts of this volume. “Islam,” as a theme, pervades this work from start to end. The theme of modernity is not only attested in the concerns of Chapters 2, 3, and 4, but also occasionally surfaces in other chapters. Violence is discussed mostly in Chapters 5 and 6. The theme of everyday life is present in various ways in most chapters. It should become apparent that my focus of analysis in this volume is culture and society, by and large, and not “government” and political players in particular. If the discussion were limited to politics in the narrow sense, the reader would have encountered more emphasis on how power influences the structure of ideas and practices under consideration, and when a certain section of the discussion focuses on government, this is what the reader will encounter. Yes, government and culture are intertwined, but each one can become the “focus” of certain discussions, and the focus changes the discussion. I shall seek to steer clear of a pitfall common to discussions about the so-called clash of civilizations where central political agents function as a model for a whole culture. In these discussions, even the tactics of modern Muslim political players are taken to represent Muslim culture, past and present. Some prefer to have a discussion where the boundaries between politics and culture are blurred under the pseudoacademic smoke screen that culture and politics are naturally intertwined. I do not want to follow this trend.

INTRODUCTION

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The emphasis on “history” in this collection of chapters is palpable because the saying “the past has passed,” I believe, does not apply in the study of Islamic and Western societies. If it is true that every history is a history of the present, it is equally true that the histories of Islamic and Western societies are constitutive of their present. Our view of what these entities (Islam and the West) are stems from the interplay between our images of the past and the present of these two entities. Despite recent, partial, and often uneven transformations of Muslim and Western societies, the current infrastructure of these societies still reflects their multifaceted and complex past. This infrastructure undergoes constant reconfiguration, but it is unlikely to be subjected to full dissipation. Disapproval of “foreign” norms, attested in both Muslim and Western societies, bespeaks a continuity of sentiments coming from a past where this disapproval and sense of foreignness originate. Religion in the Muslim world, as well as in the West, has played as much of a role in creating these forms of disapproval and a sense of what is foreign, even though many of our contemporaries deny the influence of religion in their current sentiments and sensibilities. Dislikes based, at least in part, on beliefs in certain religions in the Muslim and Western worlds survived belief in the religions themselves. Ignoring or marginalizing the past in reflecting on the present, in this context, is unwise. The question of how one should read history and the relevance of history to concepts of knowledge and culture will be revisited in detail in the next section of the volume, dedicated to theoretical considerations. Yet, this point, as I said before, can be overstated. Religion is only part of the puzzle and it must not be deemed all and everything. For an individual (the writer or the reader of this book, for example) to say that they have something to teach (or to learn) about a whole culture through the medium of language (as if to teach or learn a simple lesson, such as teaching or learning that fire can hurt you) is to make a considerable claim. One can grow up in a large city (Cairo, for example) and still feel genuinely unable to assert many generalizations about it. The task gets significantly harder if one attempts to speak of a large country, such as Egypt. But it can get even harder—think of the whole Arab world. And one must reach the impossible at some point if one attempts to generalize about the whole Muslim world, past and present—that is, 1,400 years of culture produced, stabilized and modified, and cherished and rejected by many, many peoples. If my project were to replace generalizations that do not favor Muslim cultures with ones that favor them or generalizations that emphasize the disparity between Muslim and Western cultures with ones that emphasize their similarities, then I am as simpleminded as the objects of my critique. I can only claim not to fall in that category because

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my project is ultimately a critique, rather than an attempt at replacing one thesis with another. Yes, both the academic and nonacademic reader will still be concerned with notions such as “what is commonly true or applicable,” and (in the case of religio-intellectual history and the history of religious practice) many would still ask about the norm and about “orthodoxy.”4 But both the specialist and the nonspecialist reader must be suspicious of generalizations. The reader will encounter constant warnings about the dangers of self-satisfied characterizations of the others, and I shall also remind the reader that, even with good intentions governing any inquiry, one needs to remember that limitations of time and space inevitably push us toward a form of reductionism. Many intelligent, nonspecialist readers desire to make sense of the academic and political discourses about Muslim and Western values. This is a valid desire, as most of us attempt to understand what is beyond one’s scope of life experience and field of competence. As I was writing the following chapters, the intelligent, nonspecialist reader remained in my mind, though I am sure that my habit of writing for academics is still prevalent in my prose. My writing will therefore reflect a degree of tension, given the multiple audiences I have in mind, and given the hybrid nature of my project. I should now move to presenting the promised argument against the assumption that one can determine the congruence or incongruence of two sets of values belonging to two (small or large, but more affirmatively in the case of large) societies with long histories and open futures that promise to exhibit as much complexity as exhibited by their past.

C

H A P T E R

1

THEORETICAL CONSIDERATIONS TWO APPARENTLY CONTRADICTORY IDEAS ABOUT THE relationship between Western modernity and the Muslim world have been put forth, developed, and debated. The first is the idea that no part of the world, including the Muslim world, has escaped Western influence in the past few centuries. The second is the idea that Islam and the West somehow essentially stand for different sets of values, despite their constant interaction. It is significant that each one of these two ideas can be thought, at all, in its most naïve and innocent form. More significant still is the fact that these two assertions of Western pervasive dominance and the incommensurability of Muslim and Western values can simultaneously be made as selfevident principles—or principia per se nota. By making these two assertions, one would confirm the importance of Western culture in the modern world while insisting on its uniqueness. Yet, the stronger the case for a universalization of Western modernity is, the weaker the case for the uniqueness of modern Western culture must become. Having it both ways here is unattainable, as the two assertions clash, one with the other, in multiple ways. But let us consider each one of these two assertions by itself. In my view, neither one of these two assertions is insightful or necessarily reasonable. Let us take the issue of worldwide Western influences first. Some speak of Western influences as exports that must be digested fully and directly by the recipients of these influences, as if the reception of Western products must consist of a simple movement to copy whatever the West stands for or exports. If this were the case, Western influences on non-Western cultures would be an exception to much of the norms of social and political interaction. Influences, whether they are within the

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same culture or are cross-cultural, are often (and almost naturally) uneven. One can react to a position (or an influence) by adopting it, reversing it, attempting to undermine it, or ignoring it. Or, one can invent a hybrid out of some of these elements or other elements. Political players, intellectuals, or businessmen in a given society can adopt one aspect of the political, intellectual, or business cultures of another society, while the rest of the two societies—the one exercising an influence and the one responding to it—remain unaffected by the other. Within one field—politics, for example—those influenced by other forces may pick and choose from their sources of influence. Those reacting to influences may also let themselves be overinfluenced; they may take an aspect from another culture to radical conclusions, while in its culture of origin, the radical conclusion would be unacceptable. Thus, the prominence of Western culture in modern times does not directly establish any predictable, paramount influences of Western cultures on other cultures. In sum, Western influences on today’s world may be observable, but they can also be exaggerated and misread. In addition, Western influences on the Muslim world cannot be the only reason for the presence of similarities between the Muslim and Western worlds and peoples. A cursory look at Muslim societies with an assumption that what looks Western in these societies in the modern era must have come from the West does not help a serious discussion about Western or non-Western societies. One of the forces driving the notion that any thing that looks like what is considered Western must come from the West is the sense of the centrality of Western culture in human history. Thus, the idea of worldwide Western influences boils down to a question about the extent to which a Eurocentric perspective on history dominates inquiries into a comparison between European (or Western) societies and their non-Western counterparts. What of the claim that Islam and the West are near opposites or that many Muslim values are dissimilar to many Western values? First, one must ask how this conclusion can be made. The assumption of similarity and dissimilarity between or among cultures inevitably applies an eclectic consideration of these cultures, emphasizing some aspects of them and de-emphasizing others. To decide, or discover, that two cultures are more compatible than incompatible, or the opposite of that, is to make a mockery of the question itself. Once again, the question at hand turns into another: if one inquires about dissimilarities among cultures, one must also ask about one’s choice of materials and the rationale for this choice. (I shall come back to the eclectic character of common treatments of Muslim societies in many parts of this volume.)

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Despite the differences among various perspectives from which the comparison of cultures is conducted, they share many qualities. In this chapter, I intend to delve into some basic questions that surround an investigation into the comparison of cultures, regardless of the conclusions. I propose a discussion centered on the concepts of “reading,” “knowledge,” “history,” “authority,” and “freedom,” among other key analytical concepts. This discussion will serve as an umbrella for my detailed discussion of the themes of “modernity,” “violence,” and “everyday life.” READING

AND

KNOWLEDGE, HISTORY

AND

CULTURE

Many academics and nonacademics are ambivalent about the accessibility of the past and its value for the present. Some are unsure whether one could seriously talk about the past, since, with many arguments about the barriers in the way to understanding history and past cultures, these skeptics display a measure of reluctance to study it and engage in inquiries about its uses. This reluctance is evidently caused by exaggerated epistemological insecurities, stemming from a sense of the inaccessibility of any substantial and accurate knowledge of the past. Strengthening these epistemological insecurities are psychological ones. People’s relationship to their own history—and this applies to both Western and Muslim cultures—is characterized by “ambivalence”: they receive their cultural history with a mix of pride and embarrassment. Many people also do not like it when the past surprises them—that is, when a version of it challenges their version of what went on and what was the case. This simple surprise is often disguised in a cloak of sophisticated concern with the accuracy of the surprising data. How would you know—I was asked more than once after presenting a piece of data that surprised my audience—that your sources are not distorting the facts? You will find this question raised by audiences so different in their intellectual and religious orientation and in very different settings (churches, university lecture halls, public lecture halls) in our contemporary culture. Even if presumed to be knowable, and even if a measure of distance from it can be achieved, history’s value can still be contested. Many people—and this also applies to both Western and Muslim societies—are simply not sure about the importance of history in their present and future: Why cannot we just give the future some of the space that is occupied by our concern with the past?—some complain. This ambivalence about the accessibility of the past and its importance creates a measure of indifference to the details of past lives. Interestingly, indifference to the details of history, bequeathed by arguments amounting to the trivialization of the past, persists after the sense of the triviality of

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the past is abandoned. That is, when those with ambivalence about the past finally acknowledge that they have at least some interest in it, they still seem to combine with their interest in history some indifference about its details. Many of those who declare history unimportant still speak of history as if it is a done deal, and make unverifiable and flatly mistaken claims about it, thinking that even if they were wrong, this did not matter. I take it that skepticism about the possibility of knowing the past, reluctance to investigate it, and irritation by its surprises, by and large, do not stop people from believing things about the past. Statements about focusing on the future and leaving the past to dead people can only be hyperbolic and dramatic, since those who make these statements do not usually take them seriously. Even distant history, though sometimes mediated by interpretations provided by recent history and culture, continues to live with us. This is because nobody seems to afford to live without history. While acknowledging the disanalogies between collective and personal memory, one can find a parallel between people’s relationship to their (collective) history and their own memories of their personal lives. Knowing that personal memory of previous events of one’s life inevitably distorts them does not deter us from using our memory, since our memory is an essential depository of our identity. Similarly, doing away with collective memory altogether cannot be practically espoused by most people for its high emotional cost, which no social body can afford to bear. I will therefore assume that history, both distant and recent, matters in the present, though to various degrees to different people. But even if ignoring history were a genuine position to be held, it is hardly a sophisticated one. Indeed, wholesale rejection of the possibility of knowledge of the past is as simpleminded as gullible acceptance of a national or tribal narrative. Mahmud Muhammad Shakir (d. 1996) ends a polemic against students of Arabic and Islamic studies who justify wholesale rejection of the authenticity of the historical records of early Islamic history by quoting Abu ‘Uthamn ibn Bahr al-Jahiz (d. 868): The average individual is less capable of sustaining doubt (aqallu shukukan) than the experts (al-khawass), because this individual does not hesitate to believe or disbelieve and does not question her/his judgment, since she/he has nothing but rushing to mere acceptance or mere rejection, and for her/him there is no third state, i.e., the state of doubt, which includes grades of doubt, and [deciding] this is based on the preponderance of something being likely or unlikely . . . A man who did some studying heard the scholars support “doubt” in certain contexts (ba‘d al-shakk) and took that and generalized it to all contexts, and claimed that the correct or

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incorrect of every matter is to be decided by judgments of preponderance (za‘ama anna al-umura kullaha yu‘rafu haqquha min batiliha bi-l-aghlab). This man died and left no followers (lam yukhallif ‘aqiban, wa-la-wahidan yadinu bidinih).1

This is an effective attack on laziness masquerading as sophisticated caution. Shakir’s critique of the skeptics is in line with Muslim historians’ attitude about knowledge of the past; for them, there would be no chance of knowing much about the past if historians demanded “certainty” as a standard for knowledge of the past. Muslim historians and critics of the sources of early Islamic history accepted the fact that most historical reports about the Prophet Muhammad (hereafter, “the Prophet”) will not all satisfy the standard of “recurrent” or multiple reporting (tawatur), when reporters’ sheer number and the geographic remoteness of their residences make it impossible for us to imagine that they could have conspired to lie. Recurrent or multiple reporting was a guarantee for these historians that such reports correspond to actual events in the Prophet’s life. These historians, however, accepted that most reports about the Prophet would fall under the category of “reports of singlechains” (khabar ahad)—that is, reports based on the authority of one or a small number of reporters who could (theoretically) conspire to lead their audience astray. But this did not mean that single-chain reports must be discarded. Rather, they were handled critically, having been accepted in principle based on the following argument: for those seeking knowledge of God’s revelation, there is only “probable” knowledge of the details of this revelation through reports about the Prophet’s life. It thus becomes an established “duty” that one must accept these reports, since there is no alternative means of accessing this revelation. The acknowledged uncertainty in the reporting is negligible next to the certainty of the duty to pursue the information one can access. The above established duty or “imperative” serves as a model for a historical imperative today: one must accept deficient knowledge of history, since the alternative is no knowledge of it at all. This perspective is hardly limited to the likes of Shakir—writers of different orientations and backgrounds consider the uncertainty we entertain about our sources to be less than fatal. There is a difference, as Carlo Ginzburg puts it, between saying that our sources are biased or “not objective” and saying that they are useless.2 The fact that our sources of the past possessed preferences and perspectives does not make using them impossible. The fact that our sources of history possess a perspective we might not accept does not, therefore, end their relevance, as we could still interrogate and investigate these sources and analyze and critique their perspectives.

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Here, modern Muslim historians, who are committed to the epistemological imperatives of their intellectual tradition, find themselves in the same position as a modern Western reader of history. Important differences will be identified when one asks about sources deemed acceptable or unacceptable by different readers, and I shall come back to the question of the different styles of reading history shortly. Suffice it here to point out this similarity among the different readers, despite the difference in their intellectual traditions. But one must note that there is such a thing as excessive optimism about recovering history, and readers of culture and history from different traditions can understand the difficulties they face in their work. These readers could occupy any number of positions and possess different degrees of optimism about their task, but while involved in uncovering history from available evidence, many see themselves as standing on a terrain of acknowledged tension, maneuvering as much as possible and constantly reflecting on their handling of data as well as means of analysis. One must thus acknowledge the difficulties inherent in reading history and culture. Chief among these are those difficulties stemming from culture’s evolutionary character: it is neither something of the past nor a mere creature of the present. There is no historical or present moment that is simply representative of any culture. Culture seems to possess an infrastructure allowing it to interpret and reinterpret itself as it advances through the generations. This infrastructure lies somewhere between a past that holds an authority over the present and a present that confidently questions the past in its own court of (newly devised) correct standards. This makes “culture” an elusive target. The reader must attend to this fleeting character of culture, while addressing specific questions of how reading the past is at all possible—a tall order by any measure. A basic element of a reader’s perspective and position vis-à-vis history and culture is this reader’s relationship with different cultures and histories, her or his own, and those of others. Culture and history, which we attempt to read, shape us. History, the subject of our study and judgment, hands us what we call “knowledge,” and also what we call “culture.” Both culture and knowledge of the past are essential for our sense of who we are, even as we constantly engage them in dialogue and question them. We are not only expected to accept some of the authority of this knowledge and that culture but also to improve the knowledge that is handed to us from the past, and perhaps refine the culture the past offers to us. Accordingly, when considered as an essential condition of any reflection or inquiry, culture imposes limitations on the perspective applied to the process of reflection or inquiry. And since the history of a society or a

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culture provides, in part, the identity of those participating in reading history and culture, any project of reading history and culture must reflect on its position and its inherited premises that are drawn from its history and culture as it investigates its or others’ history and culture. When a contemporary historian attempts to recover a sense of the past in order to spell out how the present would view that past, this historian must understand that the best one can accomplish is a representation, and the only true representation “is that which also represents” as much as possible “the gap that separates it from the truth.”3 All readings of Muslim cultures of the past and the present, including my own, are answerable to the above critique of reading history and culture. One of the strategies used to address this concern in this volume is to limit the conclusions to a minimum. The nature of the materials I employ here differs from chapter to chapter based on the nature of the subject of each chapter, but aspiring for limited conclusions remained a constant in this volume. In Chapters 2 and 3, for example, I offer a reading of Ibn ‘Abidin of Damascus (Chapter 2) and Egypt’s ‘Abbasi (Chapter 3). Tucked into this project of reading are the same basic difficulties facing the readers of history and culture of which I spoke. This is further complicated, in this case, by two factors. The first is the nature of the subject of this reading. The subject is a moment that is seen, by some, to have authoritatively defined its past and could be seen as monumental from any point of view in its future. The second complicating factor is the diversity of the sources, as one of them (Ibn ‘Abidin) may be seen to represent jurists with unqualified loyalty to their religio-legal traditions, and the other (‘Abbasi) as a political appointee whose juristic personality was more or less formed through on-the-job training and who had mixed loyalties and would thus represent tendencies that may clash with those of traditional jurists. (Note that despite these and other differences between Ibn ‘Abidin and ‘Abbasi, both jurists were loyal to their traditions while expressing their own personal views and allowing their writings to reflect their unique personalities.) To address these objections I adopted the strategy of keeping my conclusions to a minimum. I shall refrain from making generalizations about the degree to which continuity or change in the development of any society should be highlighted. One is reminded of the difficulty of interpreting moments lying on the cusp of change by the Karl Löwith-Hans Blumenberg debate about whether secularization in modern Europe was a “transformation” (read continuation) or an “alienation” of Christianity.4 The difficulty in the context of Muslim societies of the eighteenth and nineteenth centuries applies to both how we read our sources of this time

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(Ibn ‘Abidin and ‘Abbasi, in this case) and how these sources read their context on a spectrum of continuity and change within Islamic cultural and legal history. My main defense of my reading remains its limited goal. My goal is to point to the complexity of Muslim societies on the cusp of modernity. This complexity may be seen even based on different readings of the materials I investigate. For Ibn ‘Abidin or ‘Abbasi to have forged this complexity out of thin air would be impossible, regardless of their specific positions about any of the specific or general issues addressing what went on in their environment. I also refrain from searching for the correct tone in evaluating the differences between the different sources. Once again, my focus in Chapters 2 and 3 will remain the societies these two jurists describe, and other studies may investigate these two minds’ contribution to Islamic legal thinking in the nineteenth century and after. Chapters 2 and 3 construct Muslim cultures on the cusp of modernity, cultures that continue the traditional and historical Islamic heritage and possess a degree of complexity, which necessitates a deliberate and slow adaptation to the changes brought by Western modernity. As they stood, these premodern cultures had developed their own ways of achieving some of the goals modernity had to offer: a measure of freedom to be enjoyed by the individual and a measured balance of the different interests of private and public entities in the society. Other chapters address other issues. In Chapter 4, I provide a close reading of a juristic view explaining how market standards and social customs may function as a source of law in Muslim societies. Many may disagree with the substantive claims of the view I study (which is Ibn ‘Abidin’s view), but this will not affect my limited claim of the availability of this view and the limited claim of the availability of the notion of social custom as a factor in deciding legal cases according to Islamic jurisprudence. Chapters 5 and 6 address the fraught questions of war and apostasy laws in Islamic law. My claims remain limited to exposing the weakness of common treatments of these subjects, rather than defending any surprising claims about the Islamic juristic discourses on war or apostasy. In a similar vein, Chapter 7 establishes the limited claim of Islamic law’s respect for individuals’ privacy. This is also a thesis that can hardly be denied despite possible disagreements about the details of any right to privacy in different madhhabs or school doctrines. Hence, in this volume, I take serious critiques of the reading of history and culture seriously while ignoring sophisticated-looking pseudocritiques of the investigation of history. I move now to other aspects of the difficulties inherent in handling history, beginning with the issues of looking for tidy

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and simple qualities characterizing complex events of long and diverse histories, based on the impulse to locate “meaning” in historical narratives. MEANING

IN

HISTORY, RELIGIOUS READINGS

In the study of medieval Islamic history in the modern world, one can locate distinct approaches and tendencies. Despite valid critiques of how we may distinguish the different approaches and tendencies of participants in reading medieval Islamic history (or how to attribute approaches to readers), denying the existence of these is not constructive. In a previous work, I distinguished two ways of looking at Islamic legal history and institutions.5 One of these (let us call it “traditional”) is championed by a participant in the same tradition from which the text hails, with the goal of understanding the text in the sense of enlivening or operationalizing it—that is, discovering its relevance to contemporary life. During my traditional education in Egypt, I was trained to read medieval legal texts with contemporary jurists who thought of the juristic discussion as part of the law that may govern at least some aspects of contemporary life, even though some of these jurists doubted the practicality of operationalizing many of these texts in their context or were not invested in turning them into part of the reality of their own society. The second reading of the same texts (let us call it “modern”) aims at situating the texts in their context to produce an account of a history that includes the texts as events. In the modern Western academy, one could read medieval texts with different goals in mind, but one of the tests for the rigor of one’s reading is that one must acknowledge that the text makes sense only in its context. If one were to suggest a direct comparison between the text’s context and today’s context, one must expect vigorous and occasionally vehement attacks. Of course, everybody understands that we read history with a present end in mind and before that, with a present starting point. And even if one reads the past in order to trivialize or escape the present, one cannot fully escape the present in the process. In the current discussion of meaning in history and the different types of religious commitments of its readers, I must provide further explanation of the implications of traditional and modern readings, as defined above. A contemporary traditional reading aims at reading these texts for the sake of “understanding” the law and learning how to participate in its production. Learning the context is an important aid for this endeavor, and being critical of positions adopted in these texts is a natural part of the discursive production of law in these traditional paradigms, but the reading, in principle, is not about situating a text in its context and declaring both the text and the context to be of a world far removed from

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ours. Contemporary modern readers who reject traditional paradigms do not search for good ideas or guidance in these texts, since they have little context for applying the texts in their societies. For these readers, investigating the context relates to other objectives for the reading, which each reader is free to decide, but an attempt at relating a historical text to the present must be seen as problematic in a modern reading, as we defined it. Before I began to investigate Ibn ‘Abidin’s and ‘Abbasi’s juristic writings (the subjects of Chapters 2 and 3), I asked myself about the degree to which a traditional and a modern reading of their writing would produce different results, given the religious commitments of the readers. It would be easy to accuse traditional readings of Islamic history of being religious. But whether it qualifies as “traditional” or “modern,” any reading of history can hide a “religious intent”—that is, when the reading operates based on the assumption of absolute meaning (e.g., progress) in that history. Reading history to find meaning in it is religious, as it implies commitment to a “judgment” on the past as well as on the present. A reading of history that insists that the world progresses is religious in this sense, because it commits to a religious doctrine of progress. If finding meaning in history is a religious attitude, then this religiosity is a problem in all readings of history that search for or presuppose the availability of grand schemes and meaning in it. What is true of history readings that search for a pure or extraordinary moment in it or an inevitable continuity in one of its traditions, is equally true of progress-based readings of history. Modern (secular) readings of history are no less guilty of this religiosity than readings of the same with a declared religious objective. One of the ironies of the process of imposing meaning on history is that meaning itself comes from history rather from outside of it,6 and this irony can be found in the different religious readings of history, including modern secular religious readings of it. When the notion of absolute progress is taken seriously, a good historian must labor to counter its absurd judgment of past figures and institutions as inferior to those of the present. (I realize that many historians genuinely believe that some historical geniuses surpass present geniuses, and I know that the ancient world occasionally receives “special treatment” by many historians and is made even to stand on a higher plane than the medieval world, but I wish this, by itself, was sufficient to take away from the tyranny of the notion of progress and its dominance in contemporary human thought.) At any rate, some of the implications of the notion of absolute progress are occasionally challenged. Some challenges even go beyond the assertion that history has as many outstanding figures as those of the present and that institutions of the past are sometimes even more

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“advanced” than those of the present. Many scholars who study European intellectual history do away with (or even counter) the strong version of progress-based assumptions when they study premodern European intellectuals, which lead them to unearthing much creativity in the works of European philosophers, theologians, and scientists. Some distinctively modern ideas have been traced back to quite mature, early modern, or premodern precursors.7 But more important than the history of specific debates and ideas is the very interest in centuries and texts that were judged irrelevant to modern life. Some studies show that creativity reached a height in medieval Christian theology and could present us with minds equal to many admired ancient and modern minds.8 More could be, and, I suspect, will be, done. But when it comes to medieval Islamic history, despite the lip-service acknowledgment that medieval Muslim civilization may have established a unique model for civilization, we are yet to recover from the assumption that medieval Muslim culture must be a few beats behind modern culture, morally, intellectually, and organizationally, in most respects, in all these areas. Other prejudices also apply to the main outlines of historical studies. A modern reader of a medieval theologian or jurist, for example, often begins by asking whether this theologian or jurist was educated in the Aristotelian tradition, which indicates a degree of sophistication and the capacity to engage in certain discussions. When the modern reader finds evidence of this person’s knowledge of Aristotle and his interpreters, the reader often jumps to the conclusion that she or he will think in a certain manner, and will even likely reach certain conclusions. Here, the powerful assumption of lack of creativity impedes an open-minded reading of the materials. A bit ironically, if the modern reader assumes that their subject is a marginal or a rebellious type of thinker, the reader is more open to finding instances of creativity in this thinker’s opus. Hence, many academics are lured by the beauty of studying marginalized medieval intellectuals and “failed” academics of the medieval academies, basically because this allows them to break from the narratives of how Aristotelianism ruled the Christian and Muslim medieval minds for centuries. I know from previous studies I conducted that creativity can be found in the writings of Muslim jurists of all centuries and all generations, sometimes predictably in the writing of a major jurist whose innovations were accepted by later generations and incorporated into the legal tradition of which the jurist was once a novice. But sometimes the creativity comes from a local judge or a jurist of a lesser fame and even no bibliography— that is, those jurists who have no writings of their own and are known to

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us only through the writings of others. Creativity comes from those who lived one thousand years ago and those who lived a couple of hundred years ago. For serious students of Islamic legal history, it is simply impossible to classify jurists by era in order to evaluate their intellectual contribution. I fail to determine the backward centuries and the forward centuries in Islamic legal history. This may explain why histories of Islamic law that assume a certain line of development in that history, from original creativity to lethargy to possible modern revival, are not satisfactory in my view. An open-minded reading must constantly question its suppositions and aim at delving into the world of the text with more curiosity than judgment, avoiding assumptions about the quality of the ideas coming from certain traditions or time periods or the capacity of these to compare with its modern counterparts. If reading texts that describe Muslim societies of the eighteenth and nineteenth centuries, with fewer suppositions, leads to conclusions that do not fit previous biases, this is both natural and desirable. If a reader finds evidence that a Muslim society on the cusp of modernity displays the qualities of a successful and advanced society, one should not ask, why did not this society modernize itself faster? One would find it bizarre, in fact, if this society should modernize itself quickly or at all (Chapters 2 and 3). By the same token, if a more inquisitive reading of the theoretical and practical treatment of war and apostasy in Islamic legal history necessitates a reevaluation of our understanding of the issues of violence against the individual and against foreign enemies, we should undertake that reevaluation rather than shy away from it or retreat to our initial positions and presumptions on the subjects (Chapters 5 and 6). If a surprising measure of respect for the privacy and the autonomy of the individual in a Muslim society seems to force itself on us when we read Islamic legal texts of different times (Chapter 7, among other chapters), we should accept the obvious conclusion rather than resort to unexamined and underexamined assumptions about what these societies are like, as we learned from common assumptions before our reading. WESTERN INFLUENCES

ON

READING

Having acknowledged, at the outset, the “uneven” influence of modern Western societies on many cultures in the world—which includes cultures of societies and of professions, including academic cultures—one must attend, albeit briefly, to how this influence relates to academic projects of reading Muslim cultures and histories. How do modern interactions

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between Western and non-Western societies affect our understanding of both types of societies and the history of their evolution and characters? Let me step back and describe the background of the purported interactions that lead to Western influences on reading. Interactions between Muslim Mediterranean states and European states are attested throughout their history. These interactions, however, witnessed much growth in many areas in the last few centuries. Modern European influences on Muslim societies started with an early modern wave of globalization, attended by growth in trade and an influx of Europeans into other continents.9 Ibn ‘Abidin, whose writing is discussed in Chapters 2 and 4 of this volume, was one of those who witnessed the increase of Western influences and grudgingly learned to contend with the new circumstances. After Ibn ‘Abidin, Western influences continued to rise. These influences ended up creating a world in which doubt about the continuation of the Islamic traditions was discussed, and Ibn ‘Abidin and his class of Muslim jurists were seen by some as the last of traditional jurists.10 The advent of colonialism (often linked, in the writing of the already mentioned Shakir, to active Christian missionary work in the Muslim world, reform Islamic movements, and Orientalist scholarship) introduced a significant change in the status of Muslims in the world, which was also linked to the appearance of a confident Europe that is both ethnocentric and culturally solipsistic.11 (An individual solipsist is somebody who doubts the existence of the world and only acknowledges his own existence. Groups are also capable of collective solipsism; that is, when they seem to only acknowledge their society, their people, and their culture, while virtually negating the existence of other cultures, except inasmuch as these cultures interact with their own.) From Shakir’s viewpoint, cultural solipsism captures the neurosis that infected the Europe of the Enlightenment and colonialism and made it unable to see “other people” as real people and read their history as real history. For Shakir, Western cultural solipsism has not only dominated Orientalistic approaches to history, but also infested the thinking of nonWestern historians, including Muslim historians. Diversity among Western and non-Western historians may be acknowledged, but since we are yet to possess a reasonably complex version of history that does not take Europe as its anchor, Shakir would contend, similarities and uniformity still carry the day. Disagreement in their methods and interests aside, Orientlists read Islamic history in ways that reflect their position in relation to that history and to their own history. For Shakir, Orientalists failed to pay Islamic history the basic courtesy of trying to understand it and distinguish its perspectives and voices from those of these Orientalists

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themselves. These Orientalists, Shakir continues, suffer from unprecedented measures of self-aggrandizement, on top of complex ignorance and distance from the subject matter. Evidence of self-aggrandizement abounds—the Geneva Arabist Max van Berchem (1863–1921) sincerely believed that Ignaz Goldziher (1850–1921) was the first to have read Arabic and Islamic texts scientifically. He addresses Goldziher, saying, “After all, you are the first who fathomed Arabic literature from a historical and religious point of view and you have reached deeper down to the roots than anybody before you.”12 It would be hard to take the “anybody” of the last sentence to be limited to European scholars, given its general wording, but also given that the encomium would have lost much of its weight, had it been meant to compare Ignaz only to Western Arabists. Furthermore, it would be hard to imagine that van Berchem would credit Arab and Muslim writers with any scientific reading of texts or the capacity to critically reflect on their own tradition. Rather, “anybody,” here, is intended to cover Muslim historians of the preceding thirteen centuries (note the expressions “the first” and “anybody before you” that van Berchem uses). The new (scientific) perspectives of these Orientalists present themselves as the only acceptable perspectives to be embraced by students of Islamic history. For Shakir, an abandonment of these perspectives and a constant questioning of those who attempt to use them is an essential requirement in any good scholarship about Islamic history in the modern era. One must concede that Western influences on academic studies of Islamic history can be taken to be a component in reading Muslim societies today, but one need not assume that these Western scholars have somehow changed our perspective on Islamic history once and for all. Moreover, in fairness to many Western students of Islam, one cannot take them all to be unable to critically assess the unique position their Western heritage takes regarding Islam and the Muslim world. Similarly, the inability of many Orientalists to appreciate or relate to Islamic history and traditions is occasionally exaggerated. More importantly, as Orientalists made their perspective an essential part of the materials they consider, they occasionally failed to do more than recycle ideas they found in their Muslim sources, while adding their distinctive tone to it. Without denying that arrogance and condescending romanticization of the Islamic East characterized the work of many Orientalists, I would like to draw my reader’s attention to an understudied aspect of Orientalism—that is, how Orientalists’ work often reflected their unique attitudes about their subject but hardly contributed new forms of knowledge of it. Yes, Shakir (and Sa‘id) are right: many Orientalists were unable to respect Muslim societies and

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social and legal systems, and were indeed invested in expressing contempt for basic Muslim traditions and practices from time to time. But many Orientalists were actually parasitic in their work on medieval Muslim intellectuals, and their scholarship was more or less a continuation of many themes that can be located in the Islamic intellectual traditions. The dependency of Orientalists on their Muslim predecessors (and contemporaries) and the similarities between the works of Orientalists and medieval Arab thinkers is not only an understudied aspect of the history of Orientalism, but it also might appear to be a suspicious inquiry to many, despite the fact that the Islamic intellectual traditions are replete with diverse tendencies, trends, and countertrends. It still appears, to many, to be simply counterintuitive to assume that Ignaz Goldziher’s critique of the sources of Prophetic hadith is simply a radicalization of principles employed by many Hanafi and Maliki jurists who championed rationalist jurisprudence (contrasted to traditionist jurisprudence as represented by the Musannafs of ‘Abd al-Razzaq al-Himyari [d. 827] and Ibn Abi Shayba’s [d. 849]),13 with the goal of establishing laws based on reason rather than tradition. It would be easier to assume that Goldziher’s critique of traditionism was influenced only by advances in Biblical text criticism, a European offspring of the Enlightenment. Similarly, very few would assume that Theodor Nöldeke’s (b. Harburg, March 2, 1836; d. Karlsruhe, 1930) attempts at understanding the content of Muhammad’s prophecy by analyzing it psychologically and sociologically mimics and develops Farabi’s (d. 950) theory of prophecy. This theory (long before Schopenhauer (1788–1860), who seems to have held a similar theory) teaches that (1) prophecy is a context-based, metaphorical expression of philosophical truth, (2) that this metaphorical expression may deviate little or much from its philosophical basis, and (3) that the philosophical basis of any prophecy may itself be philosophically sound or unsound. It would be natural, by contrast, to argue that, unlike Orientalists, rationalist Muslim jurists questioned the attributability of specific hadiths to Muhammad rather than the historicity of the whole tradition—which distinguishes their project from that of Goldziher’s—and that Farabi’s excessive labeling of all prophetic statements as allegorical does not, after all, trace a good proportion of Muhammad’s teachings to preMuhammadan religions, as many Orientalists did. However, it is these links and similarities between medieval Muslim thinkers and modern Western scholarship on Islam that remain understudied. To provide an example of the complex ways in which major Orientalists may have been influenced by their Arabic sources, including being in the business of recycling and modifying views they read in these sources, I shall draw a

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brief comparison between Nöldeke and the Muslim writer Jalal al-Din alSuyuti’s (d. 1505) effort to assess the traditions they inherited in the history of the Qur’an and the life of the Prophet Muhammad. Studying the Qur’an as a historical parallel to the life of Muhammad is one of the principle questions of Islamic studies. And studying the history of the Qur’an, especially its conception and first iteration by Muhammad, is often a concomitant of the study of the transmission of the Prophet Muhammad’s tradition, by and large, which continues to be pursued by researchers in Islamic studies.14 Despite the interest of many Muslim exegetes, chroniclers, and jurists—among others—in the issue, recovering and constructing the history of Muhammad and the Qur’an is admittedly difficult. The intrusion of the hagiographic shama’il literature, which depicts an image of a larger-than-life prophet beyond his context, is but one of the difficulties, since even in sources that proclaim to be reporting historical facts, one is at sea trying to ascertain the date of a given report and whether its content includes conjecture. Ascertaining the dates of certain events, such as the birth date of the Prophet, for example, is one of the issues that Muslim historians and Orientalists alike have struggled to achieve.15 Nöldeke’s active interest in the history of the Qur’an began with his 1859 text De Origine et Compositione Qorani (only to be published as Geschichte des Qorans in Gottingen a year later) and continued at least until 1910 when his “Zur Sprache des Qur’ans” appeared. Geschichte des Qorans won its author a prize from the Academie des Inscriptions,16 but it is, most importantly, credited with beginning a new tradition in the study of the history of the Qur’an and the life of the prophet of Islam. Nöldeke is an example of a nineteenth-century Western scholar of Qur’anic studies who relied on and conversed with medieval Islamic sources more than is often assumed. (Engagement with and heavy reliance on medieval Muslim writers in Qur’anic studies, in fact, goes as far back, as Thomas E. Burman demonstrated, as the earliest Latin translation of the Qur’an in the 1140s, but this is another matter.17) Orientalists like Nöldeke had to begin to develop a metaperspective to employ in reading their sources, and their Arabic sources, which are constantly involved in self-assessment, provided an obvious point of departure. Moreover, relations between many Orientalists and their contemporary Arab scholars, during the time Nöldeke produced his work, facilitated for Orientalists much access to sources. We are told, for example, about Arab scholars of means, such as Ahmad Taymur, who would make “a good photograph” of needed manuscripts available to those who needed it.18

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At any rate, Nöldeke could find in his Arabic sources a great deal of variety to engage, tantalize, and challenge him. Suyuti’s writing, by itself, is a major source of variety, as Suyuti enjoyed demonstrating his knowledge of his sources and recounting many views on any subject he discusses. This is the starting point in comparing the works of Suyuti and Nöldeke on the topic: the apparent encyclopedic nature of the first and the eclectic and experimental nature of the second tend to paper over major influences by the first on the second. While context plays a major role in shaping each critical project, similarities can still be detected between Suyuti and Nöldeke’s treatment of the history of the Prophet Muhammad and the Qur’an. This remains true despite methodological (and, indeed, religious) commitments, on the part of Suyuti and Nöldeke. Take the issue of understanding the relationship between Qur’anic verses and their context. Both Suyuti and Nöldeke recognized the limitations of any attempt at the historical situating of verses based on a presumed relationship between the verse and a given event or based on the psychology of historical players who witnessed this event. Nöldeke often described determining the time at which certain verses may have been iterated by the Prophet for the first time as impossible in some cases, and, in his 1909 introduction to his Geschichte, he lets out signs of a sense of exhaustion and regret of some of his early views. This position is not particularly different from the position of many Muslim historians of Muhammad’s life, especially Suyuti. These medieval Muslim students of Qur’anic and Muhammadan history seem to have accepted the conclusion that full knowledge of the Prophet’s history and the evolution of the Qur’an might never be attained, a position applied by modern scholars of biblical studies to biblical and Christological history, too. Suyuti is especially good at pointing to the diversity of opinions on any matter he discusses, and his restraint from judgment is a near constant in his work. Yes, Suyuti’s Itqan (his study of the history of the Qur’an and the main branches of its content and exegesis) and Nöldeke’s Geschichte reflect different personalities. Suyuti’s juristic orientation makes him concerned with the practical consequences of the history of the verses (especially his interest in understanding the circumstances of the revelation to understand them). His Sufi tendency makes him hold dear the idea that Muhammad is the perfect man (Insan Kamil), which influences his perspectives on both evaluating and understanding available historical records of his life and the conception of the Qur’an. Nöldeke is responding to a context that included, among other things, developments in the study of psychology and medicine (with new ideas about an individual’s urge to speak of receiving revelations), the romanticization of the Qur’an and Muhammad’s

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East by the likes of Goethe, and the rise of biblical critical studies. But Suyuti and Nöldeke display similar attitudes about available knowledge of the life of Muhammad and the revelation of the Qur’an. The question of Muhammad’s psychology, in the writings of Suyuti and Nöldeke, is intriguing. Based on historical and religious grounds, Suyuti could believe that Muhammad had to undergo divine preparation for his awesome message. The Qur’an explicitly states that Muhammad needed that divine support: “Did not He find you an orphan and sheltered you; did not He find you in need and enriched you; did not He find you misguided and guided you?” (Qur’an 93: 6–9). Muhammad’s transformation from a common man with men’s imperfections into a perfect man thus originated in divine support more than anything else. Nöldeke tells what appears to be a different story. At the outset of his work, Nöldeke depicts a picture of a prophet who was not strong willed by nature, but a combination of the internal urge of his prophecy and subsequent events transformed him. Nevertheless, Nöldeke interestingly tries to convince his reader, in the opening pages of his book, that Muhammad must have been a prophet because his natural inclinations would have been to live under the radar of the politics of his society and refrain from challenging its authorities, but his internal urge (responding to his nagging prophethood) led him, despite himself, to go against the grain. Suyuti and Nöldeke are reading from the same sources and reading their main lines fairly similarly. The difference is more or less a matter of “attitude” and “tone” reflecting their personal relationship with the subject of their inquiry.19 The persistence of a psychological criterion for historicizing verses (more directly and crudely applicable in the case of Muhammad, as compared with the Bible, which has long intervals separating its authors and sources) in Nöldeke is understandable. But Nöldeke, not unlike Suyuti, duly acknowledges the limitations of psychology-based reading of the history of a single man and questions most obvious applications of biblical critical studies to Qur’anic history. One striking element of comparison between Suyuti and Nöldeke is that Suyuti’s almost ostentatious counting of myriad sources he used to compose his work does not find an exact parallel in Nöldeke. The number of Arabic sources mentioned at the outset of the Itqan is exhausting. These include a few books Suyuti counts as belonging to the same genre to which his Itqan should properly belong (such as those of Bulqini’s [d. 1403] and Zarkashi’s [d. 1370]) and others that range from being commentaries on the Qur’an, or aspects of it in one way or another, to being sources of Arabic and Islamic studies in the largest sense. This is not

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to say that Nöldeke’s stock of sources is thin. It is, however, obvious that the Arabic sources Suyuti uses include sources that were unavailable or not known to Nöldeke. Yet, this difference offers an opportunity to restate the basic similarity between Suyuti and Nöldeke on the issue of dating the Qur’anic revelations, determining which parts of the Qur’an were revealed to the Prophet in Mecca, and which parts belong in the Madinan years. Suyuti discussed this issue at the beginning of his work, reporting an abundance of opinions, including a disagreement about how one should define the Meccan and the Madinan revelations themselves. Suyuti finds much to report but ends with doubting the possibility of producing a neat history of the evolution of the Qur’an. Nöldeke also displays a measure of reluctance to make a final decision about this history. In their treatment of verses of relevance to Muslim and non-Muslim relations in the Qur’an and the events in Muhammad’s life that correspond to them, both authors, by and large, vacillate between projecting the confidence to be able to tell a full story of the events and expressing despair of historical knowledge of the events, given the scarcity or abundance and conflict of the sources. Nöldeke has even gone beyond reiterating and sharing the ideas of his Muslim predecessors; he internalized a sense of sharing the Arab heritage with those who inherited the Arabic language and culture. This may be seen in Nöldeke’s use of Arabic expressions in his correspondences as part of his own way of expressing himself, as opposed to citing Arab writers (e.g., he ends a postcard that he sent to Goldziher on October 3, 1896, with wa-s-salam [Peace] and a letter of August 7, 1906, with in-sha’-Allah [God-willing]).20 This is not to say that the relationship between the Nöldeke-SchwallyBergsträsser history of the Qur’an (Friedrich Schwally lived between 1863–1919 and Gotthelf Bergsträsser 1886–1933) and the Islamic sources of Qur’anic studies is one of following or imitation. As these Western students of Islam conversed with their medieval Muslim predecessors, they have also created their own tradition of Qur’anic studies (often dialoguing discreetly or not so discreetly with biblical studies, with an emphasis on sociological, psychological, and literary analyses as tools for the examination of the historicity of Scripture), thus forming a dialectical relationship of acceptance and rejection with the works of their Muslim predecessors, such as Muhammad ibn Jarir al-Tabari (d. 923), Hibat Allah ibn Salama (d. 1019), Suyuti, and others. Consequently, Western students of Qur’anic studies after Bergsträsser (d. 1933) began to find enough to debate in the works of their Western predecessors, and while continuing to use Muslim sources in their research, they could engage

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more and more with the details of their Western predecessors’ works (a similar situation will obtain in studies of Islamic legal history after Josepoh Schacht’s [d. 1969] Origins of Muhammadan Jurisprudence). Over time, two traditions have continued to pursue their own interests and questions, with occasional “crossing” from one side to the other. An assessment of the exact influence of medieval Muslims on the Orientalist tradition will not detain us for too long. My point here is that the idea that Orientalistic readings of Islamic history must diverge from Muslim readings of it cannot be defended, nor can the influence of these Western readings be denied, especially those Western influences on reading that can be located in these Orientalists’ convictions about the position of Islamic history in their form of world history, the type of world history that takes Europe as its focal point. ECLECTIC READINGS

OF THE

HISTORY

OF

VIOLENCE

Whether it is classified as traditional or modern, Western or un-Western, any reading of history and culture must suffer a degree of eclecticism. Some forms of contemporary eclecticism in reading the history of violence, however, deserve note. In this section, I shall focus on an instance of these eclectic readings of the history of violence, one that reflects a surprising relationship between the context in which the history of violence is addressed today and the ways in which it is addressed. By this I mean to indicate the September 12, 2006, speech by Pope Benedict XVI in Regensburg, Germany, which was meant, at least apparently, to address the question of faith and reason but turned out to be nothing but an anti-Islamic polemic leveling the claim that Islamic beliefs, as opposed to those of Christianity, are conducive to violence, given the lack of harmony between these beliefs and reason, again in contrast with the harmony between Christianity and reason. The context in which the question of violence is discussed inevitably influences the nature of the discussion. This is particularly true when the accusation of violence is exchanged by two parties disputing their histories of violence, which involved both of these disputing parties. It is especially problematic for a party exerting much greater violence against another to insist on calling attention to the violence of their enemies who only possess a limited capacity and willingness to exert violence. In 2006, when the pope delivered the above-mentioned speech, a devout Christian president had called for a crusade, and invaded two Muslim countries, and killed hundreds of thousands of Muslims. But the pope’s complaint was about violence by Muslims, as evidenced by fifteenth-century Ottoman violence against the army of an erudite Byzantine emperor.

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In the speech, Pope Benedict begins with a quote from Manuel II Palaeologus, a Byzantine emperor who ruled in the waning days of the Byzantine Empire (he died in 1425, and Constantinople fell to the Ottoman Turks in 1453). Manuel was particularly unfortunate in his encounters with the Turks: he was held hostage in Ottoman land before becoming emperor and lost all his important wars with the Turks after becoming emperor. The quote that is attributed to Manuel was part of a dialogue (likely with an imaginary Persian interlocutor) where Manuel expressed his view of Islam and Muslims while Constantinople was under Ottoman siege. By choosing this particular historical moment, the pope forces us to recall his reputation as Cardinal Joseph Ratzinger, the head of the Congregation for the Doctrine of the Faith, a religious leader with abundant fears about the future of Christianity in Western Europe. Cardinal Ratzinger, now Pope Benedict, attacked many religious and political leaders for being complacent in the decline of Christianity as a cultural force in everyday life, where some Western Europeans of the new generations already answer the question of what their religion is by saying that “their parents are Christians” or that “they grew up in a Christian household” as opposed to simply saying that they are “Christian”—that is, the new generations’ relationship with Christianity is becoming increasingly historical, rather than personal. In this context came Pope Benedict’s criticism of the freedom given to grade school students to choose which religious studies classes to attend, as well as some European politicians’ initiatives to replace religion classes with classes in ethics, to be attended by all students, regardless of religious orientation. As I said earlier, the pope describes Manuel as an “erudite” emperor, which explains why his subsequent apology to Muslims and attempt to distance himself from Manuel’s opinion fell on deaf ears. The erudite emperor makes the assertion that Islam spread with the sword and attributes that to the Prophet of Islam, Muhammad. Then Pope Benedict asks himself an implicit question: could Manuel have been unaware of a Qur’anic verse that states, “There is no Compulsion in Religion” (Qur’an 2: 256)? The answer to this question is that the emperor must have been aware of this verse. Then Pope Benedict continues to defend Manuel’s thesis by saying that the above-mentioned verse represents only the early revelation of Muhammad, which does not include the real position taken by the Qur’an on violence and which must have been condoning it as a means to spread the Islamic faith. In reality, this verse is likely part of the Medina period of the Qur’anic revelation, which is the period Western scholars believe was the one that witnessed Muhammad’s violence against

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his opponents as he grew stronger in the last few years of his life. At any rate, the language of “no compulsion” will have a context only if compulsion was possible, which is another reason this verse does not represent a stage where Muhammad was incapable of using force against his opponents. But Pope Benedict seems to be sure that Islam is violent no matter what.21 The pope dedicates three paragraphs (about a page out of his sevenpage speech) to a comparison (or, rather, a contrast) between Islam and Christianity. Since the pope’s speech is about the Christian faith’s compatibility with reason, the contrast between Islam and Christianity attempts to make the point that Islam is incompatible with reason (by no means a new idea for medieval Christian polemics against Islam). Here lies an irony. The pope’s speech pretends to project a confident tone, arguing for Christianity’s ability to “penetrate the soul” and convince the intellect, while his personal history and language reflect unique insecurities and fears of Islam’s growing presence in Europe. But aside from this irony, the pope’s inquiry about the relationship between faith and reason is an instructive one, because all his claims about the harmony between the Christian faith and reason, as he understands them, are made in connection with the incompatibility of the Islamic faith and reason (defined in ways similar to the pope’s definition of reason). This leads us to identifying another irony in the pope’s argument: the more successful he is in making the case for the compatibility of faith and reason in his tradition, the less successful he is in convincing anybody with decent knowledge of Islam that the Islamic faith is incompatible with reason, as he defines it. The most significant aspect of this speech, however, remains its eclectic reading of the history of violence involving Christian and Muslim armies. Eclectic readings of the history of violence serve as distractions from understanding the reality of excessive violence involving Western societies today, given their hegemonic posture in the world. Subsequently, clashes of Western and Muslim entities are explained (away) by self-appointed representatives of Christian or Western values as signs of the incongruence of Islamic and Western values. They are less and more than that. A BRIEF NOTE

ON

ECLECTICISM

AND

WOMEN’S ISSUES

This volume will not specifically address what came to be known as women’s issues. I must, first, state that this decision does not come out of any sense that these issues ought to occupy a secondary position in the questions of cultures. No adequate understanding of any society can be achieved without an understanding of the life of men and women and

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children in the society. In my treatment of Muslim societies on the cusp of modernity and of the right to privacy in this volume, I touch on questions of the interaction between men and women in society, but I would like to dedicate a brief note in this theoretical introduction to the questions of women’s issues and the unique form of eclecticism that applies to dealing with these issues. In addressing women’s rights in Muslim cultures, eclecticism reigns supreme. Many readers of Islamic history hold women to have been largely deprived of reasonable treatment in the patriarchal Muslim societies of the past and the present, while others contest the perspective from which this judgment is made. Not unlike polemics on the question of violence, both sides in the debate can support their arguments by authoritative texts and historical precedents. Hanbali law is said to provide a particularly misogynistic perspective on women’s rights. But according to Hanbali jurists, women may seek legal education and provide legal counsel (fatwa) based on their knowledge and comprehension of law and jurisprudence.22 The standards of knowledge of the law required to provide legal counsel in Hanbali jurisprudence are demanding, as Hanbali jurists consider seeking counsel from those who do not have adequate knowledge of the law unacceptable: “No body can seek legal counsel except from those who are known for both knowledge and equitable character.”23 The legal expert (or jurisconsult, mufti) must have the ability to consult all relevant data to the questions she or he is about to answer and must have access to informants and experts in technical matters.24 All this requires a measure of mobility that starkly contradicts the restrictions some modern societies impose on its women in education and on communication with men in general. Aside from Hanbali law, other jurists argue that women’s practice of law should not be confined to the role of legal advisors (or, in modern times, advocates), but must also be extended to the role of judges in all matters of law. These jurists include Ibn Jarir al-Tabari (838–923) and Ibn Hazm al-Qurtubi (994–1064). Even scholars who are known for their conservative and traditionalist tendencies, such as Ibn Hajar al-‘Asqalani (1372–1449), are also known to have interacted with female teachers and studied with them. Multiple sources mention the names of ‘Asqalani’s female teachers, including the two Hanbali traditionalists Fatimah bint Muhammad ibn ‘Abd al-Hadi (d. 1426) and ‘A’ishah bint Muhammad ibn ‘Abd al-Hadi (d. 1457). The latter (i.e., ‘A’ishah), in particular, was known to be one of the greatest authorities in her time in the transmission of hadith and knowledge of the history of its sources.25 ‘Asqalani’s interaction with ‘A’ishah was extensive;

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we are told that he “studied many sources under her supervision.”26 In addition, one must ask, how was ‘A’ishah able to attain the type of hadith knowledge that enticed ‘Asqalani to study with her extensively? Knowledge of hadith in this context would entail regular interaction with men, given that most authorities in hadith in Egypt and Syria in the fifteenth century were male, and would also entail traveling. This freedom of communication and movement stands in opposition to a situation where women’s movement is restricted in principle and allowed only as an exception. Hanbali jurists also recognize other ways for women to participate in society, which some modern Muslim societies do not recognize. These include the right to participate in the army as soldier-combatants, if they elect to do so, and receive remuneration for their participation. Muslim ibn al-Hajjaj al-Naysaburi’s (d. 875) Sahih testifies that women were allowed to participate in battle and receive hadhw (a share in the spoils). Hanbali jurists cite this text as a basis for allowing women to participate in battle.27 Hanbali jurists also recognize women’s right to be appointed as legal guardians on behalf of orphan relatives, despite the availability of adult, male family members. To support their view in this issue, Hanbali jurists cite a precedent where ‘A’isha, the wife of the Prophet Muhammad, was in charge of her brother Muhammad’s inheritance from their father, Abu Bakr, who had both male and female adult children when he passed away in the year 634. ‘A’isha oversaw the estate and property of her brother and unilaterally directed different parts of them to different types of investment.28 Her authority did not seem to be questioned because of her gender. Among other Sunni jurists, Hanbali jurists allow male physicians to treat female patients and females to treat male patients when the need arises. Whatever medical treatment entails—including the handling of sensitive parts of the body—is allowed based on this principle. Some of these jurists stipulate that male doctors be sought for male patients and females for females, but this does not repeal the permission of female participation in medicine, nor does it question their right to seek good medical treatment. The most commonly cited authority for the doctrine that women are expected to provide medical care comes from the collections of Muhammad ibn Isma‘il al-Bukhari (d. 870) and the above-mentioned Muslim al-Naysaburi, who relate the testimony of al-Rubayyi‘ bint Mu‘awwidh al-Ansariyya (d. 665) that women handled wounded soldiers in the Prophet’s army repeatedly,29 as well as the testimony of male soldiers, explicitly stating the role of mudawah or being practitioners of medicine.30 Historically, women regularly provided medical care based on this general acceptance, and competition between male and female practitioners

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of medicine is attested. Muhammad ibn Zakariyya al-Razi (864–930), a medical doctor and philosopher, complained about competition from female practitioners of medicine in his time. Razi went so far as to claim that these women were credited with healing some illnesses, where the credit should have gone to Razi himself. Razi indeed goes even further and expresses his irritation with these female practitioners of medicine, reflecting the competitive atmosphere surrounding his medical practice.31 Razi indeed accuses these female doctors of incompetence. Some modern Muslim societies have chosen to revive the worst of the old prejudices against women, like those expressed by Razi. In some of these societies, women are judged to be unsuitable to practice (at least certain branches of) medicine, against the unqualified evidence of their medical practice among the early Muslim community. This serves as a self-fulfilling prophecy, as women who lack the exposure to medical education and practice fail to contribute to society in this field. One will only hear about how Muslims prohibit women from ascending to positions of authority in general and from ascending to judgeship, in particular, since the Prophet of Islam said, “Nations that entitle their affairs to a woman will not flourish.” According to al-Bukhari’s Sahih, the Prophet never made this general statement. The argument from the fantastical generalized text is, in fact, an outrageous argument, given the specific context in which this statement was made. The Prophet specifically prophesied that a certain nation (the Persians) would not flourish, having assigned their kingship to a certain daughter of their late king. According to Ibn Kathir’s (d. 1373) Chronicles, one of the daughters of the Persian king Parvaiz Hurmuz was a successful ruler, but she was followed after her death by her sister, who was a particularly unsuccessful ruler. The Prophet was a contemporary of both female rulers and probably knew about the success of the first one and prophesied the failure of the other. Accordingly, as I stated earlier, jurists disagreed about the intention of this prophecy and its limitations, and many jurists argue that women can function as judges, including Ibn Jarir al-Tabari and Ibn Hazm alQurtubi, and the latter (Ibn Hazm) believed that women could also rule principalities and kingdoms. To counter any dismissal of these views as theoretical, one must learn that the thirteenth century witnessed female rulers in Egypt, Syria and India. A golden rule accepted by all Muslim jurists is that religious and social responsibilities are addressed to both men and women, and this means that both men and women should be expected to share the burden of these responsibilities. For example, Muslims are (collectively) expected to seek and disseminate knowledge of religious matters (according to the

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Qur’anic verse 9:122). This means that both men and women must take part in fulfilling this duty. Similarly, Muslims are (collectively) expected to provide services for their fellow men and women in society. That is why both men and women should shoulder these responsibilities together. Based on this analysis, women have the responsibility (not only the right) to contribute to their society in a manner that fulfills its needs. Despite qualifying as simple facts that should be known to all participants in any debate about women’s issues, some of the above will sound surprising to many. Yet, women’s issues are in the forefront of discussion about Islam and human rights and about Islamic and modernity. This is why a mature debate about these issues is lacking, and the discussion continues to be about how open Western societies should educate Muslim societies about liberating women. The way out is easy: those interested in women’s issues in Muslim societies should be educated about the debates on women’s participation in Muslim societies of the past and Muslim women’s expectations today. This will open up the door for fruitful debates and end the dialogue of the deaf we are witnessing today. INVESTIGATING FREEDOM, AUTHORITY,

AND

ORDER

One of the themes of this book is the theme of freedom and its intersections with authority and order. In Chapters 2 and 3, I discuss authority in late eighteenth- and early nineteenth-century Muslim societies. Authority in a given society seems unified when it manifests itself in a society that enjoys a measure of integrity and cohesiveness. But authority is also multifaceted, since there is hardly any complex society with a single, unified center of power. Any society ultimately consists of individuals and collective entities, each representing only a sector of that society and working for different interests. All power holders negotiate territories or jurisdictions of power with one another. How “order” comes out of this apparent fragmentation is a central question for those who attempt to dissect a society and analyze its social and political structures. Many are skeptikal about the very notion of order: “The institution of society cannot, as far as individuals are concerned, totally cover over the Chaos. It can, somehow or another, do away with Chance roughly, but not in detail [capitalizations in the original].”32 Without endorsing the strong claim in this statement, one must not exaggerate the implications of apparent order in any society. Just as meaning and order can be imposed on historical events, narratives of social and political authority and control can create imaginary cohesiveness in society, too.

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A stereotypical image of Muslim societies has it that if the religion of Islam and its authoritarian representatives are in charge, few freedoms will be enjoyed by individuals and groups within the society. Chapters 2 and 3 supply a falsification of this stereotype. Jurists like Ibn ‘Abidin and ‘Abbasi, whom I discuss in Chapters 2 and 3, understand that the legal system is a significant piece of the endeavor of creating order (to the extent that there is order) as well as explaining that order in terms acceptable from the point of view of the morality underlying the legal system. But these jurists also use this same legal and moral system to protect the freedoms of individuals and groups in their societies, sometimes in ways that appear indifferent to measures of order. This is particularly important, and the tradition on which these jurists relied and in which they participated provided many resources for the protection of important rights and liberties. In eighteenth- and nineteenth-century Muslim societies like the ones discussed in the following two chapters, individuals enjoy many freedoms that contemporary readers associate with Western modernity or Western values. Chapter 7 provides evidence that the notion of the individual’s privacy is protected by language in authoritative texts (Qur’an and Sunna) and the behavior of the early Muslim community. Privacy, like many other freedoms, was enjoyed without being given a term in the legal jargon. This leads to the next point. CONCEPTS

AND

PRACTICE

Even as they are acknowledged to be inadequate, concepts tend to fascinate academics because they enrich any discussion. But focusing too much on concepts can have its harmful effects. For example, if a given freedom or right is conceptualized and given a name in modern times, and we take the absence of an articulation of that freedom or right in a given historical context to indicate the absence of that freedom or right in that historical context, we would fail an important test in reading history without modern biases. Many modern freedoms and rights were protected and cherished without receiving a name or being conceptualized; indeed, many would be cherished and protected more effectively when they do not receive a name, as less restrictions apply to them. Some of the rights and freedoms we think of as modern have been accorded to citizens of premodern Muslim societies. Chapters 2 and 3 offer evidence of that. Chapter 7 particularly addresses the significance of the absence in Muslim juristic literature of a direct rendering of the expression “the right to privacy.” I argue that many principles and rules

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amounting to the protection of a right to privacy can be found in Islamic legal and political practice despite the absence of the purported term. *

*

*

When we reflect on the above considerations regarding reading history in general and the problem of eclecticism in particular, we must acknowledge the limitation of the comparison of cultures, by and large, and the specific comparisons of Islamic and Western cultures in modern public discourses in particular. But attacking specific questions in the reading of history and the comparison of cultures remains inevitable for further illustration. In the remainder of this volume, I shall apply some of these general considerations to the specific issues I suggested in its title (modernity, violence, and everyday life). The following six essays, therefore, aim to address questions that should throw more light on the problematics of the incongruence of Islamic and Western values. The essays treat the structure of Muslim societies on the cusp of modernity, the laws of war and apostasy, and the right to privacy.

C

H A P T E R

2

ON THE CUSP MODERNITY READING IBN ‘ABIDIN (1784–1836)

AUTHOR

OF

OF

AND

DAMASCUS

SOCIETY

THE SHORT LIFE OF MUHAMMAD AMIN IBN ‘ABIDIN OF Damascus (fiftytwo years) falls in an important historical moment, at once a moment of continuity and a moment lying on the cusp of change. It was a moment of culmination in a tradition of law that took shape in Syria and Egypt during the Mamluk and Ottoman centuries—from the thirteenth to the nineteenth—attended by sociopolitical and market standards (a‘raf). These standards became an essential part of this tradition’s discourses and mode of reasoning. Ibn ‘Abidin’s Syria had thus developed an entrenched culture that made sense of a legal tradition it can consider its own. But with this culmination came reconsideration and transformation. Ibn ‘Abidin’s Syria was ready to begin a gradual process of change that embraced rejection of elements of this culture and its attending legal tradition. It was one of these historical moments that could, in retrospect, be said to have witnessed the equivalent of a quantum leap or a mutation, to borrow two analogies made by Heinrich Fichtenau in his study of tenth- to twelfth-century European heresy.1 Yet, significant change in

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society is often an uneasy process, and it cannot simply originate in external forces without any internal processes within the society to allow it to accept the change and apply it to itself. The fact of the complexity of society’s institutions is hardly irrelevant in the process of change in this society—that is, a complex society like Ibn ‘Abidin’s must undergo a long process of negotiation of its “old ways” as it considers the “new alternatives.” Ibn ‘Abidin’s society is characterized by both complexity and a degree of deference to religion and religious authority. This statement raises many questions: one question is whether this second quality (religiosity) is, by itself, sufficient to characterize this society as a religious society and to explain every aspect of its culture in terms of Islamic legal and moral norms. When modern readers think of modern societies of which they are part, they would probably find it difficult to think of religiosity as the ultimate and only fact in their societies; other forces must be at work in any society with a measure of diversity and sophistication. Radical religiosity (a term frequently thrown into the public discourse in the United States and other countries) could only apply to a society with which the audience is unfamiliar, for example, a society—like these Islamic societies one hears about—where people are obsessed with religion and where the rule of religion replaces the rule of secular law. The idea that religiosity can become the central fact in a given society is unlikely to apply to a society we know. It can, however, be made plausible when it is ascribed to a given society after its exoticization, since people tend to find it easier to attribute what sounds unlikely to the exotic and the distant. But if the quality of “normalcy” is restored to the subject matter, suspicion arises again about the claim that a certain society is so much unlike ours, so much different, so much incapable of conforming to what makes sense. While depicting Ibn ‘Abidin’s society, I have three goals in mind. First, I aim to show the limitations of the claim that religion and religious laws lend a quality of religiosity that comprehensively affects all forms of life and movement in a society that can be characterized by deference to religion. Second, I seek to show that Ibn ‘Abidin’s society is a complex one, with sophisticated institutions, internal negotiation of power and territories of influence, and multifaceted commercial, political, and social activities. This must be understood before raising the question of whether it would be natural to expect a society of that level of complexity to alter itself once faced with an outside alternative, even if it is an alternative that does, from the perspective of the prophets of modernity, represent an inevitable end of social and political evolution. Third, I hope to show that many religious freedoms and legal rights afforded to Westerners in their societies are, by no means, alien to a Muslim living in a premodern

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Muslim society. This raises questions about the need of a Muslim society like Ibn ‘Abidin’s to “modify” itself in order to enjoy these newly discovered modern freedoms and liberties through Westernization. TRADITION

AND

REFORM

Ibn ‘Abidin occupied the position of Amin al-Fatwa (Secretary to the Jurisconsult), which demanded of him to prepare and coauthor legal opinions addressing legal queries from the public. Aside from this position, Ibn ‘Abidin is not known to have occupied high public office. This does not mean that he was not an influential thinker and jurist; indeed, there is much evidence that he exercised significant influence on the judges and jurists of his time based on his juridical and moral authority rather than his official capacity. Despite its celebratory tone, the following testimony gives a sense of Ibn ‘Abidin’s authority among the public and among jurists and judges: “Damascus in his time was the fairest and most equitable of cities, where the law has enjoyed great respect, and where no one dared to do injustice to others or claim any right without legitimate basis, and the same applies to the nearby towns. If somebody was given an unfair ruling, that person would come to him (Ibn ‘Abidin) with a document indicating the judge’s ruling, and he (Ibn ‘Abidin) would offer him an opinion stating the invalidity of that ruling, and the judge would reconsider his ruling and implement his (Ibn ‘Abidin’s) opinion.”2 Even if the above encomium includes an element of exaggeration, the influence of Ibn ‘Abidin in his society is beyond contest. Further evidence for it can be found in a study by Haim Gerber,3 and I shall refrain from reproducing his arguments here. Suffice it here to highlight a quality of relevance to the meaning and source of this influence and authority: the authority that Ibn ‘Abidin asserted can be best explained by his intellectual and moral authority among the public who would assume that Ibn ‘Abidin’s most significant quality was that he possessed a comprehensive knowledge of the sources of the Islamic tradition and could be trusted to provide the most faithful reading of these sources. Being a major jurist and teacher in his society, Ibn ‘Abidin had more than one opportunity to evaluate movements that presented themselves as reform movements, including Wahhabism. Ibn ‘Abidin’s writing includes harsh words for the Wahhabis, whom he calls the seceders of our time. The original seceders were those who rejected the authority of the two warring sides of the 656–661 armed conflict that involved many of the Companions of the Prophet Muhammad. In this conflict, the original seceders were outside of the circles of the winning party that formed the Umayyad State and their rivals who underwent many developments

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before constituting a political opposition as the Partisans or Shi‘a of ‘Ali. In other words, the seceders appeared to be outside of the whole community. Despite the fact that the label “seceders,” or khawarij, may have indicated the seceders’ revolt (kuruj) against ‘Ali in particular (it may have also derived from kharaja ila or existed toward a certain space as opposed to against a certain group), the symbolic meaning of being seceders and outsiders became that of being outside of the whole Muslim community. The original seceders ended up being a marginal sect in Muslim history, and Ibn ‘Abidin may have hoped that the new seceders would meet the same fate. The discussion about a rivalry between forces of tradition, represented by Ibn ‘Abidin, and forces of reform, represented by Wahhabism, raises a general question about the conceptualization of tradition-reform dichotomies in different societies. Some Western readers of this part of Islamic history would be inclined to presume that reformists tend to be defenders of freedom and voices of liberation, while tradition and its spokespersons tend to be wardens of control and restrictions. Setting aside, for now, the tension inherent in the term “liberation,” one is hard pressed to make an intelligible argument for a general advancement of individuals’ access to specific freedoms or forms of autonomy, which only reform could produce. The stereotypical depictions of tradition as a concomitant of authoritarianism and restrictions, and of reform as a concomitant of liberation, unfortunately, still win the day. Thus, Norman Calder, for example, probably felt safe when he depicted the traditionreform divide in Ibn ‘Abidin’s time in this stereotypical manner. In an article about Ibn ‘Abidin’s ‘Uqud Rasm al-Mufti, a didactic poem on legal authority and the sources of the Hanafi school of law, Calder contrasts the protestant layperson’s access to their scriptures without the mediation of a trained reader and the Muslim layperson’s lack of access to their own scripture and legal tradition without the mediation of a jurist like Ibn ‘Abidin. Calder states the exact opposite of what was the case when he argues that the jurist’s authority relied not on his access to the sources but on something he calls “the control of tradition,”4 which must sound like something that restricts and reduces the freedom that would be granted by a Muslim Luther. The conclusion that follows from this analysis is that the Hanafi legal tradition Ibn ‘Abidin represents and defends is inherently more oppressive than the Wahhabi reform Ibn ‘Abidin lamented. Those who know the history of Wahhabism would probably take exception to this conclusion. The details of Ibn ‘Abidin’s writing add another reason to reject the above stereotypical view. Put simply, the rivalry between tradition and reform in Ibn ‘Abidin’s time shows that the “traditional”

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perspective ultimately offers individuals and groups in society more autonomy and allows much more social diversity than the new “reform-based” position. The label of reform is by no means a guarantee of liberation because any system can be used for oppression, even if it was created with the intention of liberation. This certainly also applies to many movements in Western history that began as reform movements and developed social structures that turned out to be much stingier and more restrictive of the individual than their supposedly authoritarian predecessors. In our context, Ibn ‘Abidin’s writing will attest to the degree of autonomy that individuals and groups enjoy in Ibn ‘Abidin’s society, ones Wahhabi societies cannot afford its members. JURISTIC PROJECT Being a voice of tradition in Ibn ‘Abidin’s case hardly negates that he occupied a critical and evaluative stance within the tradition. Evidence of this evaluative stance can be found in Ibn ‘Abidin’s constant evaluation of views attributed to a multiplicity of Hanafi jurists and the views of Haskafi (d. 1677), the source of his long supercommentary, the Hashiya or Radd al-Muhtar, as we will see later in this chapter. In fact, Ibn ‘Abidin’s overall juristic project can be said to be mostly evaluative, as it addresses the basic sources of the Hanafi tradition, the interaction of juristic production with social movement, and the dynamic of continuity and change resulting from this interaction. First, Ibn ‘Abidin studied and delineated the sources of the Hanafi legal tradition, referring here both to the classics of Hanafi law and individual authorities, for example, Muhammad ibn al-Hasan al-Shaybani (d. 805), Hasan ibn Ziyad alLu’lu’i (d. 819), Abu Hafs al-Kabir Bukhari (d. 878), Abu Ja‘far alTahawi (d. 933), al-Hakim al-Shahid (d. 945), Abu Ja‘far al-Hinduwani (d. 973), Ahmad ibn Muhammad al-Quduri (d. 1037), al-Sarakhsi of alMabsut (d. 1097), al-Sarakhsi of al-Muhit (d. 1149), al-Hasan ibn Mansur Qadi Khan (d. 1196), ‘Ali ibn Abi Bakr al-Marghinani (d. 1197), ‘Abdullah ibn Ahmad al-Nasafi (d. 1310), ‘Ubaydullah al-Mahbubi (d. 1346), Ibhrahim ibn Muhammad al-Halabi (d. 1549), Zayn al-‘Abidin ibn Ibrahim Ibn Nujaym (d. 1563), among many many others. Ibn ‘Abidin would have learned about these sources from the start of his studies, and he will now articulate a hierarchy of the legacies of these authorities and a critical method of reading them. This is the subject of the abovementioned didactic poem called ‘Uqud Rasm al-Mufti and an explication of it in a treatise Ibn ‘Abidin dedicates to elaborating its main points. The authorities of the school have lived among different communities and in

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different geographic areas with their own customs and varieties of sensus communis. This leads Ibn ‘Abidin to studying the dialectical relationship between custom and law, as custom is a maieutic to legal institutions, and law, at times, performs a function of social engineering. The dialectical relationship of law and custom and the theoretical question of how a tradition could continue to apply in lives never witnessed by the initiators of this tradition are addressed in a treatise on custom (‘urf ) by Ibn ‘Abidin. But the long Radd al-Muhtar, Ibn ‘Abidin’s legal digest, teaches us more about the actual applications of custom as a source of law in considerable details. (Chapter 4 of this volume provides further elaboration of the doctrine of custom as a source of law, according to Ibn ‘Abidin.) Finally, Ibn ‘Abidin sets out to achieve an accounting of the different juristic functions performed over the centuries, not necessarily focused on a topology of jurists distinguishing inferior from superior jurists, although this is included, but mostly on what function is performed by each jurist or doctor of law to infer the correct legal doctrine of the school. Ibn ‘Abidin’s Rasa’il, or treatises, are full of comments about this crucial issue, and his comprehensive legal commentary, Radd al-Muhtar, remains the most informative in this regard as well. The message Ibn ‘Abidin’s writing offers is thus threefold: Jurists must be trained to (1) read the sources of the legal tradition and to (2) recognize the vital importance of custom and its impact on law while (3) being aware of their juristic function, according to their position in the juristic hierarchy. For my purposes, the most significant aspects of Ibn ‘Abidin’s juristic project remain the perspective it offers on the role of religion in society and the richness of this society’s structure and the complexity of its institutions. With this focus in mind, one thing will become immediately apparent: Ibn ‘Abidin’s writing and thinking assumes a matrix of moral and religious affinities and a societal life much richer and more tolerant than the one represented by literalist and judgmental modern Islamic movements, such as Wahhabism. Religion, in Ibn ‘Abidin’s matrix, evolves with the society, influences it, and is influenced and interpreted by it. Religion defends rights rather than simply restrict them. But religion does not simply take over the individual and the community, since the legal theory and practice of a religious jurist like Ibn ‘Abidin allow a reasonable space for people to make a choice about the ways and the extent to which they would like to apply the religious teachings in their lives.

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WAS NIE GESCHRIEBEN WURDE, LESEN, READING WHAT WAS NEVER WRITTEN

OR

The following reading of Ibn ‘Abidin’s context will reflect a direct reading of texts from the eighteenth and the nineteenth centuries, most prominently Ibn ‘Abidin’s legal writing. But I must first acknowledge that I shall also try to read something that was never written. This is because the goal of my reading is an explication of a context and a society, which is not Ibn ‘Abidin’s declared intent in his legal writings. Ibn ‘Abidin thought of his contribution as a commentary provided by a legal expert, and, as he was busy performing his role as a jurist and a community leader, he (unintentionally) provided one of the best descriptions of his society—a description that enjoys qualities one would not aspire to find in anthropological presentations of societies like this one. It is a description of an insider who can see details inaccessible to outsiders, yet one who can also see things from the outside, from the detached perspective of a cultural critic. In Ibn ‘Abidin’s case, it was someone who is both engaged in society while being able to see its social structure from a distinct viewpoint, both participating in it and analyzing and critiquing it, thereby combining advantages enjoyed by insiders and outsiders. As I employ Ibn ‘Abidin to understand the characteristics of his society, I must read what was never written, but can be detected between the lines of Ibn ‘Abidin’s writing. I borrowed the concept of “reading what was never written” from the Austrian novelist Hugo von Hofmannsthal (1874–1929) via Walter Benjamin. But reading what was never written in this context is not a search for an esoteric, hidden intent; nor is it an attempt at capturing the significance of the silence of the author. In fact, I plan to read only what was not written but is attestable in the text and can be gleaned from its wrinkles and the dialogue it creates with its context (and ours). As I indicated earlier, reading Ibn ‘Abidin of Damascus is a reading of the context of a jurist and his struggles with “inheriting” a millenniumold legal tradition that developed a particular texture in its Syrian and Egyptian version during the Mamluk and Ottoman centuries. This inheritance prompted the jurist to engage in a process of reflection, which led to efforts by this jurist to preserve and standardize this legal tradition, while being aware of the changes that took place in the world around him. The jurist’s intellectual project consisted in the restatement of Hanafi legal doctrines so as to clarify the affinity between a culture shared by the author or jurist and his audience (once again, a culture that has been a few centuries in the formation) and the foundation of the school by Abu Hanifa and his students in eighth-century Iraq. Ibn ‘Abidin

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focused on negotiating the present with the past but did not always state his task in clear terms. I will aim at reading the message Ibn ‘Abidin never wrote but, in the view of the author of this chapter, would be able to see its importance to posterity as the most important message of the Islamic law of his time. CONSTRUCTING

THE

POLITICAL

AND

SOCIAL CONTEXT

The remainder of this chapter treats the structure of Ibn ‘Abidin’s society, including the relationships among jurists, the state, and its Muslim and non-Muslim subjects. As I said, Ibn ‘Abidin provides a social commentary of superlative value, and I will attempt to highlight his description of his society while elaborating on as little of the technical legal issues as possible. I need only preface this by a few notes about the general political and social background of Ibn ‘Abidin’s world, starting with Ottoman control over the Eastern Mediterranean world, which began a few centuries before Ibn ‘Abidin appeared on the scene and wrote his commentaries. In the sixteenth century, Ottoman expansion into Syria and Egypt created a new reality for the Arabic speaking populations of these countries. Yet, just as much as things changed, much stayed the same. Ottoman control over the newly conquered “Ottoman states”—including Syria and Egypt—took a while to establish. During the long process through which an established system of legal and cultural authority was formed, suspicion between the ruling Turks and the Arab populations was mutual. One need not go out of their way to locate evidence of this mutual suspicion and occasional animosity between the populations and popular jurists, on the one hand, and the officials and judges representing the state, on the other.5 Over time, the impulse for adjustment prevailed, while much of the structures of Mamluk Egypt and Syria persisted. And over time, a complex relationship among people, jurists, and state stabilized in eighteenth-century Ottoman Syria. The relationship between jurists and the state can be characterized by cooperation and occasional public showdowns,6 and jurists sometimes praised the state, and sometimes vehemently criticized it to defend the rights of the individual when it was clear to them that the state overstepped its authority and violated these rights.7 In Ibn ‘Abidin’s society, the laws were of a complex nature. Jurists studied an extensive, multigenre legal literature, including legal digests that state legal doctrines supported by legal reasoning (fiqh) and compendia of legal opinions or responsa (fatawa) addressing specific cases. Some jurists also studied manuals of legal theory (usul al-fiqh), legal maxims (qawa‘id), and manuals on the art of distinguishing ostensibly analogous

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cases (furuq). But the law was not simply a matter of ivory-tower tradition handed down from one generation of jurists to another. The movement of society and the change in public mores, market, and social standards (‘urf) was adopted as part of the mechanism to develop the law at the slow speed at which society changes. The principle that custom influences the law and the discussion of the limitation of state power in an Islamic society was debated in juristic references on the theoretical level and applied in specific cases in a variety of ways. Jurists like Ibn ‘Abidin addressed the influence of market and social conventions on legal practice. But outside of these books and societal movement, there were also worlds of law, including Sultanic orders and other state arrangements and conventions, commercial and trade agreements, and international treaties that affected the lives of great many people, directly or indirectly. When it came to daily matters, the jurists assumed that the laypeople submitted to juristic religious authorities for religious, rather than political, reasons. A jurist’s opinion delivered to the public was nonbinding. A layperson, according to Ibn ‘Abidin, is not expected to follow a specific madhhab or school of law, since an affiliation with a school of law would have to be based on an understanding of the methods of legal reasoning in that school, which is not something a nonspecialist in law expects to attain.8 A layperson may ask his religio-juristic counsel to explain his legal view and tell the questioner about the school of law from which this view springs. A layperson should not attempt to change his madhhab affiliation for the sake of finding lenient opinions, since the motive behind this change will lead to another change, and a third, and so on—thus defeating the purpose of seeking religious legal counsel. Yet, people had all the freedom to make up their minds after they had heard the jurist’s counseling, since this counseling, after all, was nonbinding. The jurist was interested (at least theoretically, but, in many ways, practically, too, as we shall see) in negotiating the power of three players in law: current custom, current state policies, and tradition. The tradition needs explication, social and market customs need evaluation, and state policies may ultimately need to be negotiated according to moral, religious, and other imperatives. The jurist held a unique position, since he did not necessarily represent a branch of the government; he was sometimes simply independent. But the jurist still wields much authority, in the eyes of the public, as he could evaluate the actions of the government and interactions among its branches. If one of the U.S. Supreme Court’s tasks is to explain how trade customs affect, for example, the Commerce Clause (Article I, Section 8) of the U.S. Constitution—which stipulates that Congress shall regulate trade within the United States and between the United States

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and the outside world9—so was the trained, unappointed jurist responsible for explaining acceptable and unacceptable relations that involved the state and its integral parts (institutions, agencies, etc.)—relations involving the state and foreign entities and relations between the state and individuals. In the juristic literature authored by jurists like Ibn ‘Abidin, one can clearly see how power was distributed among the state, the people, and the voices of the religious tradition. Not only was power shared among the three parties (people, jurists, state)—each party influenced and was influenced by the other two parties. It was a trialectical affinity. It certainly was not a context for a simple dictatorship or a duopoly that emphasized the power of the representatives of the religious tradition and the sultan. One last complicating factor was rising foreign influence. By Ibn ‘Abidin’s time, foreign influences had already begun to be felt due to, inter alia, growing trade with Europe going back generations before Ibn ‘Abidin.10 Thus, added to the Mamluk and Ottoman administrative and state policies, an international element became relevant to some of Ibn ‘Abidin’s legal queries and research. I shall now attend to specific issues discussed by Ibn ‘Abidin, such as the degree to which the sultan’s authority must be restricted, the nature of acceptable evidence in a court of law, the relationship between law and public mores, non-Muslim communities in a Muslim society, among others. ENDOWMENTS

FOR

EDUCATION

The relationship between the political authorities—on the one hand— and students of jurisprudence who are beneficiaries of public funds for legal education—on the other—can be entangled. The political authorities often assign endowments or salaries for the benefit of students, teachers, or practitioners of law and jurisprudence, and, in the assignment of these funds, they use language that could be contested or interpreted differently. Sometimes the government assigns an endowment for public benefit (al-maslaha al-‘amma), but sometimes the language is more specific. In Ibn ‘Abidin’s commentary, there are examples of these contested state funds and salaries and examples of how, according to him, these different funds must be treated differently. In dealing with these funds, Ibn ‘Abidin states that one must distinguish between (1) a situation where specified conditions are attached to the use of an endowment by a public or private owner, where such an endowment may be administered by the state, and (2) a situation where the sultan attaches a condition to the use

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of public funds coming directly from the treasury (Bayt al-Mal), where the condition can be seen as a mere recommendation, and where the specifics of the language of the sultan may not be interpreted stringently. In this case, a Hanafi legal principle allows a jurist to benefit from that public fund (1) if he needs the money and, Hanafi jurists add, (2) if he is known for his piety. Ibn ‘Abidin criticizes his contemporaries who engaged in loose applications of this principle and allowed themselves to benefit from funds of the first type when the authorities allowed them to do that, based on a stretched interpretation of the conditions attached to them. Ibn ‘Abidin refers to this as “a violation of the conditions” (or mukhalafat al-shurut) rather than a bad interpretation of them. Ibn ‘Abidin here notes that this issue is not new—stating that these unlawful appropriations of public funds took place during the reign of Circassian Mamluk Barsbey (who ruled between 1422–38)—and endorses the position of another Hanafi jurist, Ibn al-Humam (d. 1460), who lamented the practice in Barsbey’s time.11 PRESUMPTIVE OWNERSHIP If Ibn ‘Abidin criticized inappropriate use of public money and endowment and defended the government in some contexts, he also criticized government authorities for attempting to challenge people’s presumptive ownership of property they possessed and administered, or dwelled in, for generations by demanding proof of their ownership of that property. Ibn ‘Abidin makes it clear that this is a recurring problem, since the Mamluk Baybars (ruled between 1260–77) attempted to challenge estate owners to provide documents establishing their ownership of lands and houses they possessed, as did their parents and grandparents, which the Shafi‘i jurist Yahya ibn Sharaf al-Nawawi (1233–77) argued was unreasonable. The same happened later, which caused jurists to make this same point repeatedly, and the problem surfaced again in Ibn ‘Abidin’s time. In the course of the discussion, Ibn ‘Abidin emphasizes that one set of principles applies to the lands of Egypt and Syria, since they have been administrated in an identical way for centuries. Ibn ‘Abidin even suggests, at one point, that some of the arrangements affecting estates might go back to policies adopted by Umar ibn al-Khattab (d. 644).12 Here, Ibn ‘Abidin clearly attacks the government in its unreasonable attempt to appropriate private property under the pretense that it aims to certify people’s ownership of what appears to be their property. Ibn ‘Abidin ultimately defends the average individual who is asked to provide evidence of his or her ownership of property they inherited for generations, when producing such evidence would be unavailable to them.

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ADJUDICATION

Some Sunni jurists privilege verbal, oral evidence over written documents as evidence in legal matters. Other jurists disagree with those who claim that it is an Islamic principle to privilege oral over written evidence, debating all their textual arguments from the Qur’an and the tradition of the Prophet Muhammad. The second camp of juirsts argue that the Prophet Muhammad never made any generalization about the relative value of oral and written evidence, and stated that only the nature of the evidence determines its value. Still, many Hanafi jurists continued to insist that oral testimony is more powerful, in principle, than written documents. By reporting opposed views on the subject, Ibn ‘Abidin seems to acknowledge the merits of each one of the two sides, but he seems to end up being more in line with those who look at the nature of the evidence, as opposed to its form or type, as the most decisive factor in determining its value. In his discussion of the value of written documents issued by the state, Ibn ‘Abidin shows awareness that documents that are claimed to be official may be forged and must therefore be considered authoritative only if they match an official record. Ibn ‘Abidin asserts that the authenticity of documents, in general, cannot be assessed based on the authenticity of the handwriting in it; rather, it must be supported by the official sultanic stamp. It is understandable that in small communities, the testimony of individuals from that community can create a higher level of confidence— from the local judge’s viewpoint—than an official document that may be forged, provided that the structure of the government is principally decentralized. In addition to the physical distance between the government and the population, a cultural distance and a lack of affinity can also be identified between the government and the population, which raises questions in the minds of the members of local communities about the objectives of the state in changing the rules of documentation or demanding a “modern” form of documentation to which they are not accustomed. Ibn ‘Abidin is aware of these points, which make him willing to make some reservations about the relative merits of the two different views on the matter. Modern documentation, by and large, is defended by Ibn ‘Abidin, who cites Hanafi authorities that consider the use of written documents as evidence to be accepted in exceptional circumstances and then moves to specifically state these exceptions. Ibn ‘Abidin then responds to jurists’ reservations about written records of endowments from technical juristic points of view and supports the idea that records can be decisive in their indications of rights granted based on endowments.13

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Here, Ibn ‘Abidin ultimately attempts to state a position that balances the interests of community and affords it a degree of autonomy while acknowledging the authority of the central government in regulating the general affairs of the state. OTHER RESTRICTIONS

ON THE

SULTAN’S AUTHORITY

Sultanic orders to appoint unqualified teachers or depose qualified ones are technically invalid, and any salary granted to teachers with no qualifications is an unlawful gain, according to Ibn ‘Abidin. It seems that the problem he is addressing here is one of corruption, allowing the family of religious scholars to continue to draw pensions after the scholars have passed away or stopped working under the guise of encouraging their children to follow in their fathers’ footsteps. Ibn ‘Abidin laments the strange practice in some places, such as Mecca, Medina, Cairo, and Turkey, of extending the salary of religious leaders (imams of mosques or preachers) to their minor offspring with the hope that they would fill the gap created by their fathers’ discontinuation of service, even when it is clear that their sons are not interested in their fathers’ profession. Ibn ‘Abidin tacitly approves of assigning this stipend to the minor sons of scholars for a short time, so as to provide a temporary pension for them until they choose their profession.14 His reproach of the government for assigning salaries to individuals with no proper qualifications represents a major restriction on the authority of the government and an attempt to take back the authority for making appointments to those with technical knowledge rather than those with access to power. ARBITRATION

AND

UNOFFICIAL JUDGES

Arbiters and unofficial judges are appointed by the adversaries in a given conflict. In Ibn ‘Abidin’s jurisprudence, the authority of unofficial judges are acceptable in their communities, and their ruling enjoys the same status as that of official judges with important exceptions. One of the distinctions between official and unofficial judges merited mention more than once, reflecting Ibn ‘Abidin’s concern with it: that matters involving the rights of minors may not be handled by unofficial judges. Other distinctions include exclusion from jurisdictions involving criminal law and endowments.15 Ibn ‘Abidin here voices many reservations about alternative dispute resolutions, given their limited capacity to create lasting and comprehensive justice in many issues.

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NON-MUSLIM JUDGES Non-Muslims living in a Muslim country are assigned a judge of their own religion to resolve disagreements that arise among them. Thus, Ibn ‘Abidin decides that the appointment of a non-Muslim judge is acceptable, and when jurists count “Islam” among the qualities of a judge (in addition to knowledge and intelligence, etc.), they mean to indicate what would be required in a judge who handles cases involving Muslim subjects. Non-Muslim subjects in Syria (al-qutr al-shami) include Christians and Druze residents. Ibn ‘Abidin dwells on a technicality about the appointment of these non-Muslim judges, stating that it is expected of the caliph or the sultan of general jurisdiction to issue that appointment. In Sidon and like towns (al-thugur wa-l-bilad), the local prince takes responsibility for that matter, but Damascus annually awaits a Sultan-appointed judge. Aleppo’s prince is also not expected to intervene in the appointment or the deposition of judges.16 At any rate, the appointment of non-Muslim judges is endorsed as a natural part of the Islamic legal system in Ibn ‘Abidin’s society. ZONING LAWS The state sometimes reserves to itself the right to issue zoning laws, regulating access to certain public areas or residences. These laws can be indirect and subtle—such as imposing high taxes for services related to residing in a certain area or zone so as to guarantee that those living in that area will be residents who earn a certain income. These laws can also be plain and direct—such as assigning certain areas for the residence of students, given these areas’ proximity to their educational institution. Are there any zoning laws to be found in Hanafi jurisprudence, according to Ibn ‘Abidin, that distinguish residents based on their religious affiliation? The short answer is “no,” since Muslims and non-Muslims are, in principle, allowed to live, trade, and participate in any activity anywhere in the country. Exceptions include a juristic disagreement about whether a non-Muslim can enter the Sacred Precinct (al-Masjid al-Haram) in Mecca. Ibn ‘Abidin relates the disagreement, stating that Muhammad ibn al-Hasan al-Shaybani, Abu Hanifa’s student, agrees with both Shafi‘i (d. 820) and Ahmad ibn Hanbal (d. 856) in preventing non-Muslims from entering into the precinct, and Haskafi seems to consider this the prevalent opinion in Hanafi law. Ibn ‘Abidin begs to differ. He states that the view enshrined in the mutun (terse legal manual), which is Abu Hanifa’s, is that dhimmis (non-Muslim residents) should not be prevented from entering the precinct or other mosques. In this context, Ibn ‘Abidin iterates the

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principle that the mutun enjoy preference over a statement of Shaybani’s view, which is related in his book al-Siyar al-Kabir, since these terse texts are designed to relate the standard view in Hanafi law, which may diverge from that of Shaybani, as it diverges from the views espoused by any jurist in the school, including Abu Hanifa himself.17 What of restrictions applying to residence? Here comes another discussion addressing the case where a whole region is abandoned by its Muslim residents, so much so that one can find neither Muslim residents nor mosques in that area. Again, Haskafi seems to take a hard line, while Ibn ‘Abidin adopts a nuanced position. In response to a question about whether, in the above case, a prayer leader (imam) and a prayer announcer (mu’adhdhin) can be given a stipend to travel to an area where there is a mosque to perform these religious functions but no Muslim residents, Haskafi states that some of the houses surrounding such a mosque must be bought by Muslims, since it is inappropriate that a whole area would have no Muslim residents and a mosque on the verge of turning nonfunctional. Haskafi also states that a sultanic order purported to this same answer, which binds the local governor to implement it immediately. Ibn ‘Abidin does not disagree with Haskafi regarding the aforementioned extreme case, but he states that for areas to have residents of different religious backgrounds may indeed be an advantage rather than a disadvantage. SOCIAL CUSTOM

AS A

MODIFIER

OF

LAW

In the case of the lawgiver’s silence, “custom rules” (al-‘adah muhakkamah). This principle will be discussed in detail in Chapter 4, but I will point here to its general meaning and application. The general use of this principle is in areas where the Qur’an and the Prophet’s tradition do not provide clear guidance about a matter of life that custom regulates. But Ibn ‘Abidin extends the use of this principle to the silence of the general governor or the sultan, such as his silence about the jurisdiction of princes in appointing judges.18 In this case, community arrangements fill in the gap created by the silence. Further, linguistic custom also prevails in understanding the language of contracts and endowments. For example, the use of the word walad, which could indicate male and female progeny, in endowment documents must be interpreted to refer to “sons,” since in people’s common use, this is what the word indicates.19 Custom, therefore, rules unless there is a higher consideration to trump it.

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TOLERATING UNDESIRABLE CUSTOMS Ibn ‘Abidin finds many opportunities to criticize members of his society for their undesirable habits and customs. But his disapproval of what he considers undesirable custom does not lead him to reject the maxim that custom rules, as he shows principled commitment to the maxim, as well as a realistic tendency in addressing the place of social customs in his society. An example follows. Ibn ‘Abidin tells us about the habit of swearing by God’s Speech or God’s Book—the Qur’an—common in his society. Ibn ‘Abidin believes that an oath by the Qur’an is inappropriate theologically, given that an acceptable oath should be by God’s name only. In the ninth century, Muslim theologians and philosophers debated whether the Qur’an was created in human time (thus a historical event of the seventh century) or an eternal word of God beyond human time. Some traditionists refused to engage in the debate, claiming that it was both useless and (potentially) theologically problematic. This gave rise to the mihnah, or trial, imposed by some Abbasid rulers, including the Caliphs al-Ma’mun and al-Wathiq and involving Ibn Hanbal, who was one of the rejecters of the debate. In this mihnah, the rulers wanted to test scholars to make sure they adhere to the belief that the words of God were created in time and are not eternal. Very little of this testing actually took place, but the very story remained as reminder that God’s speech or book can invoke intricate theological questions. Ibn ‘Abidin’s brief discussion of the question of the createdness of the Qur’an (invoking the ninth-century mihnah) indicates his resignation to the fact that the theological question is too complicated for the layperson to comprehend. Ibn ‘Abidin explicitly accepts that laypeople may be deterred from holding a belief that the Qur’an (as words) is created, since they tend to confuse the Qur’an as words with God’s eternal quality of speech itself.20 After this discussion, Ibn ‘Abidin states that some jurists asserted that those who believed that the Qur’an was created may be unbelievers. But Ibn ‘Abidin importantly asserts that this view may have been acceptable in previous times, “but in ours a (statement of swearing by the Qur’an) is an acceptable oath.”21 Thus, the commonality of the custom of swearing by the words of God or the book of God—the Qur’an—is considered by Ibn ‘Abidin to be the more decisive factor in accepting the practice, despite its theological impropriety. NEIGHBORS Muslim jurists discuss a group of rights that are deserved in relation to the ownership of real estates. These are known as the rights attached to utilities or

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huquq al-irtifaq. These include the right to passage through what is technically part of others’ properties, the right to use water that runs through their property, and the like. Some of the questions arising in this area relate to the sale of properties and whether custom necessitates the inclusion of certain utilities as an integral part of these properties. Ibn ‘Abidin’s section on al-huquq (literally rights) addresses arrangements relating to these rights, often of relevance to the interaction among neighbors. The general principle that custom fills in the gaps created by silence in the law seems to apply on different planes. First, when a sale of a property occurs without the stipulation of including utilities—customarily considered to be an integral part of the property (Ibn ‘Abidin mentions the simple stipulation of providing the keys that allow the owner to use the property)—these are included in the sale. Second, when the law (legal manuals, al-mutun) are silent about stipulating the right to access certain utilities for use by the neighbors of the owner of the property—such as the transfer of water running through fountains and water pools associated with houses—these are also assumed to be respected. Third, even when the custom seems to be a bit unusual (from the point of view of those who do not share it), this custom must be respected. For example, the custom of the people of Damascus in house sales is that staircases detachable from the house are not part of the house since the houses tend to consist of either one floor or of two or more linked with internal stairways, which would make a Damascene not expect detachable staircases to be part of the deal of selling a given house. In Cairo, however, detachable staircases are included in the houses, since they are of multifloors and cannot be accessed without these stairs. These facts are decisive in determining what is, and what is not, part of the utilities of the house in the sale. For more examples, Ibn ‘Abidin refers his reader to his treatise on custom,22 which I will return to in Chapter 4 of this volume. PUBLIC MORES

AND IGNORANCE OF THE

LAW

When a resident of a non-Muslim country with no residence permit in a Muslim country (harbi) enters into a Muslim country and then converts to Islam and commits an offense in matters presumed to be “universally valid” (such as the prohibition of adultery), the defendant cannot claim to be ignorant of this prohibition in the law (i.e., Islamic law) and must be punished for her or his action. This is the opinion of many Hanafi jurists (and Haskafi reported it with approval), as these jurists have accepted that the “ignorance defense” does not apply in these basic universal prohibitions. Ibn ‘Abidin points out that the case in which somebody who is foreign to Muslim lands and mores claims to be ignorant even of

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those values deemed to be universal occurs in real life. This can happen if somebody either lives in an isolated, small community or in a community of regular size that is not emphatic on the prohibition of adultery, so that an individual may truthfully claim to not have known that it would be a major offense within a Muslim community, even if this individual is a recent convert to Islam. If there is sufficient evidence that the claim of ignorance is made unreasonably, such as when the person who made it is known to have lived for a long time among Muslims, then one may apply the opinion that holds that person responsible for their actions.23 HERETICS

AND

APOSTATES

Ibn ‘Abidin’s treatment of the laws of apostasy is intriguing, though in no way unique in its fundamentals when compared to other Hanafi jurists or Muslim jurists by and large. As I shall show in Chapter 6, Ibn ‘Abidin’s treatment of the issue is loyal to two principles that govern most Muslim jurists on the matter—that is, first, the idea that “ambiguity” in the status of an alleged apostate is likely to persist despite efforts at ending it, and second, the principle that when in doubt, the jurist must allow for the presumption of innocence to prevail vis-à-vis the charge of apostasy.24 The idea that the Muslim authorities would be busy searching for apostates is too foreign to make sense to Muslim jurists, Ibn ‘Abidin included. To the contrary, jurists like Ibn ‘Abidin state the caveats that apply to any loose claim that somebody may have apostatized. Ibn ‘Abidin first states that apostasy takes place in the specific case in which a person who is known to be a Muslim converts to another creed or no creed. Doubt may occur about (1) whether the person in question had been a Muslim and (2) whether that person converted to another religion or abandoned religion altogether. The second condition is the most pertinent to the juristic discussion of the topic, as it addresses the substance of the claim of apostasy. But equally important, despite its different nature, is the first condition: that the alleged apostate must have been a Muslim to begin with. Reflecting on the nature of this condition will reveal one of the qualities of Muslim juristic discourses on apostasy. If probing a claim that somebody apostatized ought to begin with an examination of whether the person in question had been a Muslim at all, this means that the religion of members of a Muslim society is not subjected to any examination in principle. Why else would we need to inquire into whether somebody is a Muslim if we already know who is and who is not a Muslim? The Muslim community, in everyday affairs, seems to leave its members alone rather than label them “Muslim” or “non-Muslim.” If these labels were available, then a claim to apostasy would directly begin

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with whether a Muslim had converted to another religion. In this sense, Muslim juristic discourse on apostasy is evidence of religious freedom rather than the opposite. Ibn ‘Abidin quotes, with tacit approval, Kasani’s statement that when “a lad of Muslim parents, who would be considered Muslim because of his parents’ religion and who was not known to have admitted verbally (to being Muslim) after becoming an adult grows up to be an unbeliever (kafir),” he would not be considered an apostate, because apostasy “is a term signifying a denial of the truth of Islam (takdhib) after believing (tasdiq) in it, and in this case believing did not occur after reaching adulthood (lam yujad minhu al-tasdiq ba‘d al-bulugh).” Doubt about this person’s being a Muslim at the start makes punishing him as an apostate unacceptable.25 The governing principle for Ibn ‘Abidin remains as follows: when in doubt, one should not rule somebody to be an apostate. Ibn ‘Abidin asks his reader to consider this to be a criterial principle, a golden principle overruling all other opinions that conflict with it.26 Ibn ‘Abidin has nothing but reprimand for those untrained volunteer spokespersons in the name of Islamic law who accuse people whom they disagree with of being apostates.27 SOCIAL INTERACTION Claims about Muslim jurists’ obsession with “sex,” either between men and women or between individuals of the same sex, collapse after examining Ibn ‘Abidin’s writing on these matters. Ibn ‘Abidin is more descriptive than prescriptive in addressing sexuality in general, but he importantly rejects condemnation of normal behavior out of fear of the possibility of bordering on sinful action. If a male and a female stranger share a residence, where each one of them has his or her own entrance to their private place, that arrangement is acceptable.28“Homosexuals are of different types: some look and observe (yanzurun), some shake hands and hug (yusafihun), and some engage in homosexual acts (ya‘malun),”29 but mere attraction or the desire to look to a beautiful face is acceptable, since even infants and animals experience this innocent desire.30 Ibn ‘Abidin rejects any tendency to raise suspicion about natural human interactions among people, despite his awareness of the occurrence of what could be deemed inappropriate interactions among males and females in his society.31 A “measured” laissez-faire attitude can be found in Ibn ‘Abidin’s writing on the questions of interaction among people and their arrangements of domestic partnerships. After all, Islamic law regulates a slim sector of these interactions and domestic partnerships, as it stipulates the unusually

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high evidentiary standard of four witnesses to establish the acts of adultery or fornications. This law’s silence again becomes the most decisive factor in supporting liberties in society. ISLAMIC LEGAL PRINCIPLES EMPLOYED TO COUNTER FOREIGN INFLUENCES According to Ibn ‘Abidin, all residents who are competent to stand trial have the right to complain about an intervention in the shared public space by another resident, if this intervention delivers harm to them. The legal manual of Haskafi casually indicates that Muslims and non-Muslims are equal in this regard, and Ibn ‘Abidin elaborates that by stating that all those who “have a right to the public road” enjoy that right, and then quotes from the Tatarkhaniyya that “all unbelievers are included in that right, especially the dhimmis”32 (i.e., non-Muslims permanently residing in a Muslim country). Ibn ‘Abidin, however, makes reservations about non-Muslims’ ability to acquire buildings and convert them to houses of worship they did not have at the time of their agreement of dhimma with the Muslim authorities. The principle, for Ibn ‘Abidin, is that dhimmis have entered into an agreement with the Muslim government that specified their rights and responsibilities, which may not later be violated without consequences. The conditions of the dhimma agreement include a stipulation that the dhimmis can keep all their houses of worship, which may not be desecrated or violated in any way, and it is the responsibility of the authorities to defend these houses of worship against any violation. These conditions also include allowing them to practice what would be considered violations of Islamic beliefs and laws, such as worshipping the way they worship and drinking wine, for example (this goes under the umbrella of “letting them practice what they believe” [natrukuhum wa ma yadinun]). But with this goes the stipulation that the dhimmis are not expected to expand the number of these houses of worship. In a case Ibn ‘Abidin dates to the year 1248 after the Hijra (1832), a non-Syrian Karaite Jew agreed on behalf of Karaite Jews—those who do not acknowledge the authority of the Talmudic body of literature as authoritative, a sect that has become, Ibn ‘Abidin tells us, practically extinct in Syria over time—to sell a house of worship (previously belonging to them in Damascus) to a group of Christians who had planned to convert it to a church. Ibn ‘Abidin’s answer to the query of whether this was acceptable was a negative one. As he elaborates the arguments for his answer, it appears that principles other than the above one were at work in his reasoning. These include an argument from analogy, which builds on the ruling that a school dedicated

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by endowment to the study of Hanafi law may not be appropriated by another madhhab or school of law. By the same token, converting a Jewish house of worship to a Christian house of worship should not be allowed. Interestingly, Ibn ‘Abidin’s tone acquires a tinge of anger as he elaborates his argument, complaining about “Christian influence” (quwwat shawkat al-nasara). He also complains about a jurist who allowed the sale, and reprimanded him without mentioning his name, except by referring to him as a mufti, a rash person (ba‘d al-mutahawwirin), and a poor-minded individual (miskin) for his standing outside of juristic consensus in the matter.33 CONCLUSION Ibn ‘Abidin’s society is a complex society that cannot be expected to be easily swept by newcomers’ ideas, no matter how developed these are. As this society’s institutions guarantee, among other things, free movement and belief, as well as ample space for trade and ownership, Western modernity will not seem to provide new possibilities or options that could not be attained otherwise. For this society to attempt any wholesale adoption of Western modernity, therefore, would be an unlikely turn of events. My argument does not assume that only complex societies resist external change—a simple society may have as many reasons to reject outside influences. My argument is limited to establishing that a Muslim society on the cusp of modernity, such as Ibn ‘Abidin’s, had good reasons to be lukewarm about Western ideas in the realms of social, political, and economic organization. On the one hand, Ibn ‘Abidin’s society had many reasons to be reluctant about adopting Western modernity, as it enjoyed many of the freedoms modernity had to offer. on the other hand, Ibn ‘Abidin’s society was on a path toward partial transformation. By the time Ibn ‘Abidin died in 1836, Muhammad ‘Ali Pasha had been in power in Egypt for three decades, during which he established relations (of cooperation and conflict) with the West much stronger and different in nature than relations established between Muslim and European countries until his time. The new times will witness a slow transformation of Muslim societies as well as Western societies. Consequently, today’s Muslim societies will ask the question of its relationship to Western modernities and cultures from standpoints distinctly different from those of Ibn ‘Abidin.

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EGYPTIAN SOCIETY IN THE WRITINGS OF MUHAMMAD AL-‘ABBASI AL-MAHDI (1827–97) WHILE BRITAIN WAS PREPARING FOR ITS 1882 COLONIZATION of Egypt, Muhammad al-‘Abbasi al-Mahdi (1827–97) had been documenting and dating his answers (responsa, fatwas) to religio-legal queries given to him by individuals, court officials, and other people in formal and informal capacity. ‘Abbasi’s responsa, which occupy seven volumes, are characterized by disciplined focus on legally relevant materials, while ignoring the social implications of many of the questions addressed. This quality can be seen most clearly in ‘Abbasi’s answers to questions from the public, to whom his answers are usually much shorter than the questions, which are reported by ‘Abbasi himself. ‘Abbasi’s fatwas are a great resource of the social, political, and economic history of the Egypt of the second half of the nineteenth century. In this chapter, I offer translations of some of these fatwas as an attempt to highlight aspects of the social life of Egyptians at the time, especially in the areas of individual freedoms and autonomy, and the heterogeneity of the social realities of everyday life. I shall first introduce these translations with prefatory remarks on ‘Abbasi’s context and career. AL-SHAYKH MUHAMMAD

AL-‘ABBASI AL-MAHDI

‘Abbasi’s grandfather, a Coptic convert to Islam at an early age whose birth name was Hibatullah, took the name Muhammad al-Mahdi (the guided).1 This nickname, al-Mahdi, persisted as the last name of all his

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descendants. Muhammad al-Mahdi is not known to have produced any major juristic work.2 But three years before his death in 1815, al-Mahdi made an unsuccessful attempt to ascend the post of shaykh/rector of alAzhar (a University mosque that was established in 972 and continues to function until today), but Muhammad ‘Ali Pasha gave it to Muhammad al-Shanawani (d. 1818).3 (It bears some reflection whether “open” societies, such as those of the twenty-first century, would allow a convert to come that close to a position as powerful and symbolically important as the rectorship of al-Azhar.) At any rate, ‘Abbasi’s father, Muhammad al-Amin al-Mahdi, succeeded in becoming Cairo’s Grand Mufti (Jurisconsult) until his death in 1831.4 Many members of the Mahdi family seem to have caught the attention of historians of the period. Edward William Lane mentions an anecdote about Shaykh Muhammad al-Mahdi attesting to his “inflexible integrity.”5 Later, Jurji Zaydan displays a similar fascination with Muhammad al‘Abbasi al-Mahdi’s personality and integrity in a short biography he included in his biographies of the East’s major personalities of the nineteenth century.6 Of all the Mahdis, it was this Muhammad al-‘Abbasi al-Mahdi who made it big. ‘Abbasi was destined to become one of Egypt’s most significant and longest serving Muftis or General Jurisconsults.7 His first appointment to the post was in 1848 at the unusually young age of twenty-one.8 Twenty-three years later, ‘Abbasi was to become the first Hanafi jurist to hold the position of the Shaykh/Rector of al-Azhar. Until his death (on December 8, 1897), ‘Abbasi revamped the curriculum at al-Azhar. As the twenty-first Rector of al-Azhar, he was the first to introduce comprehensive tests for the faculty in specific subjects: Qur’anic exegesis, the Prophet’s tradition, law, legal theory, theology, syntax, morphology, rhetoric, and logic. Before that, the faculty came from students who received (often decades of) training until they demonstrated comprehensive knowledge of the subjects they studied and were then “licensed to teach” these subjects. It was also thanks to a letter from ‘Abbasi that the famous Hungarian Arabist Ignaz Goldziher (d. 1921) became the first non-Muslim to study at al-Azhar in 1874 during a short, four-month sojourn. In the letter, ‘Abbasi identifies Goldziher as one of the People of the Book with a desire to learn the Islamic sciences. The letter reads, To the shaykhs, students, gatekeepers, and servitors of al-Azhar: Provided with a warm recommendation of our noble friend, Riyad Pasha, there appeared before us the Hungarian talib (student; seeker) Ignaz, a man of the ahl al-kitab (the People of the Book or the Scriptuaries), with a desire to delve into the sciences of Islam under the wise and learned shaykhs of the

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Mosque. God has already granted him much knowledge in our sciences. He is full of yearning to immerse himself in the sea of which he has tasted a few salty drops . . . Thus, it is the decision of God that this youth become a student-resident (mujawir) of our Mosque, and one must not obstruct the decision of God. Ignaz is recommended into my protection, as long as he is worthy of it. He will at first present himself to Shaykh Ashmuni. Signed: al-‘Abbasi, Shaykh of the Mosque of al-Azhar.9

NINETEENTH-CENTURY EGYPT BETWEEN THE FORCES TRADITION AND THE FORCES OF MODERNITY

OF

In certain ways, the Egyptian society of the second half of the nineteenth century was traditional; in other ways, it was a society on an accelerated path of modernization, more so even than some of its European counterparts. Even if the unity of its government could be presupposed, the governing of a society with such an ambivalent relationship to modernity would have been challenging. But a sharp split between the Westernized elite and the rest of the Egyptian people assured the persistence of at least two distinct cultures, and since the affairs of government can hardly be separated from local cultures and traditions, two systems of government continued to function in that society. Aspects of the governing of Egyptian society continued to be conducted according to the premodern societal structure that reigned over the majority of the population. This guaranteed the relevance of traditional Islamic law in everyday life, even when the laws of the land changed repeatedly so as to follow in the footsteps of the latest waves of French jurisprudence, and even when the culture of the ruling elites continued to emulate European ideals. It is in this hybrid culture that ‘Abbasi’s legal views were presented and published in his life, giving us an invaluable source of Egypt’s legal and social history in the nineteenth century. For the majority of the Egyptian society, Islamic law was the law to whose authority they appealed in their everyday affairs, especially in family matters, which continued to be a bastion of traditional life. Changes in the ways in which trade is conducted, the adoption of new technology that speeds up life’s pace, or the articulation of civil rights in society often penetrate the family arena last of all. Thus, rulings by traditional Muslim jurists in family matters continued to be relevant to the life of the majority of Egyptian society, and traditional views relating nineteenth-century Egypt to early Muslim societies continued to be presented. The questions and answers of traditional Islamic family law have much to say about nineteenth-century Egypt. They depict a fairly fluid and heterogeneous society whose respect for religion does not contradict the individual’s

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freedom and the presence of what must be called “secular” attitudes, if we insist on the religious and secular bifurcation. AL-FATAWA AL-MAHDIYYA AS A SOURCE OF MODERN SOCIAL HISTORY OF EGYPT

THE

Al-Fatawa al-Mahdiyya, legal responsa offered by Shaykh al-‘Abbasi alMahdi, was first published in Cairo in 1883.10 The collection includes chronologically arranged answers to legal queries spanning a period close to forty years. Its most recent publication, in 2001, adds but an introduction by a great grandson of the author (a great grandson who held the position of Chief Justice of Egyptian Administrative Courts, Majlis alDawla, under Mubarak’s presidency) and retains the seven-volume form of its early edition. Until recently, modern historians have ignored the likes of ‘Abbasi to the benefit of repeated treatment of “reform” voices in the modern Muslim Middle East. A familiar binary classification of modern Middle Eastern intellectuals divides them into “reform” and “counter-reform” or “traditional” voices. The likes of Jamal al-Dim al-Afghani (d. 1897), Muhammad ‘Abdu (d. 1905), and Qasim Amin (d. 1908) belong to the first category, while ‘Abbasi’s voice belongs in the second. It is often assumed that variety within reform voices is natural, while the counterreform project is more or less a monolith. In this narrative, a jurist like ‘Abbasi would be seen as a representative of tradition or traditional ways of life. This naturally implies adherence to premodern societal structures often characterized by social conservatism and self-perpetuating stagnation. This may explain why many modern historians seem to have shied away from relying on this particular collection, and collections of legal views by traditional Muslim jurists, as sources of social history. Whether because of its inaccessibility or sheer volume, this collection was ignored, and (understandably) an attempt to translate any significant parts of it was not made. The exception to this lack of interest in ‘Abbasi and his likes are treatments of importance, but ones that do not push the issue of reading Egyptian society in the fatwas to highlight the relationship between religious institutions and the individual. For example, in 1994, Rudolph Peters offered general comments on Shaykh ‘Abbasi and his seven-volume “legal responsa” or Fatawa.11 In this article, ‘Abbasi emerges as a conservative voice whose goal it was to obstruct legal change in Modern Egypt.12 Ten years later, Hans-Georg Erbert13 credited ‘Abbasi with a role in the Hanafization of Egypt—that is, the application of Hanafi law in a country

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whose majority of population performed their religious practices on the basis of either Shafi‘i or Maliki law.14 The following is an attempt to allow ‘Abbasi’s voice to be heard as it offers a description of the social life of his society. This will give us a chance to make some modest conclusions about Egyptians’ everyday life in matters where religious laws apply, even when the modern state claims sovereignty over matters of rights and responsibilities. ‘ABBASI’S SOCIETY

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HIS FATWAS

Three qualities will likely catch the attention of the reader of ‘Abbasi’s fatwas. First, in reporting legal questions and his answers to them, ‘Abbasi sometimes seems to be engaged in a literary exercise. In one case, ‘Abbasi reports a legal question in the form of a short poem, with the answer in the same poetic form and the same meter and rhyme.15 The question at hand is about a custody battle between a man and his former wife, where both parties claimed to be the rightful custodians of their two girls, nine and ten in age. No complex facts are presented—only the question of whether the criterion for shifting the custody of the two girls from the mother (the default custodian for young children) to the father (the default custodian for mature children) is based on the girls’ capacity for “having sexual desire,” which is an indication that they reached an age where they lack the need for their mother’s care. The answer specifies reaching nine years as a presumptive age for the capacity to experience sexual desire (which is the view attributed by ‘Abbasi to the Hanafi school of law), and thus ‘Abbasi decides that the father in this question has the right to take custody of his daughters. All this information, as I said, is presented in the two short poems—one for the question, and one for the answer. The second quality in ‘Abbasi’s fatwas is his presumption of truthfulness in the facts presented in the cases he addresses. It is not immediately clear which point of view is presented in the questions ‘Abbasi reports and sets out to answer. ‘Abbasi’s reports of the questions do not always reflect the different voices that may be involved in a case, and in many cases, it is likely that what is reported reflects only one point of view—that of the questioner. A jurist like ‘Abbasi could solicit information from the different sides involved in a case he is addressing, and he does, in fact, occasionally stress the importance of verifying some facts through certain legal means or questioning the assumption that certain means of verifications mentioned in the question are adequate. In most cases, however, his answers are given as religious counsel to one questioner. The answers seem to operate

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based on a presumption of truthfulness in the reported facts, and in general, what is reported to be the case is assumed to be the case. The third quality in the fatwas is that they seem, for the most part, to reflect an attitude of indifference about many details mentioned in the case, even though some of these details would appear interesting or even shocking to many. The jurist’s indifference to these details reflects an unintrusive, calm, and disinterested attitude that is also reflected in the tone of his answers. ‘Abbasi’s reader is likely to get the impression that the jurisconsult makes no attempt at convincing his reader of anything in particular. He does not, for example, feel the need to convince his reader that the people he counsels are debauched or virtuous or that his society is well organized or disorderly. In the following curious question the jurist focuses on the relevant facts. QUESTION:

The question is regarding a man who had two male servants with whom he was accused (by his wife) of having a homosexual relationship. The man pledged, by what is sanctified (bi-l-haram; understood to indicate he was bound to divorce his wife if he failed in his pledge),16 that they would never serve him in his house and that he would never practice homosexuality with them, and the man expelled them from his house and steered away from them. Later the man traveled to Cairo (Misr) with a friend of his. This friend requested one of the two servants to serve his friend, and the servant came to where the two friends stayed and assisted them in their business and stayed with them in the same place, and the man would be alone with his former servant in that house, and he was asked about that; so, he responded by saying that I never assigned any payment to that servant, and he never entered my house, and I never did anything with him which would displease God and his messenger. Given all that, would not this man have been within the bounds of his earlier pledge, since the servant never entered his house and he never did any thing unacceptable with him? ANSWER:

Since the above-mentioned husband has linked his pledge to a matter which has not materialized, then he is not bound to the divorce. And God knows best.17

‘Abbasi here has no desire to reprimand the man in question for his bad reputation or for his hairsplitting defense of himself and his apparent persistence in doing what he wants without having to face any consequences.

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‘Abbasi may have had reasons not to allow men to act on pledges to divorce their wives, since these may have been made recklessly by many people. Yet, his answer is a direct indication that the man in question did not provide any material or circumstantial evidence to breach the essence of his pledge, the pledge to steer away from his alleged male sexual partner. Whether or not ‘Abbasi assumed that homosexuality was practiced by some married men in his society cannot be known from this text. What is most significant is ‘Abbasi’s sense that either this matter is inconsequential, or that addressing it is not the task of a religio-legal counsel. In fact, the pattern of accepting individuals’ autonomy is repeated in many other fatawa. ‘Abbasi is rarely disturbed by the social implications of questions presented to him, and he seems to think of his job as limited to providing an authoritative answer to the technical question given to him. Note the following answer to a question about a man who possibly thought he could convince his friends that he was a Muslim, but apparently did not want to take his commitment to Islam very far, since he was straightforward (at least in the reported short version of the story) in denying his commitment to Islam when his matter was investigated. QUESTION:

Rumors spread of a Christian man that he embraced Islam; so, a judge summoned him and asked him about that. The man said “I said there is no God but Allah and the Prophet Muhammad is His messenger, and this statement is made by Christians and others.” The judge asked “is that Muhammad, then, an apostle and a messenger?” He said “Yes, an apostle and a messenger.” The judge said “A messenger who was sent to the whole of creation, and his message (shari‘a) has abrogated the rest of religions (shari‘at al-adyan), and any religion other than his religion (millatihi) is now devoid of authority (batil)?” The man said “That I do not know, and do not hold me to any answer on it!” ANSWER:

There is nothing in the words of this aforementioned Christian indicating his embracing of Islam explicitly. Therefore, he should not be judged to be a Muslim based on what he said. And God knows best.18

As I shall explain in Chapter 6, one’s change of religion has implications in Islamic family law (in matters of child custody, for example), which is the reason a judge would be involved in questioning the man in this case. But a claim of apostasy, as I said in Chapter 2 and as I will also make clear in Chapter 6, is taken to be a grave matter, and Muslim jurists attempt to

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negate the occurrence of a case of apostasy as much as possible. ‘Abbasi clearly follows this tradition, and by ruling that the Christian man remains Christian, the man keeps his normal status and goes about his life without having to deal with the allegation of apostasy. In the following case, ‘Abbasi does not seem to be interested in raising the question of how to punish an alleged apostate, but he insists on invalidating the marriage of the alleged apostate and leaves it up to the wife to accept this man’s request to remarry her again. QUESTION:

Regarding a rational, adult Muslim male who cursed God Almighty and the religion of his wife in an explicit manner. If the wife proved these facts through upright testimony (bayyina ‘adila) in the face of the abovementioned husband and before a judge (hakim shar‘i), would not the wife be separated from him in an unconditional manner (talaq ba’in), and the man could remarry his wife only after she accepts that. ANSWER:

Yes, he becomes an apostate based on the facts, and the apostasy of one of the spouses results in immediate repudiation, which does not reduce the number of allowed divorces [from three], and the man’s repentance is to be accepted if he becomes an apostate by cursing God Almighty, and he can remarry his wife after this repentance, if she agreed to remarry him; otherwise they remain separate.19

‘Abbasi must have received similar claims about people uttering inappropriate statements about God and their religion or the religion of their friends and family friends. (Indeed, regular legal manuals seem to include these questions as paradigm cases rather than intricate or exceptional cases.) The main question for ‘Abbasi is not whether this person should be punished by death; rather, it is the practical consequence of his temporary lack of affiliation with the faith, which is the dissolution of his marriage. It is as if ‘Abbasi is content to apply the punishment that the man be required to ask his wife to remarry him as deterrence for him from making the same offensive remarks in the future. In his answers, ‘Abbasi focuses on what is significant from a legal point of view and does not take notice of indications of attempted stratagems by those whose cases are reported to him. The following question concerns a pledge of divorce (triple divorce, in this case) contingent on an action. What matters for ‘Abbasi is whether the action took place while the wife was still technically married to the husband who made the pledge. Since

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the answer to this question was in the affirmative, his answer was that the pledge was binding to the husband. Evidence of a possible was presented in the case, which ‘Abbasi ignores. QUESTION:

Regarding a man who made his triple-divorce contingent on doing something, and before he did that thing, he made an agreement with his wife to divorce her for a payment (khul‘) in order to avoid the triple-divorce and then did that thing he identified in his conditional divorce after the divorce-for-money and before the waiting period (‘idda) and then remarried his wife. Is the triple-divorce applicable and the husband bound to be separated from his wife? ANSWER:

Yes, this triple-divorce is binding to the said husband, which is made conditional on an action, since the condition was satisfied during the waiting period after the divorce-for-money. Thus, the two spouses must be separated, and the wife cannot remarry that husband unless she marries somebody else—if all the facts are as mentioned, and God knows best.20

‘Abbasi’s opinions also reflect a desire to not question apparent conditions, despite potential divergence in the points of view of those involved in the matter. This is also evident in the following question, where a wife asks for a divorce by relinquishing her financial rights (called khul‘, if it includes mostly the dowry, and mubara’ah or ibra’, if it encompasses all debt due to the wife in the husband’s property). The questioner attempts to question the judgment of the woman who relinquished her dower to allow the divorce to occur between her and her husband. ‘Abbasi rejects this suggestion. QUESTION:

Regarding a man with whom his wife has engaged in a quarrel, after which the wife said “You are not bound by any of my rights and bear no responsibility towards me (abra’tuka min al-haqq wa-l-mustahaqq) and I am responsible for my evidence (tahammaltu bayyinati).” So, he said “If your relinquishing of your rights is legally valid, then you are divorced.” If the wife was not aware of the amount she relinquished, and if she was presumed unwise (safiha), since she does not perform the daily prayers, then would not the divorce be invalid? And if you say the divorce is valid, would the husband be not liable for what she relinquished?

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ANSWER:

Safah (lack of wisdom of legal consequence) for us [Hanafi jurists] is a weakness of the intellect which leads the person not to do what the religion or reason leads one to do (mujib al-shar‘ aw al-‘aql) while the person seems to posses the faculty of reasoning. For jurists, it is often used to indicate squandering property against religious and rational considerations . . . Relinquishing one’s rights while referring to unknown amounts is presumptively valid [i.e., will be presumed valid, if there is no evidence to question this validity], and the fact that the woman does not perform the prayers does not imply her incompetence in financial matters, since she is presumed interested in what is advantageous to her financially. Thus, if the wife relinquished her rights vis-à-vis her husband at the time of the divorce, and the divorce was made contingent on the validity of her relinquishing of her rights, then the divorce is applicable, given the validity of the relinquishing of what the husband owes her at the time, and she cannot go back on this pledge in these circumstances. God knows best.21

In this answer, ‘Abbasi, the religious adviser, does not even have a quick word of advice for the woman to commit to regular daily prayers. If anything, he defends her against attacks on her character that would deprive her of some of her financial rights, and distinguishes between her piety (a matter apparently left to her conscience) and her financial dealings. Another noteworthy quality in many of ‘Abbasi’s fatwas is that they reflect indifference to the authority of the male guardians or chaperones, as he defends Hanafi legal doctrines allowing girls to make decisions affecting their own lives. Here is an example. QUESTION:

An adult, virgin female, who is known to be of sound judgment, relegated the matter of her marriage to a non-relative of hers, who married her off to a man after a dowry had been stipulated, and the marriage contract was valid, having fulfilled all conditions of validity. If the stipulated dowry was appropriate for the like of this female and the husband fit for her, would this marriage be valid? ANSWER:

Yes, the marriage contract is valid in this case, since an adult female has the right to relegate the matter of her marriage to a non-relative, who could then marry her off to a fit husband with an appropriate dowry for her.

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Such marriage is not contingent on the consent of a male-guardian in our view. And God knows best.22

Here, ‘Abbasi did not hesitate to apply the traditional standard that accepts, in principle, that a female can delegate the matter of her marriage to a nonrelative, according to Hanafi law, irrespective of any opposition from her relatives. Men’s claims to have divorced their wives under the threat of force are treated with suspicion by Hanafi jurists. ‘Abbasi points to this fact, as he dismisses a man’s claim that he was forced to divorce his wife. ‘Abbasi’s answer reminds the questioner that claims of divorce under compulsion do not serve as a defense in Hanafi law. QUESTION:

Regarding a man with whom his wife had a quarrel because of his drinking. So, he pledged to never drink wine again and offered her tripledivorce [which would make the husband unable to retake his wife again], contingent on his failure to fulfill his pledge. Then he drank wine again after a period. Then she quarreled with him again, and he offered her triple-divorce in the presence of a group of Muslims. If all these facts are proven to be true, and he claimed that he was forced to pledge to divorce her, would not his claim be ignored and the triple-divorce be ruled binding to him and would not the wife be prohibited from marrying him until she marries somebody else? ANSWER:

Yes, the said man should be ruled to have divorced his wife three times after this [event] has been established with legally accepted evidence, and he cannot remarry his wife, in this case, before another husband marries her, and the divorce by a compelled man is binding in our doctrine [Hanafi jurists].23

Hanafi legal doctrines take seriously other claims of compulsion. Thus, if a woman claimed to have entered into an agreement to divorce her husband and return her dower to him or waive it under compulsion, the divorce takes place, but she is not bound to return the dower or waive it. This is because the transfer of money requires consent, and if she claims that she never consented to waiving or returning her dowry, then the husband cannot ask her to do that.

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QUESTION:

Regarding a man who married a woman with specified dowry stated in appropriate documents, and when the woman asked for her dowry, the husband bound her and beat her harshly and said I would not untie you or stop beating you until we entered into a khul‘ [divorce-for-money, where he would not be bound to pay her the dowry]. Affected by the torture, the wife accepted while being unwilling, and then the man divorced her. Is the divorce valid, and is the agreement of divorce for money (khul‘) binding? ANSWER:

In the Tanwir [a Hanafi legal manual] and the commentary on it [Haskafi’s (d. 1677) al-Durr]: “[If] the husband forced his wife to accept it (i.e., divorce for money), she is divorced without being liable for the money, because consent is a condition for establishing any financial commitment and waiving it.” If this compulsion is proven by acceptable evidence, then the divorce is binding, and the dowry is not waived for the husband, and God knows best.24

‘Abbasi does not hesitate in issuing fatwas that are likely to disturb the status quo and support the claim of one party, possibly against all others in the case. He considers the claim by a co-wife that her other co-wife and mother-in-law harmed her sufficient grounds for granting the questioner the right to ask for a separate residence, not only a separate apartment on the same premises, but a separate home away from where the co-wife and the mother-in-law live. QUESTION:

Regarding a man who has two wives, whom he made live in one house, while each of them had her own residence with its separate utilities within that house. One of the co-wives and the man’s mother-in-law harmed the other co-wife, while they lived in the same residence, even though each one had a home of her own (within the building). If this harm by the co-wife and the mother-in-law happened because of the proximity in the residence, would the other co-wife be entitled to request from her husband to provide an appropriate residence for her in a separate house, where her co-wife and mother-in-law do not live. ANSWER:

Yes, if the harm is delivered to one of the co-wives by her other co-wife and mother-in-law because they lived in the same house, even if each one had her own residence within the same premise, then the above-mentioned

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wife has the right to request her husband to provide a legally acceptable house in a separate house that is appropriate for her, and God knows best.25

When there is legal advice to be offered to more than one party in a case—indicating duties falling on the shoulders of more than one party in the case—‘Abbasi does not hesitate to offer the double advice. QUESTION:

Regarding a man whose wife quarreled with his mother, and the man beat his wife to deter and punish her; so, she left his house and went to her mother’s house and refrained form obeying him and wanted to remain in this state of disobedience (nushudh), and the husband refused that. If the husband has fulfilled all his duties towards her, then is not it the case that she couldn’t be left alone, based on the law, and she must obey him and dwell in his house, even by force, and he must afford her a residence that does not house his and her family? ANSWER:

The husband must afford his wife a house where neither his nor her family lives, and she does not have the right to disobey him without a legal justification, since he fulfilled his husbandly duties, and God knows best.26

In many ways, ‘Abbasi was not eager to be involved in controversies that involved non-Muslims. Thus, he stipulates that non-Muslim parties involved in a dispute must agree to the authority of a Muslim court for this court to provide a ruling in their case; otherwise, the case may be resolved by the authority of some collective body of elders within the non-Muslim community, or by a non-Muslim court whose authority is accepted by the parties. Once a Muslim court rules in a case based on the consent of both parties, this ruling is consequential, though it can be reversed again by a non-Muslim court or another body whose authority is accepted by the parties. QUESTION:

Regarding two married Scriptuaries (dhimmi and dhimmiyya), where the woman disliked the man and sued for divorce before a Muslim judge, and the man issued a final divorce (talaq ba’in) based on notice from the court. Now, the man wants to retake his wife based on the religion of Christianity. If they both go to a Muslim judge, should not the judge rule

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between them based on Islamic law and rule the divorce valid, since it was established with sound evidence. ANSWER:

If the said Scriptuaries came to our courts, we rule between them based on our law in the matter they ask us to rule in, and the man who divorced his wife is to be prevented for being with his wife until he renews the marriage contracts, fulfilling its conditions, and God knows best.27

Based on this fatwa, the husband needs to renew the marriage contract with his divorcée, which would require the divorcée’s consent. If she agrees to remarry her now ex-husband and goes back to a Muslim court later to get a divorce, the husband could refrain from cooperating with the court and insist that the matter be resolved before a Christian court, since the non-Muslim husband can refuse the authority of a Muslim court and thus not be bound by its decisions. When a spouse embraces Islam, however, things are different. The following case shows how ‘Abbasi’s answers display a measure of insistence on applying the religious law, even though the case, as it presents itself, seems to show tacit acceptance of the status quo from the parties. The following fatwa addresses the marriage between a Coptic man and a woman who converted from Christianity to Islam. As the case stood, no judge had intervened in the matter, which ‘Abbasi considers unacceptable. He advises that a judge must intervene to allow the man to consider conversion to Islam and then proceed to issuing a repudiation of the marriage if the man rejects Islam. QUESTION:

Regarding a Christian Copt, who used to work as a banker and was removed from his work [no reasons offered], and who has a Christian wife [denomination not specified] and had a baby from her, and this wife accepted Islam voluntarily and was known to be a good Muslim. This case was presented to the administration in the area where they lived, and it was clear that the woman was a good Muslim, and the man was asked not to interfere with her. What does the religious law say about the marriage of this woman, and is her above-mentioned baby now Muslim, following his mother’s conversion to Islam, and would taking custody of the baby be the right of his mother’s, since she is qualified for that and there is nothing that impedes her from taking this responsibility?

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ANSWER:

What is explicitly stated in the legal manuals of the [Hanafi] school is that, if one of the two Magian/Manichean spouses or the wife of a Scriptuary [Jewish or Christian] converts to Islam, then the other spouse must be presented with the option of becoming Muslim, and if she/he accepts, then that is that, and if she/he rejects, then the spouses must be separated [and the marriage repudiated]. And as long as the judge did not issue such repudiation, then this woman is still the man’s wife. The judge thus must offer the husband of the above-mentioned [former] Christian woman the option of becoming Muslim, and if he becomes a Muslim, then the marriage is as it was; otherwise, they must be separated [and the marriage repudiated]. After this repudiation, she waits before marrying as if she was divorced [three menstruating periods or three months] and can marry after that. The child before becoming an adult follows the better religion of either of the two parents. Thus, if this woman who became Muslim had young children, they are judged to be Muslims following their Muslim mother, and she takes custody of them, as long as she is fit for that and as long as there is nothing impeding her from her taking that duty. And God knows best.28

Finally, in ‘Abbasi’s fatwas, one certainly finds evidence of his partisan Hanafism, his sense of the superiority of Hanafi legal reasoning. In this, he is not an aberration among his contemporaries, though many jurists of his generation, especially those who studied law according to more than one madhhab or school of law, have transcended their narrow affiliation with their initial madhhab. In the following case, ‘Abbasi advises that a (probably Maliki) jurist’s decision regarding a divorce based on the absence of the husband be reversed by a Hanafi judge. The jurist in question seems to have ignored evidence of communication between the wife and her absent husband and did not seem to offer any evidence of the divorce between the husband and the wife that may have occurred before or during his absence. The jurist also seems to have divorced them based on the mere fact of the husband’s absence (which is considered a source of hardship for the wife and a basis for judicial divorce). But ‘Abbasi does not inquire about the basis of the divorce, as if it is obvious to him that the basis was the absence of the husband (which a Maliki jurist would tend to be more ready to use as a basis for judicial divorce compared to a Hanafi judge). QUESTION:

Regarding a man from the country of the Berbers (bilad al-barabira) who had a wife from his country, and the man never divorced his wife (equivocally or

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unequivocally). The man traveled to a far-away but known country, leaving to his wife palm-trees with their fruits and an arable land with their trees and continued to send her money from the above-mentioned country and stayed there for less than a year. A jurist from the town where his wife lived then decided to divorce the woman from her husband and marry her off to another man. If these two people were to go to a Hanafi judge, and the first husband was not proven to have divorced his wife according to Hanafi law or any other school of law, should this woman be separated from her second husband, and their marriage be judged invalid, and that she be still the wife of the first husband? ANSWER:

Yes, if they go to the Hanafi judge and he found no proof that necessitates a separation between the wife and the first husband according to some legitimate evidence, then the second contract (of the marriage with the second husband) would be judged invalid, and the woman remains the wife of the first husband.29

CONCLUSION This chapter attempted to draw attention to the responsa of Muhammad al-‘Abbasi al-Mahdi, which focus on legally relevant materials, while ignoring the social implications of many of the questions the jurist addresses yet provides a wealth of data about social life in nineteenth-century Egypt. ‘Abbasi’s unintrusive (if a little detached) tone continues a tradition of juristic involvement with the public’s juristic queries with varying degrees of interest in educating the questioners about the law in detail. (‘Abbasi’s responsa also initiates a tradition of the official jurist’s measured involvement in issues concerning the separation of the realms of jurisdiction of Islamic law and modern state law, but this is a separate matter.) In his answers to the public’s juristic queries, ‘Abbasi chose a minimalist approach to the question of the reconciliation of the realms of the two legal systems and engaged in lengthy juristic research only when the matters involved official entities. ‘Abbasi’s society witnessed both a continuation of premodern norms that governed the Egypt of the late medieval era as well as glimpses of change. It is obvious that this society had enjoyed a measure of complexity that allows its existing custom to be self-enforcing as a default situation. It is also evident from this collection of questions and answers that the Egyptian society of the second half of the nineteenth century enjoyed considerable measures of freedom, contested by individuals at times, while not always acknowledged explicitly or conceptually. I made no attempt to depict ‘Abbasi’s society as a liberal society, and I am sure modern readers will have

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many reservations about the attitudes displayed in these responsa, but one cannot deny the author’s skillful solutions to some of the problems he encounters. More importantly, one cannot deny the direct relationship between this jurist’s opinions and the freedom individuals would enjoy under the religious law he champions.

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H A P T E R

4

SOCIAL CUSTOM AS SOURCE OF LAW IN MODERN MUSLIM SOCIETIES

A

IT SEEMS SELF-EVIDENT THAT MODERN MUSLIM SOCIETIES ARE both the theater of Muslim life and an essential depository of the legacy of Islam. Yet, whether social customs in these societies are considered a source of Islamic norms from the standpoint of Islamic law may be questioned. This is an unsettling anomaly, one whose investigation can supply crucial insights in the study of Islamic legal theory, as well as the study of modern Muslim societies. This chapter is an attempt to explain this anomaly and investigate its implications, both on the conceptual and the practical planes. An analysis of Muhammad Amin ibn ‘Abidin’s (1784–1836) writings on the dialectic of law and culture will guide this attempt and provide its parameters. This chapter will identify a conceptual fallacy in the strong version of the thesis that Islamic legal norms and social and cultural norms may irreconcilably diverge in the same sociolegal entity. In the course of the chapter, I will advance the argument that Sunni Islamic legal theory can accommodate the social customs adopted in modern Muslim societies as a source of law, not based on a simple impulse to modernize or westernize these societies, but based on legal principles advanced by premodern Muslim jurists such as Ibn ‘Abidin. Premodern Sunni legal theory is capable of addressing modern questions of social and political development, as it reserves a role for the Muslim populations in the development of their laws. In this context, the origins of these modern social customs adopted

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by Sunni Muslim populations are immaterial, whether these origins are Western or otherwise. This chapter falls into five sections and a conclusion. In the first section, I provide prefatory notes about the hierarchy of the sources of law in the Sunni Islamic tradition and the role of social custom in interpreting law’s textual sources (the Qur’an and the Sunna). In the second, I provide an analysis of Ibn ‘Abidin’s exposition of the doctrine of custom—social custom as a source of law. In the third section, I introduce and counter the argument that premodern treatments of the doctrine of custom may be irrelevant to modern Muslim societies, given the partial transformation of the mores of these societies under the impact of Western culture. The fourth section introduces a case study and an application of the doctrine of custom in today’s Muslim world. This section addresses the question of whether Sunni Islamic law can afford equal procedural privileges to both men and women in divorce cases, based on a change in the mores of modern Muslim societies—a change modifying what is usually considered a traditional understanding of the role of men and women in society. Modern Egypt will serve as the context of this discussion in order to secure a degree of specificity for the application that guarantees its effectiveness and reasonableness. In the fifth and last section of the chapter, I address three implications of the argument I advanced (1) the irrelevance of the origins of social custom that would be efficient in establishing law in a modern Muslim context (that is, whether the origins of these new customs are Western or otherwise), (2) the meaning and nature of reform in modern Muslim societies from this juristic perspective, and (3) where the Islamic legal system falls on a spectrum of legal models of the customary and discursive varieties. The conclusion provides a restatement of the main points in the chapter. PREFATORY NOTES THE HIERARCHY

OF THE

SOURCES

OF ISLAMIC

LAW

Considering the mature formulations of its legal discourses, the Islamic legal tradition emphasizes the Qur’an and the Sunna (or tradition) of the Prophet Muhammad as the main sources of the law for Muslim individuals and societies.1 To access these two sources, later generations of lawyers and jurists within this legal tradition cannot simply rely on plain-sense readings of Qur’anic and Sunnaic texts when they set out to devise and defend their legal doctrines. Rather, these lawyers and jurists must defer to (or at least engage with) the consensus of earlier jurists on the interpretations of crucial texts from the Qur’an and the Sunna. Furthermore, participants

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in this legal tradition will also rely on certain legal techniques to derive laws that can properly be considered Islamic. These techniques include analogical reasoning (qiyas) and reasoning based on legitimate utility (maslaha). Down the list of techniques the Muslim jurist can employ to devise Islamic laws is the endorsement of social customs (‘urf) as a source of law. This creates, in Sunni Islamic legal theory, a hierarchy of the sources of Islamic law, which usually begins with four sources in the following order: the Qur’an, the Sunna of the Prophet, consensus, and analogy. The “top four” are followed by a list of other sources whose ordering is more contested than the ordering of the “top four,” and one of these post-top-four sources of Islamic law is social custom or ‘urf. No one in particular can be credited with preparing the way for social custom to enter into the list of the sources of Islamic law. From the dawn of Islamic law, Muslim jurists recognized the legitimacy of certain social customs without hesitation. For example, even when the Prophet Muhammad specifically regulated “usury” based on the habits of exchange (sale and barter) of his society, Muslim jurists revisited the concept of usury, producing, in the process, many answers to the question “what is usury?” as they constantly debated how social custom in effect shapes usurious transactions. Gradually, and through the backdoor of legal maxims (al-qawa‘id al-fiqhiyya), the legal principle “custom rules!” (al-‘adah muhakkamah) established popular collective behavior as a virtual source of law in Sunni Islam. It seemed obvious that considering social custom in deciding legal matters was good legal common sense—what remained controversial was the extent of that consideration.2 Despite its appearance at a relatively inferior position in the list of Islamic law’s foundational sources, social custom can be the definitive factor in deciding a legal inquiry, given its capacity to practically trump the sources above it. This is simply due to its very nature: if social custom is to be accommodated, other considerations—even those of textual provenance—must be adjusted and reconciled with social custom, or else social custom would be ignored. Take a case where a jurist suggests that, to conclude certain contracts, the parties should use a certain wording, specifying the rights and responsibilities entailed by the contract. In this, the jurist will have toiled to ascertain that the language of the contract does not allow any usurious elements mentioned in the Qur’an, the Sunna of the Prophet, and the unanimous agreements of generations of jurists before him. Suppose that the Muslim population in a certain geographic area ignores the jurist’s suggestion in favor of a linguistic formula more commonly acceptable to them, one they already share and understand (albeit one that is apparently inferior to the jurist’s from the

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latter’s viewpoint). Suppose further that these people’s common language, which they regularly use in the actual practice of these contracts, indeed allows for a form of usury. When this same jurist faces mass heedlessness of his suggested formula among the population, he is left with one of two choices: to either (1) invalidate all contracts that do not conform to his view, which he deemed to be in perfect agreement with the law, or (2) accommodate social custom to some extent (and practically join the population in ignoring the law as he had understood it to be). In this case, validating some of the population’s contracts entails accepting the notion that social custom overrides (at least in some cases) the requirement of conforming to the higher sources of Islamic law. In the course of the chapter, we will see that deference to social custom was not justified in purely pragmatic terms. We will also see that deciding when social customs should override other sources of law is far from a simple matter. For now, we must briefly spell out the implication of the latent power of social custom as a source of law in Islamic societies: if social custom can practically override the apparent content of a textual source of the law, the word of God, no less, then this social custom must be a legitimate source of the law for Muslim individuals and communities. SOCIAL CUSTOM

AND THE

LAYERS

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LAW

In his article, “Rules, Judicial Discretion, and the Rule of Law in Nasrid Granada,” Mohammad Fadel demonstrated that social custom is one of the important modifiers of legal doctrines in Maliki jurisprudence.3 As he analyzed a collection of Maliki juristic responsa from fourteenth- and fifteenth-century Spain, Fadel offered ample evidence that Muslim jurists, at least of the Maliki school, interpreted their school’s doctrine and seemed to practically amend it to account for changes in family life, the market, and political and judicial cultures. Fadel rightly argues that drawing a conclusion about a unique disparity between theory and practice in law, in this context, is unreasonable. A better reading of the simultaneous evolution of law and custom in a society of this type would be that the theory employed in the laws of this society must be seen as multilayered.4 Social customs, therefore, provide one of the layers of juristic discourse and reasoning. Fadel’s central concern remained a critique of the theory versus practice analysis advanced by Noel Coulson.5 To focus on the relationship between social customs and law, I shall offer an analysis of the subject based on a treatise by one of the later masters of Hanafi law, Ibn ‘Abidin. Ibn ‘Abidin provides an example of juristic treatments of the dialectic of law and culture that assume the main juristic task in this context to be

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reconciling law and custom and showing where custom could shape law and where law should shape culture. IBN ‘ABIDIN

OF

DAMASCUS

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TREATISE

ON

CUSTOM

Ibn ‘Abidin of Damascus had more than one occasion to address the impact of social custom on law within Hanafi jurisprudence. In addition to his short treatment of the topic in a treatise on the craft of devising legal opinions (‘Uqud rasm al-mufti),6 Ibn ‘Abidin dedicates a full treatise to the relevance of social custom to legal inquiry. The treatise’s title already indicates that law can indeed be based on custom, albeit only partly. The Arabic title, Nashr al-‘arf fi bina’ ba‘d al-ahkam ‘ala al-‘urf, may be translated as Disseminating Fragrance: On Building some Laws on Custom (henceforth, the Treatise on Custom).7 Characterized by a unique combination of comprehensiveness and authority and packed with invaluable insights, the Treatise on Custom amounts to a restatement of the Hanafi legal doctrine on custom (only here it is a restatement of a doctrine of legal theory with examples of practical legal doctrines rather than a full restatement of any body of laws). The basic doctrine Ibn ‘Abidin explicates in this treatise is that custom shapes the law most clearly when the law is not strictly stated, but custom can also shape the law to various degrees in cases where the objectives of the law are served while local customs are followed. In his Treatise on Custom, Ibn ‘Abidin proceeds based on a basic assumption. A complete divergence between established legal doctrine and established universal social custom should not occur in a Muslim society, but this is not to say that occasional divergence between the demands of the law and common practice does not take place. The assumption that full disparity between law and culture does not take place is more or less logical and empirical rather than theological—that is, given that Muslim societies are inhabited by people who respect Islamic moral and legal doctrines, it would not be natural for them to universally embrace a custom that intrinsically conflicts with Islamic law. When conflict occurs between law and cultural practices, the trained jurist must provide an explanation of where this occurs and how it should be avoided. This is one of the central objectives of Ibn ‘Abidin’s Treatise on Custom. On this reading, the relationship between social custom and law in Islam is clearly dialectical. Custom is a maieutic to legal institutions, and law, at times, performs a function of social engineering. That is, since the objectives of the law in Islam must be achieved without inviting hardship to the lives of the Muslim population, this population’s way of doing things must be accommodated. This accented respect for social custom

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tends to shape and modify legal norms, as judges and jurists defer to custom in deciding matters involving rights and responsibilities. Thus, custom generates law. At the same time, one of the functions of the law in Islam is to promote good habits and sensibilities in the lives of practicing Muslims. Thus, law generates custom. The analytical jurist and legal theorist must find a way of reaffirming the importance of both the good habits and sensibilities promoted by the law, while accepting those social customs common in Muslim societies that do not fundamentally purport to undo desirable habits and sensibilities. To illustrate this point, I shall offer an example. One of the objectives of the law in Islam is to create a just and fair environment for trade. To achieve this goal, Islamic law outlaws all transactions that (1) put one party at an unfair advantage vis-à-vis the other party or parties, and (2) are bound to cause conflict between or among the parties. Accordingly, Islamic law prohibits transactions involving vague expectations, such as an exchange of goods where one of the exchanged goods is not clearly specified. Hence, when two parties agree to an exchange of (1) a specified quantity of a specified currency for (2) a piece of merchandise that is still under construction, they engage in a transaction with vague expectations, given the uncertainty in the merchandise that is under construction. The purported vagueness could potentially give one of the parties an unfair advantage over the other and cause subsequent conflict between them. But what if some type of these transactions is so commonly practiced among a certain population and the people never complain about it? Moreover, what if the people would in fact be burdened by the prohibition of this type of transaction? Here, custom may prevail. An example of a transaction with an exchange of an unspecified good is the exchange of a suit or dress to be tailored in exchange for a certain price. A strict application of the prohibition of transactions with vague expectations would render this transaction prohibited, due to the uncertainty in the qualities of the resulting suit or dress in this case. Hanafi law allows this type of transaction while asserting the general prohibition on vagueness in other not commonly practiced transactions.8 Ibn ‘Abidin’s Treatise on Custom explains how law and custom modify each other in a Muslim society. This leads us to the following detailed elaboration of Ibn ‘Abidin’s doctrine on custom. THE GENERALITIES

OF THE

DIALECTIC

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CULTURE

Before any analysis of Ibn ‘Abidin’s Treatise on Custom, a note about his style of authorship is in order. Ibn ‘Abidin’s legal research makes the ending points of his juristic predecessors his own starting point. He writes by cit-

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ing Hanafi authorities and follows these citations by one of four reactions: full approval, qualified approval, rejection, or silence. As I said, his Treatise on Custom can arguably be approached as a restatement of the Hanafi legal doctrines on custom as a source of law, given its unique combination of comprehensiveness and authority. This, among other reasons, makes this legal text particularly fruitful for the purpose of an exposition of the scope of the juristic views on the topic at hand. Ibn ‘Abidin always has a way of letting us know what he thinks about a given topic, and in principle, the reader can easily identify what Ibn ‘Abidin believes about a given topic by observing his reaction to his sources. In the cases when Ibn ‘Abidin’s reaction to his sources is silence, the reader should simply read on to discover that the author occasionally revisits the issues he had elected to leave undecided in an earlier part of the text. Since my focus is not to show where Ibn ‘Abidin’s doctrine on custom differs from that of his Hanafi predecessors, I shall pay as much attention to doctrines and arguments he extracts from Hanafi authorities as I will to his own. For my purposes, it is just as important to relate what the Hanafi juristic discourses on the topic looked like. Ibn ‘Abidin’s Treatise on Custom consists of a short introduction and two sections. In the introduction, Ibn ‘Abidin offers general remarks about the subject, while the two sections address the two possible types of clash between social customs and established legal doctrine. The first type of clash is what may be called the clash between social custom and a foundational source of law (dalil shar‘i), and the second the clash between social custom and some of the established doctrines of the Hanafi school of law (zahir al-riwaya).9 In the introduction, Ibn ‘Abidin cites Zayn al-‘Abidin ibn Nujaym (d. 1563), a major Hanafi jurist and the author of a treatise on legal maxims titled al-Ashbah wa-l-naza’ir. In the course of a quotation from al-Ashbah, Ibn ‘Abidin cites textual evidence establishing social custom as a source of law. The Prophet Muhammad is reported to have said, “What Muslims find agreeable is agreeable in the eyes of God.” After this report is cited, its authenticity is questioned, with authorities asserting that the statement is probably only attributable to a Companion of the Prophet, ‘Abdullah Ibn Mas‘ud. But this is followed by a strong assertion of the employment of custom in answering so many legal queries, which made legal theorists acknowledge that custom is a de facto source of law. Here, Ibn ‘Abidin may have provided a history of the evolution of the doctrine of custom as source of law, as he states that deference to social custom in legal reasoning was practiced before an articulation of the principle that social custom is a source of Sunni Islamic law. Ibn ‘Abidin finally cites various juristic

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authorities who made statements of principles regulating the social custom and law nexus. These include the following three principles: (1) original uses of words must be abandoned when they conflict with customary uses of the same, (2) that which stands on custom stands on a legitimate legal foundation, and (3) what is established by custom is established by text.10 Without explaining these condensed statements, Ibn ‘Abidin proceeds to a principle that seems to circulate in the writings of many juristic authorities: no judge or legal counsel should be allowed to rely on the default legal doctrine of Hanafi law (zahir al-madhhab) while ignoring social customs. Ibn ‘Abidin is driven to what seems to be an urgent reaction to the principle, where he asserts, “This, on its face, is problematic or at least a bit puzzling (mushkila).”11 The reason for this is that issuing an opinion or a decision based on custom against established legal doctrine is unacceptable. In fact, Ibn ‘Abidin again asserts, unless authorities in the school (al-mashayikh) explicitly amended the established Hanafi doctrine by stating the correctness of another doctrine, no religious counsel or judge should base their opinion on anything other than that established doctrine. The default school doctrine, Ibn ‘Abidin continues, may simply be a direct reflection of an explicit statement in the textual sources (Qur’an or Sunna) or an established consensus, which cannot simply be ignored in favor of established custom, since the latter could be based on an invalid consideration while the text could not, as Kamal al-Din ibn al-Humam (d. 1460) stated. In the same vein, Ibn Nujaym, in his already cited Ashbah, states that social custom may not be taken into account in matters established by text (al-mansus ‘alayh). Thus, there are, it seems, good social customs and bad social customs. Here Ibn ‘Abidin provides an example to indicate what bad social customs may look like. Some workers who perform physical tasks, such as construction workers, have established a custom of covering the lower part of their bodies up to a point below their belly buttons. The dress code recognized by many Muslims as meeting the standard of propriety in the public space is that the lower part of the body must be covered up to the belly button. This established dress code originates in exhortations in the texts of the Prophet’s Sunna. Now, Ibn ‘Abidin relates an opinion that argues for relaxing the requirement of covering one’s stomach up to the belly button based on the custom of the workers and based on a presumed inconvenience in the requirement to abide by the text that conflicts with the workers’ custom. Ibn ‘Abidin then objects to this opinion on the basis of its failure to take into account that such a custom is off the mark, as it seems to clash more or less directly with an established text.12

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Ibn Nujaym, the same authority already cited twice, is quoted again to assert that considering hardship and inconvenience (mashaqqa and haraj) a valid cause for relaxing legal requirements can be acceptable only where no explicit text can be found (mawdi‘ la nass fih). Therefore, just as social custom would be of the bad type, and thus not efficient in altering a textbased law, so is a presumption of hardship on the part of practicing Muslims incapable of challenging a legal doctrine of textual origin. By the end of this short introduction, it becomes clear that Ibn ‘Abidin can accept neither the extreme of ignoring social custom altogether nor the extreme of allowing the populations or sectors of them regulate their own code of practice. Ibn ‘Abidin’s back-and-forth in this short introduction to his Treatise on Custom reveals a sense of the difficulty of making general statements about the subject at hand. The difficulty ultimately impels him to conclude the introduction and move to the heart of the Treatise, where he distinguishes two forms of conflict between social custom and legal doctrines: the first being the conflict between social customs and essential laws established by the foundational sources of Islamic law, and the second, the conflict between social customs and the laws of a specific madhhab or school of law, in this case, the Hanafi school of law. Essential Laws The first section of Ibn ‘Abidin’s Treatise on Custom deals with divergences between social customs and the legal content of the foundational sources (Qur’an, Sunna) yielding only one valid reading. These sources then establish essential laws, as opposed to the laws of a given school of jurisprudence, such as Hanafi laws, with which non-Hanafi jurists may reasonably disagree. A law that is established by a textual source (Qur’an, Sunna) belongs in a list of essential laws if the legal content of this textual source is evident. We shall refer to this as the doctrine of essential laws. Islamic legal theorists employ an extensive jargon for the degrees of explicitness in Qur’anic or Sunnaic texts to explain this doctrine. These theorists speak of a topology of texts of clear content, classifying these into four grades: the zahir (apparent), the nass (explicit), the mufassar (evident), and the muhkam (impermeable). When Hanafi jurists say that a legal doctrine is established by a text of the mufassar or evident variety (the third in the above list of four), they mean to imply that the certainty of a doctrine based on that text is incontrovertible. Here I must briefly digress. From the point of view of some seasoned historians, Islamic law is a body of discursive literature, with disagreement being characteristic of almost every piece of law it contains. But this

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is not necessarily the way many participants in the Islamic legal tradition see it. These participants (i.e., jurists) see their tradition as including essential laws that are not subject to disagreement or altering. Yes, they would likely disagree on spelling out a list of these laws that no able jurist could dispute (just like believers in natural rights can be certain that natural rights exist but always argue about any [long or short] list of these rights). But the doctrine of essential laws remains functional and applicable within certain schools of law or legal circles. I shall thus refrain from questioning the assertion that Islamic law includes a corpus of essential laws and let the examples clarify what these essential laws are. Back to Ibn ‘Abidin. Two uncontested principles open the first section of the Treatise. The first principle is that social customs are inefficient as a source of law if they contradict a foundational source of the law in every respect. For example, the habits of drinking wine and dealing in usury do not establish any normalcy, let alone normativity, for these practices, no matter how common they are, since these practices simply clash with texts that unequivocally prohibit them. If this first principle seemed straightforward, the second principle will require more explanation. The second principle states that if a specific social custom conflicts with a general ruling established by analogical reasoning (qiyas), then social custom prevails in its specific realm. For example, the Prophet is reported to have prohibited a market practice known as the miller’s basket transaction (qafiz al-tahhan). A miller’s basket transaction takes place when a man provides a basket of grain to a miller to grind it and promises to pay a portion of the resulting flour as compensation for the service of grinding. The compensation for grinding here is contingent on the grinding itself, and the amount of the resulting flour to be given to the grain owner is the remainder of the flour after the miller receives his compensation from the same flour. This makes miller’s basket dealings problematic, as they include an element of vague expectations and the potential of conflict. By employing analogical reasoning, jurists might conclude the prohibition of all transactions that include similar vagueness, such as a tailor’s sale of a (conceived) dress or suit that does not exist at the time of its sale. While there is no text addressing the specific case of tailor’s sales, the prohibition of miller’s basket sales seems to be extendable to tailor’s sales by analogy. (Ignore, for a moment, the dissimilarities between the two types of sale. In the case of a tailor’s sale, one party would provide cloth sheets to be tailored to become the desired dress or suit, and the parties may agree that the unused cloth-sheets would be discarded, and they may agree that the compensation for tailoring would be external to the cloth sheets. Irrespective of these and other potential dissimilarities between the two

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types of transactions, miller’s basket dealings and tailor’s sales seem to share an unacceptable measure of vagueness stemming from the unknowability of the resulting product and compensation.) If one concludes that tailor’s sales are prohibited because of their analogousness with miller’s basket sales, one runs into a practical difficulty: tailor’s sales are so common in society, and prohibiting them would generate undue hardship on the part of a great number of people. According to the second principle stated by Ibn ‘Abidin, social custom here prevails in its specific realm (that is, removing the prohibition of tailor’s sales), while the prohibition of miller’s basket dealings remains intact. So far, we learned that social customs fail to challenge something like the prohibition of wine drinking, but can partly reverse a generalized prohibition of transactions involving vague expectations. Here a contested area immediately surfaces. What if a textual source of the law seems to prohibit a class of transactions and an established social custom seems to push for normalizing it? The first condition to be considered in this context is whether the custom in question is universally or commonly prevalent. For example, if the residents of only one town practices miller’s basket dealings, while residents of other towns adhere to its normative prohibition, their custom will be seen as a violation of acceptable norms rather than a manifestation of a practice that awaits normalization. In this case, the violators of the norm will be reminded that their practice goes against both its normative prohibition and its lack of circulation. Following is another example of a social custom that is legally inefficient, in Ibn ‘Abidin’s mind, because of its limited ciruclation. A man provides unwoven threads to be turned into cloth-sheets and promises to pay a piece of the resulting sheets as compensation for the service of weaving. Some Hanafi jurists allowed this transaction, but Ibn ‘Abidin does not cheer for this view, due to the limited circulation of the custom in question. However, he says that those who allow the transaction in question could not argue that a singletown-based social custom would be sufficient to challenge a textual prohibition; they could only argue that the custom in question is outside of the realm regulated by the text—that is, they could reasonably say that the prohibition of the transaction in question is not clearly addressed by the texts that prohibit similar transactions, but they could not say that the text prohibits it and custom permits it. For any custom to be considered an indisputable source of law, Ibn ‘Abidin here asserts, it must enjoy universal circulation. Social customs of limited circulation enjoy a much inferior force compared to customs of universal circulation.

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The second consideration in a divergence between text and custom is whether the generality of the text is such that one can take exception to it in certain cases, while insisting on applying the text in all other cases subsumed under it. Ibn ‘Abidin again refers to the already mentioned prohibition of transactions involving vague expectations. The textual bases for this prohibition are multiple, and one of them is the Prophet’s prohibition of selling a commodity one does not possess at the time of the sale (bay‘ ma laysa ‘indak). Again, the tailor’s sale of his products before completing them is allowed as an exception to this prohibition, since other uncommon sales of commodities unavailable to the seller at the time of the sale will remain prohibited. This solution makes both text and social custom operative. The solution also mimics the above solution to the conflict between social custom and analogical reasoning. Thus, one concludes that social custom may operate in a specific realm within a general realm covered by text or analogy, if the text or analogy remains operative within its general realm. An example of a social custom that cannot establish legally valid norms is a practice established by some of the businessmen of the Central Asian town of Bukhara. This practice allows creditors to charge for the upkeep of certain objects that are owned by those who borrow money from them. In other words, the borrowers would provide objects they own (for safekeeping) to those who loan them money, and in return the borrowers would pay the creditors for the upkeep of these objects until they pay back their loans. The charge for the upkeep of these objects, as practiced by this town’s businessmen, is unusually high, often exceeding the very value of the objects themselves. This makes the jurist believe that this transaction is nothing but a stratagem to circumvent the prohibition of usury—that is, the borrowers here, in effect, do not pay for the upkeep of these worthless objects, but in fact pay usurious interest on their loans. Ibn ‘Abidin emphasized three considerations in disqualifying this custom from being legally normative. First, this custom is limited, not even to the whole population of one town, but to some businessmen in this town. This limited circulation clearly disqualifies it from being a valid source of legal norms. Second, reasonable people do not accept customs of this nature, since people do not normally pay more than the price of any property to maintain it. This leads the jurist to the conclusion that the custom is nothing but a way to cloak another objective, which is to circumvent the prohibition of usury. Third, contracts that involve the exchange of utilities are allowed as an exception to the principle of prohibiting contracts with a strong element of uncertainty, since the utility of any property does not exist concretely at the time of contracting, which

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makes it an instance of selling a nonexisting utility or bay‘ al-manafi‘ alma‘duma (essentially, an exchange with unacceptable, vague expectations). Ibn ‘Abidin concedes that the exchange of utilities may be allowed as an exception to this general rule. The rationale for allowing the exchange of utilities is people’s valid need for it (such as the need to rent houses, an exchange of money for the utility of residence), but a valid need is absent in a transaction involving the utility of the upkeep of a worthless object. The prohibition of the exchange of utilities must therefore be asserted in transactions of this type, where the utility of the upkeep of these objects is hardly a basic or valid need for the community in question.13 As Ibn ‘Abidin advances toward the end of this section, he focuses most of his effort on explaining the extent to which market customs may transform the nature of the prohibition of usury. The main principle at work here is that the prohibition of certain exchanges as usurious can be qualified by how the market looks at the exchanged items themselves. For example, in the Prophet’s time, the exchange of gold and silver would normally be based on their weight, and the prohibition of usury in gold and silver exchanges is based on the assumption that gold and silver are used as currency based on their weight. By contrast, the coins made of gold and silver and circulating in the eighteenth and nineteenth centuries are not sheer quantities of gold or silver to be evaluated based on their weight. These eighteenth- and nineteenth-century coins do in fact have different weights based on their time of coinage, even when they were issued under the same government. The materials used in coining these currencies also vary, some being made mostly of copper and classified as silver coins. The market seems to have accommodated the decisions of different governments to keep issuing coins of disparate types by absorbing them all, classifying them based on complex considerations rather than their mere material source or weight. This makes the question of usury, as applied in markets that circulate these currencies, much more complicated. The jurist cannot ignore all these changes and insist that gold and silver coins must be treated according to their weight or pure value as gold or silver. The resulting complex theory defended by Ibn ‘Abidin in this issue includes a few simple principles:14 1. In cases where all businessmen unanimously agree on the equal value of certain currencies, these currencies must be treated as equal, irrespective of the weight of their gold or silver components. 2. In cases where a type of currency is stipulated as price in a contract, the qualities of this currency (weight, type, etc.) must be specified

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clearly in the contract. For example, given that the old funduqi currency is worth 25 piaster and the new one 20 piaster, one who stipulates in a contract that payment be made by the funduqi currency must specify the type he meant (old or new); otherwise, the transaction may be invalidated.15 3. When gold or silver is treated in a transaction based on their intrinsic value as gold or silver, the weight becomes relevant, again, in deciding whether the transaction includes an element of usury. In all of these principles, it is clear that market customs, in Ibn ‘Abidin’s view, are indispensable in understanding what constitutes usury and what does not. A decisive and telling moment in Ibn ‘Abidin’s understanding of the power of social and market customs as a source of law comes when he asserts, again, that the principle of accommodating social custom goes hand in hand with the principle of removing undue hardship from legal obligations. Ibn ‘Abidin here combines an obvious sensitivity to practical considerations with his philosophical acumen, as he states both practical and logical foundations for his acceptance of the role of custom in developing the legal system. On the practical side, Ibn ‘Abidin states that changing the habits of the Muslim populations is the highest form of undue hardship (la haraja fawqah).16 A skilled jurist will not expect to demand an overhauling of commonly accepted behavior or a reversal of popular expectations. On the philosophical (and religious) side, he recognizes that the natural evolution of society (governed by the divine invisible hand) is behind changes in market and social standards, which are to be respected and taken into account in the production of jurisprudence. Even apparently bizarre market customs are endorsed based on the recognition of the power of universal custom. For example, when all businessmen agree to stipulate a certain price in a given contract, while consistently paying (or expecting their parties in the contract to pay) only two thirds of it, this is acceptable, since the concerned parties seem to mean and understand the same thing by their stipulations. By the same token, a consistent manipulation of currency standards known to all businessmen is tolerated, since there is no element of vagueness or potential for conflict to be expected because of that. Finally, a consistent deviation in all weighing scales in certain markets is also acceptable, as long as all parties understand the customary rules of transacting in these markets. In Ibn ‘Abidin’s elaboration of the doctrine on custom, it is clear that the textual sources of the law demand an expertly hand to mine them to discover their accurate legal content. It is also clear that social and business

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customs must be well defined and ascertained before they are deemed operative or normative in society. From Ibn ‘Abidin’s Treatise on Custom, one learns that customs that do not clash with textual principles will be endorsed and sanctioned by the jurist as functional in their social and business theatre, as long as all involved understand them and will not contest them. As this section of the Treatise nears its end, Ibn ‘Abidin has shown that social customs that are universally accepted in Muslim societies govern the same areas of the law as the higher foundational sources of the law. The foundational sources must be reconciled with universally accepted social and market customs, and neither one can make the other legally irrelevant. At the end of this section, Ibn ‘Abidin rejects the notion that for any social custom to be efficient in establishing legal norms, this custom must originate from the time of the Prophet’s Companions. Ibn ‘Abidin argues that no debate among the masters in Hanafi law seems to recognize this condition, and this can be seen by investigating the arguments of both sides regarding the extent to which a given social custom may be considered as a source of law. Whether a jurist is for or against the adoption of a certain social custom, as a source of law, cannot hinge on whether this custom originates in the time of the Companions. Many social customs that originated after the Companions’ generation have been debated as modifiers of legal norms, and this would have been impossible if such a condition were a necessary condition in legally operative customs. Ibn ‘Abidin thus concludes that the legitimacy of a given social custom hinges on its circulation among the Muslim population (among other things), but that it will not be affected by its affinity with an early social practice or a custom of the first generations of Muslims. The discussion, so far, applies to essential laws, laws that all Muslims would agree on, as opposed to the laws of specific madhhab or school of law. The laws of a given madhhab hold less power than essential laws, given that followers of other madhhabs can reasonably ignore them and follow those of their own madhhab. This is because disagreement among madhhabs occurs outside the area of essential laws. After discussing the dialectic of social realities and essential laws, Ibn ‘Abidin moves to discuss how the laws of the madhhab differ from essential laws in their interaction with the social realities of the followers of that madhhab. Laws of the Madhhab (School of Law) We have already learned that only universal social customs can modify a text-based principle. But this modification should apply to the limited sphere where the custom and the text are irreconcilable. A newly adopted

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social custom may thus become the norm within its limited sphere, while the text-based principle remains sovereign in its larger sphere. Nonuniversal social customs can only modify laws that are based on analogical reasoning, but they also can, in principle, modify the doctrines of any madhhab or school of law (e.g., Hanafi doctrines) whether these doctrines are based on analogical reasoning or a reading of a Qur’anic or Sunnaic text.17 This, as I indicated, is a function of the fact that madhhab (e.g., Hanafi) legal doctrines can be reasonably rejected by those who follow other schools of law, such as the Maliki, Shafi‘i, or Hanbali schools of law. In all cases, social custom operates only within its social sphere. For example, a nonuniversal social custom modifies school doctrine only within the city, where it is prevalent, while universal social custom would operate universally. In this section, Ibn ‘Abidin reiterates that being qualified to issue legal opinions (or practice ijtihad) presupposes knowledge of common customs.18 Those who claim to be mujtahids, while being ignorant of the social customs prevalent in their towns, can only be counted among amateurs, rather than jurists of genuine mastery. Given the context in which the statement is made, this would apply to the qualification of a mufti within Hanafi jurisprudence. Thus, those who study school doctrines through books are unqualified to answer any legal queries whatsoever, since one must have a teacher to be trained in the art of understanding how social customs affect one’s legal opinion in a given matter.19 Ibn ‘Abidin offers many examples of how fatwa (the legal opinion in a specific case) changes based on changes in society. For example, later generations of Hanafi jurists stipulated inquiring into the character of witnesses before accepting their testimonies in a court of law, against the earlier practice of relying on witnesses’ apparent good character. This change in practice is an instance of a change in fatwa, based on changes in society, since the early practice stands on an argument that lost its validity because of these changes. In other words, early practice relied on a presumption of the dominance of good character in society (ultimately an argument from silence, i.e., from lack of evidence to the contrary), which may have been valid in societies where good character was the rule rather than the exception. Over time, compromised character became more common, and the legal practice had to change accordingly.20 If this social development moves society toward raising the standards of scrutiny of witnesses, some social conventions allow communities to apply easier or lower standards than standard legal doctrine demands. For example, standard legal doctrine demands that people testify to what they witnessed (e.g., a sale contract or a marriage contract they witnessed). However, when social practice pushes in a different direction, people are

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allowed to testify to somebody’s ownership of a given property, if all indications point to that ownership, such as that the person in question seems to have dwelled in the property for some time. By the same token, if a man and a woman seem to act as husband and wife, one may testify that they are, to the best knowledge available to the witness, husband and wife.21 This loose definition of knowledge does not meet higher standards of knowledge, demanding that one testifies only as a result of witnessing a sale contract proving ownership, in the case of ownership cases, and a marriage contract proving marriage, in the case of marriage cases. But what is socially acceptable is sovereign in this context. In this example, as in the earlier examples, legal practice is governed by social customs. Once again, Ibn ‘Abidin reiterates the relationship between accepting social customs as a modifier of legal doctrines, on the one hand, and the principle of necessity (darura) and the removal of hardship (raf‘ al-haraj) on the other. In simple terms, respecting people’s ways of doing things stems from a desire to reduce hardship in people’s lives. When a practice is pursued zealously, it becomes a habit (abeunt studia in mores!). At this point, it becomes hard to undo the newly adopted habit and return to older one. Teaching people to simply change their ways is difficult.22 The two alternatives for the jurist is a practice the law favors and one people favor, and the jurist must lean toward allowing what people favor unless the price of deviation from the preferred view is too high to pay. The jurist must labor to assure that the alleged hardship is real and must, in fact, be avoided in order for him to justify consolidating common practice over abstractly preferred legal doctrine. Thus, a claim of hardship must be scrutinized, and Ibn ‘Abidin offers examples. One of the common agriculture-based business practices is the sale of fruits (while on the trees) before they ripen or acquire their full form. This practice would be questionable from the point of view of a Hanafi jurist, given its inclusion of an element of gharar or vagueness that might lead to quarrel. The argument for allowing it would be that it might be too difficult for those who already practice it to modify their practice to account for the possible prohibition of gharar in it. When a question arises about this practice, Ibn ‘Abidin hesitates to allow it. He asks whether those involved in this sale can agree to pay for the price of fully formed fruits and delay the payment for those unformed fruits as a separate contract to avoid possible conflict if the fruits never come to full form. Ibn ‘Abidin says that he cannot see any necessity in selling all the fruits or any hardship in selling them piecemeal. Ibn ‘Abidin, however, reports the opinions of other jurists who disagree with him.

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Some cases of business practices are too close to call and might bear further reflection. In contracts involving an owner of an arable land and a “renter” of this land, conflict might occur regarding whose responsibility it was to make needed water and nourishment available. Some people make it the responsibility of the landowner to make these available, so as to avoid potential conflict in case the harvest failed. Ibn ‘Abidin has reservation about this condition, regardless of its commonality. One can make the argument that, as long as the parties agree, the condition is valid, but one may also argue that the stipulation that the land owner must exert his best effort to irrigate and nourish the crop until it ripens is prohibited in principle, as it resembles usurious contracts that include conditions guaranteeing an advantage to one of the parties over the other. Ibn ‘Abidin says that he is not sure what the correct view is, and he advises his readers to study the issue further before making up their minds.23 In this section, Ibn ‘Abidin also introduces what some readers today might consider a problematic suggestion about the consideration of social customs in legal reasoning: that the social customs that are operative in modifying the law may be specifically related to a certain social class, at least on some views in Hanafi law. The case at hand concerns a man who paid for his daughter’s furniture at the time of her marriage and then claimed, after she died, that he meant the furniture to be a loan (rather than a gift) to her and her husband. Hanafi jurists hold that the man should not be believed, in principle, since the father would normally (i.e., according to prevalent custom) pay for the furniture in this case as a gift. But what if the father is from a poor family? In one view, this father may be believed, considering what may be commonly accepted among people of his social class. This view would consider customs to be, more or less, class-specific. After introducing this idea, however, Ibn ‘Abidin mentions three other Hanafi juristic views on the subject that reject this reasoning.24 Another insight in this section of the Treatise is that people’s habits of speech ultimately take priority over grammatically correct habits of speech. Ibn ‘Abidin shows little hesitation about a broad application of this principle in the laws of vows and contracts.25 Moreover, social standards and expectations may lead the jurist to answer a legal case by offering a juristically inferior legal opinion and ignoring a juristically superior one, if the jurist thinks that the inferior opinion will likely have a more positive social impact than the alternative. Take the case where a questioner asks the jurist about the consequences of an inappropriate action. Suppose that two views exist about what consequences ensue in this case, and a juristically inferior view provides for harsher consequences than the superior and more legally grounded view.

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Suppose further that the jurist believes that the questioner is about to take that action and that the consequences provided by the superior view will not deter the questioner from taking it. In this case, the jurist may warn the questioner of harsher consequences, even if this warning is established on an inferior legal view. Only one condition applies here: the inferior opinion has to at least be based on some sound reasoning.26 Aside from all the specific examples Ibn ‘Abidin offers, which are of different value and applicability in the modern context, his main contribution remains his delineation of a theoretical framework for the debate on social custom as a source of law in Sunni Islamic law. In addition to common circulation and the reconcilability with Qur’anic and Sunnaic doctrines, Ibn ‘Abidin stipulates that a custom be of residing, rather than a temporary and accidental, nature to be considered in legal discussion.27 This goes hand in hand with the idea that normalizing common social custom aims at removing undue hardship. It is obvious, for example, that changing a practice that has begun to take hold within a few years, and reversing a tradition of fifty years, for example, are totally different questions. That is why Ibn ‘Abidin introduces this condition in no uncertain terms. Ibn ‘Abidin may have (at times) displayed a strong conservative streak in his Treatise on Custom, but there is no doubt that he acknowledges social custom as a source of law. For him, a local custom is normative only when it does not seem to challenge a text of evident content, while a universal custom is more powerful than a ruling based on analogical reasoning. Furthermore, when the law is established by the views of the jurists of one school of law, which is most of the rich corpus of Islamic law, both local and universal custom may prevail over abstract legal rulings, if good arguments can be made to support their necessity and establish undue hardship on the part of the Muslim population if these customs are not adopted. In practical terms, social custom is a legitimate source of law unless one can make the argument that it clashes with the legal content of a text with an evident purport. SUMMARY: THE TRIPARTITE DOCTRINE

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Ibn ‘Abidin’s reader will have learned that social customs of long-standing and universal circulation must be taken into account in devising the law in Sunni Islamic legal theory. Understandably, these social customs must leave room for the jurist to reconcile them with incontrovertible moral and legal provisions embedded in the textual sources of the law (the Qur’an and the Sunna). That is, these social customs should not contradict a text of evident content in every regard (as Ibn ‘Abidin states). When

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they pass this bar, their integration into the legal practice will be a matter reasonable jurists can debate. This reading of Ibn ‘Abidin’s Treatise on Custom provides us with what might be called the tripartite doctrine on custom: social customs of (1) universal circulation, (2) residing nature, and (3) capacity to be reconciled with basic Qur’anic and Sunnaic doctrines must be taken into account in legal reasoning. The tripartite doctrine on custom captures Ibn ‘Abidin’s toiling on the issue of basing some laws on custom, as he states in the title of his treatise. More importantly, the doctrine supplies insights that are crucial in debates on the role of social custom as a source of law in modern Muslim societies. LAW

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In Ibn ‘Abidin’s context, Muslim societies are seen as natural depositories of Islamic culture. Despite occasional irritation with bad social customs in his society, Ibn ‘Abidin does not conceive of Muslim societies as the theater of a battle between Islamic norms and an unyielding population that attempts to elude and violate them. To the contrary, the Muslim peoples are, in principle, entrusted with the task of preserving the Islamic teachings, and have room to apply them differently as they defer to their social and customary preferences. In other words, underlying the doctrine that social customs are considered a legitimate source of Islamic law is the assumption that the Muslim societies in which these customs originate are characterized by respect for the Islamic teachings. Islamic law, on its part, facilitates this negotiation of social custom and abstract religious teachings. As an explicator and a spokesperson for the Islamic tradition in his society, Ibn ‘Abidin goes into some length to provide specific examples of how this negotiation can be done skillfully and appropriately. Thus, in the Treatise on Custom, Ibn ‘Abidin attempts to define, from his point of view, the boundaries between legitimate and illegitimate social customs and how jurists of the Hanafi school of law debated their relevance to legal doctrines. The question now arises: could there be a context where one might think of Muslim societies as unproductive of Islamic norms? Would it not be oxymoronic to dub Muslim societies as Islamically unnormative or extranormative? Well, yes and no, depending on who you ask. The argument for the position that modern Muslim societies may not be trusted as factories of Islamic norms can be articulated as follows. Due to the partial westernization of modern Muslim societies, they ceased to be factories that reproduce Islamic norms. In fact, the argument goes, modern Muslim societies are

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but confused social entities capable, at this point in their development, of generating inconsistent and incompatible sets of norms, chaotically forced together into the same “country” or “nation” with minimal cohesiveness and unison. Instead of speaking of Muslim societies and Muslim cultures, therefore, one would be closer to the mark when one speaks of how Muslim societies cloak within them different cultures: cultures of the westernized elites, cultures of passive piety, cultures of politicized religiosity, among a number of other categories to be debated and deconstructed. Based on this argument, any myth of Islamic cultures that reproduce Islamic norms must be put to rest out of mercy. This argument could acknowledge that Islamic norms grow naturally in societies that accept and reproduce the Islamic teachings, within fairly wide margins of variation. It could also acknowledge that Muslim societies consist of people who engage in various forms of familial and social life, trade, politics, and sciences that may make one of them look very different from another. Finally, the argument could also account for the fact that much of the development of these societies (as well as the mutations of the Islamic doctrines as understood by their members) is spontaneous, heterogeneous, and even too unwieldy to account for. Nonetheless, the thrust of the argument would be that members of Muslim societies, possibly through some invisible hand, seem to agree on core norms. This is what established premodern Muslim societies’ virtual authoritativeness as a source of their own laws since, once again, they are presumed to be capable of reproducing legitimate Islamic norms, cultural and legal. Modern Muslim societies should be distinguished from premodern Muslim societies in that modern Muslim societies have gone beyond the core Islamic norms in the direction of internalizing Western norms. Before attending to this argument, I should like to clarify some aspects of it. In this argument, modern Muslim societies are not presumed to be fully secular, but they may be said to belong in a secular (or postsecular) age. A secular age may be understood in terms of popular rejection of concepts such as divine powers and spirits and demons, which Europeans would have been inclined to believe in, say, around the year 1500, while they reject these beliefs in the year 2000.28 A secular age is also an age for a disenchanted world (as compared to the enchanted world of medieval times) where religiosity and lack thereof are a personal, rather than a social or political, matter. Aside from the realm of beliefs and enchantment, however, the significance of Muslim societies’ secularization is most relevant to this argument to the extent that it relates to changes in habits or the adoption of habits that may be questionable from the standpoint of Islamic sensibilities and attitudes. It is not so much rejecting the spiritual

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or metaphysical world, although an attitude about being responsible in the eyes of God is relevant to how one may lead his or her life. Interestingly, on the one hand, Muslim societies—as well as some societies in India—stand in the eyes of major theorists and historians of secularism as examples that might help sharpen the contrast between a secular society, such as today’s Western societies, and a nonsecular or less than secular society.29 That is, for these theorists and historians, modern Muslim societies seem to possess a special status in our secular age, since they are likely to strike us as carriers of the traditions of earlier times, of presecular times. On the other hand, many Muslim thinkers view modern Muslim societies as having gone so far in the direction of secularization that they became a different animal compared to their premodern selves. According to Muslim jurists, changes in social norms in Muslim societies should affect how a jurist judges the extent to which social conventions in those societies reflect Islamic norms. In sum, depending on one’s point of departure, one may stand on any point in a spectrum of emphasis as regards modern Muslim societies’ similarity or dissimilarity to modern Western societies. In this context, the argument is made that partially modernized and westernized Muslim societies are no longer capable of asserting their status as a legitimate source of Islamic norms. Let us call this the anomaly argument. The anomaly, in essence, is a child of a new presumption about Muslim societies: today’s Muslim societies may not be sufficiently Islamic to preserve and regenerate Islamic life. The argument for disparity between law and culture in a Muslim society in the secular or postsecular age would view premodern Islamic legal history as irrelevant to modern Muslim societies’ questions of law and culture—that is, if Ibn ‘Abidin’s juristic skills can be employed to smoothen the rough edges of the law and culture dialectic in a premodern context, the question we are asking in the modern context seems to be of a different order. If this argument is to be accepted, the modern student of Islamic law has a new question to answer. The question at hand does not presuppose that it is possible to reconcile existing laws with existing cultures produced by the same Muslim societies. The question is what should happen when a disparity between the two products has become too large to allow for a reconciliation of the many competing elements with one another within the same sociolegal entity? This new question ultimately seems to be a philosophical question that could apply to any society: what happens when societies cease to be loyal to their ways of doing things that are preserved in their (traditional) cultural and legal products? In the case of Muslim societies, what happens when Muslims

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cease to promote Islamic ways of life that comport with the Islamic norms their traditional laws and cultures promote? Though it seems to enjoy immediate seriousness and urgency, the latter question may be standing on a conceptual fallacy. If the question at hand were to presuppose an ideal democratic society that purports to cherish a core of cultural mores, one can ask, what happens when the mores of this society seem to veer in a novel direction? The answer may be that the new mores (or new versions of the old mores) trump the earlier ones, or it may be that some aspects of the old ones will still be supported. This makes it obvious that a situation where a society fully undoes itself is not meaningful. Absent full transformation of the people’s mores and their worldview, which is feasible only after long periods of change, one is advised to remember that constant interpretation of the past is inevitable in configuring the present, and that full survival of the past into the present is more or less a product of the imagination. But when the people gradually change their way of doing things, this may begin a new history. Between the seventh and thirteenth centuries, the people of Egypt slowly converted to Islam and formed a new society. This invites a historical question, a question about a society that used to, but no longer sustains a given law and its attendant culture. If Muslims chose to cease being Muslims, there is no question to ask about the divergence of Islamic laws and cultures. Rather, one may ask about the conditions under which Islamic laws and culture ceased to exist in a given society. This question would obviously be historical in nature, and the answer to it would be to tell a story rather than produce any theoretical framework that would explain how laws and cultures of different orientation might be marriable. The fallacy embedded in a question about how Muslim societies can be ruled by Islamic law while they reproduce un-Islamic social norms must now be clear. Today’s Muslim societies are changing, but as long as their peoples and religious counsels attempt to reconcile themselves to a version of Islamic norms, they will have the right to reinterpret their own Islamic tradition unimpeded. The assumption that law and culture within one society may advance at different tempi and ultimately part ways is certainly meaningful. However, one cannot simultaneously assert that (1) today’s Muslim societies would like to be governed by Islamic law and that (2) these same societies fail to produce Islamic social norms that can be incorporated into modern Islamic legal reasoning. In other words, if these societies can be governed by Islamic law, they must presumptively be capable of nurturing a form of Islamic culture that is commensurable with the degree to which they presume to apply Islamic legal norms in

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their lives. When the disparity between these societies’ social norms and all forms of Islamic law is unbridgeable, an application of Islamic law in these societies will not be possible. A CASE STUDY: EQUAL PROTECTION OF THE LAW AND EQUALITY IN PROCEDURAL PRIVILEGES IN THE ISLAMIC LAW OF DIVORCE Muslim societies’ acculturation into Western ways of thinking and living unknown to premodern Muslim communities needs to be addressed with specific examples, so as to clarify how new social expectations might lead the evolution of Islamic law in these societies. In this section, I shall consider the controversial legal proposal that the procedural privileges in divorcing spouses be offered equally to men and women within a Sunni scheme of law, based on the efficiency of social custom as a source of valid legal norms. Painting with a broad brush, one may say that Sunni Islamic law has traditionally given the husband a default privilege to unilaterally divorce his wife regardless of her wishes, while the wife can end her marriage regardless of her husband’s wishes (1) if she stipulates the right to divorce in her marriage contract, (2) if she returns the dower her husband gave her or offers an agreed-upon payment (khul‘), or (3) through a judicial process where a judge divorces her from her husband despite his wishes (tatliq). Entitling both males and females to the same procedural privileges in ending their marriage would deviate from this standard doctrine. Suppose the Muslim population accepts that an abstract notion of equal protection of the law should lead to creating uniform procedures for divorce to be followed equally by both men and women, as is the case in many Western (as well as Muslim) societies today. Could such change in the mores of Muslim societies be accommodated by the above doctrine on custom? Before delving into how a certain understanding of the concept of equal protection of the law leads to certain legal doctrines and social expectations, it is important to note that this concept, in the abstract, can hardly be limited to Western societies; it may indeed be incapable of geographic or cultural limitation. However, certain applications of the concept may be distinguished as Western and modern. Requiring that a woman have the right to unilaterally divorce her husband, if her husband has a parallel right, is not an obvious conclusion from the abstract principle of equal protection of the law. As I said, Muslim societies gave the husband the right to unilateral divorce while allowing the wife to initiate a divorce, if one of three conditions is met. While denying the wife the same right to unilateral divorce by default, these societies also believed that they

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applied the principle of equal protection of the law. For these societies, the degree to which Islamic law provides equal protection for spouses would be incompletely and unfairly represented by focusing on divorce procedures, as if these are an independent element of family law, totally detached from the rest of its provisions. For Muslim jurists in these societies, divorce procedures are relevant to what financial responsibilities are placed on the husbands’ shoulder and whether wives could abuse a system that gives them the right to unilateral divorce, while keeping other aspects of Islamic family law intact, namely, the husbands’ shouldering of all financial responsibilities in establishing and maintaining the family. A complicating factor for this reasoning is that the reality of many poor families in Muslim countries necessitates that husbands not be expected to shoulder all the financial responsibilities of their families, and modern Muslim jurists went in different directions to address how this affects the question at hand. At any rate, many modern lawyers would see the particular inequality in the power to issue a divorce as substantial and would not be impressed by the above explanations of Muslim jurists for the disparity in access to divorce according to Sunni Islamic law. One need not insert herself or himself into this debate in order to follow the argument considered here, however. What we are considering is the impact of a process of establishing women’s right to unilaterally divorce their husbands, which allows many Muslim women to avail themselves of that right and creates a culture that expects them to have that right. On one reading of Ibn ‘Abidin’s doctrine on custom, social acceptance of the idea that women must have the right to unilateral divorce may not be adequate to establish this right. This reading would cling to the apparent contradiction between a doctrine of women’s unilateral divorce and the Qur’anic language ascribing divorce to men. One could also argue, against accepting this custom’s impact, that the push for such a right to unilateral divorce for women will be, by no means, universal in the Muslim world, which shows that the condition of universality in a social custom that could affect the law would be lacking. Furthermore, the cost of restructuring family law to account for this significant change would be immense. Thus, on this argument, the practice of women’s unilateral divorce fails to meet the bar of universal circulation, on top of its clash with many essential laws. The practice of women’s access to unilateral divorce would also arguably fail to satisfy the requirement that a social practice be of a residing, rather than a temporary or accidental, nature, since it is unlikely that Muslim societies would be in favor of this practice for a long period of time during which the society must (1) establish a new expectation that either spouse may end the marriage and (2) adjust the

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financial responsibilities attached to the marriage contract (and even inheritance laws) accordingly. The argument against giving women the right to end their divorce unilaterally stands, to an extent, on the assumption that Muslim communities will fail to universally adopt this new custom. But what if this assumption is simply mistaken? What if Muslim women and men, over time, reject, as insufficient, the traditional forms of extrajudicial and judicial divorce allowing women to opt out of an undesirable marriage? It is conceivable that the solution would be to make all divorce judicial, as is the case in some countries, to achieve the goal of equality in procedural privileges in the matters of divorce. But it is also conceivable that the solution would be that women share a unilateral right to divorce with their husbands. These Muslim societies, over time, must at least partly reconsider many other family law principles. At a minimum, men and women will probably be considered equal in shouldering the financial responsibilities attached to founding and maintaining the family. Is the challenge of explaining a turn toward either giving both spouses the right to unilateral divorce or restricting valid divorce to judicial divorce insurmountable? If we learned any thing from Ibn ‘Abidin’s doctrine on custom, the answer is a resounding no. One must observe that, in traditional Sunni Islamic law, a woman is entitled to stipulating a right to divorcing herself in her marriage contract (thus, she has a stipulated right to divorce). Divorce at the wife’s initiative may also be approved if she relinquishes her financial gains from the marriage, such as the dower (thus she had the right to khul‘). One must further note that in a major Muslim country such as Egypt, Sunni Islamic law moved from the old idea of considering the testimony of two upright males the standard proof for the validity of a marriage contract to requiring a document as the only proof for the marriage since 1931.30 Moreover, Law # 1 of the year 2000 in Egypt (approved by the People’s Assembly on January 26, 2000, and signed by the president into law on January 29, 2000) gives the woman the right to end her marriage if she relinquishes her dower and other financial rights due to her by her husband, such as alimony. This clearly follows the khul‘ model. Thus, as things stand now, women expect to stipulate the right to unilateral divorce in their marriage contracts and can also exercise the right to unilateral divorce if they relinquish their dowries at any time during their marriage. Note that only written documents establish a marriage relationship, since oral testimony to the presence of a marital relationship is not heard before the courts. Now, if the male and female populations become used to a wife’s virtual right to unilateral divorce, it would not be impossible for the government

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to enshrine this into a condition in the official marriage contract. I am aware that similar measures were opposed in the past in Egypt, but this is mostly because they lacked popular support. The force of the social expectation that a wife can end her marriage unilaterally, if she so wishes, will ultimately establish this right and reverse any struggle between the government and the people in this matter. Recent developments in Egyptian law employing the khul‘ technique to provide women with a practical right to unilaterally end their marriages, regardless of their husband’s wishes,31 makes this procedure available to a larger extent, and may have begun a process of changing expectations on the part of female inhabitants of the Egyptian society. If this change set in motion an evolution for Egyptian society, then tomorrow’s jurists will probably be forced to answer the ultimate question about the equality in the procedural privileges of divorce laws, whether or not these jurists find the purported evolution to be a positive or a negative development. However, without popular adoption of these government-instituted measures, tomorrow’s jurists will continue to advise people to follow the old system of allowing women the right to divorce their husbands only through the traditional venues available to them. Many challenges will continue to be directed at the above argument. The skeptic would consider the above example of a social custom to be manufactured by the government rather than a reflection of an organic evolution of the people’s mores. This objection must prove that governments (and other major players and leaders in society and in the market) have not been part of manufacturing social and business customs in the past or that Muslim jurists would have raised a specific objection to common social customs if the government had a role in promoting them. Other challenges to the argument may be raised, which I will elect not to address. Let it be clear that this example was chosen to make the argument more concrete, and that I am aware that all possible examples in this matter would be controversial. My goal is to make the above theoretical discussion more comprehensible, whether or not the example provided gains the reader’s sympathy. BROADER IMPLICATIONS In the final section of the chapter, I shall consider three implications of my argument. First, I shall consider the characterization of Muslim societies’ acculturation into Western ways of life as Islamically accepted westernness and the legal implications of this characterization. Second, I shall consider the implications of the doctrine on custom in understanding and assessing the projects of reformists in modern Muslim societies, as well as the

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democratizing effect of this doctrine. The third and final implication to be considered is where Islamic law falls between the customary and discursive models. Islamically Accepted Westernness? Should modern Muslim societies’ acculturation into Western ways of life be characterized as a form of Islamically accepted westernness, and what are the legal implications of such a characterization in the discussion of social customs as a source of law in these societies? Only a minority among Muslim jurists, such as the Syrian fourteenthcentury Hanbali jurist Ibn Taymiyya (d. 1328), makes the emulation of non-Muslims a consideration of juristic significance in the discussion of the validity or invalidity of social customs.32 By and large, Sunni Muslim jurists display an attitude more similar to Ibn ‘Abidin’s, who only occasionally complains about Western influences in Muslim lands but focuses his juristic energy on the substantive qualities in a social custom that make it acceptable or unacceptable as a source of valid norms. This is due to the fact that for a jurist to consider a given social custom acceptable or unacceptable, this jurist must argue his or her case based on the compatibility (or lack thereof) of the custom in question with moral and religious principles. Ibn Taymiyya does not fail to do that, but he introduces the element of origins of a given custom, or its likeness to the customs of other communities, as a consideration in a social custom’s validity. Let us examine some of the implications of Ibn Taymiyya’s argument. First, if we take similarity to the customs of non-Muslim communities to neutralize the impact of a given social custom in Muslim societies, we encounter insurmountable obstacles in an age of mass communication wherein modern Muslim populations adopt many customs that resemble those adopted by non-Muslim societies. Second, the concern with the origin of a given custom or its likeness to the customs of other societies would take the focus away from genuine juristic tests aiming to assess this custom’s validity, including considering its universal circulation and endurance and its reconcilability with Qur’anic and Sunnaic principles. By removing the concern with origins, Islamic legal theory can direct more of its energy toward the challenge of debating any new normativity resulting from adopting new social practices. There is one count on which Ibn Taymiyya’s idea can be defended. Ibn Taymiyya’s idea can be taken into account when considering the impact of adopting foreign ideals on other Muslim ideals cherished by Muslims in society. That is, when Muslim societies adopt a foreign ideal that has not been reconciled with other Muslim ideals, one must await

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further transformation of society to achieve a level of harmony between the newly adopted foreign ideals and the more entrenched ideals in society. This, however, does not make the origin of any social custom, by itself, a major consideration in determining its validity. Society’s demand for equality between men and women in procedural privileges in divorce law clearly raises questions about how social customs are generated and universalized in a Muslim society. It is apparent, at least in a modern society, that legal and political authorities have a role to play in sanctioning any customs of this type into law, which is bound, in turn, to enhance customs that are compatible with these laws. These authorities have the power to lead and direct people’s customs in new directions, but they are also bound to be led by people’s behavior. Cultivation of mores and legal norms is often simultaneous and even symbiotic, led equally by the authorities and the populations. Modern jurists assessing the introduction of any new social reality must ask whether one can find a genuine acceptance by the people, rather than mere support by the governments, of this reality before considering it in relation to textual principles. I remain convinced that the substance of the custom and the extent of its circulation and length of its adoption are more significant considerations in deciding whether and to what extent this custom should be taken as a virtual source of law. In this perspective, the validity of a given development in a modern Muslim society does not derive from any abstract language of universal rights or equal protection of the law adopted in other societies. Rather, it ought to stem from an acceptance of a social custom that possesses the power of modifying the structure of a given Muslim family, the Egyptian in the above case. Whether or not we call it a form of Islamically accepted westernness, this development can be a source of legitimate law according to the Islamic legal tradition represented by Ibn ‘Abidin. Reforming/Re-forming both Law and Society Does social custom then have a role in re-forming or reforming modern Islamic law and societies? Our reading of the legal discourse on ‘urf must lead to an affirmative answer. Ibn ‘Abidin’s doctrine on custom suggests an analysis of texts and principles, on the one hand, and an examination of social realities or common sense on the other. This entails giving attention to reading societies as one reads texts, and to interpreting abstract legal principles simultaneously with the moral and social sensibilities of Muslim populations. But to what extent do modern reformist Muslim thinkers show awareness of this point? The goal of Muslim reformers cannot simply be

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to change the way Islamic law addresses modern issues, but it must also be to change modern Muslim societies themselves. Yet, sometimes one is led to wonder whether reformists believe that real change in Muslim societies must happen on the legal and political as well as on the social and popular levels. The debate on the legitimacy of Islamic feminism is a case in point.33 In this debate, intellectuals attempt to lend legitimacy to their reformist positions based on “interpretations” of texts/principles rather than a complex of texts/principles-cum-social practice. If the criterion of valid change, from an Islamic point of view, is the change of social realities themselves, Islamic feminism will remain an intellectual phenomenon unable to affect Muslim societies or modern Islamic law in any significant way. One cannot accept the assumption that Muslim societies’ customs have always reflected the legal doctrines held by Muslim jurists in a perfect manner. This is why there is a task for the jurist to accomplish—that is, a measure of disparity between law as principles, on the one hand, and legal practices shaped by culture, on the other, could be found in any context, and the jurist must take a stance by legitimizing or delegitimizing certain practices or reconciling principles and practices one way or another. A reformist must at least be capable of seeing the questions of reform from this standpoint so as to be able to introduce viable options for both society and the legal system governing it. One of the implications of bringing to fore the doctrine on custom is that reformists have to at least answer to the question of how they relate their reform project to a consistent and residing transformation of their societies. In the area of women’s rights in particular, the two extremes of either (1) dismissing advocacy for equality between men and women or (2) saying that arguments for equality are the only ones that matter34 is symptomatic of the lack of clarity about the role of social custom in establishing legitimate legal norms. A discriminating approach will incorporate both abstract ideas and the pulse of society, thus coinciding with the thesis that any movement aiming at creating more equality for women must be based on social movements rather than (or at least in addition to) ideas.35 In addition to its rigorous character, this approach will become a democratizing force in modern Muslim societies. Reformists who consider democratization a desirable end must also make use of this approach to advance their case for democracy. Modern Islamic Law between the Customary and the Discursive Models Modern, sophisticated law must take the form of a cluster of institutions that can be distinguished from social customs, despite its evolution in

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society, and despite its constant interaction with it.36 Based on this understanding, one must believe that law can only be modified by social custom through a slow and deliberate process. If the law can be modified by social customs in a more or less abrupt manner, then this law must be of an underdeveloped, traditional, or customary variety. Thus, if modern Islamic law seems to be capable of reinventing itself in major areas of family law, let alone civil and criminal law, then it must be at a customary law stage and even a primitive one at that, rather than a full-fledged and developed legal system. On this understanding, Islamic law may be about to enter a new form of stability, but as of now, it seems to continue to be a representative of the traditional, customary law type. There are severe limitations to this understanding of the development of Islamic law as it incorporates new social realities. A more accurate characterization of the evolving modern Islamic law is that it neither fits the customary law model nor the standard model for a modern legal system. The evolution of modern Islamic legal traditions, as untidy as it may have been and is likely to continue to be, will maintain a quality that was characteristic of its premodern predecessor: its discursive nature. This quality contrasts with the common image of customary laws as based on tribal and honor traditions that operate among certain populations, given their social binding force acceptable to these populations. In this context, Ibn ‘Abidin’s resistance to the idea that social customs can simply turn any legal doctrine on its head is significant. If social custom is not the sole source of law, then the law enjoys an identity that is separate from its social or customary sources. As I indicated, this identity possesses a discursive nature, consisting, as it were, in legal discourses about interpreting texts and institutions, rather than rules. This discursive legal production, however, has as much capacity to establish this law’s integrity and distinguish it from folk law. In understanding the impact of social custom on modern Islamic legal reasoning, one must therefore purposely reject any anthropological emphasis on the connotations associated (rightly or wrongly) with the concept of customary law or folk law, such as anonymity of source, being old, primitive or rural.37 The two main characteristics of ‘urf-based law is its flexibility and capacity to change (also shared by customary or folk laws). It may be apt to refer to this form of law as lex non scripta in its embryonic stage, but orality is not really one of its stable features. As we learned from Ibn ‘Abidin, for a social custom to become a ‘urf-based law, it needs to (1) gain wide acceptance and (2) be acknowledged as a source of law by a trained jurist.

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As stated earlier, Ibn ‘Abidin unequivocally holds that for custom to be a source of law, it must be of a residing rather than a temporary and accidental nature.38 Thus, an acknowledgment that a certain social custom is operative as a source of law must be preceded by an assertion that this social custom is already pervasive in the life of a given Muslim society. This would only happen after a long process. A back-and-forth movement to adopt a social custom and then adopt its opposite will not lead a seasoned modern Muslim jurist to declare any of these competing customs operative in establishing good law. And, if Islamic law is a jurists’ law, then admission into the juristic discourse is a conditio cine qua non for the acceptance of any social practice as law. CONCLUSION This chapter was a defense of the thesis that premodern Islamic legal theory can view modern, partially westernized Muslim societies as enjoying the same measure of authority in generating legal normativity enjoyed by premodern Muslim societies. The significance of this thesis is that it shows the ability of these modern Muslim societies to engage in its dialogue with the challenges of Western modernity, while employing the tools inherent in its over-a-millennium-long legal and cultural traditions. My exposition of Ibn ‘Abidin’s traditional doctrine on social custom as a source of law demonstrates the limitations of the claim that modern Muslim societies constitute a new order for Islamic legal theory, which it did not have to face in premodern times. As an application of how social customs may transform legal doctrines in the modern context, I addressed the question of equality in procedural privileges among men and women in divorce law. My argument should not be read as an unqualified celebration of social realities in Muslim societies as the sole foundation of law’s evolution that must lead modern Muslim juristic production. My argument is limited to an attempt at an accurate description of the process of legal reasoning in modern Muslim societies. Many reformist Muslims have advanced their agenda through textual and juristic arguments based on the Islamic tradition, and have shied away from arguing on the basis of common customs, I presume, out of the fear that an argument from common customs would be dismissed out of hand, or out of fear that social custom will not support their reform projects. In the first case, they fail to understand an important quality in Islamic legal thinking, and in the second case, they fail to realize that their reform projects would remain abstract ideas with next to no value without adoption by the Muslim populations. My reading of Ibn ‘Abidin’s Treatise on Custom revives the possibility of

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employing a limited argument from custom to advance modern legal discourses concerned with effecting and understanding change in Muslim societies with a measure of candor and clarity. Clarity in understanding Islamic history demands that we view the evolution of Muslim societies as attended by new social practices that require evaluation from the standpoint of the religious law. The premodern Islamic legal tradition provides tools for evaluating these developments, but it does not address the new specific questions of a future it never witnessed. Yet, the tools of this premodern tradition could account for these modern developments, achieving both continuity and flexibility in the process. The debaters of Islam and modernity (outside observers, traditionalists, reformists, modernists, and others) do not always share the same understanding of how this premodern tradition may be relevant to their efforts. In each question or debate, the participants must clarify how they view abstract legal principles, past social realities and their impact on law, and current laws and social realities, and how they relate to each other, before they would be able to conduct a fruitful discussion and advance their various positions on specific questions. Ibn ‘Abidin’s doctrine on custom can be a stimulus for clarity in the debates among these reformists, modernists, and traditionalists in their attempts to assess the relevance of the past to today’s societies and law. There is something else my argument does not attempt to do. My argument does not attempt to endorse Western models of the production of culture as a natural choice for modern Muslim societies in any way. No matter how they influence each other and change their mores and laws accordingly, Western and Muslim societies will likely remain distinctive (which is not to say similar or dissimilar, necessarily). Western societies’ westernness allows them to be the source of Western ways of producing culture, law, and knowledge. Muslim societies are what they are, and their cultural and epistemic products will reflect their characteristics. Yes, Muslim societies can adapt themselves to Western cultural and legal norms, but these norms will, in due time, become Muslim norms and will likely take forms that differ from their Western counterparts. Today’s Muslim societies will continue to reproduce their own modern versions of what they are, and will, become. And modern Muslim jurists must contend with any new ‘urf their societies adopt and debate its capacity to create legal norms to be debated, sharpened, and incorporated by Islamic law.

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WAR MY ATTEMPT TO OFFER A BRIEF TREATMENT OF THE LAWS OF war in the Sunni Islamic traditions is fraught with three difficulties.The first stems from the nature of the subject. The laws of war in Sunni Islamic law must be unearthed from long and complex traditions of law and jurisprudence, as well as political decisions that were affected by different exigencies. An attempt at sketching how these legal traditions deal with war, its just causes, the manner in which it ought to be conducted, and what its consequences are, among other issues, seems to show readiness to reductive treatment. The second difficulty stems from the nature of the inevitably comparative context of this chapter, since it is about war in Islamic history and is written mostly for Western readers, even if this treatment were not accompanied by any limited comparisons between Islamic theories of war and other theories of the same. When the comparison is explicit, the point becomes even clearer. When scholars who study different religious and intellectual traditions set out to articulate analogies (as well as disanalogies) among some of these traditions in a certain topic or a cluster of interrelated topics, uneven emphasis inevitably results from this exercise. What was important for Christians or Muslims to emphasize about war had to do not only with their convictions but also with their context. And since ideas and contexts interrelate, what makes one tradition similar or dissimilar to any other must be studied with an eye on the historical evolution of these traditions in order to make sense of any analogies or disanalogies among them. But this is impossible in the allotted space. The danger of insisting on abstractly studying the morality of war across different religious and intellectual traditions is that one is bound to end up with sweeping theoretical analyses rather than a genuine historical and

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conceptual understanding of how these traditions addressed the question of war. The third difficulty in the project is caused by nothing other than the convictions of the author of this chapter. My study of the theory and practice of war in different histories led me to the conclusion that theories of legitimate war hardly regulate the practice of actual wars or adequately describe historical wars. For me, the industry of the so-called jihad or just war theories is, at best, a theoretical exercise and, at worst, a romanticization of war. In my studies, I also observed a connection between the notion of universally valid laws and the various theories of war in different types of legal literature. The idea of a “universally valid” set of creeds (a claim Christianity and Islam share) bears on the naturalization of war in many traditions. With that in mind, I find my position to be less than flexible in feigning any sympathy for the notion of legitimate war. My position is ultimately complicated by the fact that I reject war and hope it never takes place, but I also reject singling out Islam or Muslims for condemnation for “the legitimation of violence,” as is commonly practiced in the American and European media, while we all share a world in which Muslims are subjected to much American and European violence. Those who claim that the spread of Islam was accompanied by violence must first carefully study the story of Islam’s spread and ask about the sources of the stories they tell about Islam’s spread with violence (ironically, some of the stories about the violent spread of Islam in Africa, for example, come from anecdotes collected by Christian missionaries a few hundred years after the events in question). But these people must also study the spread of Christianity in Pagan Europe, the Crusades, the Inquisition, the violent exportation of Christianity to the New World, and like stories before singling out Islam for criticism or labeling it as a religion that promotes violence. Yet, in the modern Western context, one rarely reaches a point of neutral inquiry or calm reflection on the legacy of different religious traditions and their ideas of defense of the faith. In the current atmosphere, one is bombarded with questions about whether all Muslims are radicalized or whether Islam simply has the roots of violence. All that is needed to show Islam’s unique violence is to invoke the term “jihad,” knowing that the ugly connotations of the term in the Western mind make the point. In this we ignore that the term “jihad” has different connotations for different audiences. When the term is used in public discourses in a country like the United States and, unfortunately, in some academic circles, too, jihad simply denotes a recommendation of violence. Meanwhile, when one investigates the chapters Muslim jurists write about jihad (Kitab or Bab

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al-Jihad), one encounters “restrictions” on violence rather than a promotion of violence. In these juristic treatments and other more general religious treatments of jihad, soldiers are seen to have failed to perform an acceptable jihad if their goal is material gain, or if they attack defenseless populations, or if they take property that is not their own. Jihad here becomes an equivalent of restraint, rather than excessive force. Another irony here is that some of those who could only think of jihad as a bad thing think “just war” must have good connotations, when these two terms (“jihad” and “just war”) are closer to being the same thing than being opposites. It is only that “just war” can be waged by one group, and jihad, by another. It must be apparent, by now, that I am not writing to defend jihad or just war. The noticeable absence of nuanced treatments of the topic and the persistence of simple, highly charged treatments of the topic in English publications is what makes it impossible to ignore the question. The fact that you are reading this chapter means that I conceded to myself that the benefit of writing the chapter is higher than the cost of facing these difficulties. With the caveats I just indicated, I proceed to address some of the basics of the Sunni legal tradition’s treatment of the central questions of war. THE EVOLUTION

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The textual sources of Islamic law (Qur’an and Sunna) can hardly be said to have presented clear doctrines on what is referred to as just war theory or on the legitimacy of preemptive strikes against potential or historical enemies. The Companions of the Prophet, who found themselves in the position of the political leaders of the Muslim community after the Prophet’s death, had to improvise. These Companions’ practice of what is just war and what is legitimate behavior in war became the lens through which the Qur’an and the Sunna were read by later generations of jurists to articulate an Islamic just war theory in Islamic law and jurisprudence. Thus, in not an uncommon development in the history of human culture, practice preceded and informed theory, which ended up influencing later practice. *

*

*

It all began after the Prophet’s passing, when the Muslim community had to answer two central questions, one theoretical and one practical: (1) whether the Muslim community is meant to be a universal community or a regional community with a universal message and (2) how one is to go about implementing whatever position one takes on the latter question.

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The Prophet’s Companions disagreed on how to answer these questions, as is evident from statements they made and policies their leaders adopted. The general course of action they adopted, however, pushed thousands of Arabian Muslims into the Near East. These Muslims then intermingled with Near Eastern populations to create what historians have come to call the Islamic Near East. Later Muslim jurists attempted an articulation of a just war theory. For these jurists, answers to questions of what is good practice in war and international relations (using the term with much license) should be located first in the textual sources of Islamic law (Qur’an and Sunna). But texts alone will not do the job—early Muslim history will play as important a role in the evolution of an Islamic just war theory. The result was a synthesis that brought authoritative texts and early Muslim history together in an attempt to produce a correct legal doctrine, from whichever point of the view a given jurist takes. An Islamic just war theory, therefore, stands on both a correct reading of authoritative texts and a correct reading of early Muslim history. Medieval Muslim jurists and politicians concerned with warfare and war theory in Islam had to answer a basic technical question of legal theory: what are the authoritative sources of Islamic law beside the two above-mentioned textual sources (Qur’an and Sunna)? Jurists’ reliance on early Muslim political practice did not face major theoretical difficulties for those medieval Muslim jurists who deem the doxai, or opinions, of the Companions of the Prophet (qawl al-sahabi) an authoritative source of law. Usually appearing on the list of the sources of law that include the texts of the Qur’an and the Sunna are also consensus (ijma‘), analogical reasoning (qiyas), juristic preference (istihsan), and reasoning based on legitimate utility (istislah). Taking these techniques into account, Muslim jurists developed the texture of their war theories to address the questions of determining what legitimate war is, the conduct of war, and the consequences of war. The point here remains that the other sources of the law have offered directives for reading the Qur’an and the Prophet’s Sunna. Had Muslim jurists adopted a different position regarding the authoritativeness of early Muslim political practice or had a different reading of that practice been provided, the texts of the Qur’an and the Sunna would have ultimately provided a foundation for a different attitude about war in Islamic law and jurisprudence. One caveat is left. The early just war theory explicated in Muslim juristic texts such as those of Muhammad ibn al-Hasan al-Shaybani (d. 805) and Muhammad ibn Idris al-Shafi‘i (d. 820) can be traced back to the Prophet Muhammad and his Companions only inasmuch as the nascent Muslim

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community began to ask some (but not all) of the questions that jurists like these had to address. As international affairs became more and more complex, even the genius of the first leaders of the Muslim community, coupled with the divine revelation with all its latent power, will not sufficiently satisfy the needs of an ever-evolving world order. The questions Muslim jurists needed to address could only get more complex, as these jurists had to deal with aspects of warfare and international law, such as the classification of territories into Muslim and non-Muslim territories (dar al-Islam and dar al-harb) and the implications of this classification in international treaties, jurisdiction of Muslim courts over Muslim and non-Muslim subjects. If it is true that authoritative texts can be read differently for different purposes, then one need not attempt to delegitimize juristic readings of authoritative texts to build legal discourses and develop a legal system. Yet, one must not fail to draw a distinction between the approach of politicians, political advisors, and some jurists, on the one hand, to the question of war and peace and that of the average individual Muslim in a given community, on the other. Political theorists and practitioners often search for legitimation for their political actions in the same authoritative texts others read for the purpose of moral and spiritual inspiration for everyday life. These different readers are bound to draw different conclusions. An individual with no political concerns, reading the Qur’an as a source of religious and moral inspiration, finds the general message of the text to be consistent in emphasizing forgiveness and acceptance of suffering the injustice inflicted by others as a better option compared to inflicting injustice on others. The Qur’an teaches, “Repel evil with what is best” (Qur’an 23: 96); “Good and evil are not the same; thus respond with what is best, and your enemy will become your friend!” (Qur’an 41: 43); “True servants of the Merciful walk gently on earth and, when the rash and violent address them, they reply with words of peace” (Qur’an 25: 63); and “Those who exercise patience for the sake of their Lord . . . and repel evil with good . . . for these is given the good reward, paradise of perpetual bliss” (Qur’an 13: 22). The Qur’an accepts that those who take revenge after suffering injustice may not be reproached (ma ‘alayhim min sabil [Qur’an 42: 41]), but reminds the believers that to exercise patience, having suffered injustice is an indication of the strength of one’s faith (min ‘azm al-umur [Qur’an 42: 43]). This individual will reasonably embrace the repel evil with what is best paradigm, which is rooted in Qur’anic teachings and might even find juristic and political readings of the Qur’an to be irrelevant to his needs.

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Other readers can ignore the repel evil with what is best paradigm as irrelevant to political questions, or engage in a discussion of whether what is best may be to aspire to create unity and stability in the world by spreading the correct faith. Legitimation of political action through religious authority purports, unapologetically, to be a search for political guidance in the same religious texts that people consult as a source of moral guidance. In either one of these two cases, the reader’s metaperspective rules the reading. Despite the common availability of the above basic facts, treatments of Islamic history and the Islamic juristic theories of war continue to reiterate old ideas about the inevitably political nature of Islam or the Islamic teachings. I shall not concern myself further with the common blindness to these simple facts, despite its negative effect of depriving many of seeing the complexity of how the Qur’an addresses the tension of justice and forgiveness in people’s lives. I shall proceed to delineating the categories of Qur’anic verses and the actions of the Prophet Muhammad, which constituted the raw materials for the Islamic theories of the rights of war and peace. THE QUR’AN

ON

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PEACE

Just as interpreting the Qur’an by Muslims has for the past fourteen centuries opened a gate of inexhaustible possibilities for understanding its meaning for theological, legal, ethical, and rhetorical and poetic and other purposes, considering the Qur’an for the purposes of a modern discussion to which academics can contribute opens a gate of numerous possibilities for understanding the text, subtext, and spirit (or, as some say, the mind) of the Qur’an. Suffice it here to say that the Qur’an includes two distinct categories of verses with regard to addressing the forces of evil. The Prophet and the believers, as hinted above, are advised to repel evil with good, exercise patience, and forgive the rash and violent: “Repel evil with what is best” (Qur’an 23: 96). “Good and evil are not the same; thus respond with what is best, and your enemy will become your friend!” (Qur’an 41: 43). “True servants of the Merciful walk gently on earth and, when the rash and violent address them, they reply with words of peace” (Qur’an 25: 63). “Those who exercise patience for the sake of their Lord . . . and repel evil with good . . . for these is given the good reward, paradise of perpetual bliss . . . ” (Qur’an 13:22). “These will be given their twofold reward, having exercised patience, and having repelled evil with good” (Qur’an 28: 54).

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“Endure with patience the evil which they may say, and avoid them with a comely avoidance” (Qur’an 73: 10). However, waging war is permitted to respond to those who wage war against the Muslim community and threaten it: “Fight, in the cause of God, against those who fight against you and do not transgress! Indeed, God does not approve of transgressors” (Qur’an 2: 190). “If they fight against you, fight against them” (Qur’an 2: 191). “Would you fail to fight against those who have broken their solemn pledges and have done all they could do to drive the Prophet away and have been first to attack you? Do you fear them?! It is God alone whom you ought to stand in awe?” (Qur’an 9: 13). “Fight against those who do not believe in God and the Last Day and do not prohibit what God and His messenger prohibit and do not believe in the correct faith among those to whom the book has been revealed until they offer a tax payment in humility” (Qur’an 9: 29). “Fight against the polytheists as a united group, just as they fight against you as a united group” (Qur’an 9: 36). THE PROPHET (570–632) The attitude of the Prophet Muhammad toward the issue of war and peace was quite a faithful reflection of that of the Qur’an. If the Qur’an seems ambiguous about whether Muslims are supposed to avoid military conflicts or engage in them, the Prophet of Islam has, in fact, adopted different positions on the matter. He responded to provocation from enemies by peaceful perseverance and holding fast to his message (repel evil with what is best), but he also conducted wars against his polytheistic enemies in Mecca who attacked him repeatedly and stripped his followers of their properties upon their immigration to Madina, and at least encouraged what appear to be offensive wars against the Byzantine Empire on Arabia’s northern borders. The Prophet, however, is reported in many sources (e.g., Malik ibn Anas, Abu Dawud, Nasa’i, Bayhaqi, alHakim) to have prohibited offensive war (or preemptive strikes) when he said, “Do not attack the Habashah (Ethiopians) if they do not attack you, and do not attack the Turks unless they attack you” (da‘u al-habasha ma wada‘ukum, wa-truku al turk ma tarakukum). Should this statement be taken to establish a general principle, then what appears to be the Prophet’s offensive wars (which are poorly reported episodes with foggy context) must be reinterpreted in light of this general principle.

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The Prophet’s history with regard to the question of war and peace is subjected to the same type of hermeneutics to which the Qur’an is subjected. In these hermeneutical exercises, a whole range of theories can be found. Some of these emphasize the Prophet’s rejection of war as a means to assert the truth of his message, and some advance an image of the Prophet as a warrior. It is the authoritativeness of the Prophet’s example (almost tantamount to that of the Qur’an) that makes the stakes so high in the eyes of both Muslim and non-Muslim exegetes of the Prophet’s tradition. Analyzing these hermeneutical exercises can be useful, but that is not my focus in this chapter. I shall thus proceed to a discussion of the postProphetic era of Muslim history as an integral element of the roots of just war theory in Islamic law. ABU BAKR (D. 634) As he became the first ruler of the Muslim community after the Prophet’s death in the year 632, Abu Bakr faced a rebellion by the members of some Arabian tribes who either rejected Islam altogether or rejected aspects of the teachings of Islam (especially the zakah, which is a form of organized almsgiving or tax incumbent on Muslims of means). Other Arabian tribes maintained ambiguous positions about their commitment to Islam in general. Abu Bakr decided to fight against those who had declared that they embraced Islam but later refused to pay the zakah, which these people paid when the Prophet was alive. Abu Bakr is reported to have said, “I swear to God that if they deny me a piece of robe they used to deliver to the Prophet, I will fight them for it! Zakah is a duty collectable on property, and I will fight those who distinguish between prayers [which is a duty for all Muslims] and zakah [which is just another duty for all Muslims].”1 We will see shortly that Abu Bakr gave the benefit of the doubt to those who seemed to be leading an Islamic life, as he ordered his army to refrain from attacking those who maintained the call to prayer, since one must assume that the people who maintained the call to prayer performed the prayers. The wars of the seventh century under Abu Bakr (ruled 632–34), which came to be later known as the apostasy wars (hurub al-ridda), were fought with different Arab tribes whose position toward Islam before the Prophet Muhammad’s death in the year 632 seemed to be unclear.2 Despite reports that Abu Bakr referred to these peoples’ failure to pay the zakah (alms), which they paid to the Prophet, Abu Bakr himself did not consistently use the language of apostasy (ridda, lit. reverting) to refer to

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these rebels he sent his armies to fight. Abu Bakr is reported to have given three options to these “rebels” (and occasionally “unbelievers”): When you encounter the enemy of the unbelievers, God willing, call upon them to choose from one of three options. If they accept that, then accept their position and do not attack them. Call upon them to embrace Islam. If they accept that, then accept their embracing of Islam and do not attack them. Then offer them the option to move from their houses to the houses of the emigrants.3 If they accept that, then tell them they are equal with the emigrants [the Companions who emigrated with the Prophet from Mecca to Madina]; they have the same rights and duties as these emigrants do. If they embrace Islam and choose to remain where they are, then tell them that they are equal with Bedouins: God’s law applies to them, and they do not deserve any of the spoils of war unless they join the army. If they refuse to embrace Islam, then call on them to make a tax payment (jizya). If they accept, then accept that from them and do not attack them. If they refuse, then seek God’s aid against them and fight them, with God’s permission.4

Reports such as this one have been attributed to the Prophet Muhammad himself, and to Abu Bakr and his successor, ‘Umar ibn alKhattab (d. 644), and may have come from a late date, since they smack of the complex theory developed in Islamic law about the “three options” given to the enemies at war: conversion, jizya payment, or war. But one can be sure that a mature doctrine of punishing collective apostasy with war could not have developed at that early time. True, some of the tribes Abu Bakr fought (especially those Arabs of Najd) had signed treaties with the Prophet accepting his authority and the rules of Islam.5 As these tribes reneged in their promises, they can be called apostates, if apostasy is understood to be a rejection of Islam after accepting it initially. Later jurists would consider the refusal to pay almsgiving on the part of all of Abu Bakr’s enemies a rejection of a basic religious duty, which amounts to a rejection of the doctrinal basis of that basic necessarily known duty (ma‘lum min al-din bi-l-darura), but we have no evidence that this theory was developed at the time of the so-called apostasy wars. Even later jurists could not identify with any certainty these basic or necessarily known doctrines whose denial would make somebody an unbeliever. This is not to say that no jurist relied on Abu Bakr’s wars against Arabian tribes as a source for a law against collective apostasy. Shafi‘i jurists believed that collective apostasy should be punished by war.6 They also believed that attacking apostate rebels, whether these were in a land adjacent to Muslim lands or distant from it, takes priority over engaging non-Muslims in war.7 Shafi‘i argued that apostate rebels are similar to the

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unbelievers in certain respects, which distinguish them from Muslim rebels (bughah). Two of these differences are (1) apostates can be attacked even if they retreated from the battle scene, while Muslim rebels can be attacked only if they attack Muslim armies, and (2) apostates’ property can be confiscated by the Muslim authorities, while the property of Muslim rebels remains protected. But Shafi‘i also equated apostate-rebels with Muslim rebels in ways that distinguish them from non-Muslim enemies of Muslim armies. For example, a peace treaty with the apostates cannot be concluded unless they return to Islam, while such a treaty with non-Muslim armies is acceptable.8 Disagreement has arisen as to what Shafi‘i held about whether apostates or Muslim rebels should compensate for the property they destroy, and arguments in this debate ranged from invoking precedents like Abu Bakr’s wars to rational arguments or arguments from expediency.9 As stated earlier, Abu Bakr seems to have found the very fact that the rebels perform the daily prayer an indication they are Muslims and may, therefore, be left alone and given the benefit of the doubt. Abu Bakr says, “Camp at a short distance from their residence, and if you hear the call to prayer, then refrain from attacking them, since the call to prayer is an indication that they are believers.”10 Abu Bakr’s policies, as discerned from these statements, may have addressed different circumstances rather than one umbrella situation that applied in different parts of Arabia, but his main message was that of an assertion of the unity of the Muslim community and a rejection of letting go of the accomplishments of his predecessor, the Prophet. The Prophet, it seems, died after the Arabian Peninsula had become a unified entity that professes to have embraced Islam or at least assumed peaceful relations with the Prophet’s community. Going back on that commitment, for Abu Bakr, was not acceptable. But Abu Bakr did not live to face the question of expanding Islam beyond the Peninsula. ‘UMAR

IBN AL-KHATTAB (D.

644)

Having restored unity to Arabia and a measure of confidence to the nascent Muslim community, Abu Bakr passed away only two years after his closest companion, the Prophet Muhammad. It was now up to another Companion of the Prophet to deal with questions that were at least as complex as those Abu Bakr encountered. ‘Umar and his advisors had to be clear about two general questions. First, there is the question of armed conflict as an acceptable option from the point of view of good politics— that is, morally and religiously justifiable and acceptable policy. Second,

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there is the question of the feasibility of armed conflict as a realistic option for the new Muslim community. Reports about ‘Umar’s attitude toward war leave us with a complex picture, but whether this complexity suggests occasional uncertainty on the part of ‘Umar about what he believed, or that he held different views at different times, is another question. On the one hand, ‘Umar is reported to have been excited about the potential of striving for the sake of the Islamic faith, including engaging its enemies and readiness to make the ultimate sacrifice for it. On the other hand, ‘Umar seems to have displayed some reluctance about the wisdom of engaging in war for a variety of reasons, some of which have to do with practical considerations, and some seem to amount to a questioning of the wisdom of engaging in avoidable armed conflict as a matter of sound religious and political doctrine. ‘Umar is reported to have said that there are only three things that count as components of the good life and states that if it were not for these, he would rather “meet God,” an indication that death, to him, is preferable to a life that is devoid of these three things. One of these three things that constituted the meaningful life for ‘Umar was “being dispatched for the sake of God, i.e., to the battlefield.”11 This fits an image of ‘Umar as a powerful physical presence eager to support the Islamic faith with all his power. An oft-cited anecdote, in the same vein, tells us that when Muslims were an oppressed minority chased from one place to another in the early days of the Prophet’s message, it was ‘Umar who stood up and asked why the followers of the Prophet should concede to the polytheists when they were followers of an ill faith. ‘Umar is also reported to have stated that “three travels are a duty for Muslims: (1) pilgrimage, (2) jihad in the sake of God, and (3) for a man to travel to invest in his disposable money.”12 It is also ‘Umar, however, who expressed reluctance about avoidable war and even about the avoidable death of a single person. As he was informed of a military strategy that is certain to result in the killing of a single Muslim soldier and the conquest of a city, ‘Umar makes the antiutilitarian statement that “it does not please me to subjugate a city with four thousand fighters by wasting the life of a single Muslim.”13 Similarly, when an army general brought the news that a swimmer drowned while attempting to execute a military plan to cross a river, ‘Umar stated that he would not be interested in the best result of such a plan, given the loss of the life of the swimmer.14 ‘Umar is also reported to have preferred dying on a business trip to dying in war.15 This is taken by some scholars to be an indication of ‘Umar’s emphasis on the importance of economic

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strength to support worthy endeavors,16 but one cannot help noticing that preferring trade to the ultimate strife for the sake of God is remarkable. ‘Umar’s attitude toward the Meccans, who oppressed Muslims for years, and toward similarly aggressive neighbors of the Muslim community may have come to change as he noticed the new circumstances in which the Muslim community found itself, where war became the means to expansion rather than survival. But it was ‘Umar’s adventurous generals, especially ‘Amr ibn al-‘As, Khalid ibn al-Walid, and Abu ‘Ubayda ibn alJarrah (leaders of Muslim armies against Persian and Byzantine forces), who made the immediate decisions in the battlefield. These generals ultimately succeeded in diminishing the presence of Persian and Byzantine troops in the Eastern Mediterranean. One of ‘Umar’s oft-cited anecdotes tells us that he argued against ‘Amr ibn al-‘As’s desire to invade Egypt, citing practical considerations and insufficient troops, but also showing clear reluctance about the fast spread of Muslims all over the Near East. ‘Umar later adopted a policy restricting the emigrations of Arabs into the outside of Arabia. Another anecdote tells us that ‘Umar sent an emissary to ‘Amr ibn al-‘As after he accepted his departure to Egypt, asking ‘Amr to return with his troops if he had not already reached Egyptian territories, which ‘Amr ibn al-‘As accepted but considered irrelevant since he was already in Egyptian territories when he received the emissary. Not unlike Abu Bakr, ‘Umar seems to have embraced the principle of warning. In fact, ‘Umar’s articulation of the principle of warning is similar to that of his predecessor. It goes thus, When you meet your enemy of the polytheists, give them three options. Call upon them to become Muslims, and if they accept Islam and chose to live where they are, then they pay an alms tax (like Muslims) and none of their money can be taken as spoils of war. If they chose to be among you (the warriors), then they equal you in rights and responsibilities. If they refused [to become Muslims], then ask them to pay the jizya tax. If they concede to that, then defend them against their enemies and let them live in peace to pursue their agricultural activities, and do not ask them to pay what they cannot afford. If they refused to pay the jizya tax, then fight them, and God will bestow his victory on you . . . and do not be treacherous with them, and do not desecrate a dead body and do not kill an infant.17

The similarity between ‘Umar’s articulation of the principle of warning and Abu Bakr’s may be explained by the similarity between the attitudes of ‘Umar and his predecessor, Abu Bakr, or a confusion of the statements made by the two with each other. The point to be taken here, at any rate,

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is that the principle of warning obviously places limitations on the legitimacy of a preemptive attack against a historical or a potential enemy. ‘Umar’s armies succeeded, often with the help of the oppressed populations of the Near East, in bringing the two empires of Persia and Byzantium to their knees. This new reality of an expanded Muslim territory will invite questions about the limits of Muslim sovereignty in the world. Dividing the world into an abode of Islam (dar al-islam) and an abode of potential conflict (dar al-harb) will provide the conceptual framework for jurists who will address these questions. AFTER ‘UMAR The expansion of Muslim territories during the first decades after the Prophet’s death (rather than any doctrines taught by the Qur’an or the Sunna) created the abode of Islam, which appears in Muslim jurists’ treatment of intercommunal and international order, and Muslim and non-Muslim relations. Jihad (“just war”)18 theories will be the intellectual achievement of later generations of Muslim jurists who had to account for events that took place before their birth and synthesize the experience of the early generations of Muslims with authoritative texts (from the Qur’an and the Sunna), while attending to the characteristics of academic discussions, with hypothetical and theoretical frameworks and the need for generalized principles. Yet, the early jihad theorists were aware of the double nature of their laws of war. Their laws of war were based on both general principles taken from revelation and policies adopted based on circumstances. Shaybani, the author of the first extended treatment of the subject, starts his texts by a statement of the Prophet distinguishing between God’s judgment and that of the leader of a given army based on an agreement with his enemies after the war concludes. Shaybani highlights the Prophet’s assertion that an army general should bind oneself to his judgment rather than God’s judgment in these matters, since the army general “does not know God’s judgment.”19 Islamic juristic treatments of war theories have been masterfully used by many Western scholars to produce an essentializing narrative about the Islamic laws of war that ironically begins with history but ultimately provides an ahistorical one-size-fits-all recipe for correct political and military behavior, allegedly from the Islamic point of view. The next section will address the variety in these theories, which is largely ignored in these treatments. It is important, finally, to remind the reader of the main conclusions that have been made based on our consideration of the evolution of Islamic jihad and just war theories. As is the case in many histories, practice often precedes and informs theory, which ends up influencing later practice.

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An example of this can be found in the prehistory of just war theory in Islamic law, where Muslim jurists had to rely on the early political practice of the leaders of the Muslim community more than they relied on the authoritative religious texts of the Qur’an and the Sunna of the Prophet. Political doctrines that are attributed to the Qur’an must be more reasonably located in the understanding of the early leaders of the Muslim community. These leaders invented the Islamic political tradition through actions that were destined to inform political theory and practice from the seventh century onward. The seeds of just war theory in Islamic law, which found its early articulation during the eighth and ninth centuries CE, can be traced back to events that took place in the Near East during the seventh century. These events became a crucial tool of “exegesis,” an aid for Muslim jurists reading authoritative religious texts—that is, the texts of the Qur’an and the Sunna or Tradition of the Prophet of Islam, in order to provide a coherent theory for acceptable warfare in Islamic jurisprudence. Muslim politicians have contributed much more to the political content of just war theory, which Muslim jurists later articulated, than the Qur’an and the Sunna combined. This thesis opens a way to account for the disconnect between the way politicians and nonpoliticians, jurists and nonjurists, and, to a certain extent, Muslims and non-Muslims have read the Qur’an and the Sunna on matters of war and peace over the past fourteen centuries. A random Muslim individual, whether living in a premodern or a modern society, is often unburdened by the questions politicians and jurists ask when they employ the Qur’an and the Sunna for their purposes. No wonder this individual finds it totally unreasonable for him or her to be bound by these political and juristic interpretations of the Qur’an and the Prophet’s Sunna. The non-Muslim reader who reads the Qur’an or the Sunna only to find answers to these political and juristic questions will also find herself or himself out of sync with this random individual who may be more representative of general Muslim attitudes on how to read the Qur’an and the Sunna as sources of spiritual and moral guidance. Muslim jurists claim, to themselves, to be teaching their readers the correct reading of texts of legal content, and they hope to be correct about interpreting the intention of the lawgiver (God and the Prophet). It is hardly disputed that the juristic discourse on just war theory in Islamic law began to find mature expression in treatises that were written at least a century and a half after the Prophet’s death. One of the questions for us to answer is whether one can make sense of these jurists as teachers of “history” in addition to being teachers of legal doctrine. By this I mean

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whether we can trust that jurists who attempted to reconcile the political views and behavior of the early generations of Muslims with authoritative texts from the Qur’an and the Sunna have also provided the best reading of early Muslim political history. But to the extent that these jurists’ readings of early Islamic history have become the norm in reading this history, they are responsible for any undue emphasis that may have resulted from their engagement in reading this history to answer the specific questions they deemed relevant. UNIVERSALLY VALID LAWS, JUST WAR,

AND

PACIFISM

The treatment of war as “moral,” or what makes it “moral,” must be tied to the treatment of peace and the relationship between communities in the time of peace. There is also a complex interrelation between theories of war and the extent to which communities view their norms and beliefs to be universally valid. Yet, a simple causal relationship between one’s theory of the legitimacy of war and one’s notion of universally valid norms cannot be estabished. In my treatment of the question of war in Sunni Islamic law, I shall address how “intercommunal” or international order feature into the discussion (and will also say something about war and world order in Western history at the end of the chapter), but I will steer away from inferring that a jurist who believes that his ethico-legal norms possess a universal quality must believe that war is natural. Sunni Muslim juristic treatment of war includes three aspects of the process of war. First, the why of war: why should one fight wars in the first place? Second, the how of war, or the rules of engagement: how should one conduct themselves while fighting wars? Third, the aftermath of war: what treaties are to be concluded and what laws change as a consequence of territorial shifts during the time of war (including land tax laws, and similar issues)? Sunni Muslim jurists tend to treat the first aspect of the above three very briefly. The rules of engagement receive more attention from some jurists, as these include general limitations on what is permissible in the conduct of war, which jurists point out. The third aspect of war theories receives the most elaborate consideration, as it includes multiple issues of complexity relating to the basics of intercommunal and international order. The reader cannot help noting that jurists’ brief or elaborate notes about any of the three elements of their theories of war hide distinctly divergent attitudes toward war and the nature of world order. Some Muslim jurists acknowledge that what is seen as Muslim territories can become non-Muslim territories and vice versa. In this, what seems to be a matter-of-factual and quite descriptive attitude about interpolity

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relations functions as the basis of a legal, normative approach to the questions of world order—that is, these jurists seem to derive legitimacy from facts on the ground rather than any theoretical ideals. For example, a standard text in Hanafi law states that Muslim territories are transformed into non-Muslim territories after three conditions have been satisfied: “(1) that non-Muslim laws apply in them, (2) that these territories be contiguous with other non-Muslim territories and (3) that no nonMuslim resident of these territories considers himself/herself bound by their legal agreement with a Muslim state that preceded the transformation.”20 Similarly, non-Muslim territories become Muslim territories when Islamic law applies in them. The one difference between this transformation and the reverse transformation is that the second condition of contiguousness with Muslim lands is not mentioned. The implications of this position, in its disregard for a fact or value distinction, cannot be overstated. This juristic position stands on the idea that shifts of sovereignty in the world of politics may be just as normal as continuity of sovereignty, and this normality cuts through different political systems no matter what their religious (or irreligious) basis may be. On this theory, waging any war to reattain lands that were transferred from the sovereignty of a Muslim government to another political system requires a justification. The absence of any qualification of this doctrine makes it a significant statement of the acceptance of multiple bases of sovereignty in the world, a position rarely adopted by theorists of a tradition that enjoys universal presence. In Hanafi, treatments of business relations and the agreement of “aman,” or protection given to the harbi (resident of dar al-harb), goes hand in hand with this acknowledgment of the multiple bases of sovereignty in the world. Not only can a harbi be expected to come and conduct his trade in dar al-Islam, the harbi can have family members in dar alIslam.21 This clearly refutes the outrageous conclusion that dar al-harb simply means a land whose residents are in constant war with Muslims, a conclusion either made explicitly or left to be deduced from the use of the term dar al-harb only in the context of war. At any rate, the above juristic approach comes close to denying a fact or value distinction in international affairs, but this is not the only approach to the issue. In fact, one finds in Islamic law two competing conceptions of intercommunal order: (1) the theater of one valid law and many invalid laws or (2) the theater of actual difference of opinions not necessarily in need of amelioration or modification. Consider the following two texts. The first is from Abu Zayd alDabbusi (d. 1036):

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For us [Hanafi jurists], the world contains two abodes (daran): dar alIslam and dar al-harb). For Shafi‘i, the world is one continuous terrain (dar wahida). And there are applications for this [disagreement]. One of these [applications] is that, if one of two spouses emigrates to dar al-Islam, whether as a Muslim or as a protected resident (dhimmi), while the other spouse remains in dar al-harb, then separation between them has occurred, in our view, while for the Imam Abi ‘Abdillah al-Shafi‘i, separation does not occur by means of the mere act of emigration (la taqa‘ al-furqa bi-nafs al-khuruj). Another [application] is that, if the enemy appropriated our property and took it to dar al-harb, they own it in our view, but in the view of al-Imam al-Shafi‘i, they do not own it. Another [application] is that, if the residents living outside the abode of Islam (ahl al-harb) seized our property and transported it to dar al-harb and then converted to Islam after seizing it, it is their property, while for al-Imam al-Shafi‘i, they do not own it and must return it to their original owners.22

The second quote is from Mahmud ibn Ahmad al-Zanjani (d. 1258): Differences between the two abodes (ikhtilaf al-darayn)—that is, dar alIslam and dar al-harb—do not entail difference in the law (la yujib tabayun al-ahkam) for al-Shafi‘i (God be pleased with him). He argued that lands, places, and terrains have no impact on the law, since the law is the privilege of God—glorified is He (al-hukmu lillahi ta‘ala), and the call of Islam is addressed generally to the unbelievers, whether they live in their countries or in other countries. Abu Hanifa (d. 767; may God be pleased with him) held that differences between the abodes entail differences in law. He argued that moving to different lands, in reality and in legal considerations (haqiqatan wa hukman), is analogous to [legal] death, and death ends ownership, and so should moving to different lands, too. He [Abu Hanifa] said: this is because ownership is evidenced by control of property (alistila’ ‘ala al-mamluk), and such control ceases when the land changes both physically and legally (haqiqatan wa hukman). As for the former, it is by being out of the control of the owner, and as for the latter, it is by the owner’s inability to exercise any legal rights relevant to it (inqita‘ yadih min al-wilayat wa-l-tasarrufat). From this principle many applications branch out (yatafarra‘ ‘ala hadha al-asl masa’il). One of these applications is that, if one of two spouses emigrated to us [Muslim lands], whether as a Muslim or a protected resident (dhimmi), while the other remained in dar al-harb, the marriage does not dissolve by virtue of the act of emigration itself. For them [Hanafi jurists], it dissolves, because of the difference in the land. Another [application] is that, if a man from dar al-harb (harbi) embraced Islam and emigrated to us, leaving his property in dar al-harb, and Muslims later conquered those lands, then his property cannot be owned [by a conquering Muslim army] in our view. For them [Hanafi jurists], it can be owned and counted among the spoils of war. Another [application]

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is that, whoever embraces Islam while in dar al-harb and does not emigrate to the abode of Islam, then his/her life is protected (ma‘sum), and whoever kills this new convert owes blood money [to his family] and exposure to [the possibility of] retributive justice, and whoever destroys his/her property owes its value, just as if this were to happen in the abode of Islam. Abu Hanifa (God be pleased with him) held that it is prohibited to kill such a person or seize his/her property, but no liability (daman) befalls [those who destroy the property], since the sanctity of property is founded on the land [where the law applies], while sanctioning his soul [during the state of war] is founded on his/her embracing of Islam.23

As these texts illustrate, two views are expressed on the territorial jurisdiction of Islamic law. Shafi‘i believed Islamic law as God’s law is a valid law in the whole of God’s world and has at least a theoretical jurisdiction in non-Muslim lands since, as he points out, the whole earth is one, continuous piece of land. This theoretical jurisdiction can therefore be effectuated in certain cases. Jurists of the Hanafi school, by contrast, make a distinction between lands where Islamic law applies and others where it does not. According to Hanafi jurists, for example, dealing in usurious transactions in non-Muslim lands is allowable, as long as these transactions are allowed by the laws governing these lands. Furthermore, crimes such as drinking wine and fornication when they take place outside of “the abode of Islam” are not to be prosecuted in a Muslim state, if Muslims who committed them return to the abode of Islam. On this and similar issues, Shafi‘i does not share the position of Hanafi jurists, as he disagreed with them concerning the underlying legal theoretical principle. Yet, Shafi‘i does not condone the use of jihad as a tool of converting non-Muslim populations. Both sides of the above argument are committed to the traditional position of offering all populations the two options of either embracing Islam or remaining non-Muslim and living as nonMuslim members of a religiously mixed community, which is what the Islamic Near East and other so-called Muslim lands have always been. The fact that the majority of the populations of the Near East remained non-Muslim for awhile, which represented no anomaly to either Hanafi or Shafi‘i jurists who had opposing views on the jurisdiction of Islamic law in the world. Decisions of war and peace remained the privilege of political leaders who occasionally sought legal advice from different types of jurists, and it was these leaders, again, who applied their understanding of these paradigms of Muslim and non-Muslim relations. While the connection between war and superior laws can be discerned in theoretical discussions of war in Islamic legal literature, as these and other texts demonstrate, the degree to which Islamic law applied as a

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universal law in newly conquered lands varied, and Muslim rulers often preferred not to impose Islamic law on their new subjects and even discouraged its application in many cases. The two opposing theories, however, persisted that for some jurists, the law of God was given to apply everywhere, and for some, it was to apply only where Muslim populations had the power to enforce them. Out of different attitudes about world order come theories of legitimate war or jihad. Sunni Muslim jurists do not use an Arabic equivalent to the now familiar term just war; they use terms like jihad (a generic term for warfare justly and appropriately conducted), ghazw or jihad al-talab (offensive war), and ribat (defense of the borders) or jihad al-daf‘ (a generic term for defensive war). Some medieval Muslim writers avoid the normative questions completely in their writings on war and offer descriptions of military expeditions and their consequences, such as the distribution of the spoils of war or changes in land-tax laws in the conquered lands (some refer to this genre as the maghazi literature, although the term maghazi can be used by those interested in the normative questions of war). For those who address the legitimacy of war to consider participation in a given war acceptable or necessary, which Muslim jurists do, is to consider it a just war. The Qur’an (16:90) states, “God enjoins justice and compassion.” Thus, a jurist, speaking in God’s name, who allows the participation in war, considers it just to do so. But whether it is called “just war” will not concern us for a long time because our questions are mostly about the details of just war theories and historical wars rather than the concepts themselves. The appropriate jihad must satisfy many conditions, some pertaining to the prewar and some to the during-the-war stage of jihad. Before the war, soldiers must acquire two permissions to fight: the permission of the political leader of the Muslim community and the permission of the parents of the soldier. The leader’s permission is required so that only “appropriate,” rather than “seditional,” war will take place. The parents’ permission is required to assert that the family takes priority over the larger community. When this condition is observed, the government’s ability to force or draft soldiers to battle would be severely limited. In addition to the appropriate permissions, the soldier must satisfy many conditions for the Muslim community to make sure about his or her readiness and suitability to the awesome task at hand. These include physical, mental, and moral qualities. Before war is declared, some jurists argue, a “warning” must be given to the people who may be attacked, since treachery even in war should not be allowed. During the battles, many restrictions apply, such as the prohibition of burning the enemy or drowning them, the destruction

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of property and natural habitats, the breaking of promises made before the war, and attacks on women, the elderly, children, or those dedicated to worship (the residents of monasteries and the like). In most juristic discussions, the above, and other, propositions are made to be debated rather than be simply asserted. Therefore, all these conditions were argued about, reversed, and qualified (as one should expect from a diverse intellectual tradition such as the Islamic legal tradition). Later juristic theories of what is acceptable jihad continue to resemble earlier theories of the same. To repeat a point I made earlier, jihad theories over time have become, more or less, an industry that rarely reconsiders the old paradigms for the legitimacy of war and reproduces stipulations and discussions that do not, for the most part, reflect current war policies. This is not to say that Sunni Muslim jurists’ loyalty to old paradigms of acceptable war simply means a total lack of interest in developing their theories of what is acceptable jihad in a way that accounts for the changing nature and objectives of warfare in Muslim lands. While a natural law-like basis for an Islamic world order is detectable in medieval Islamic political and legal thinking, Islamic religious and moral writings can boast not only one but two pacifist traditions. I shall call these the “legal” and the “mystical” traditions. I chose to refer to one of them as the legal and the other as the mystical for the sake of simplicity, but I must note that there are many rough edges to this distinction, as many Muslim intellectuals combined and reconciled the two. The legal tradition considers the rejection of Islam by many people a natural event that must lead to the conclusion, as Hanafi jurists explained, that Islamic law will not have a claim outside of the abode where the population accepts its authority. The legal pacifist tradition can be represented by the above-mentioned view about the free moving of land from the position of being a Muslim land to being a non-Muslim land, and vice versa. The lack of motivation to retake lands that used to be part of the abode of Islam, and has now become part of the non-Muslim abode, leads to a lack of desire to fight for what used to be yours and to perpetuate violence and hostility. The mystical pacifist tradition finds its voice, inter alia, in the language of Sufis, who believed that antagonism toward other human beings is wrongheaded, as it stands on the false assumption that “real duality” exists in the world. All is one and springing from the same “One,” some Sufis believe. A struggle can only exist within one person, but not between two people. The mystical pacifists could go as far as questioning the legitimacy of the letter of the law and its true sovereignty over the populations. Other pacifist attitudes can also be found outside of the mystical traditions, with arguments ranging from the impracticality

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of war to its monstrous effects in the world, and from attacking the overemphasis on defending the weak through the power of war to considering the external jihad through war secondary to the internal jihad through self-refining. To deny the existence of pacifist attitudes about war, despite the presence of two traditions of pacifist orientation, rather than one, bespeaks the willingness to distortion. The terminology of “just war” and “pacifism” invokes many questions about the validity of ascribing these terms to the Christian traditions that claimed them, as well as the legitimacy of insisting on their relevance to other traditions. The reasonableness of seeing just war theories as truly concerned with justice, in my view, must be questioned, but this is not my task in this chapter. I need only state that the popular belief that Christian thinking about war has the higher moral ground for the very availability of the terminology of just war and pacifism cannot be taken seriously. Worse still is the assertion that while a pacifist tradition can be located in apolitical and antiestablishment Christian writers, the Islamic theory and practice of war can be characterized by an absence of a pacifist tradition in Islam.24 This cavalier assertion could only be made after overlooking much of what I have presented in this chapter, including the above acceptance by Muslim jurists of multiple bases for sovereignty in their intercommunal or international law, as the above quote illustrates, as well as the gamut of Sufi thinking.

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WARS IN ISLAMIC HISTORY: CONQUEST, INTERNAL WARS, AND FRONTIER WARS

The classification of historical wars into neat categories smacks of simplicity. Wars often have more than one characteristic, and qualifying a certain war as a war of such and such is not without major difficulties. However, there are differences that one can discern among the different kinds of wars in any historical narrative. I will attempt to classify the historical wars that involved Muslim armies in medieval Islam into three general categories in order to address the relationship between Islamic theories of war and the actual occurrences of war that involved Muslim armies in broad terms. Consider the following classification of wars into three categories: wars of conquest, internal wars, and frontier wars. WARS

OF

CONQUEST

The paradigm examples of this class of warfare in Islamic history are the wars between Arab armies and the armies of the Persian and Byzantine

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Empires in the seventh century. These wars ended with establishing new borders for the nascent Muslim state, thus allowing a gradual change in the cultures and institutions of the Middle East, leading to the founding of an Islamic Middle East. INTERNAL WARS

Among the examples of this class of wars in Islamic history are Ottoman wars against the Mamluks of Syria and Egypt in the sixteenth century. These wars ended in establishing the hegemony of one Muslim group over another but added no territories to Muslim suzerainty. FRONTIER WARS

This class of wars in Islamic history may be represented by Abbasid wars in Anatolia in the eighth and ninth centuries, Ottoman wars in Eastern Europe in the sixteenth and seventeenth centuries that added very little to Muslim territories, and possibly wars in Western Europe (Spain, Portugal, and Southern France) among different Muslim and Christian factions in the thirteenth and fourteenth centuries—which all led to redefining the borders of the Islamic polity but with no everlasting transformation of the cultural and religious landscape of the areas that witnessed these wars. In theory, the second category of wars (internal wars or wars between different Muslim groups) can be justified only in one scenario: to thwart an existing conflict between Muslim factions (baghy). War against apostates (murtaddun) is a war against non-Muslims, although the borders between apostates and Muslim rebels, in practice, are not set in stone. Still, war against Muslim brigands (hiraba) may be justified, although this type of war may not amount to war at all, depending on the size of the group of brigands and their power. From these doctrines, it seems that war to end existing war and affirm the unity of the Muslim community can be justified. Yet, if we set aside specific justifications of engaging in war among Muslim factions, the standard answer to the question of whether Muslims can wage war against other Muslims is a negative one. The remaining two categories—wars of conquest and wars of the frontiers—share one quality: they involve a non-Muslim party. Wars of conquests succeed in changing the course of history for the societies involved in them and frontiers wars more or less perpetuate the borders of existing communities with limited modifications. Corresponding with these types of historical wars, Muslim jurists have produced many theories of war, as we explained earlier.

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Despite their subtlety and complexity, juristic theories of war could not settle the simple tension in the act of war, tension which stems from war’s irregularity and political nature. My point here is that a religious or moral scheme of thinking about war can hardly be the cause or the remedy for the problem of the brutality of war; it cannot make it possible when it is not, nor can it serve as a safeguard against it or any other form of abusing power related to it. Just as the Qur’anic and juristic traditions cannot be considered responsible, in any meaningful way, for the justification of war, so were they unable to regulate actual instances of war or reduce its negative effect. War remains a matter of the temporal, political power that can mobilize and form political realities. Religious discourses can only accompany and modestly modify this phenomenon rather than bring it into existence or fundamentally challenge it. True, the legacy of war or jihad theories can have a harmful effect on Muslims today when it serves as a source of the romanticization of war. This, however, is not to agree with those who attack Islamic doctrines and juristic traditions as comfortable with violence, since these attacks seem not to concern themselves with the history of theories and practice of war in Islamic history in any serious manner. To my mind, a full consideration of the legitimacy of war in Islamic legal literature remains to be achieved on sound historical grounds. My intention here is not to say that the legitimation of war was not known in Islamic history in legal writings and in real practice. I am only arguing that, given the length and complexity of the Islamic history of ideas and politics, one cannot make a general statement about Muslims’ attitudes toward war or attempt a simple connection between historical ideas and practices of war and contemporary postcolonial struggles in the world. The legacy of Islamic legal theories and practice of war can and should be subjected to critique—reasonable critique. That is, critique that could, and perhaps should be, comparative to the extent that comparison throws into relief the extent of the options a given community may have, as opposed to a charged comparison with forgone conclusions. To fulfill the impulse to reasonable and limited comparison, I turn to the last section of this chapter. WAR, UNIVERSAL LAWS,

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WORLD GOVERNMENT

The thesis that medieval Muslim jurists have accepted a relationship between the legitimation of jihad and the notion of a law of God given to all humans must still be tested and will probably face many difficulties. One cannot abstractly essentialize a relationship between universal law and war, since, for one thing, individuals and groups often go to war in

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defense of their small community without much reflection on the universal. Furthermore, the language of being on the side of good or evil (with their universal connotations) has been used in wars within the same society with no hints at a notion of human society or world government. Furthermore, to consider the relationship between war and universally valid laws requires asking specific questions about various conceptions of universally valid laws and about the validity of war in relation to these conceptions. This step is needed before any generalization about the cumulative systemic relationship between the multiple associations or dissociations made between these two ideas. This is not limited to Islamic legal history; it applies to the theory and practice of war and international affairs in ancient, medieval, and modern times. Shafi‘i, as we already saw, had a version of the idea of universally valid laws, but his version of it was much more modest compared to many of its ancient and modern counterparts. In any case, he has, by no means, invented this idea or introduced it as an original or a novel proposal. Pre-Islamic writings on war and other political writings have already experimented with the idea of world government, and these experimentations continued in earnest until today. Western versions of this idea are ubiquitous, but, as we shall see, the Western traditions of world government were fairly complicated and occasionally unsure about the implications or even meaning of the concept of world community in theory, let alone in practice. Ancient Roman law, for example, acknowledged natural law in the scheme of an Epicurean worldview, which embraced the notion that some affinity exists among all living beings with humans at the top of animate beings; thus, a human society (however faint the thought may have been) can be identified. But war may still be justified in the cause of affirming Rome’s supremacy, rather than creating a form of human political brotherhood. Christian writers sometimes conflated natural law with the Gospel, or the law as infused into the hearts of (guided) humans by God, and sometimes with the law of nature as it can be seen in divine actions. In its Christian version, just war was a defense of the truth of the Gospel, and a help to humans who are (theoretically) brothers in Christ, as we will see. Natural law finally appears in the writings of Grotius (d. 1645) as a foundation for a human society that may share one political authority in the age of modern empires. The long history of the idea of “world government” cannot be sketched here; I will merely point to some ideas that represent its texture. Alexander’s (356–323 BCE) adventures must be part of the story, and so is the Aristotelian naturalistic philosophy and teleological understanding of society that shapes much of Western thinking about the world. But one

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must note, for example, that Alexander’s attitude toward other members of the human society ranged from craving victory over them, and demanding their acknowledgment of the supremacy of the Greek, to strong respect for their sensibilities and cultural and religious views. Alexander combined ruthlessness in fighting the Persians and a strong desire to be recognized not as the Greek king of Asia, but Ahura Mazda’s representative on earth—on the one hand—with anxiousness not to offend Persian sensibilities, even unintentionally, by eating on a table on which Darius ate—on the other. Leaving the subtleties of the Aristotelian notion of human society aside and moving forward in time, Cicero (106–43 BCE) draws one’s attention. Springing from an Epicurean philosophy of nature that holds all animate beings to enjoy some form of unity by nature (with humans as a class of their own above animals and plants), Cicero considered the notion of natural law consistent with the physical makeup of the world. Thus, speaking of a “human society” is found abundantly in Cicero. For example, “those who say that we should think about the interests of our fellow-citizens, but not those of foreigners, destroy the common society of the human race [communem humanai generis societatem].” Richard Tuck warns that “when Cicero talked about ‘the common society of the human race,’ he may have meant little more than this: there is a kind of mutual recognition between men which differs from the relationship between men and the rest of the natural world, and which involves an appreciation of the mutual benefits which men can provide for one another, without requiring of us the sacrifice which a fully developed system of mutual aid will entail.” Yet, the idea constitutes an important foundation to be exploited later, as Tuck himself shows. The notion of natural law has dominated Roman legal thinking, and the Digest (which includes legal views of early Roman law assembled by sixteen jurists under Justinian in 533 CE) begins with a division of laws: the law of the state (ius civile), the law of nations (ius gentium), and the natural law or the law of nature (ius naturale). The Digest also includes a principle (known as the principle of postliminium) stating, “Roman citizens taken as prisoners by an enemy were slaves in the eyes of Roman law, until they returned to Roman jurisdiction.” The text of the Digest goes as follows: “Pomponius: . . . The right of postliminium . . . In war: When those who are our enemies have captured someone on our side and have taken him into their own lines; for if during the same war he returns he has postliminuim—that is, all his rights are resorted to him just as if he has not been captured by the enemy. Before he is taken into the enemy lines,

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he remains a citizen. He is regarded as having returned from the time when he passes into the hands of our allies or begins to be within our own lines.”25 Since Roman law allows enslaving non-Roman citizens at war, Roman citizens enslaved by non-Romans must be seen as slaves in the eyes of Roman law, until their return to lands where Roman law applies. The struggle between the Romans and others is a struggle for supremacy between “morally equal rivals.” Rome and its enemies are rivals inhabiting equal (though by no means unifiable) moral worlds rather than brothers within one human race. The natural right (ius naturalis), which “nature taught all animals” (quod natura omnia animalia docuit), may bring humanity together theoretically, but it does not necessarily create a “civilian” world community of equal subjects. The appearance of Christianity added other layers to these ideas. Paul’s (d. 64 CE) Romans 2:14–16 states, “the Gentiles, who have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves, which show the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another in the day when God shall judge the secrets of men by Jesus Christ according to my gospel.” Unity among people, despite their differences, can thus be found. It is not unreasonable, therefore, for a Christian to believe that non-Christians are ultimately potential Christians, capable of understanding their natural readiness to accept Jesus Christ, whether or not they grew up as Christians. Augustine (354–430), writing after the Visigoths sacked Rome in 410, had to react to those who believed that Rome was ravaged because the Romans abandoned their pagan religion and became Christian. Augustine wrote to console the City of God (or Citivas Dei) as the triumphant city. Despite the constant contrast between the City of God and the City of Man in his language, Augustine endorsed much of what was part of civic virtue as acceptable Christian virtue, especially the Romans’ dedication to their city and willingness to die for it. Augustine’s large text (City of God) betrays much complexity; it reflects the struggles of a man who admired aspects of Roman culture and wanted to claim these as his own. After all, it was Augustine, in his Confessions, who said of Cicero’s Hortenius that the chapter “altered my prayers, Lord, to be toward you yourself. It gave me differed values and priorities.”26 But Augustine combined this admiration for aspects of Roman culture and an emotional attachment to Christianity after being overcome by signs that proved to him the truth of Christianity beyond doubt.

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Later came medieval natural law theorists who drew on a broad array of writings, including (1) pre-Christian writers, such as Aristotle, Cicero, and the already mentioned Justinian Digest, and (2) Christian writings, such as Paul and the fathers. Scholastic Christian just war theories, which purport to restrict war by producing just war theories that require the soldiers to fight, despite themselves and not out of the desire for revenge, agree with the notion (found in the Benedictine monk Gratian’s Decretum in 1140) that “mankind is ruled by two things: natural law and custom. Natural law is that which is contained in the law and the Gospel where everyone is commanded to do to another as he would be done by, and forbidden to do to another what he does not wish to have done to, himself.” The commentators on Gratian’s text, the Decretum (known as the Decretists), provided different definitions of natural law, ranging from “natural law is the teaching of Scripture, or it is what is left undetermined by divine command or prohibition; it is the human capacity to distinguish right from wrong; it is natural equity; it is also the natural instinct of all animals and as well a general law of all creation.”27 These ideas persisted and were significantly modified in later centuries. Dante’s (d. 1321) De Monarchia makes an argument for a world government, combining elements from the same Latin tradition of Cicero and Christian political theories:28 Things are well and at their best with every son when he follows, so far as by his proper nature he can, the footsteps of a perfect father. Mankind is the son of heaven, which is most perfect in all its works; for it is “man and the sun which produce man,” according to the second chapter on Natural Learning. The human race, therefore, is best when it imitates the movements of heaven, so far as human nature allows. And since the whole heaven is regulated with one motion, to wit, that of the primum mobile, and by one mover, who is God, in all its parts, movements, and movers (and this human reason readily seizes from science); therefore, if our argument be correct, the human race is at its best state when, both in its movements, and in regard to those who move it, it is regulated by a single Prince, as by the single movement of heaven, and by one law, as by the single motion. Therefore it is evidently necessary for the welfare of the world for there to be a Monarchy, or single Princedom, which men call Empire. And this thought did Boethius breathe when he said: “Oh happy race of men if your hearts are ruled by the love which rules the heaven.”29

More than two centuries later, Alberico Gentili (1552–1608), a civil law professor at Oxford, referred to the idea of a world community to validate the Spanish conquests of the New World. The modern theories of natural law were pioneered by Grotius (d. 1645) and Hobbes (d.

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1679). Grotius, who is often credited with changing the direction of Western political thought, may have treaded on familiar grounds when he advanced moral arguments for expansionist theories of war. Yet, his arguments, in De Indis in particular, have established the theoretical and moral framework for a form of sovereignty to be enjoyed by man (i.e., triumphant man) over the whole world, and bequeathed, to our modern era, unprecedented ambitions of dominance for those who can afford them.30 What is most instructive about the story of war and about the ambition for ‘world government and the reluctance about its feasibility is not that one civilization or tradition could be characterized by more ambition toward domination or more restraint, more aggression or more peacefulness. Rather, it is the very human vacillation about war and domination. The part of this vacillation that appeals to me is the human capacity to doubt its very desire to dominate. The other part, the readiness to experiment at the expense of other lives and other people’s means of living, remains suspect, engulfed as it often is in sincere or insincere rationalism. This, as I said at the outset, is a formidable difficulty in my conversations with war theories and human ambitions to capture what is universally valid and teach it to the world. CONCLUSION Islamic law is both a divine law and a human law, as it stands on the divine inspiration embedded in the Qur’an and the Prophet’s statements and actions, which are interpreted by fallible jurists who search for God’s intent and do not usually claim to be directly inspired by Him in their legal writings. The articulation of theories of war and intercommunal and international order in Islamic law come almost two centuries after the Arabs spread into the lands surrounding Arabia in the seventh century. The Qur’an and the Prophet Muhammad’s statements on the matter were ambiguous, but medieval Muslim jurists accepted the responsibility of developing theories of war and world order to account for the realities of their time, seeking the guidance of the scanty religious texts on the subject. Only a few generations after ‘Umar (d. 644 CE), Muslim jurists were in a position to devise laws of war that describe and shape this new world order. Sunni Muslim jurists begin their inquiry with a study of the behavior of the early generations of the Muslim community, who grappled with issues attending their new position in the world, a position that allowed them to change the balance of power in the Near East. Medieval Muslim jurists developed the (perhaps counterintuitive) notion that at least aspects of “intercommunal/international law” can be seen as a subfield

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of the inquiry on “the jurisdiction of Islamic law.” Thus, a disagreement among Muslim jurists and theologians arose as to whether Islamic law applies in the lives of non-Muslims who live among a majority of Muslims, and whether it applies (at least theoretically) even to the lives of those who live in non-Muslim lands (with the conclusion that God Almighty will hold them accountable for failing to comply with the law on the Day of Judgment). But medieval Muslim jurists developed various attitudes about the justifiability of war to defend the Islamic faith: some refer to the idea that God’s laws are universal and others insist on distinctions between the theoretical application of God’s laws to all humans, on the one hand, and their forced application by humans, on the other. According to Abu Hanifa (d. 767), non-Muslims living permanently in Muslim states are not addressed by many aspects of Islamic law (for example, non-Muslim subjects living in a Muslim state who do not believe that wine drinking is prohibited cannot be punished for drinking it) while his students—Abu Yusuf (d. 798), Shaybani, and Shafi‘i—hold the opposite view. Aspects of these discussions are of a semitheological nature, being concerned with consequences that may befall non-Muslims in the hereafter for their failure to comply with the Islamic teachings. Thus, one can ask whether non-Muslims would be held responsible in the hereafter only for their failure to embrace the Islamic faith (which would definitely mean that they failed to fulfill God’s commands) or whether they would be held accountable for each and every failure to meet specific Islamic obligations, even if they did not accept the authority on which these obligations were based. The hereafter aside, the applications of these principles are practical legal matters that are relevant to this world, the “here” rather than the hereafter. For example, Shafi‘i held that when a Muslim converts to another faith and then reverts back to Islam, he or she must be held responsible for the religious duties he or she had missed during his or her period of apostasy. Hanafi jurists consider such a person free of this requirement. Another application of this principle, based on the opinions of Hanafi jurists, is that non-Muslims own the property they take from Muslim lands and transfer to their own lands and should not be asked to return such property whether it was taken in war or in peacetime. Shafi‘is disagree, and hold these non-Muslims responsible for returning the property, since these non-Muslims do not escape the jurisdiction of Islamic law by virtue of being non-Muslims living in non-Muslim lands.31 Muslim juristic debates about war and international law certainly show their willingness to accept the validity of war and the need for it.

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This much invokes my disagreement, since I am personally skeptical about the legitimation of war, past and present. I think that just war is a bit of an oxymoron. War, as an act of collective, uneven violence, is always justified in unrealistic terms, and the theoretical “neat” situations in which war becomes an altruistic attempt at defending the weak and vulnerable are ahistorical. Defensive war is another “uncomfortable” category. Not only will one look in vain for a war between one army with swords and one with shields (or one with missiles and one with antimissiles), but it is also clear that war never takes place exclusively on the territories of one party (the defending, “virtuous” party), since war itself determines the borders between communities. Offense has often been deemed a defense of the vulnerable, or of universal human values, and occasionally “necessary expansion to secure the borders,” or war out of a “just fear”1 appear in the justification of defensive wars. “Just war” theory analysis teaches us that the very concept of just war has been precarious, as it seems to succeed only in producing theories rather than regulating practice. Muslim jurists, for example, stipulate that no one’s participation in war can be legitimate without their parents’ permission, a tactic that would have cut the number of participants in wars involving Muslim armies by quite a lot, but the realities of political history necessitated creating professional armies rather than armies of volunteers who may join only when their parents do not need their assistance. Muslim jurists also speak of the prohibition of destroying natural habitats during the conduct of war, but that stipulation was repeatedly violated, even in the early Muslim wars, which were far less destructive and may not even be seen as proper wars by many medieval or modern standards. As I indicated in the earlier sections of the book, discussing violence must not be detached from its context. To ignore the conditions under which the issue is discussed and the extent of the exertion of violence by those who keep complaining about the violence of others will not pass muster. I would like to join those who are skeptical about the legitimation of war in any religious or secular tradition, but I also would like to reject singling out the jihad tradition as a uniquely good example of bad wars. If anything, jihad theories and practices may be examples that deserve mention for their restrained quality and limited scope.

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APOSTASY MANY TREATMENTS OF THE SUBJECT OF APOSTASY IN ISLAMIC law and history possess the monotonous tone of condemnng Islamic law and politics as a unique depository of intolerance against dissidents. This is often complicated by another simpleminded perception of the Islamic legal tradition as a static body of literature that maintained an unusual measure of stagnation for almost a millennium between the years 800 and 1800 CE. An article by Peters and DeVries on “Apostasy in Islam,” by no means the worst on the subject, reflects this sloppy and uninformed perception that Islamic law began to change and adopt more tolerant views vis-à-vis apostates and dissidents only in the last two centuries and under Western influences.1 There are many limitations on attempts at engaging the full scope of the “violence” these treatments commit against Islamic law and history. However, I hope to indirectly make wrongheaded ideas about the Islamic laws of apostasy less tenable for those who will have read this chapter. The reader of the large Islamic corpus juris would be surprised to see Western writers attempt to convey the idea that Muslim jurists have spent a good deal of energy addressing the apostasy of the individual as a genuine threat to the Muslim community. What those familiar with Islamic jurisprudence would likely conclude is the opposite: many Muslim jurists treat the subject of apostasy almost based on a sense of the responsibility to fill a slot created by early juristic writings, rather than address a viable question of legal practice. This conclusion applies to legal digests (which focus primarily on legal doctrines, and only secondarily on actual cases) but also to many responsa (which focus on cases more than abstract doctrines), which steer away from applying the “standard” sentence of apostasy (death), which Western scholars would have us believe was applied all the time. Chronicles of Islamic history, which document events of note, including revolts and other political events as well as some legal cases,

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confirm the conclusion that a death sentence for apostates was hardly a recurring event the Muslim population expects to hear about. Given the overall consistency of juristic writings in displaying little concern for apostasy and apostates and the infrequency of “juristic anger” about the government’s inaction about apostates, one must conclude that the few cases of juristic anger about apostates should be taken to represent the exceptional, rather than the paradigmatic, in Islamic law and jurisprudence. What Western scholars have labored to establish in this issue ultimately flies in the face of available evidence. But how is this exercise in “scholarship” on apostasy—that leads us to believe in the paramountcy of apostasy laws and their frequent application—possible? The task of Western apostasy scholarship is to point to “examples” where apostates were punished, and the author gets to tell us as much or as little information about their context. It is only in this limited exercise of eclectic treatments of the subject that an author can highlight whatever establishes the forgone conclusion about apostasy laws as a tool of oppression, while mostly avoiding any understanding of the specific circumstances of these cases. In reality, the specific circumstances are what makes applying the otherwise inoperative punishment for apostasy possible and give the impression that these cases were frequent. In addition to the violent summarizing of cases, Western “scholarship” on apostasy conceals Muslim jurists’ emphasis on the difficulty of pinning down a definition of the apostate to make the general definition of apostasy seem abundantly clear. The juristic principles guiding jurists to err on the side of innocence (al-asl bara’at al-dhimma; dar’ al-hudu bil-shubha), which is terribly emphasized in capital crimes like apostasy, is similarly obfuscated in these eclectic studies. Here are a few simple facts. First, there is no shred of evidence attesting to the occurrence in Islamic history of apostasy courts and public executions similar to those of the Inquisition. An Islamic inquisition never took place. Second, and this goes even further, voices of heresy in Muslim cities have been heard and gone unpunished, and occasionally celebrated for their poetic or philosophical originality. There is ample evidence that even religious individuals fond of literature and philosophy engaged in the reporting of what is heretical or lewd views rather than rejecting them on religious grounds or reporting the authors of these views to the government for punishment. Third, there are debates among jurists who attempt to capture the essence of a crime of apostasy, with hard-liners broadening the definition of apostasy and skeptics saying that such an offense can hardly be characterized or targeted for correction. Fourth and last, the last two centuries have witnessed unprecedented interest in the

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topic of apostasy and orthodoxy, among Muslims and non-Muslims, reflecting anxieties of a novel type. A neutral observer noting these facts would be bound to conclude the opposite of what Western writers have concluded. Instead of saying that the modern era has brought more tolerance to Muslim groups in the area of heresy and apostasy, they would say that modern anxieties have contributed to fishing for intolerant and unusually harsh voices of the past to condemn adversaries in the name of religion. The survival of the voices of apostasy and heresy, including apostate and heretical poets (such as Bashshar ibn Burd, Abu Nuwas, and Muslim ibn al-Walid) and apostate or heretical philosophers (Farabi, Ibn Sina, and others) in Islamic literature is the strongest evidence against the claim that apostates were rounded and killed, right and left. Islamic history, if anything, tells us that heretics of ingenuity were either revered for being dissidents or treated as a curiosity. There is sufficient evidence that the designated punishment for apostasy in Sunni Islamic law, which is death, has only rarely been applied to individual alleged apostates, even at times of factional and political tensions, and at times of the spread of philosophical and esoteric ideas like those Abu Hamid al-Ghazali (d. 1111) attacks in his Tahafut al-Falasifa (Incoherence of the Philosophers) and Fada’ih al-Batiniyya (Scandals of the Esoteric Factions). One cannot help noting that the majority of Muslim jurists saw apostasy as a rare problem, and apostates as largely inconsequential. Exceptions can be found: Ghazali and Abu-l-‘Abbas ibn Taymiyya (d. 1328), sharing a measure of alarm toward certain forms of dissent, attempted to provide a more assertive tone, condemning apostates and calling for attacks on them. But even these two and similar jurists vacillated in their language between stern condemnation of the disorder caused by apostates and respect for the same principles leading to the difficulty of deciding specific apostasy cases. They also mostly dedicated their attacks to groups of apostates, rather than individual apostates, as these groups constituted, in some sense, pockets of anarchy within the Muslim state. And more importantly, these jurists still showed significant tolerance toward intellectual dissent in particular, as well as readiness to accept those who showed no interest in exploiting divisions of opinion to create pockets of anarchy within the Muslim community. The existence of the punishment of apostasy and its rare application intrigued many scholars. Some scholars2 proposed that part of the solution to the theory-versus-practice disparity here might be sought in investigating changes in the concept of apostasy in the Islamic juristic literature.3 Based on the comparison of two views on what apostasy is, the punishment of

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the zindiq (defined as a secret apostate) would be acceptable under Ghazali’s concept of apostasy in the eastern parts of the Muslim Empire, for example, while Shafi‘i (d. 820) would have exonerated the zanadiqa as long as they professed to be Muslims. One implication of this analysis is that Islamic law was divided against itself (apparently evenly) regarding secret apostates with voices of condemnation and voices of indifference. Moreover, Muslim jurists, also based on this analysis, seem to be in agreement in their willingness to punish “announced” apostates by death. It is not clear in this analysis whether Muslim jurists have ever distinguished between a punishment for apostasy that applies to “individuals” and a punishment through “war” that applies to rebellious apostates. Much textual evidence supports the assumption that it was collective, rather than individual, apostasy that Muslim jurists saw as a threat that requires attention. One must note that suppression of rebellion against Muslim states was not restricted to apostasy and did not await Ghazali’s condemnation to attack those who were deemed dangerous to the peace of the Muslim community. For example, more than three centuries before Ghazali, Ibn al-Majishun (d. 781) proposed that the zanadiqa (morally subversive groups accused of attempts at undermining public virtue, through practices such as incest, for example) should be punished by death without stating that the zindiq is an apostate.4 To complicate matters, the zindiq, in the majority of Sunni juristic literature, would be considered an “original non-Muslim” rather than an apostate (since an apostate must be somebody with proven history of being a Muslim and a conversion from Islam, while the zindiq’s Islam is in question from the beginning).5 The assumption that any stability in the definition of apostasy was achieved is contradicted by a persistence of a measure of elasticity in the juristic discussion of the concept, which does not seem to have bothered Sunni Muslim jurists. Old concepts of apostasy survived despite the availability of new concepts, and the new concepts of apostasy were debated and tended to be appropriated, or partially accepted, by later generations of jurists. The significance of this elasticity cannot be missed; it makes all attempts at condemning individuals or groups as apostates vulnerable to attacks. This chapter must thus reject the implications of an analysis that makes Ghazali a champion of a doctrine of apostasy that searches for secret apostates and rounds them up, inquisition style. I will achieve this goal through an assessment of Ghazali’s contribution to the Islamic juristic discourses on apostasy, especially the implication that an evolution of the concept of apostasy may have taken place after his attacks on the philosophers and the Isma‘ilis, allowing for wider applications of the

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death punishment for apostates. Ghazali’s still more nuanced treatment of the subject represents the exception rather than the rule, as most Muslim jurists do not show the disturbance and fear of apostates some attribute to them. HISTORICAL BACKGROUND: WAS COLLECTIVE APOSTASY PUNISHED BY WAR IN THE SEVENTH CENTURY? The wars of the seventh century under Abu Bakr (ruled 632–34), which later came to be known as the apostasy wars, were fought with Arab tribes whose relationship to Islam remained a question of contest.6 Reports inform us that, in his justifications of the attacks, Abu Bakr has referred to these rebels’ failure to pay the zakah (alms), which they paid to the Prophet. Instead of consistently using the language of apostasy (ridda, lit. reverting), Abu Bakr mostly referred to his opponents in these wars as “unbelievers.”7 Abu Bakr is reported to have given three options to these “rebels”: When you encounter the enemy, the unbelievers, God willing, call upon them to choose from one of three options. If they accept that, then accept their position and do not attack them. Call upon them to embrace Islam. If they accept that, then accept their embracing of Islam and do not attack them. Then offer them the option to move from their houses to the houses of the emigrants (i.e., join the community of the Prophet’s Companions).8 If they accept that, then tell them they are equal with the emigrants [the Companions who emigrated with the Prophet from Mecca to Madina]; they have the same rights and duties as these emigrants do. If they embrace Islam and choose to remain where they are, then tell them that they are equal with Muslim Bedouins: God’s law applies to them, and they do not deserve any of the spoils of war unless they join the army. If they refuse to embrace Islam, then call on them to make a tax payment (jizya). If they accept, then accept that from them and do not attack them. If they refuse, then seek God’s aid against them and fight them, with God’s permission.9

True, these reports may have come from a late date, since they smack of the complex theory developed in Islamic law about the “three options” given to the enemies at war: conversion, jizya payment, or war. At any rate, it is unlikely that a doctrine of declaring war on apostates could have developed at that early time. Some of the tribes Abu Bakr fought (especially those Arabs of Najd) had signed treaties with the Prophet, accepting his authority and the rules of Islam.10 These can be called apostates if apostasy is understood to be a rejection of Islam after accepting it initially, no matter

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how vague the concept of Islam in their mind at that time. (It is particularly this point, the vagueness of one’s position vis-à-vis Islam, that would become a central consideration in determining whether any alleged apostate was genuinely an apostate.) Some later jurists would consider the refusal to pay almsgiving on the part of all of Abu Bakr’s enemies a rejection of a basic religious duty, which amounts to a rejection of the doctrinal basis of that basic necessarily known duty (ma‘lum min ad-din bi-d-darura), but we have no evidence that this theory was developed at the time of the so-called apostasy wars. This is not to say that no jurist relied on Abu Bakr’s wars against Arabian tribes as a source for a law against collective apostasy. Shafi‘i jurists believed that collective apostasy should be punished by war,11 and that attacking apostate-rebels, whether these apostates are in a land adjacent to Muslim lands or distant from it, takes priority over engaging nonMuslims in war.12 Shafi‘i had argued that apostate rebels are similar to unbelievers in certain respects, which distinguish them from Muslim rebels (bughah). For example, apostates can be attacked even if they retreat from the battle scene, while Muslim rebels can be attacked only if they attack Muslim armies. Using fire against the apostates is permissible, while, in the war against Muslim rebels, fire cannot be used. But Shafi‘i also equated apostate rebels with Muslim rebels in ways that distinguish them from non-Muslim enemies of Muslim armies. For example, a peace treaty with the apostates cannot be concluded unless they return to Islam, while such a treaty with non-Muslim armies is acceptable, and jizya payment is acceptable only from non-Muslims, while an agreement with the apostates cannot be concluded based on their payment of jizya.13 Disagreement has arisen as to what Shafi‘i held about whether apostates or Muslim rebels should compensate for the property they destroy, and arguments for and against ranged from invoking precedents like Abu Bakr’s wars to rational arguments and arguments from expediency.14 It is important to note that the punishment for apostasy as an offense committed by a group was never mentioned in the Qur’an, while a punishment for rebels, known as the bughah, was mentioned (Qur’an 49: 9). Instead of considering Abu Bakr’s rebels a paradigm case for the “bughah,” the paradigm case for the bughah, according to Sunni jurists, were the Khawarij (Seceders), who rebelled against ‘Ali during his conflict with Mu’awiya in the 650s. At any rate, Abu Bakr’s wars against the apostates do not end up occupying a prominent position in juristic language about the punishment of apostasy as an offense by an individual. Sunni jurists would mostly resort to prophetic language in their treatment of the punishment of apostasy.

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The statements attributed to the Prophet about executing those who “change their religion” or “those who change their religion and abandon the community” may have been in circulation from the mid-eighth century. The general language of these texts seems to address both the “individual apostate” as well as apostasy as a collective form of rebellion. The lack of a general criterion of conversion from Islam, in these texts, remains their most significant quality. Around the same time these texts were circulating, Sunni Muslim jurists began to debate an offense of apostasy committed by individuals and disagreed as to whether they should punish male and female apostates similarly or differently, as well as other questions about who is an apostate and who is not. It will be upon Muslim jurists to develop a theory for apostasy identifying the constituents of the offense and the authority that justifies punishing it. MUSLIM JURISTS ON THE IMPLICATIONS OF APOSTASY IN A SOCIOLEGAL SETTING In their treatment of the subject of apostasy, Sunni Muslim jurists concerned themselves with the implications of being Muslim or non-Muslim, whether living in a Muslim society or outside of it. As Islamic law acknowledges religion’s penetration into the intrapersonal sphere, an individual’s decision to abandon their Muslim identity affects their actions prior to that decision. If this person acted as a Muslim and then was seen to have departed from their Muslim identity, their actions (marriage, will, contracts, etc.) must undergo reevaluation. Muslims incur duties and merit rights by virtue of their commitment to the religion of Islam, while non-Muslims are seen to be outside of this circle of rights and responsibilities. A Muslim, for example, pays almsgiving and taxes based on his or her income and property, while a non-Muslim pays a poll tax that was interpreted differently by different schools of law over the centuries (some saw it as a financial duty parallel to Muslims’ giving of alms, some as a compensation for not serving in the army). A Muslim man can marry a Muslim woman, while a non-Muslim man cannot. A Muslim does not inherit a non-Muslim relative, nor does a non-Muslim inherit a Muslim. There is also an intercommunal aspect to this question, since the jurisdiction of Islamic law is not restricted to a Muslim or non-Muslim living in a Muslim state. For example, what must be done with the property, inheritance, and social and financial commitments of an ex-Muslim who emigrated to a non-Muslim community is addressed by Muslim jurists. In sum, the Islamic juristic discourses on apostasy address personal identity of political and religious nature, as well as the larger questions

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of international order and community relations. The Uzbek Hanafi jurist Dabbusi’s (d. 1036) discussion of whether non-Muslims living in a Muslim community must abide by aspects of Islamic law makes this point.15 One could also consult Zanjani’s (d. 1258) treatment of the same topic to see that an apostate represents a status that raises questions about which rights and duties can be attributed to an individual who was (but ceased to be) a Muslim.16 These implications were an important discouraging factor in changing the status of a person from Muslim to apostate. This point cannot be taken lightly, and Ghazali, who emerges in Griffel’s article as a man with a desire to prosecute secret apostates to the full extent of the law, fully understood it. Ghazali, like other jurists, clearly understands that the implications of calling somebody an apostate for the law are practical and affect that person’s status in the society. In his Faysal at-Tafriqa Bayn-alIslam wa-z-Zandaqa (Distinction between Islam and Zandaqa or unbelief),17 Ghazali emphasized the legal ramifications of the ruling that somebody is a Muslim or not to indicate that he functions as a jurist as he attempts to provide an acceptable distinction between a heretic, who is still legally Muslim, and an unbeliever (or for Ghazali, a zindiq), who is not. True, Ghazali’s attempt at the conceptual distinction between a Muslim heretic and a zindiq shows the philosopher’s side of him, as he attempts to explain that a heretic might deny “one form of the existence” of the qualities of God, while acknowledging others, whereas the zindiq denies what amounts to God’s existence altogether (e.g., holding that the world is coeternal with God will amount to a denial of the very existence of God as creator). Yet, Ghazali cannot be taken to call for a revamping of the structure of whole societies, as the change of their status will demand a Herculean task he never set out to fulfill. Ghazali’s position must thus be reevaluated as a call to redraw the borders of the Muslim community, if necessary (and it is often not necessary as his acceptance of zanadiqa’s repentance shows). Ultimately, Ghazali’s distinction between a heretic and an apostate, however, fails to engage the legal discourse to consider a removal of any possible convolution between heresy and apostasy, which limited his influence on the Sunni juristic writings on apostasy. A SPECTRUM

OF

DEVIATIONS

FROM ISLAMIC

NORMS

Sunni Muslim juristic discourse on heresy and apostasy establishes a spectrum of “deviations” from normative Islamic beliefs, one that includes doctrinal heresy and apostasy. To these must be added the position of “original unbelief” or rejection of Islam without any history of believing in it. The different concepts of apostasy must be considered in light of the

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distinctions made among the different forms of deviation from the Islamic norms. Muslim jurists did not seem to attempt a decisive definition for apostasy in a way that prevents any flexibility in identifying an individual case of apostasy beyond doubt. This does not bespeak the impossibility of achieving such a goal, since Ghazali attempted it in his Faysal at-Tafriqa, and other (even more legally appropriate) criteria (such as investigating the alleged apostate’s position through further inquiry) can be articulated easily. One can see this juristic silence to be underlined by a sense of the inconsequenciality of individual apostates. The practical implication of this silence is an inevitable degree of room for judicial discretion in deciding specific claims of apostasy. Ghazali himself partly agrees with the desirability of questioning the occurrence of apostasy in specific cases in his treatise on creeds, al-Iqtisad fi-l-I‘tiqad, but he refrains from reconciling that with his unqualified attacks on the philosophers and the leaders of the esoteric factions. One is left with the impression that, for Ghazali, the danger of a philosophy that questions the basis of Muslim creeds cannot be tolerated, and that Ghazali could not find an excuse for these philosophers, since they seem to be deliberate in their effort to propagate their infidelity. Ghazali qualifies his attacks on the esoteric factions, however, in a significant manner, as we shall see. ZANDAQA

AND

ORIGINAL UNBELIEF

The zindiq was seen by most jurists as a class with an ambiguous relationship to apostasy rather than a synonym of apostasy, and the question of the zindiq has been posed in different terms at different times in Islamic legal and political history. Malik (d. 795) understood the status of someone who becomes a zindiq (yatazandaq) as someone who moves from one form of unbelief to another (kharaja min kufr ila kufr).18 Malik thus conceived of the zanadiqa as original unbelievers or scriptuaries (Jews or Christians) who later embraced other beliefs that are usually associated with believing in Manichaeism and with moral laxity, since Manicheans had a reputation for allowing incest. The possibility that an original Muslim would embrace these beliefs is thus not addressed in his opinion. Another understating of the zindiq was that he or she is someone with no religion who outwardly professes to be a Muslim.19 This is still different from someone who professes to be a Muslim while secretly holding another religion. Thus, a zindiq, in this sense, is not a crypto-Manichean or a crypto-Christian (or as al-Jahiz indicated, someone with confused influences from Indian religions); rather, someone with no specific convictions. One practical consequence of the distinction between an apostate

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and a zindiq is that the zindiq is not expected to clarify his views or declare his repentance, since his beliefs are ambiguous to begin with.20 The conceptual distinction between an apostate and an unbeliever is not hard to make: the former is a person with a history of being a Muslim who abandons Islam, while the latter has not embraced Islam at all. Thus, every apostate, as long as he or she is an apostate, is an unbeliever, but the opposite is not true. The unbeliever who is not an apostate can be a person with stable or changing beliefs that do not comply with acceptable Islamic creeds, and this status of being “unbeliever” offers him the protection given to all unbelievers in a Muslim society. The point is that an “original unbeliever” is not addressed by the juristic discourses on apostasy. Ghazali’s attack on the zanadiqa of his time, who professed to be Muslim but held various creeds that are incompatible with the Islamic creeds, recognized that these zanadiqa could have enjoyed the protection of being original non-Muslim (original unbelievers) in the Muslim society had they been original unbelievers. In his Fada’ih al-Batiniyya, Ghazali reported three views on whether the Batiniyya should be considered apostates, even if they do not seem to have any history of believing in Islam: If it was said: Why do you consider them (the esoteric sects) similar to the apostates? Whereas the apostates are those who accepted the correct religion and embraced it and then exited out of it, reverting and denying it[s truth], these were never committed to the truth; rather they grew up believing in these [un-Islamic] creeds. Why do not you consider these (esoteric sects) similar to original unbelievers? We say . . . As for those who grew up believing in these creeds as they heard them from their parents, then they are the scions of apostates, since their parents and the parents of their parents must be assumed to have believed in this religion after not believing in it, since this is not a religion that relies on the authority of a prophet and a revealed scripture, such as the beliefs of the Jews and the Christians. Rather, these are ‘new heresies’ (bida‘ mustahdatha) by the groups of the infidels and the zanadiqa in these recent times.21

The zanadiqa, in Ghazali’s mind, cannot enjoy the protection given to Jews and Christians and other original unbelievers since they have simply invented a new religion. Ultimately, Ghazali’s harsh assessment of the status of the zanadiqa is mostly influenced by his belief that they constituted a state within the state and became unpredictable players on the political scene and, after all, engaged in terrorism and assassinations, which created a significant degree of disorder.

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DOCTRINAL HERESY Sunni Muslim juristic literature distinguishes between two types of heresy: doctrinal (qawliyya, lit. verbal, since it is manifested by declaration of creeds) and action-based (fi‘liyya). Those who fall short of being apostates are considered heretics of the first type.22 Among the heresies that Ghazali attacks are those of the Mu‘tazilites, especially given their position on the attainability of moral knowledge through the unaided intellect. The Mu‘tazilites were hardly alone in the scene; voices of heresy abound. The Mu‘tazilites, after all, were not as radical as some philosophers like Razi (d. 930) who seems to have believed that knowledge is attainable by the unaided intellect, whether or not revelation confirms that knowledge.23 The heresy of the al-Warraq and Ibn al-Rawandi (ninth century) is of a different order. These, quite admittedly, unclear figures are reported to have adopted sophist methodology, at least in different stages in their careers, showing signs of dissatisfaction with many assertions in Muslim doctrines, including the very idea of revelation and the inimitability of the Qur’an.24 Farabi (d. 950) may have been the first systematic skeptic whose concern with political philosophy led him to consider “religion” as a way for communities to organize themselves. Religions come out of philosophies, which may be advanced or primitive, but religions can be nothing but a metaphorical expression of the truth that philosophy attempts to acquire.25 Examples of doctrinal heresy or bida‘ taken from early Islamic theological and philosophical debates continued to be given by later jurists. These, according to Ibn al-Bazzaz al-Kardari (d. 1424), include the belief that God possesses a body (though unlike other bodies), the belief that grave sinners are condemned to eternal residence in hell, and the denial of punishment in the graves.26 These beliefs would contradict the Maturidi confession to which the author subscribes. When Ibn al-Bazzaz sets out to explain what should be done with doctrinal heretics, he emphasizes that if individuals found a person with such heretical views, they must “guide him, and if he was a propagator of his heresy, they should prevent him from propagating it, and if they could not, they should elevate the matter to the judges so that they expel them from the town.”27 One unsuccessfully searches Islamic chronicles for evidence that many people have used Ibn al-Bazzaz’s last advice. When it comes to apostasy, Ibn al-Bazzaz asserts that if one can find different interpretations that confirm an alleged instance of apostasy and only one that raises doubt about it, then it must be assumed that apostasy did not take place, since this is not a matter that can be determined based on an accumulation of arguments.28 Ibn al-Bazzaz

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clearly thinks of the claim of apostasy as a grave matter, not unlike jurists before and after him. THE STRUCTURE

OF

JURISTIC DISCOURSES

ON

APOSTASY

I shall now briefly compare four treatments of the subject of apostasy in Islamic intellectual history—those of Shafi‘i, Ghazali, Ibn Taymiyya, and Ibn ‘Abidin (d. 1836). The first two of these four jurists have been treated elsewhere, where an argument that Shafi‘i’s concept of apostasy differs from Ghazali’s, as punishment of certain apostates (like the philosophers and zanadiqa Ghazali considers non-Muslim) would be possible only under Ghazali’s concept of apostasy, but not that of Shafi‘i, given his doctrine of istitaba (giving an opportunity to the alleged apostate to renounce his or her offensive remarks or actions before being subjected to any punishment for apostasy).29 I only need to note here that Muslim jurists before Shafi‘i have accepted the practice of istitaba, and it continues to appear in Sunni juristic literature long after Ghazali. The third of these four jurists, the Syrian Hanbali jurist Ibn Taymiyya, offered a particularly rich treatment of the subject of apostasy, with examples of apostates of different stripes and an elaboration of their beliefs and practices, as well as a discussion of the implications of their apostasy. Ibn Taymiyya’s tendency to elaborate (and occasionally digress) in his juristic oeuvre is due, at least in part, to the fact that he conceived of his juristic task as an assessment of the mainstream Islamic juristic tradition as it reached him in the thirteenth and fourteenth centuries. Ibn Taymiyya often critiques common juristic discourses and juxtaposes them with what he considers to be the path treaded by the first Muslim generations or the salaf—that is, those of the seventh and eighth centuries. Ibn Taymiyya’s understanding of apostasy covers spiritual and political deviations. While recognizing intellectual freedom in principle, he hesitates to allow devotional passion and theologico-political dissent that amounts to a rejection of the foundation of Sunni Islamic thought. However, Ibn Taymiyya remains loyal to the juristic position that apostasy is a grave matter, despite his insistence on a return to the ideals of the early generations of Islam as a “pure moment” in Islamic history, with defined orthodoxy and orthopraxy. At the end of the eighteenth century and the beginning of the nineteenth century came Ibn ‘Abidin, another Syrian, but Hanafi, jurist who offered one of the last juristic treatments of the subject of apostasy before the interaction between Muslim and Western societies in the modern era reached a level of complexity that made it impossible for historians to

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distinguish Muslim juristic views that are unaffected by modern ideas and ideologies. Ibn ‘Abidin is seen by his contemporaries as a master of Hanafi law and a mainstream jurist rather than a critic of the juristic tradition, such as Ibn Taymiyya. Close reading of works like his often allows the reader to question sharp distinctions between participants in a legal tradition and its critics, but the fact remains that Ibn ‘Abidin’s has been considered by traditional scholars of law over the past two centuries to be a masterful presentation that comprehended previous doctrines on the subject. Ibn ‘Abidin (d. 1836) hesitates both in ascribing apostasy and assigning punishment to alleged apostates. The category of apostasy, for Ibn ‘Abidin, is almost a theoretical category, since any doubt about whether the alleged apostates had a history of being Muslim and then reversed their identification with the Muslim community saves the alleged apostates from its punishment. Ibn ‘Abidin’s fears are directed toward the zanadiqa—that is, those who pretend to be Muslims while functioning as a fifth column amidst a Muslim society—but he sees them as original unbelievers rather than apostates. SHAFI‘I (767–820)

AND

APOSTASY

Shafi‘i’s Umm is, ultimately, a source of law that accounts for many views that were expressed by Sunni Muslim jurists in Iraq and Arabia in Shafi‘i’s generation and the generations preceding him (my personal view that al-Umm has been edited later than the first generation of the ninth century makes me also consider it a source of views that appeared after 820, Shafi‘i’s death year, but this is another matter). In Shafi‘i’s discussion of apostasy, despite the fact that it appears fairly early in Islamic legal history, one finds that the main questions of apostasy have already been defined. It was clear that disagreement would occur about the rationale of the punishment and that the distinction between male and female apostates would also to be debated. More importantly, it was becoming clear that a crime of apostasy would be defined only in general terms, awaiting judicial discretion for its application in specific cases. The Sunni juristic discourses on apostasy would continue to provide modifications to some of the specific consequences in the status of apostates and new arguments, as well as more nuanced positions in specific questions on the practical consequences of apostasy. In al-Umm, Shafi‘i argues that the condition of apostasy is a clear expression of a doctrine that is irreconcilable with Islamic beliefs, as opposed to holding these beliefs.30 Using a variety of arguments from the Qur’an, as well as precedents from the first generation of Muslims, he

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establishes that even if one suspects that an alleged non-Muslim uses the declaration of Islam to gain the benefits of being a Muslim, he or she must be granted the status of being Muslim.31 An alleged apostate needs only profess to be a Muslim, and even if evidence supports the allegation of his apostasy repeatedly, only a discretionary punishment may be instituted, rather than a condemnation to apostasy.32 Shafi‘i rejects the argument that an alleged apostate who embraces esoteric beliefs of zandaqa must be punished despite his or her declaration of being a Muslim (which clarifies that Ghazali was not the first to espouse this view three hundred years later) and cites agreement with his view from the jurists of Mecca, Madina, and the East (mashriqiyyin).33 GHAZALI (1068–1111)

AND

APOSTASY

Ghazali’s verdict on philosophers (declared in his Tahafut, or Incoherence of the Philosophers) was that they must be considered “unbelievers” if they hold any of three views: (1) the eternity of the world, (2) God’s ignorance of the particulars of the world, or (3) that bodies are not resurrected in the afterlife. In his Faysal at-Tafriqa Bayn-al-Islam wa-z-Zandaqa (The Distinction between Islam and Zandaqa), Ghazali asserts that different interpretations of “existence” and of the “existent” are expressed by different theologians whose Islam is not to be questioned.34 One may then disagree with the more commonly held or the better interpretation of Muslim beliefs about God’s existence and qualities and still be a Muslim. One has to go so far off the mark to qualify as a denier of Muslim beliefs. Consider these three grades of deviation from Muslim beliefs Ghazali delineates in Faysal a-Tafriqa.35 First is the view of the Mu‘tazilites, who apply their rational arguments to interpret the revelation in what he considers unacceptable ways. Second is a stage between the first and the third one, which is the first grade of zandaqa, such as the belief that the Prophet would have his followers believe things like the resurrection of the bodies in the afterlife, without these being literally true (note Farabi’s thesis that religious doctrines are metaphorical expressions of philosophical truth). The third and last stage is that of denial of Islamic beliefs, which is the position ascribed to the philosophers and the zanadiqa. In his Fada’ih al-Batiniyya, Ghazali produces a more elaborate juristic treatment of the subject of apostasy. In this text, he addresses the distinctions between leaders of apostate-groups and “followers” who may have been duped into holding the incorrect creeds the leaders taught. To these followers, only heresy can be attributed, since they are laypeople, even if they believed that the majority of Muslims are indeed usurpers of rightful power (ahl baghy) who disagreed with the rightful leader of the Muslim

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community.36 Even those who believed that the first two leaders of the Muslim community (Abu Bakr and ‘Umar) were grave sinners, all that can be proven in their case is heresy (thus, Shi‘i commoners are only heretics).37 Ghazali applies the same standard to the commoners among the zanadiqa that he consistently attacked. It is not true that Ghazali absolutely rejects the repentance of these groups—he divides them into three groups. The first group includes those who reject their previous beliefs without war. These should be forgiven, since people often realize the faults of their ways and repent without fear of force. The second group includes those who repent to avoid death. These should also be forgiven, as long as they are not feared to continue to spread their faulty ideas later (i.e., become preachers man lam yakun mutarashshihan li-dda‘wa). The third group includes those who do not believe in the correctness of the view they seem to espouse but use these views for to seek leadership position. This group may not be forgiven right away nor punished right away, but the political leader must make a decision about them on a case-by-case basis.38 IBN TAYMIYYA (1263–1328)

AND

APOSTASY

Five years after the Mongols sacked Baghdad (in 1258), Ahmad ibn ‘Abd al-Halim ibn Taymiyya was born in Harran, Syria. Many commentators on Ibn Taymiyya’s life made his milieu a “sufficient reason” for the sternness for which he came to be known. At any rate, it is indisputable that Ibn Taymiyya was unique in his disenchantment with the political authorities, the leaders of popular spiritual culture, and the intelligentsia. Ibn Taymiyya’s dissenting position, however, was not (for the most part) an incentive for him to accept dissent. He combined a strong disliking for disorder and unreasoned dissent with a firm belief that academic circles should be granted the freedom to express dissent. In this, he was not unlike many Sunni jurists. Ibn Taymiyya’s treatment of the subject of apostasy in volume thirtyfive of his responsa or Fatawa39 is particularly rich, given how he conceived of his juristic work as an assessment of the broad range of juristic production during the centuries that separate him from the first Muslim generations (the salaf of the seventh and eighth centuries). Ibn Taymiyya may have been a revisionist in his treatment of the laws of rebellion (ahkam al-bughah), where he condemns both political rebellion and the legitimization of combating rebels by war. 40 But in the questions of apostasy, his treatment does not deviate from the common position of acknowledging the difficulty of deciding specific cases of apostasy. Ibn

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Taymiyya’s distinctiveness was in another area in his juristic discourse: he seems to endorse “religious war” against deviant sects, such as the Isma‘ilis, while remaining conservative in assigning the label of apostasy to individuals. Ibn Taymiyya asserts that declaring somebody an apostate on the basis of this person’s opinion is unacceptable.41 He further warns against encouraging laypeople to declare scholars infidels because of these scholars’ views. An example of these is Ghazali’s view that the Prophet Muhammad made a mistake in the famous story of Ta’bir, which goes as follows. The Prophet noticed that the people of Medina (the Prophet’s adopted hometown after he fled his birth hometown, Mecca, in the year 622) applied a technique in pollination for palm trees, heretofore unfamiliar to him, where the farmers hit the branches of the trees against one another to improve the harvest. For some reason, the Prophet asked the farmers to refrain from that practice, and as they followed his commands, the harvest was apparently hurt badly. The reason the farmers followed the Prophet’s orders was their belief that he spoke based on divine revelation, an impression the Prophet himself contradicted. The Prophet is reported to have said, “You are more knowledgeable about matters pertaining to your daily life.” Ghazali, not unlike other theologians, infers from that story the fallibility of the Prophet in worldly matters. Ibn Taymiyya reprimands those who indulge in attacking Ghazali by pointing to the fact that he is not an aberration in his opinion (indeed, Ghazali’s view was also that of other theologians who stated that the Prophet makes mistakes, just like everybody else, but revelation does not leave his mistakes uncorrected, while others’ mistakes remain uncorrected, as none of them can truthfully claim to be in contact with that source of revelation.) Ibn Taymiyya here acknowledges a scholar’s right to develop his own opinion. This right, for Ibn Taymiyya, is limited to scholars who have acquired the tools for this intellectual activity, which Ghazali possesses. The fact that those with limited knowledge of the matter have failed to recognize the legitimacy of Ghazali’s view does not give them the right to attack Ghazali, which leads Ibn Taymiyya to defend him. By contrast, Hallaj’s (d. 922) ecstatic apostasy did not receive the same measure of acceptance by Ibn Taymiyya, who shows no sorrow for Hallaj’s execution.42 Hallaj’s case is a famous case of “religious passion,” but his failure to refrain from using expressions that made others consider him an unbeliever (as he seemed to confuse himself with the Creator Himself) left him unexcused in Ibn Taymiyya’s eyes. Why is Hallaj’s ecstatic longing for the Divine, that made him experience “annihilation” in God, less respectable that theologico-juristic opining (like Ghazali’s)

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that may, in some views, amount to disrespect for the Prophet of Islam? For Ibn Taymiyya, the need to express religious passion is much less important than the need to explicate religious doctrines or contribute to a juristic debate. Hallaj did not need to teach others his ideas about how to worship God through total annihilation of the self into the Divine, since this (annihilation) can mean different things to different people, and clearly diverges from the straightforward language of Scripture that distinguishes between the Divine and humans. Just as expressing personal passion for the Divine might lead to abandoning the correct faith, so do religio-political sectarian doctrines that purport to be part of the Muslim doctrines, but end up creating a parallel system of beliefs that diverges clearly from Islamic “orthodox” beliefs. Ibn Taymiyya condemns Isma‘ili Fadimid leaders such as al-Mu‘izz li Din Allah al-Fatimi (d. 975).43 Al-Mu‘izz’s claim of “hidden” knowledge amounts to, for Ibn Taymiyya, abandoning the correct Islamic beliefs for personal preference. Ibn Taymiyya also condemns the Druze,44 whose origin can be traced to another Fadimid ruler, al-Hakim (d. 1021). A teacher by the name ‘Abdullah or Muhammad al-Darazi (d. 1020) preached in Syria that al-Hakim was the end of a line of nobles who could be seen as an incarnation of God, which line begins with ‘Ali Ibn Abi Talib (d. 661), Muhammad’s cousin and son-in-law (sources tell conflicting stories about al-Hakim’s approval of Darazi’s teaching). For Ibn Taymiyya, are already far removed from correct Muslim doctrines and cannot be seen as Muslims (today, the Druze would refer to themselves as simply monotheists [muwahhidun] rather than Muslims). Ibn Taymiyya thus expresses a measure of intolerance about political and spiritual dissent, while defending scholars’ right to dissent as part of their theological and legal deliberation. However, for Ibn Taymiyya, mere faith in times of “religious indifference” is sufficient in guaranteeing salvation from hell,45 and anyone with even a small measure of faith is guaranteed to escape perpetual residence in the hellfire.46 (Ibn Taymiyya also cautions that no one should believe that the mere statement of the correct faith guarantees entry to paradise).47 Furthermore, inadvertent errors about what is correct Islamic doctrine (a position into which even the Prophet’s Companions have occasionally fallen) are forgivable.48 Ibn Taymiyya’s tolerance with well-intentioned (ignorant) individuals stands, in his view, in contradistinction with “willful” deviation from the straight path of Islam.

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AND

IBN ‘ABIDIN (1784–1836)

EVERYDAY LIFE

AND

APOSTASY

In Ibn ‘Abidin’s chapter on apostasy in his commentary Radd alMuhtar,49 the punishment of the apostate with ambivalence, mostly through assertions of the difficulty and awesomeness of the decision of punishing somebody by death because of a position they may or may not have intended to take. Ibn ‘Abidin establishes the principle that one must avoid declaring somebody a non-Muslim based on this person’s utterances, since these can be interpreted differently by different audiences, and if one can interpret them in a manner consistent with this person’s Islamic identity, one must do so.50 Ibn ‘Abidin’s hesitation to punish the apostates, however, finds an exception in the case of those who are accustomed to claiming they are Muslims while hiding disrespect for the doctrines of Islam and violating them.51 If these are the zanadiqa, then Ghazali’s assertion that secret apostates are punishable by death has triumphed. But, again, applying a general category to specific cases shows the difficulty of employing general categories without attention to the details of their application. Take the Druze, an example of communities that lived among Muslims—not as original non-Muslims, such as Jews or Christians—but benefited from holding beliefs similar to those which Muslims hold. For Ibn ‘Abidin, the Druze are neither Muslims nor apostates.52 Their status more closely resembles that of neighboring non-Muslim communities (the Druze often lived in mountainous areas and rarely mingled with urban or suburban populations). Not only that, Ibn ‘Abidin accepts a de facto coexistence of the Druze among Muslims with their partial identification with the Muslim faith. According to Ibn ‘Abidin, a Druze court decision is binding among his people.53 When it comes to the Wahhabis (the followers of Muhammad Ibn’Abd al-Wahhab [1699–1766]), Ibn ‘Abidin considers them the “Khawarij” (seceders) of his time,54 as they rejected the acceptable leaders of the Muslim community in their time and declared their opponents non-Muslims. Wahhabism remained an underground movement but became politically active toward the end of the eighteenth century. The Wahhabis attacked the Ottoman-appointed prince of Mecca in 1791 for the first time and were able to enter it in 1803 to disseminate their beliefs. The city ultimately surrendered to them in 1805. Ibn ‘Abidin does not consider these actions a sufficient basis for considering Wahhabis nonMuslims. In identifying what was wrong with both Wahhabis and Kharijite religio-political aberration in their Muslim communities, Ibn ‘Abidin ignores the fact that ‘Ali’s opponents include Mu’awiya’s followers who began in the opposition and ended up being the mainstream of the

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Muslim community since the seventh century (now referred to as Sunni Muslims). Ibn ‘Abidin’s interest in the applications of one’s status as Muslim or non-Muslim is paramount. He classifies an apostate’s actions into (1) actions that must be validated, (2) actions that must be invalidated, and (3) actions whose validation hinges on the apostate’s recovery of their Islamic faith—here, Hanafi jurists disagree with regard to some actions, with some of them considering these actions valid, and some considering them contingent on the apostate’s recovery of their Islamic faith and deals with examples of these.55 Much of the discussion about apostates in Ibn ‘Abidin’s writing concerns the civil implications of their apostasy rather than their possible punishment, a quality that can be traced back to the early Hanafi treatments of the topic, such as that by Shaybani (d. 805). DOUBT ABOUT

THE

ALLEGATIONS

OF

APOSTASY

Sunni Muslim jurists have struggled to identify examples of apostasy that cannot be debated. In addition to the already mentioned requirement of a demonstrated belief and acceptance to carry out Islamic religious practices before debating an offense of apostasy,56 it remained to be established that the action purporting to be an act of apostasy was unambiguous. It seems that accusing groups of Muslims of being apostates was made from time to time. The behavior of Muslims living among a majority of non-Muslims has stirred accusations of this nature, since Muslims who lived in areas that are inhabited by many non-Muslims, the behavior of these Muslims was different from the behavior of Muslims living in a majority Muslim society and could be mistaken for an expression of apostasy. Yet, jurists did not stand for the confusion of difference in culture with a clear conversion from Islam to another religion. The accusation of these Muslims of being apostates was condemned by Ibn al-Bazzaz in no uncertain terms.57 Some of the examples of ambiguity of the position of the apostate indicate Muslim jurists’ awareness that common parlance includes expressions that are not meant to be a rejection of the Islamic teachings or the authority of the Prophet of Islam, but are only rhetorical expressions of the rejections of suggestions made in a conversation—that is, one might reject a suggestion to do act X, even if God or the Prophet asked for it, and this, by itself, does not count as a rejection of God or the Prophet. Thus, if somebody says, “I would not do such and such, even if the Prophet came to me and asked me to do it,” cannot establish apostasy.58 Furthermore, Muslim jurists also accepted another caveat. When regular people accused others of apostasy, they may have misinterpreted their

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behavior for disrespect of the Islamic teachings or authority, when their behavior could be interpreted in a different way. Thus, when somebody laughs at a statement expressing unbelief or ridiculing some of the Islamic doctrines, this may simply be a natural reaction to the joke rather than an indication of sharing these disrespectful views.59 GHAZALI’S CONTRIBUTION The disagreement about who is an apostate seems to have reached a degree of maturity and complexity before Ghazali came to the juristic scene. But another important fact was that Muslim jurists did not need to argue that a group of rebels are apostates to argue for the legitimacy of combating them. The laws of the bughah, or rebels, have been developed into a theory that allows the political authorities to punish rebels without considering them unbelievers. Further, the istitaba of Shafi‘i (or the opportunity to repent) was not only applied to apostates—in fact, Malik applied it to rebels who were admittedly Muslims. Malik also believed that these rebels must be attacked militarily (like the apostates of Abu Bakr’s time), not as a punishment for their unbelief, but in order to “neutralize their corruptive influence” (daf‘an li-fasadihim la li-kufrihim).60 Ghazali, however, attempted a twofold contribution to the juristic discourse on apostasy. First was his association of unbelief (kufr) with zandaqa (a matter contested both before and after he wrote), and second was his attempt to distinguish apostasy from mere heresy. Ghazali, indeed, was aware of what he was doing; he knew that if he succeeded in including both the philosophers and those who hold esoteric beliefs among the apostates, his attacks on both the philosophers and the esoteric factions would be most successful. Ghazali also attempted to provide clear definitions that distinguish doctrinal heresy from apostasy in his Faysal. However, Ghazali ultimately failed on both counts. He failed in changing the tenor of the juristic discourse, and the zanadiqa continued to be an elusive term used differently by different jurists,61 and the elasticity of both the concepts of apostasy and heresy survived despite his Faysal. Ghazali’s double attack on philosophers and esoteric factions betrays an awareness of the influence philosophers like Farabi (d. 950) have (inadvertently) exercised on the formulation of Isma‘ili cosmology.62 In fact, he states that a potential connection between the esoteric movements (on the one hand) and Dualism/Manichaeism (al-Thanawiyya) and philosophers (on the other).63 But this adds no clarification to the position of either the esoteric or the philosophical “deviant” with respect to the gradations of heresy and apostasy.

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Ghazali’s examples of what constitutes unbelief have certainly penetrated into juristic writings about apostasy (for example, jurists begin to state that those who believe that the world may have existed eternally are unbelievers). However, in the same juristic works, one reads that an apostate who reverts to Islam and then back into unbelief, and so on, must only be punished for his vacillation (as a crime of ta‘zir).64 The significance of Ghazali in Islamic intellectual history cannot be disputed, but his influence on the Sunni juristic discourse on apostasy may be exaggerated. Ghazali’s contribution to the Sunni juristic discourse on apostasy, as I stated, includes a trilogy: (1) an attack on the philosophers known as Tahafut al-Falasifa (Incoherence of the Philosophers), where he accuses them of infidelity if they believe in the eternity of the world or God’s ignorance of the particular events of the world or deny bodily resurrection in the world to come, (2) an attack on his contemporary Isma‘ilis in his Fada’ih al-Batiniyya (Scandals of the Esoteric Factions), where, writing almost as a political advisor, he held their leaders to be infidels in addition to being a source of sedition, and (3) an attempt at providing a conceptual distinction between doctrinal heresy and apostasy while equating the concept of zandaqa with apostasy in his Faysal atTafriqa Bayn-al-Islam wa-z-Zandaqa (Distinction between Islam and Zandaqa/Unbelief), which is a philosopher’s contribution to a legal matter. The Sunni juristic discourse on apostasy was neither influenced by Ghazali’s attempt to provide a decisive conceptual distinction between apostasy and doctrinal heresy, nor by his equating of zandaqa and apostasy. Sunni jurists referred to examples of apostasy that Ghazali provided, but did not seem to agree with his ambition of resolving the question of apostasy and distinguishing it from heresy once and for all, which left deciding who is an apostate in specific cases a matter of judicial discretion. Ironically, Ghazali influenced the juristic discourse on apostasy in a manner he himself may not have intended. Ghazali’s attack on the Isma‘ilis (who are identified as part of Shi‘i Islam) paved the way for a return to Ibn Hanbal’s (d. 856) anti-Shi‘i sentiments, further developed by Ibn Taymiyya in the fourteenth century. CONCLUSION The application of a punishment of apostasy to specific individuals before a Sunni court of law included a large measure of judicial discretion. The Sunni judge had to undo any possible conflation between a claim of apostasy and a claim of doctrinal heresy in the case before him. The Sunni judge also had to decide whether there was any question the alleged apostate may be an original unbeliever who never fully embraced Islam. These two

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issues apply to individual apostates. As for declaring war as a punishment for apostasy, one must consider another set of facts, notably, the availability of a punishment for political rebels who were considered Muslims. The collective punishment of apostates by war remains the least sufficiently theorized aspect of the Islamic juristic discourses on rebellion, a situation that obtained before and after Ghazali, which allowed for a larger use of the laws of Muslim rebels (bughah) by Muslim rulers. This fact will be part of the explanation for the fact that a frequent application of the laws of apostasy was not needed. I must now address a natural objection to the argument I developed here: the argument seems to either deny or play down any change in the discussion of apostasy in Sunni Islamic law. Fear of finding general themes shared by Muslim jurists is understandable, since this seems to take us in the direction of essentializing aspects of Islam law and Islam itself. But a reader of juristic and historical treatments of apostasy in Islam cannot help noticing that the theories of what apostasy is has evolved out of an implicit assumption about the spectrum of deviations from Islamic norms, while different positions in relation to that spectrum could be debated. Of course, a modification of the theoretical framework is always possible, but jurists must feel a need for that in order to carry it out. In a study of the historical evolution of these structures, any change in the level of theory or practice must be demonstrated rather than assumed. In the case of apostasy, the three categories of “doctrinal heresy,” “apostasy,” and “original unbelief” have been identified and debated even before Shafi‘i. Ghazali could have debated the adequacy of the structure the theory provides or the position of major categories falling into that structure. Ghazali chose to debate the uncertainty inherent in the concept of apostasy because of its conflation with doctrinal heresy. With few exceptions, such as Ibn Taymiyya, Sunni jurists, on their part, chose to ignore this contribution. Sunni juristic discourses continued to insist on the difficulty of resolving the distinction conceptually, and left the practical question of how this will apply in specific cases to be answered on a case-by-case basis.

C

H A P T E R

7

THE RIGHT

TO

PRIVACY

TO BE ABLE TO JUDGE THE EXTENT TO WHICH THE INDIVIDUALS in a given society enjoy a good measure of privacy, one has to thoroughly analyze many aspects of social life in that society. One may choose to confine oneself to an inquiry into the extent to which the law governing that society protects the privacy of its individuals. In this case, one must deal with laws governing property, contracts, crime, and other aspects of public and private life in that society. But this should not be limited to an analysis of legal writings directly concerned with the concept of “privacy” if such a concept is part of the legal jargon used by lawyers and jurists in the society. Even total lack of such a concept in the legal jargon does not indicate the absence of law’s protection of privacy. This is hardly a peculiarity in Muslim societies or the Arabic language. The language of ancient Egyptians, whom Herodotus noted were the most religious of poeples, did not posses an equivalent for our word religion. This chapter will show that this proposition, which I take to have a certain intuitive and logical force, may be strengthened by studying how a given legal system that has not integrated a well-defined concept of privacy into its legal vernacular has offered protection to the privacy of those governed by it. In this case, I mean the Islamic legal system. In the course of the argument, we will note the limitations of a comparativist approach to issues such as privacy, ones that use a concept of privacy that is known in one legal system as a criterion to judge the extent to which privacy is valued in the society and law in another. Let it be clear from the outset, however, that the chapter does not attempt to offer a comprehensive answer to the question of the extent to which Islamic law protects the individual’s privacy. I shall start by dealing with the conceptual difficulty inherent in addressing the issue of the protection of privacy, a difficulty that has

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(chiefly) to do with the elusive nature of the concept of privacy itself. I shall then demonstrate that the right to privacy in Islamic law and the principles that define its boundaries are rooted in the textual sources of Islamic law, the Qur’an and the Sunna (Tradition) of the Prophet Muhammad. I shall also show how the political authorities in the early Muslim state and the Islamic law of evidence have acknowledged this protection for the individual’s privacy. A MULTIFACETED PROBLEM The concept of privacy is admittedly elusive. People would agree that, in a civilized society, the privacy of the individual must be protected, but whether they would agree upon the limits of privacy is a separate question. Neither a universal right to privacy nor one that can be fixed within one society over time is available. A concept of privacy in currency within a given legal system at a given stage in its development must differ not only from the concept of privacy in use by lawyers of another legal system, but also from the concept of privacy known to lawyers of the same legal system at a different stage in its development. One must simply take for granted the elasticity of the scope of privacy as well as any concept or definition meant to capture its essence. Given the dialectical nature of the relationship between legal rights and the social realties in which they apply, one could safely assume that the elasticity of privacy rights is both a reflection and a source of the elasticity of the limits of private life. A historian of private life has concluded that private life is not something given in nature from the beginning of time. It is a historical reality, which different societies have construed in different ways. The boundaries of private life are not laid down once and for all; the division of human activities between public and private spheres is subject to change. Private life makes sense only in relation to public life; its history is first of all the history of its definition. Furthermore, disagreement will arise as to what creates a right to privacy: whether it is the occurrence of an act that must be considered private by nature, the fact that this act occurred in a “private” place or something else (perhaps the relationship between those involved in a given act?). (Aries and Duby 1991, 3)

Though fairly plausible, proposing that privacy is a property of certain activities that are, by their nature, “private” faces some difficulties, since frequent occurrence of so-called private acts in public places raises doubts about the adequacy of this criterion. Private acts may be private by nature

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and therefore not contingent in their privacy on where they occur, but the fact that they are “private” makes us think, after all, that “private” places are their natural environ. On the other hand, defining the right to privacy in reference to private places only is not less problematic—it creates an artificial distinction between two identical acts when one takes place in a private setting and the other occurs outside of that setting. Why should the privacy of two people having (what they call) a private conversation be more private when it takes place in their home than when it takes place on a street side? It is at least an exaggeration to say, for example, that people relinquish their privacy completely when they have private conversations in public places. PRIVACY,

THE

RULE

OF

LAW,

AND THE

LAWS

OF

EVIDENCE

Whether it is explained in reference to acts, places, a combination of the two, or something altogether different, privacy rights cannot be an excuse for violating the law in the private sphere. The very existence of family law is proof that people’s private life is not above legal supervision. In many cases, the law may force married and divorced couples, for example, to disclose negotiations about prenuptial agreements and divorce settlements that have taken place in private environments, even if these were not intended to be disclosed to the authorities. Moreover, it is known that searching private environments for legal evidence relevant to criminal or civil cases occurs in societies that acknowledge and respect the right to privacy. This is so because unlawful activities, such as drug abuse and domestic violence, do take place in private environments, and no legal system would grant an all-encompassing protection of privacy that turns the law itself inept or inapplicable in private environments. If the law is to be an effective tool in achieving its goals, law’s application cannot be suspended in the private sphere by a right to privacy. Nonetheless, the right to privacy cannot be abridged whenever suspicion arises as to the violation of the law in the private sphere. Respect for people’s privacy and the rule of law must therefore be balanced against one another, which—indeed—is often a hard balance to achieve. On the one hand, one should like to make sure that if drug abuse (for example) is prohibited, the privacy of drug abusers is not protected—such protection would undercut the very prohibition of drug abuse. On the other hand, a claim that a violation of the law took place in a private setting may be untruthful. The difficulty here stems from the fact that the two desirable ends of enforcing the law in public as well as in private settings and respecting the privacy of private places do not seem to be readily reconcilable.

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The apparent clash between the protection of privacy and the enforcement of the law in private settings raises interesting questions relevant to the law of evidence in particular. When drug abuse, for example, takes place in a private environment, the people who happen to be present in the private place where this offense occurred represent the only chance (beside the confession of the abusers) that the criminals be convicted and punished. So, what should we do? Should the witnesses be prevented by the law from delivering her or his testimony for the sake of protecting the privacy of the one suspected of that offense? Or, alternatively, should the suspect be given (what is called) an evidentiary privilege allowing her or him to prevent those who intend to testify against her or him from delivering testimony for the same reason? Or, should privacy take a back seat in order that the rule of law receives more attention? Different legal systems would deal with these questions differently. Some would prevent the delivery of such a testimony regardless of the choice of the suspect and make it the duty of the court to keep such witnesses off the stand. Some would leave it up to the accused to decide whether to allow such a testimony to be delivered. And, yet, other legal systems may disregard the relevant right to privacy and allow the witnesses to deliver their testimonies. The interesting point is always how balance is struck between the right to privacy and the rule of law in a given society. Where does the law draw the line between desirable protection of privacy and its abuse resulting in the obstruction of justice? And how does this tell us something about the degree to which the individuals governed by such a law enjoy the right to privacy? PRIVACY

IN

AMERICAN LAW

Despite the difficulties involved, our inquiry has to offer a delineation of some concept of privacy. To an Anglophonic audience, the U.S. Supreme Court’s decisions in what came to be called the privacy cases offer a point of departure. The U.S. Supreme Court is entitled to identify the general scheme of protected constitutional “rights,” and the definitions of the right to privacy included in the court’s recent decisions provide a good basis for understanding what a right to privacy means at this stage in the development of American law. In its decision in Griswold v. Connecticut (1965), the U.S. Supreme Court spoke of privacy as a liberty interest granting the individual a group of rights to be exercised within her or his private home and in other private circles (clinics, law offices, etc). These privacy rights, the court asserted, might not be infringed upon by either the state or other individuals.

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Thus, in the context of the American legal system, one may speak of the right to privacy or, alternatively, of privacy rights. According to another decision by the Supreme Court—Planned Parenthood of Southern Pennsylvania v. Casey (1992)—privacy rights encompass two groups. The first group includes those rights that are based on respect for the individual’s bodily integrity, such as the right of a pregnant woman to exercise discretion in deciding whether to abort her fetus, especially during the early stages of her pregnancy (see also Roe v. Wade [1974]). The second group comprises those rights compatible with the individual’s freedom to act in her or his private environment as she or he pleases, including deciding matters that affect her or his personal life. An application of this aspect of privacy is preventing the state from regulating procreation (for example, by prohibiting the sale or use of contraceptives), whether by married or unmarried couples (Eisenstadt v. Baird [1972]), since the decision to procreate or not to procreate is an aspect of people’s “private” life. Other aspects of privacy rights permeate American civil law, criminal law, and the law of evidence. A right to privacy that has been stretched to justify women’s right to choose whether to abort or not to abort their fetuses may arguably be seen as quite broad. But, as I have noted, the expansion or erosion of privacy has to do with many aspects of social life and not only with how the law governing a given society defines (widely or stringently) the term “privacy.” I will mention only one application of that in American society, where the media and the cinema industry are used as tools to aggressively promote tolerance about sexual preference. In the United States today, there exists what Thomas Nagel called a “shredding” of public privacy, where, for example, almost any public figure, especially a candidate for public office, expects to have to answer questions about his private (e.g., sexual) life in front of large crowds, if not on national television. This anomaly between a broad right to privacy such as the one acknowledged by the Supreme Court and the erosion of privacy in public life is instructive. The breadth of the right to privacy acknowledged by the U.S. Supreme Court does not guarantee that basic aspects of privacy are protected. True, these eroding or eroded aspects of privacy may be seen as the core of the concept of privacy by the U.S. Supreme Court (the argument made for a right to abortion based on it, for example, is that women’s right “to choose” is a ramification of their right to keep their communications with their doctors private). However, whether or not people choose to enjoy this core of privacy hinges on other factors. In the remainder of the chapter, I will focus on this core of the right to privacy or the right to keep the content of one’s private life private.

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PRIVACY

IN ISLAMIC

AND

LAW

EVERYDAY LIFE

AND

CULTURES

Although, as stated earlier, the concept of privacy has not been introduced as a distinctive, well-defined legal term in Islamic legal manuals, Islamic juristic language indicates that the privacy of the individual constituted one of Muslim jurists’ concerns. In Islamic legal manuals, one finds reference to texts from the Qur’an and the Tradition of the Prophet Muhammad that establish aspects of what we call the right to privacy, legal rules that are explained in reference to privacy, and a family of legal rules that serve the purpose of protecting the individual’s privacy, whether or not they are designed for that purpose in an explicit manner. In my examples, I shall confine myself to Sunni Islamic law. But a brief word about the concept of law in Islam may be needed before I go any further. The concept of law in the term “Islamic law” does not find an equivalent in the concept of law as applied to any modern legal system. Whether it is meant to indicate the whole legal system or the prevailing legal doctrine, law, in the modern context, is narrower in scope than law in the Islamic context. For one thing, the subject of law in Islam is human actions—all human actions. Islamic law assigns one of five value judgments to all human actions: these are prohibited (e.g., theft), reprehensible (e.g., wasting time), recommended (e.g., charity), obligatory (e.g., daily prayers), or, simply, neutral (e.g., traveling for pleasure). When one fails to fulfill an obligation, or when one violates a prohibition, the individual is exposed to God’s punishment, while divine reward is given to those who (1) carry out an obligatory or a recommended act, and to those who (2) refrain from what is prohibited or reprehensible. Actions classified as neutral lose their neutrality when they are accompanied by an intent that modifies their neutral status (thus, they become either desired or undesired, based on whether they were done for good or bad ends). Another difference between law in Islam and law in a modern legal system concerns what is referred to as the political nature of the phenomenon of law, especially in modern societies. Islamic law is assumed to exist regardless of any governmental enforcement—that is, since the law in Islam is the result of a process of legal hermeneutics (relying mainly on knowledge of religious texts and social reality), a competent, trustworthy jurist could “enact law” that becomes the duty of pious people to follow, regardless of governmental enforcement or lack thereof. Punishments and remedies imposed by the government in a Muslim society do exist but are not the only indication of the existence of law in Islam. Some of what is seen as part of the law in Islam cannot (really) be imposed by anybody

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other than those who apply it to themselves (such as the duty of fasting in the month of Ramadan). These two differences are of particular relevance to our discussion of the subject of privacy in Islamic law and cultures. The fact that all human actions are under the jurisdiction of the law in Islam, coupled with the doctrine that Muslims are enjoined to encourage good acts and discourage evil ones (al-amr bi-l-ma‘ruf wal-nahy ‘an al munkar), has given some authors the impression that the individual’s privacy in a Muslim society must be meager—at least compared to its counterpart in a modern Western society. This reasoning suffers from two deficiencies. First, it does not account for the fact that this law’s application is not contingent on enforcement by a state, as we said, which places a question mark on assuming a necessary connection between the illegality of certain aspects of people’s private life and state intervention in those aspects. Second, it ignores the fact that intimate aspects of private life that Islamic law regulates (such as sexual relations) can be disputed in a court of law only after especially high standards of evidence are satisfied (e.g., Muslim jurists agree that only four witnesses who are willing to testify that they have witnessed the act of sexual intercourse between two adults may be considered sufficient evidence in a case of adultery). When a testimony that does not meet these standards is delivered, those who have delivered it are punished as slanderers. These facts must be taken into account before a conclusion is made about whether regulating aspects of private life in Islamic law indicates its lack of respect for privacy. Another erroneous inference from the fact that Islamic law regulates aspects of people’s private life is to say that matters such as sexual relations must not be seen as private by nature in Muslim cultures. This also assumes a necessary connection between law’s jurisdiction over private matters and the very characterization of private matters as private. Islamic law considers extramarital sexual practices illegal, not because these acts are not “private” by nature in an Islamic culture; rather, these are illegal despite their “private” nature. The fact that the argument for privacy rights (in the U.S. Supreme Court decisions, for example) has been that private matters should not be regulated does not entail that a legal system that deregulates them will offer more privacy than any other that regulates private matters. But even the promise never to regulate private life (in these general terms) cannot be (and indeed was not) fulfilled by the American or any other legal system, for reasons at which we hinted in the previous section. In short, the comprehensiveness of Islamic law, as described above, should not be taken to stand in contradiction to the notion of privacy.

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Indeed, for something to be nobody’s business is a basic element of Islamic cultures. The Prophet of Islam is reported to have said, “It is a sign of the believer’s good faith that she/he does not intervene in that which does not concern her/him (min husn iman al mar’ tarkuhu ma la ya‘nih),” and as a child growing up in Egypt, I always heard people reiterating the statement (rhyming in the Arabic) man tadakhkhala fi ma la ya‘nih sami‘a ma la yurdih (he who interferes in what is not his business, hears what he does not like to hear). The issue of privacy is so multifaceted and elusive that attempting to make generalizations about it must be grounded in cumulative research that is based on abundant data. An aspect of how Islamic law offers protection for privacy, which may not be readily obvious, is what Muslim jurists call huquq al-irtifaq (liberty interests attached to the right of property), where these jurists discuss whether a tenant can enjoy the right to pass through others’ property that leads to his or her property. In these discussions, one will find explicit emphasis on people’s right to enjoy their personal and family space without restrictions imposed on them from outside forces, whether represented by the government or their neighbors or others. But even careful mining of legal manuals for indications of privacy-promoting principles is not sufficient. For comprehensive work on privacy in Islam to be done, history sources must also be consulted to examine the extent to which the impressions drawn from legal manuals are reflected in everyday life. All this must be taken into account before attempting to propose a generalization about privacy in Islamic law and cultures. PRIVACY IN ISLAM: SOURCES AND GENERAL PRINCIPLES One must note that all religious texts from the Qur’an or the Sunna lie at the highest level of authoritativeness as sources of law in Islam. This makes the implications of Qur’anic and Sunnaic language a ready material for legal principles to be devised based on them. Just as premodern Muslim jurists were able to rely on these sources to articulate their legal doctrines, a modern Muslim jurist could infer from these texts as much as may reasonably be understood from their letter. It is to the Qur’anic and Sunnaic texts relevant to the issue of privacy that we shall now turn. Several Qur’anic verses emphasize the individual’s right to privacy. The most prominent of these are two verses speaking of the privacy of the home, stating, “O you who have attained faith! Do not enter houses other than your own unless you have obtained permission—hatta tasta’nisu— and greeted their inmates. This is [enjoined upon you] for your own

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good, so that you might bear [your mutual rights] in mind. Hence, [even] if you find no one within [the house], do not enter it until you are given leave; and if you are told, ‘turn back,’ then turn back. This will be most conducive to your purity; and God has full knowledge of all you do” (Qur’an 24: 27–28). The expression hatta tasta’nisu, rendered as “unless you have obtained permission,” may be translated more precisely as “until you have made sure that your presence is welcome.” The word isti’nas here means seeking to ascertain the host’s readiness or comfort—that is, making sure that the potential visit by the prospective guest would be received in a positive manner by the host and that the host is prepared for it at its proposed time. The Qur’an even establishes a right to privacy for people vis-à-vis their family members—that is, within their own home. The Qur’an (24: 58) specifies at least three times when explicit permission has to be taken before people could enter into their parents’ private room: before the dawn prayer, during the afternoon (possible time for napping), and after the night prayer. This Qur’anic principle applies to all Muslims, but young adults who have recently reached the age of puberty are simply encouraged in this verse to get accustomed to the habit of seeking permission when they want to enter rooms other than theirs, so that such becomes second nature to all members of the family. Moreover, the Prophet of Islam is reported to have stipulated that potential visitors may not cast curious gazes into the inside of people’s houses when they draw near these houses in order to seek permission to enter them. The Prophet said, “If one’s eye has entered a private place, the person her/himself has entered.” According to another report, the Prophet stressed this point by saying, “If one’s eye has entered a private place, why should any permission to enter the place be needed?” Further more, the Prophet has stipulated that a person who attacks an intruder to prevent that intruder from spying on his or her private home is not liable for punishment for his or her attack. These texts are sufficient samples of the textual basis for the protection of the privacy of a particular place, exemplified by people’s private homes. But this is not all. There are texts that establish people’s right to endow privacy on meetings they attend in settings that are not seen to be private in principle. Prophetic reports emphasize that if a gathering was meant by those who attend it to be a private one, the privacy of those present therein must be respected—irrespective of where the meeting occurs. The Prophet Muhammad is reported to have said, “Private encounters result in entrustment (al-majalis bil-amanat).” This entrustment, according to

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Muslim jurists, must inhibit people from conveying any information about actions and sayings that occurred in private settings. In addition, the Prophet of Islam has emphasized the duty of protecting the privacy of people’s correspondence and communication whether or not they take place in a private place. The Prophet is reported to have said, “He, who looks into a letter belonging to his brother, looks into the Hellfire.” This establishes that, even if a private communication is conveyed outside of a private environment, the nature of the correspondence creates a right to privacy that must be applied to the correspondence. Even those involved in shameful and sinful acts do not completely forgo their right to privacy, according to the Prophet, who commanded that Muslims not dishonor their brothers and sisters who had been secretly involved in disgraceful acts by revealing their secrets. Thus, the Prophet said that a believer should provide a cover (sitr) for another believer who fell in the disgrace of sin (halla satarta ‘alayhi). ISLAMIC POLITICAL AUTHORITIES

AND

PRIVACY

If the Qur’an and the Prophet emphasized the importance of respecting people’s privacy, the Companions of the Prophet took this respect to be of such paramountcy that made it a higher consideration than enforcing aspects of the law. Consider the following anecdote about ‘Umar ibn alKhattab, one of the Prophet’s close Companions and his second successor as a political leader. When ‘Umar overheard a group of people chatting inside their private home, it became obvious to him that they were drinking wine. ‘Umar, at that time, was the head of the government, and given that drinking was a violation of the Islamic teachings, ‘Umar wished to pursue this violation. The drinkers argued that ‘Umar’s testimony to the event of drinking, if it were to be delivered before a Muslim judge, must be disregarded, because it was attained in violation of the prohibition of spying on people’s private places. ‘Umar accepted that reasoning and refrained from pursuing the drinkers. In a culture where the scripture emphasizes the privacy of homes, and even the privacy of people vis-à-vis their family members within the same homes, and where the Prophet recommends covering the sin of one’s brother, there should be no surprise that enforcing the law, even when there is evidence of its violation, may be secondary to the respect of individuals’ privacy—that is, even the privacy of those who violated the law. The question of “which historical reality is behind this anecdote” is of secondary importance. The details of the anecdote bespeak a complex legal reality and probably reflect later augmentation of a kernel of the story from ‘Umar’s time. In any case, the process of augmenting anecdotes of this nature reflects a continuity of the notion

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that respect for privacy could end in deterring the prosecution of those who violate the law. The attitudes of Ibn ‘Abidin and ‘Abbasi I addressed in Chapters 1 and 2 lend support to this claim. PRIVACY

AND THE

RULE

OF

LAW

IN ISLAM

The above may be sufficient to establish people’s duty to respect the privacy of others in their private homes as well as establish respect for the privacy of their private communications. However, none of the above-mentioned texts establishes any rule with regard to the permissibility or prohibition of conveying the content of private encounters that may be needed as legal evidence—that is, by those who had access to the content of these private encounters. To complicate matters, certain Qur’anic and Sunnaic texts have emphasized the importance of voluntary conveyance of the testimony needed to establish justice. According to the Qur’an, Muslims are exhorted not to conceal their testimony and are considered sinful “in their hearts” if they fail to perform their duty in this regard. The Qur’an (2:283) states, “Do not conceal [your] testimony, and those who conceal it have sinned in their hearts.” From this verse, Muslim jurists have inferred that delivering a needed testimony is the duty of all capable of conveying it unless already performed by other members of the Muslim community. This is called fard kifaya—that is, a duty not incumbent on all Muslims, but it is expected of some of them to carry it out, as opposed to fard’ayn, or a duty that is incumbent on all Muslims, such as the daily prayers. According to Muslim jurists, failure to deliver a needed testimony is a grave sin. However, one may be exempted from such a duty in exceptional cases, such as when one is unable to reach the court where the testimony should be delivered. The question of reconciling respect for privacy and the emphasis on the rule of law takes us to the last section of the chapter. THE ISLAMIC LAW

OF

EVIDENCE

AND

PRIVACY

We have already mentioned the agreement by Muslim jurists on the high standards of testimony in fornication and adultery cases. The stipulation of a testimony by four witnesses in order to prosecute a person who is accused of adultery is a sign of Islamic law’s adherence to the protection of privacy, since such a stipulation deters the curious from violating the privacy of those who may be practicing such unlawful activities in their private environment. We have also mentioned that this deterrence reaches its climactic point when it makes the testimony of three eyewitnesses that adultery had been practiced not only insufficient to prosecute those

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accused of it, but also a cause for those three witnesses to be punished as slanderers. The significance of the protection of the right to privacy by the Islamic law of evidence consists in the fact that this branch of the law enjoys an influential position for its penetration of both criminal and civil legal matters, since it is the ultimate reference as to whether there would be any fruits to considering an act illegal. When the law of evidence places restrictions on trying people who are accused of privacy-related offenses, it indirectly promotes privacy. There are also other aspects of Islamic law that are as important in their relevance to the protection of privacy and that, in my judgment, confirms the fact that Islamic law’s promotion of privacy is remarkable. The Prophet discouraged his followers from confessing to committing shameful acts they committed that have not resulted in infringement on people’s rights. He has reportedly said, “If you have been embroiled in an embarrassing sin, which God chose not to disclose, do not disclose it yourselves.” The Prophet even repeatedly turned his face away from a man who wanted to confess before him that he committed adultery. After the man insisted on conveying his confession for the third time, the Prophet investigated the possibility that the confessor’s mental state or drunkenness may have had led him to make this confession. Some Muslim jurists have relied on this story to argue that people are not encouraged to confess to committing crimes that have not been prosecuted, if the rights of others (such as their property) are not involved. It is clear that such a rule promotes the individual’s privacy. However, the Prophet is reported to have insisted that once a complaint about a major crime is elevated to the Muslim authorities, no one can stop the prosecution of the criminal. Another example of the protection of privacy offered in the Islamic law of evidence is that Muslim jurists express their reluctance to accept the testimony of individuals when it is made either for or against a family member or a former family member of their own. Family members, it goes without saying, are the ones most acquainted with the details of each other’s private lives. Although Muslim jurists do not use the language of privacy to justify their reluctance to hear these testimonies, their attitude has definitely led to the enlargement of people’s privacy. One more (rather striking) example of the protection of privacy in the Islamic law of evidence follows. Under Hanafi law, if someone confesses (in confidence) to committing a crime in the presence of another and asks the latter not to convey to others the content of her or his confession, the confession witness must refrain from testifying against the confessor. But

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what if the person decides to violate the confessor’s privacy anyway? Here, disagreement arises: some Hanafi jurists call upon the judge to accept the hearing of that testimony and others do not. The same disagreement among Hanafi jurists arises in the case in which a man denies his debt in public and acknowledges it only when he meets in private settings with his creditor. If the latter allows two persons to attend a private encounter without his party’s knowledge and solicits the denier’s acknowledgment of the debt, can the judge support the creditor’s claim based on the testimony of the secret witnesses? Hanafi jurists have disagreed on this question: some accepted the hearing of the testimony despite the violation of privacy and some rejected it because of the unlawfulness of deception and spying. CONCLUSION This chapter attempts to demonstrate how judging the degree to which privacy is protected in a society governed by Islamic law is relevant to more than an investigation of an existing or missing concept of privacy within the juristic jargon of Islamic law. Under Islamic law, the right to privacy is protected and balanced against many considerations, of which the rule of law is the most prominent. This can be seen from scriptural and prophetic texts, as well as from the understanding and behavior of the Islamic political authorities in the early Muslim Caliphate. The Sunni Islamic law of evidence, in particular, offers protection of privacy in many ways, as can be seen from the texts and juristic interpretations I introduced in this chapter. WORKS CONSULTED COMPARATIVE ISLAMIC LAW

Abd al-Rahman al-Jaziri, Al-Fiqh ‘ala al-Madhahib al-Arba‘ah, vol. 6 (Cairo: Dar alHadith, 1990), 69. HANAFI LAW

Ali ibn Muhammad al-Simnani, Rawdat al-Qudah wa Tariq al-Najah (Amman and Beirut: Dar al-Furqan, 1984), 256. Abd al-Rahman ibn Muhammad Shaykh Zadah, Majma‘ al-Anhur fi Sharh Multaqa al-Abhur, vol. 2 (1911. Beirut: Dar Ihya al-Turath al-‘Arabi, 1980), 197. Muhammad ‘Ala’ al-Din ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar Sharh Tanwir al-Absar, vol. 7 (Cairo: Matba‘at al-Halabi, 1966), 129–32, 161, 196. Note this volume includes Qurrat ‘Uyun al-Akhyar

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Muhammad Kamil ibn Mustafa al-Tarabulsi, al-Fatawa al-Kamiliyya fi-lHawadith al-Tarabulsiyya ‘ala Madhhab Abi Hanifa al-Nu‘man (Cairo: Matba‘at Muhammad Mustafa, 1895), 129, 134. MALIKI LAW

Muhammad ibn Muhammad al-Hattab, Mawahib al-Jalil li-Sharh Mukhtasar khalil, vol. 6 (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 304. SHAFI‘I LAW

Abu Ishaq Ibrahim al-Shirazi, Matn al-Tanbih fi Fiqh al-Imam al-Shafi‘i (Beirut: ‘Alam al-Kutub, 1983), 162. Ibn al-Naqib al-Misri, Reliance of the Traveler (‘Umdat al-Salik wa ‘Uddat alNasik) (Beltsville: Amana Publications, 1991), 637. HANBALI LAW

Muwaffaq al-Din ibn Qudamah, Al-Mughni, ed. M. Khattab, et al., vol. 14 (Cairo: Dar al-Hadith, 1996), 5. AMERICAN LAW

Kelley Weisberg and Susan Frelich Appleton, Modern Family Law: Cases and Materials (New York: Aspen Law and Business, 1998), 1–114. Ronald L. Carlson et al., Evidence: Teaching Materials for an Age of Science and Statutes (Charlottesville, VA: Michie, 1997), 661. HISTORY

Philippe Aries and Georges Duby, A History of Private Life: Riddles of Identity in Modern Times, trans. Arthur Goldhammer (Cambridge MA: Harvard University Press, 1991), 3. Fracoise Dunand and Christiane Zivie-Coche, Gods and Men in Egypt 3000 BCE to 395 CE, trans. David Lorton (Ithaca, New York: Cornel University Press, 2004), ix. OTHERS

Thomas Nagel, Concealment and Exposure and Other Essays (Oxford: Oxford University Press, 2002). A variety of sources of prophetic tradition. See, especially, the Sunan of Abu Dawud (Riyadh: Maktabat al-Marif lil-Nashr wal-Tawzi‘), the chapter on permission for entering private places, and the Musnad of Ahmad ibn Hanbal (Beirut: Mu’assat al-Risala, 1933).

C

H A P T E R

8

INCOMMENSURABLE VALUES? THE CLAIM THAT A FORM OF INCOMMENSURABILITY BETWEEN Islamic and Western values is destined to lead Western and Muslim societies to clash conveniently conceals the complex causes of clashes involving Western societies today. The question of modern Western societies’ constant clashes with non-Western societies has been treated by different writers, applying myriad approaches and methods. In this volume, I chose to point to paradigm examples in the Western context of inadequate treatments of Islam and the Muslim world past and present. With this, I attempt to draw attention to how skewed ideas about Islam and Muslims play a major role in common, wrongheaded claims about them. In addition, I hope it will also become apparent that the shallow claim of the incommensurability of Islamic and Western values benefits from the common (mis)representations of the Muslim world and its civilizations and peoples. If it were politically innocent and simply misguided, the claim that Islamic and Western values are incommensurable reflects a measure of haughtiness and asserts more than it can prove. But the point here is not that Islamic and Western values should be seen as similar, since to make this claim is to engage in the same exercise of simplification and generalization. As I stated earlier, the complexity of Muslim societies and their long history since the rise of Islam makes generalizations about them meaningless. A final example should clarify this point. Take the German Orientalist Carl Heinrich Becker’s (1876–1933) notion of the Roman Orient’s shared cultural history with Europe, a commonality many Muslim peoples outside of this Hellenized or the Roman Orient cannot claim to have with either Europe or the Near East. The picture drawn by

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Becker is completed when we learn that many Muslim peoples (again, outside of this Roman Orient) are (ethnographically) close to Asiatic peoples.1 The Becker thesis is as problematic as the idea of the incommensurability of Islamic and Western values. Interestingly, Becker seems to naively suggest a unity between the Western and Near Eastern worlds that allows the West to claim Near Eastern history as its own, while leaving the rest of the world in the cold. Finally, the thesis suffers from the implication that a unified Islamic civilization is impossible due to the division of the Muslim world into the “Hellenized” and the rest, whether this is an intended or unintended implication of it. This volume went beyond questioning the problematic tendencies to generalize about the Muslim world, past and present, to addressing specific problematics of the study of Muslim societies. In this volume, I focused on the three axes of modernity, violence, and everyday life in order to invite the reader to reflect on the implications of common views about Islam and Muslims in the Western world today. In my treatment of Muslim societies on the cusp of modernity, I attempted to shift the debate from the commonly discussed question of the compatibility between Islam and modernity to a reflection on the implications of the idea of Muslim societies’ supposedly needed adoption of Western modernity. Chapters 2 and 3 attempted to point to the simplicity of the notion that Western modernity would have simply been adopted if Muslim and Western values were more capable of negotiating a middle way. In Chapter 4, I explained how change in Muslim societies can be accommodated based on premodern Islamic legal theory, which assigns a role to social and market customs in the evolution of legal and moral norms. This is, by no means, paradoxical, nor does it contradict the lessons learned from the first two chapters. If anything, the three chapters again indirectly confirm one of the basic assertions of this volume: that most generalizations about societal values are meaningless, especially when these societies have developed the tools to maintain a complex continuitychange mechanism. Western modernity could not simply transform Western societies themselves into modern societies that prioritize some set of imperatives to be called the imperatives of modernity. Western societies have, at least so far, been able to maintain tensions between their traditions and their modernities, which include the elements of a sort of continuity-change mechanism. In Western societies, religious traditions, which have held much sway over the way its populations functioned and continue to function, maintain a notion of basic knowledge that cannot be questioned,

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which frequently clashes with the notion of discovery. The importance of an original religious message is embraced by many in Western societies, but the notion of “reform” is also admitted into the canon of knowledge in these societies, aiming at preserving the original message and its modifications together. In the same societies, an operating assumption in the natural sciences is that we must be able to know more than our ancestors knew about the world, because we (mostly) have the knowledge they had and can have more. This assumption is questioned from time to time, but it is taken by scientists, for the most part, to be valid, and it is responsible for the continuing development of scientific discovery. To complicate matters further, knowledge of religious history itself is affected by the empirical concept of scientific knowledge. Archeological excavations lead to many theories that contradict established religious dogmas. The tension is thus threefold, involving an original message, reasoned reforms, and discoveries leading to theories that require more concessions to change and occasionally full abandonment of old ideas. Religious people and people with a measure of respect for religious ideals try to combine their modern perspective with ones ultimately descending from the past, ones that still allow some space for the history in question and under questioning. Despite their constant interaction and susceptibility to mutual influences, no simple fusion of Western and Muslim societies will lead to making Muslim societies another version of Western societies in their dialogue with modernity. Chapters 5 and 6 addressed the questions of violence against foreign and internal enemies. My belief is that both Muslim and Western polities have exerted avoidable violence against their enemies, and neither party can boast a history (or a present) that achieved any consistency in valuing human life over principles (religious, political, or other). In Chapter 6, I argue that the question of apostasy and heresy is “violently” thrusted into discourses about Islam and violence with little justification. The survival of scores of heretical literature and jurists’ reluctance about punishing for heresy and apostasy serve as an insurmountable argument for those who insist on throwing the terms of apostasy and heresy in discussions about Islam and violence. The religious and social punishment of heretics is an issue where some of the facts are simply distorted and where correct facts are eclectically presented with a foregone conclusion in mind. The stories of Salman Rushdie and Nasr Hamid Abu Zayd, for example, serve as “evidence” of Islamic intolerance, while we live in an age of mass assault on innocent Muslim populations condoned by the same Western voices that condemn the Islamic violence of the hypothetical modern caliphate. In Chapter 7, I explained that the absence of a term or concept for a given practice in the legal jargon in a given society does not entail the

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absence of the practice in the social life of that society. The absence of the concept of privacy as a legal term in Islamic jurisprudence does not entail the absence of protection for privacy in Islamic law and cultures. Respect for the privacy of the individual is a complex issue, and one must investigate many aspects of the legal and cultural makeup of any society before making a general statement about the degree to which its individuals enjoy their privacy and autonomy. Implicit protection of certain liberty interests, such as privacy, raises a larger point, namely, that the insistence on defining a right (such as the right to privacy) might lead to more restrictions on that right than more protection of it. As I indicated in Chapters 2 and 3, many of the freedoms and rights we think of as modern rights have been accorded individuals in premodern Muslim societies and may have been granted on a larger scale without being granted explicitly. If we insist on the exercise of the comparison of cultures and values, which encompasses many difficulties, we must be willing to take the challenge of comparing rights and responsibilities in a more comprehensive sense, both those explicitly granted and exercised and those implicitly granted and exercised. Reasonable and careful thinkers would find that daunting. It is one of the reasons that make me believe that no one can seriously claim to possess a perspective from which to decide on the question of the comparison of sets of values or value systems. *

*

*

In the preceding collection of essays, I attempted to weave together three elements in one thread: the complexity of Muslim societies on the cusp of modernity, the question of violence in Islamic political history, and the question of the right to privacy in Muslim societies. The resulting thread, to my mind, is a description of “sensitive” and important issues central to the discussion of Muslim and Western values. I hope to have presented insights and warnings that advance the quality of this discussion. As I stated in the early pages of this book, I aim to identify two sets of pitfalls in the project of comparing and contrasting Islamic and Western values. One set has to do with the already confused and ill-informed conception of Muslim societies in the West. The second set has to do with intrinsic difficulties in the project of culture comparison. These two sets of issue interrelate as it may have become apparent to many readers. If the basic terms in the inquiry on the incommensurability of Islamic and Western values are elusive, and the participant in the inquiry cannot enjoy a vantage point from which to avoid its standard pitfalls, then only

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dogmatism could empower anybody to force the thesis of the incommensurability of Islamic and Western values on the public or academic discourse. Not only does nobody know how to be a neutral mediator of a debate about Islamic and Western clashes of ideas or actions, nobody benefits from pretending to be able to do that. In fact, we are more likely to be hurt by that pretension. We will all be better off replacing the desire to judge other cultures, or even our own, with curiosity about the multifaceted nature of cultures of all types.

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NOTES INTRODUCTION 1. This was articulated casually, yet concisely and effectively, in his three-hour In Depth interview on C-SPAN, September 4, 2005. 2. See John Tolan, Saracens (New York: Columbia University Press, 2002). Tolan provides a lengthy account of medieval Christian perceptions of Islam from the seventh century. 3. My argument does not intend to establish any essentialized correlation between the degree of the development of a given society and its capacity to reject influences from other societies, either in the modern or premodern context. This goes for the relationship between development and lack of susceptibility to influence and between lack of development and susceptibility to influence. 4. See, for example, Robert Simon, Ignac Goldziher: His Life and Scholarship as Reflected in His Works and Correspondence (Leiden: Brill, 1986), 143-57. Historians of Islam in the West may have theoretically begun to accept the notion that orthodoxy in Islamic history may not have been as homogenous as previously assumed.

CHAPTER 1 1. M. M. Shakir, Namat Sa‘b wa Namat Mukhif (Cairo: Dar al-Khanji, 1996), 354–55. 2. Carlo Ginzburg, The Cheese and the Worms: The Cosmos of a Sixteenth Century Miller, trans. John Tedeschi and Anne C. Tedeschi (Baltimore: Johns Hopkins University Press, 1992), xvii. 3. Giorgio Agamben, The Idea of Prose, trans. Michael Sullivan and Sam Whitsitt (Albany: State University of New York Press, 1995), 107. The original Italian Idea Della Prosa was published in Milan in 1985. 4. Hans Blumenberg, The Legitimacy of the Modern Age, trans. Robert Wallace (Cambridge, MA: MIT Press, 1983);Laurence Dickey, “Blumenberg and Secularization: ‘Self Assertion’ and the Problem of Self-Realizing Teleology in History,” in “Critiques of the Enlightenment” special issue, New German Critique, no. 41 (Spring–Summer, 1987), 151–65, especially 154.

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5. Ahmad Atif Ahmad, Structural Interrelations of Theory and Practice: A Study of Six Works of Islamic Jurisprudence (Leiden: Brill, 2006), chap. 2. 6. Cornelius Castoriadis, World in Fragments: Writings on Politics, Society, Psychoanalysis, and the Imagination (Stanford: Stanford University Press, 1997), 315. Meaning, snatched from history and imposed on it again, may be an attempt at what Castoriadis calls the occultation of chaos; to speak of history as having a meaning or no meaning is nonsensical, since it is only a cover for the real structure of the world before social signification is given to the parts of it we call societies. 7. For a brief history of the interest of scholars in investigating the premodern origins of modern ideas, see James Hankins (ed.), The Cambridge Companion to Renaissance Philosophy (Cambridge: Cambridge University Press, 2007), 3–6. 8. For example, Hester Gelber, It Could Have Been Otherwise: Contingency and Necessity in Dominican Theology at Oxford, 1300–1350 (Series: Studien und Texte zur Geistesgeschichte des Mittelalters; Leiden: Brill, 2004). 9. Daniel Crecelius, “Egypt in the Eighteenth Century” in The Cambridge History of Egypt, vol. 2, ed. M. W. Daly (Cambridge: Cambridge University Press, 1998), 59–60. 10. ‘Ali Jum‘a Muhammad, al-Madkhal (Cairo: al-Ma‘had al-‘Alami lil-Fikr al-Islami, 1996), 2–3. 11. M. M. Shakir, Abatil wa Asmar (Cairo: Matba‘at al-Madani, 1972), 184–85 (on the relationship between reform movements and missionary work); 229 (on Toynbee’s Eurocentricism/ethnocentrism); 253–57 (on the significance of language in the stabilization of culture); 269 (on the relationship between imperialism and Orientalism). 12. Robert Simon, Ignac Goldziher: His Life and Scholarship as Reflected in his Works and Correspondence (Leiden: Brill, 1986), 16. 13. For example, see Christopher Melchert, “Traditionist-Jurisprudents and the Framing of Islamic Law,” Islamic Law and Society 8, no. 3 (2001), 388. An attempt at what was called “contextualizing Averroës within the German Hermeneutic Tradition” was made by Ernest Wolf-Gazo: “Contextualizing Averroës within the German Hermeneutic Tradition,” Alif: Journal of Comparative Poetics, no. 16 (1996), volume dedicated to “Averroës and the Rational Legacy in the East and the West,” 133–63. 14. Christopher Melchert, “Ibn Mujahid and the Establishment of Seven Qur’anic Readings,” Studia Islamica, no. 91 (2000): 5–22. 15. Theodore Nöldeke, Geschichte des Qorans (Leipzig: T. Weicher, 1909), I, 66. 16. Richard Gottheil, “Achmed Taimur Pasha, Thedor Nöldeke, and Edouard Sachau: An Appreciation,” Journal of the American Oriental Society 51, no. 2 (June 1931): 105. 17. Thomas Burman, “Tafsir and Translation: Traditional Arabic Quran Exegesis and the Latin Qurans of Robert of Ketton and Mark of Toledo,” Speculum 73, no. 3 (July 1998): 703–32. 18. Richard Gottheil, “Achmed Taimur Pasha,” 104–5.

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19. Nöldeke’s analysis of Muhammad’s psychology is ultimately more complex since he moves to state that the Prophet’s instincts were stronger than his capacity for abstraction, which were a factor in his decision to share his revelations with his people and to add statements that may not have been intended as revelations. 20. Robert Simon, Ignac Goldziher, 223, 284. 21. The pope’s dislike of Islam culminates in letting his erudite emperor make the following almost hysterical statement: “Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached.” The pope follows this statement by saying, “The emperor, after having expressed himself so forcefully, goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul.” To see the Vatican translation of the address, go to http://www.vatican.va/holy_father/ benedict_xvi/speeches/2006/september/documents/hf_ben-xvi_spe_ 20060912_university-regensburg_en.html. 22. Mar‘i ibn Yusuf al-Hanbali, Ghayat al-Muntaha fi al-Jam‘ Bayn al-Intiha’ wa-l-Muntaha, vol. 3 (Ryadh: al-Mu’assa al-Sa‘idiyya, 1989), 400. 23. Ibid., 401. 24. Ibid. 25. Muhammad ‘Uthman Shubayr, Al-Imam Yusuf Ibn ‘Abd al-Hadi alHanbali wa Atharuhu fi al-Fiqh al-Islami (‘Amman: Dar al-Furqan, 2001), 46. 26. Ibid. 27. Zayn al-Din ibn al-Munji al-Hanbali, al-Mumti‘ Sharh al-Muqni‘, vol. 2 (Beirut: Dar Khidr, 1997), 588. 28. Mansur al-Buhuti, Kashshaf al-Qina‘‘an Matn al-Iqna‘, vol. 3 (Beirut: ‘Alam alKutub, 1997), 151. 29. Al-Buhuti, Kashshaf al-Qina‘‘an Matn al-Iqna‘, vol. 2 (Beirut: ‘Alam al-Kutub, 1997), 388. 30. Ibn al-Munji al-Hanbali, al-Mumti‘ Sharh al-Muqni‘, 588. 31. Peter E. Pormann, “The Physician and the Other: Images of the Charlatan in Medieval Islam,” Bulletin of the History of Medicine 79, no. 2 (Summer 2005): 189–227, especially 226. 32. Cornelius Castoriadis, World in Fragments, 312.

CHAPTER 2 1. Hiseinrich Fichtenau, Ketzer und Professoren: Haresie und Vernunftglaube im Hochmittelalter (München: Verlag C. H. Beck, 1992), 8. 2. The Completion of Radd al-Muhtar, known as Qurrat ‘Uyun al-Akhyar, by Ibn ‘Abidin’s son Muhammad ‘Ala’ al-Din, printed as Volume 6 of Ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar (Beirut: Dar Ihya’ al-Turath al-‘Arabi, 1987), 8.

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3. See also Haim Gerber’s treatment of the relationship between jurists and the state in his book, Islamic Law and Culture 1600–1840 (Leiden: Brill, 1999), 18, 43–70. 4. Norman Calder sets out to contrast Islam and reformed Christianity on the question of the layperson’s authority to participate in understating their religion and the sense in which they express their “religiosity.” This contrast, which I find quite amusing more than anything else, appears in the opening of his article “‘Uqud Rasm al-Mufti of Ibn ‘Abidin” and includes the following statement: “Only the learned jurist could speak authoritatively, and not by virtue of his access to the sources, but by virtue of his control of tradition.” Norman Calder, “’Uqud rasm al-Mufti of Ibn ‘Abidin,” Bulletin of the School of Oriental and African Studies, University of London 63, no. 2 (2000): 215–28. The above quote is from page 217. 5. For example, see Doris Behrens-Abouseif, Egypt’s Adjustment to Ottoman Rule: Institutions, Waqf, and Architecture in Cairo 16th and 17th Centuries (Leiden: Brill, 1994), 69–105. 6. For example, see Haim Gerber, Islamic Law and Culture, 56, 60, 61. 7. Ibid., 52, 65–68. 8. Ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar, vol. 3 (Beirut: Dar Ihya’ al-Turath al-‘Arabi, 1987), 190. 9. See, for example, Arthur von Mehren, Law in the United States, 2nd ed. (Cambridge: Cambridge University Press, 2007), 145–46. 10. See, for example, Daniel Crecelius, “Egypt in the Eighteenth Century,” in The Cambridge History of Egypt, vol. 2, ed. M. W. Daly (Cambridge: Cambridge University Press, 1998), 59–60. 11. Ibn ‘Abidin, Radd al-Muhtar, 3:418. 12. Ibid., 257. 13. Ibid., Radd al-Muhtar, 3:404. These jurists Ibn ‘Abidin debates include Biri, whom Ibn ‘Abidin cites and then refers the reader of the Radd to his al-‘Uqud al-Durriyya fi Tanqih al-Fatawa al-Hamidiyya, to which he refers as Tanqih al-Fatawa al-Hamidiyya, which is his rearrangement and commentary on the fatawa collections of Hamid al-‘Imadi (1692–1757). 14. Ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar, vol. 4 (Beirut: Dar Ihya’ al-Turath al-‘Arabi, 1987), 356. 15. Ibid., 4:347–50, especially 349, 350. 16. Ibid., 4:299. 17. Ibid., 3:275. 18. Ibid., 4:299. 19. Ibid., 4:356. 20. Ibid., 3:52. 21. Ibid., 3:52. 22. Ibid., 4:189–191, especially 190. 23. Ibid., 3:142. The status of the individual with no residence permit (the harbi, who is neither a Muslim resident nor dhimmi, or non-Muslim resident) is expected to be an exception since their entry is essentially a breach of the

NOTES

24.

25. 26. 27. 28. 29. 30.

31. 32. 33.

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law. Islamic law allows foreigners to enter into the Muslim state for any acceptable objective (studying, doing business, etc.); therefore, if an individual fails to legalize their presence in the Muslim state, that makes their presence an exception to the rule. It may be argued that this is a specific application of the general principle of “the presumption of innocence” based on the istishab (presumption of continuity) reasoning, but juristic language, in this context (even a special case within the laws of hudud or major crime, such as adultery and robbery), makes me believe that it is an added cautionary presumption in the particular case of apostasy, given its nature and severe punishment. Ibn ‘Abidin, Radd al-Muhtar, 3:298. Ibid., 3:285. Ibid., 3:310. Ibid., 5:235. Ibid., 5:233. Ibid., 5:233. In a note on a statement in Haskafi’s text that homosexual pleasure will not be found in paradise, Ibn ‘Abidin addresses the question of whether homosexuality is prohibited in this world for its negative effect on reproduction and the undesired contact with excrement or for being innately undesirable. Ibn ‘Abidin reports a debate on the matter between Abu Ali Ibn al-Walid al-Mu‘tazili and Abu Yusuf al-Qazwini (reported by Suyuti [d. 1505] from Ibn ‘Aqil al-Hanbali) without commenting on the value of the arguments presented in the debate. Ibn al-Walid, in the debate, argues that there is no reason to assume that homosexual pleasure would be excluded from heavenly award, since its unacceptable qualities (mafsada) would not be present in heavenly life. The reason for the prohibition of homosexual sex is twofold, he argues. The first is that it negatively affects human reproduction, and the second is that it involves the undesired source of human waste (mahallan li-l-adha). That is why, Ibn al-Walid continues, wine is allowed in paradise, since its negative effects of altering the mind and leading to harmful behavior will cease to be present in paradise. Abu Yusuf al-Qazwini countered that mere attraction by males to males is, by itself, a deficiency and cannot be endorsed for an innate quality (qabih fi nafsih), since this locality (meaning the human rear) was not created for coition, and that is why homosexual sex was not allowed in any revealed law, while wine is not like that. Abu Yusuf also continued that the rear is the source of excrement, and paradise does not include such things. Ibn al-Walid replied that deficiencies are defined as those that include harm, which is not present in paradise, and one can see that only pleasure remains. Ibn ‘Abidin, Radd al-Muhtar, 3:156. Ibid., 5:233–39. Ibid., 5:380. Ibid., 5:272–73.

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CHAPTER 3 1. Raphael Patai, Ignaz Goldziher and His Oriental Diary (Detroit: Wayne State University Press, 1987), 150. The fact that one of ‘Abbasi’s ancestors was a non-Muslim must have intrigued some Western scholars, but instead of identifying ‘Abbasi’s grandfather as the convert to Islam, some sources pointed to Muhammad al-Amin (‘Abbasi’s father) as a man who did not grow up as a Muslim, and, instead of pointing to a conversion from Coptic Christianity to Islam, ‘Abbasi’s father was made into a rabbi. 2. ‘Umar Rida Kahhala, Mu‘jam al-Mu’allifin: Tarajim Musannifi al-Kutub al-‘Arabiyya, vol. 9 (Damascus: Matba‘at al-Taraqqi, 1960), 266. 3. ‘Umar Rida Kahhala, Mu‘jam al-Mu’allifin, 9:266; 10:121–22; Hans-Georg Erbert, “Die Letzte Krankheint: Mohammed al-‘Abbasi al-Mahdi (gest. 1897) and die Reform der ägyptischen Rechsordnung,” Der Islam 81, no. 2 (October 2004): 306. 4. ‘Umar Rida Kahhala, Mu‘jam al-Mu’allifin, 1:4. 5. Edward W. Lane, The Manners and Customs of Modern Egyptians (London: J. M. Dent; New York, E. P. Dutton, 1908), 118–21. 6. Jurji Zaydan, Tarajim Mohair al-Sharq fi al-Qarn al-Tasi‘‘Ashar, vol. 2 (Beirut: Dar maktabat al-Hayah, 1970), 250–55. 7. Khayr al-Din al-Zirikli, al-A‘lam, vol. 7 (Beirut: Dar al-‘Ilm lil-Malayin, 1987), 301. 8. Muhammad al-Abbasi al-Mahdi, al-Fatawa Mahdiyya fi al-Waqa’i‘ Misriiyya, vol. 1 (Cairo: al-Matba‘ah al-Amiriyya, 1883), 3. 9. Raphael Patai, Ignaz Goldziher and His Oriental Diary, 24. 10. Rudolph Peters identifies the Fatawa as ‘Abbasi’s only independent work, while some scholars mention two other works by him. At any rate, there is no question that the Fatawa are the most well-known of ‘Abbasi’s works. See Rudolph Peters, “Muhammad al-‘Abbasi al-Mahdi (d. 1897), Grand Mufti of Egypt, and His Fatawa Mahdiyya,” Islamic Law and Society, 1 (April 1994): 73 and Ahmad Muhammad ‘Awf, al-Azhar fi Alf ‘Am (Cairo: Majma‘ al-Buhuth al-Islamiyya at al-Azhar, 1970), 125. The two cited works by ‘Abbasi are Risala fi Tahqiq ma-istatar min Talfiq (“A Study of Subtle Forms of Inappropriate Eclecticism in Jurisprudence”) and Risala fi Mas’alat al-Haram (lit. A Study of the Question of the Oath by what is Sanctified (divorce).) 11. Peters, “Muhammad al-‘Abbasi al-Mahdi,” 66–82. 12. Ibid., 66. 13. Hans-Georg Erbert, “Die Letzte Krankheint,” 303–51. 14. Ibid., 350. 15. al-‘Abbasi al-Mahdi, al-Fatawa al-Mahdiyya fi al-Waqa’i‘ al-Misriyya, 1:299–300. Date of the opinion: 23rd of Rabi‘ II of the year 1269 AH (1853 CE). 16. ‘Abbasi clearly states that, in an answer to one of the questions, he reports the following in his fatawa collection: “Question: Regarding a man who

NOTES

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

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made a pledge by what is prohibited in relation to his wife (halafa bi-l-haram min zawjatih) and breached his pledge, is the divorce applying here final (ba’in) or retrievable without a new marriage contract (raj‘i)? Answer: The term haram effects a final divorce, and God knows best.” al-‘Abbasi al-Mahdi, al-Fatawa al-Mahdiyya, 1:210. Al-‘Abbasi al-Mahdi, Al-Fatawa al-Mahdiyya, 1:181. Date of opinion: 10th of Dhu al-Qi‘da, 1267 AH (1851 CE). Ibid., 2:17. Date of opinion: 21st of Rajab, 1266 AH (1850 CE). Ibid., 1:54. Date of opinion: 22nd of Dhu al-Qi‘da, 1270 AH (1852 CE). Ibid., 1:233. Date of opinion: 28th of Dhu al-Hijja, 1288 AH (1870 CE). Ibid., 1:170. The date of this legal opinion is 18th of Rajab, 1266 AH (1849 CE). Ibid., 1:21. Date of opinion: 23rd of the month of Sha‘ban of the year 1265 AH (1849 CE). Ibid., 1:187. Date of opinion: 3rd of Sha‘ban, 1268 AH (1848 CE). Ibid. Date of opinion: 24th of Sha‘ban, 1268 AH (1848 CE). Ibid., 1:456. Date of opinion: 24th of Jumada II, 1295 AH (1878 CE). Ibid., 1:187. Date of opinion: 18th of Sha‘ban, 1268 AH (1848 CE). Ibid., 1:404. Date of opinion: 21st of Rajab, 1268 AH (1848 CE). Ibid., 1:84–5. The date of this opinion is 30th of Dhu al-Hijja, 1290 AH (1873 CE). Ibid., 1:13. The date of this legal opinion is 10th of Jumada II, 1274 AH (1856 CE).

CHAPTER 4 1. For an account of the process by which the Sunna came to be considered the second source of law, see Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2004), especially chap. 2–6. 2. I am aware of a possible challenge to this statement based on the theoretical controversies about whether ‘urf is technically a source of law in the eye of legal theorists. However, based on my approach to legal maxims as an integral part of late legal theory (as I explained in my Structural Interrelations of Theory and Practice in Islamic Law: A Study of Six Works of Islamic Jurisprudence [Leiden: Brill, 2006]), I find the insistence on usul al-fiqh formulas in this context unnecessary. 3. Robert Gleave and Eugenia Kermeli, eds., Islamic Law: Theory and Practice (London: IB Tauris, 2001), 49–77. 4. An old, similar argument can be found in Kant’s essay “On the Common Saying: ‘This may be True in Theory, but it Does not Apply in Practice’.” In Immanuel Kant, Practical Philosophy, translated and edited by Mary J. Gregor (Cambridge: Cambridge University Press, 1996), 279–81, 296–304. The argument is that diaprity between theory and practice point to the inadequacy of theory rather than an inevitable disparity between theory and

196

5.

6.

7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

NOTES

practice. Without considering social custom as a source of law to be part of Islamic legal theory, some disparity would be mistakenly assumed between theory and practice in Islamic law. More materials can be found in Fadel’s 1995 dissertation, which has a larger scope than the cited article. See Mohammad Hossam Fadel, “Adjudication in the Maliki Madhhab: A Study of Legal Process Medieval Islamic Law.” PhD diss., University of Chicago, 1995. This treatise is published among his collection of treatises, Majmu‘at Rasa’il Ibn ‘Abidin, vol. 1 (Beirut: Dar Ihya’ al-Turath al-‘Arabi, 197?), 9–52. The section concerning custom is treated in the commentary on a couplet in the didactic poem that is the subject of the treatise ‘Uqud rasm al-mufti. The couplet states that custom is of significance in the law (shar’) such that the legal ruling may hinge on it (Arabic: wa-l-‘urfu fi-shshar‘i lawhu-i‘tibaru * lidha ‘alayhi-l-hukmu qad yudaru; Ibn ‘Abidin, Majmu‘at Rasa’il Ibn ‘Abidin, 1:44–48). The most extensive treatment of the applications of social customs in the different areas of legal practice can be found in his lengthy commentaries, especially the unfinished Radd alMuhtar ‘ala al-Durr al-Mukhtar (Beirut: Dar Ihya’ al-Turath al-‘Arabi, 1987). Nashr al-‘arf fi bina’ ba‘d al-ahkam ‘ala al-‘urf (the Treatise on Custom), published in Majmu‘at Rasa’il Ibn ‘Abidin, vol. 2 (Beirut: Dar Ihya’ al-Turath al-‘Arabi, 197?), 112–45. The Istisna‘ transaction is almost a paradigm case for the permissibility of a transaction with an element of vagueness. See the Treatise on Custom, Majmu‘at Rasa’il Ibn ‘Abidin, 2:114. In ‘Uqud Rasm al-Mufti, Ibn ‘Abidin explains the provenance of these doctrines and their importance in Hanafi law. Majmu‘at Rasa’il Ibn ‘Abidin, 1:10–66, especially 16–17. Treatise on Custom, Majmu‘at Rasa’il Ibn ‘Abidin, 2:113. Ibid. Ibid. Treatise on Custom, Majmu‘at Rasa’il Ibn ‘Abidin, 2:113. Ibid., 2:118–23. Ibid., 2:119, 122. Ibid., 2:118. Ibid., 2:130. Ibid., 2:123. Ibid., 2:127. Ibid., 2:124. Ibid., 2:125. Ibid., 2:138. Ibid., 2:137–39. Ibid., 2:132, 133. Ibid., 2:134–37. Ibid.,2:129.

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27. Ibn ‘Abidin’s treatise, Shifa’ al-‘alil wa ball al-ghalil fi hukm al-wasiyya bi-lkhatmat wa-l-tahalil, published in Majmu‘at Rasa’il Ibn ‘Abidin, 1:153. 28. Charles Taylor, A Secular Age (Cambridge, MA: Harvard University Press, 2007), 25–33. 29. Ibid., 1, 3. 30. Article 99 of Lai’hat Tartib al-Mahakim al-Shar‘iyya (Shari’a Court Procedures) made a claim to marriage without a supporting document unsubstantial, and the Egyptians applied this principle starting August 1, 1931. Lai’hat Tartib al-Mahakim al-Shar‘iyya (Cairo: al-Matabi‘ al-Amiriyya, 1987). 31. Nathalie Bernard-Maugiron et al., eds., Egypt and Its Laws, Arab and Islamic Laws Series 22 (Leiden: Kluwar Law International, 2002), 26. 32. Ibn Taymiyya, Iqtida’ al-Sirat al-Mustaqim Mukhalafat Ashab al-Jahim (Cairo: Dar al-Sunna al-Muhammadiyya, 1950), 3, 6, 24, 47. 33. Valentine M. Moghadam, “Islamic Feminism and its Discontents: Toward a Resolution of the Debate,” Signs, 27, no. 4 (2002): 1135–71. 34. Ibid., 1163. 35. Ibid., 1164. 36. See, for example, D. J. Galligan, Law in Modern Society (Oxford: Clarendon, 2007), 2, 4, 8, 70–80, 128–30, 213–20. The focus of this book is law in a modern, developed society, but the few moments of contrast between this law of modern sophistication and other laws (e.g., 70–75) makes the point that underdeveloped or traditional legal systems would enjoy more fluidity and less integrity as distinct institutions and systems of rules. 37. See a discussion of folk law and its qualities in Allison Dundes Renteln et al., eds., Folk Law: Essays in the Theory and Practice of Lex non Scripta (New York: Garland, 1994), 3. 38. Ibn ‘Abidin’s treatise Shifa’ al-’alil, published in the same collection we mentioned earlier. Majmu’at Rasa’il Ibn ‘Abidin, 1:153.

CHAPTER 5 1. Muhammad Rawwas Qal‘a-Ji, Mawsu‘at Fiqh Abi Bakr al-Siddiq (Damascus: Dar al-Fikr, 1983), 85–86. 2. Encyclopedia of Islam II, al-Ridda, vol. 12 (Leiden: Brill, 2000), 692–95. 3. Before the Prophet’s conquest of Mecca in 630, the option of joining the Muslim community was given in armed conflict, since the Muslim community enjoyed a limited territorial sovereignty in Madina. This situation seemed to have been repeated only during the reign of Abu Bakr. After the latter secured most of Arabia as a Muslim land and the Muslim land was bound only to expand, the requirement to join the Muslim community became unnecessary. 4. Muhammad Rawwas Qal‘a-Ji, Mawsu‘at Fiqh Abi Bakr al-Siddiq, 88. 5. Jane D. McAullife, ed., “Apostasy,” in Encyclopedia of the Qur’an, vol. 1 (Leiden: Brill, 2001), 119–22, especially 122. See Wael Hallaq’s summary

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6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

19. 20. 21. 22. 23. 24. 25. 26.

27.

NOTES

of the problem of the variance between the Qur’an’s attitude about apostasy (which emphasized otherworldly punishment for apostasy) and the statements attributed to the Prophet about punishing apostates in this world. Mawardi, Kitab al-Hudud min al-Hawi al-Kabir, ed. Ibrahim Ibn ‘Ali Sandaqji, vol. 2 (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 1077. Ibid., 2:1075. Ibid., 2:1078–79. Ibid., 2:1088–94. Muhammad Rawwas Qal‘a-Ji, Mawsu‘at Fiqh Abi Bakr al-Siddiq, 88. Muhammad Rawwas Qal‘a-Ji, Masu‘at Fiqh ‘Umar Ibn al-Khattab (Kuwait: Maktabat al-Salah, 1981), 230. Ibid., 230. Ibid., 235. Ibid. Ibid., 231. Ibid. Ibid., 233. I do not aim to develop a defense of equating these, nor do I think that a clear distinction can be made between them as Butterworth attempted based on a forced reading of Ibn Khaldun’s treatment of the four classes of war. See, for example, Michael Bonner, Jihad in Islamic History: Doctrines and Practice (Princeton: Princeton University Press, 2006), 6. Majid Khadduri, The Islamic Law of Nations (Shaybani’s Siyar) (Baltimore: Johns Hopkins University Press), 75. Ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar, vol. 3 (Beirut: Dar Ihya’ al-Turath al-Arabi, 1987), 253. Majid Khadduri, The Islamic Law of Nations, 158–60. The harbi husband of a Muslim woman living in dar al-Islam can be given an aman by his wife. Abu Zayd Abdullah ibn ‘Umar al-Dabbusi, Ta’sis al-Nazar (Cairo: Zakariyya Ali Yusuf, 1972). Mahmud ibn Ahmad Zanjani, Takhrij al-Furu‘ ‘ala al-Usul (Damascus: Mu’assasat al-Risalah, 1987), 277–78. Harfiyah Abdel Haleem and others, eds., The Crescent and the Cross: Muslim and Christian Approaches to War and Peace (New York: St. Martin’s Press, 1998), 126. Alan Watson, trans., The Digest of Justinian: Institutes 49.15.5 (Philadeplphia: University of Pennsylvania Press, 1985). The Ciceronian rebuttal of Hortestius view that the study of philosophy has no social value and does not contribute to happiness is now lost. The text is from Augustine, Confessions, trans. Henry Chadwick (Oxford: Oxford University Press, 1998), 39. Norman Kretzmann, Anthony Kenny, and Jan Pinborg, eds., The Cambridge History of Later Medieval Philosophy (Cambridge: Cambridge University Press, 1982), 705. Note that the quote from Gratian’s Decretum is cited on 707; see also 708.

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28. Whether or not it represents a passing stage in Dante’s thinking, the argument he makes reflects a ready, if detailed, internal sense of the importance of empire. Charles Till Davis also argues that “the longing for the restoration of a universal empire, and its necessity for the attainment of human happiness, are also a central theme of the Comedia.” Rachel Jacoff, ed., The Cambridge Companion to Dante (Cambridge: Cambridge University Press, 2007), 258. 29. Dante, Monarchy, trans. and ed. by Prue Shaw (Cambridge: Cambridge University Press), 13. 30. See Peter Green, Alexander of Macedon 356–323: A Historical Biography (Berkeley: University of California Press, 1991), 299, 307, 318; Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 17, 23–24, 32, 34, 36, 38; Richard Tuck, Philosophy and Government 1572–1651 (Cambridge: Cambridge University Press, 1993), 169–79; Norman Kretzmann, Anthony Kenny, and Jan Pinborg, eds., The Cambridge History of Later Medieval Philosophy, 705; and Alan Watson, trans., Justinian, Institutes: 1.2: Concerning Natural Law, the Law of Nations, and the Civil Law (Philadelphia: University of Pensylvania Press, 1985). 31. Zanjani, Takhrij, 98–101. 32. Richard Tuck, The Rights of War and Peace, 12.

CHAPTER 6 1. Rudolph Peters and Gret De Vries, “Apostasy in Islam,” Die Welt des Islams 17 (1975–77): 26–27. 2. Frank Griffel, “Toleration and Exclusion: Al-Shafi’i and al-Ghazali on the Treatment of Apostates,” Bulletin of the School of Oriental and African Studies, University of London 64, no. 3 (2001): 341–42. 3. Ibid., 342–54. 4. Muhammad ibn Muhammad al-Hattab, Mawahib al-Jalil li-Sharh Mukhtasar khalil, vol. 6 (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 279. 5. Al-Mawwaq’s Commentary on Khalil’s Mukhtasar, published with al- AlHattab’s Commentary, vol. 6 (Beirut: Dar al-Kutub al-‘Ilmiyya 1995), 279. While there is no evidence that any systematic chasing of the Isma‘ilis, who were considered zanadiqa by Ghazali, took place, we have sufficient evidence that the term zanadiqa was applied to the Druze by Ibn ‘Abidin (d. 1836). 6. See Mark Lecker, “Ridda,” in Encyclopedia of Islam II, vol. 12 (Leiden: Brill, 2000), Supplement, 692–95. The exact beliefs of these tribes and the nature of their agreements with the Prophet Muhammad before his death have been contested before and after Shafi‘i’s Umm. Modern scholars are now catching up to the realization that despite the official terming if these wars as hurub al-ridda (or the apostasy wars), Muslim jurists and historians have debated the basis for this term and held different views on the matter. 7. The Greek apostasiva (defection) consists of apo (apo, meaning apart) and stasi" (stasis, standing).

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8. Before the Prophet’s conquest of Mecca in 630, the option of joining the Muslim community was given in armed conflict, since the Muslim community enjoyed a limited territorial sovereignty in Madina. This situation seemed to have been repeated only during the reign of Abu Bakr. After the latter secured most of Arabia as a Muslim land, and the Muslim land was bound only to expand, the requirement to join the Muslim community became unnecessary. 9. Muhammad Rawwas Qal‘a-Ji, Mawsu‘at Fiqh Abi Bakr al-Siddiq (Damascus: Dar al-Fikr, 1983), 88. 10. See Wael Hallaq’s summary of the problem of the variance between the Qur’an’s attitude about apostasy (which emphasized otherworldly punishment for apostasy) and the statements attributed to the Prophet about punishing apostates in this world. Wael Hallq, “Apostasy” in Encyclopedia of the Qur’an, ed. Jane D. McAullife, vol. 1 (Leiden: Brill, 2001), 119–22, especially 122. 11. Mawardi, Kitab al-Hudud min al-Hawi al-Kabir, ed. Ibrahim Ibn ‘Ali Sandaqji, vol. 2 (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 1077. 12. Ibid., 2:1075. 13. Ibid., 2:1078–79. 14. Ibid., 2:1088–94. 15. See Chapter 5.For Abu Hanifa [d. 767], protected people (ahl al-dhimma) are allowed to practice what they believe, and for his two students [Abu Yusuf (d. 798) and Muhammad al-Shaybani (d. 805)], they are not given a free pass to apply their law (la yutrakun), and this has applications. One of these [applications] is that, when a dhimmi (a protected male non-Muslim resident of a Muslim state) marries a dhimmiyya (a protected female nonMuslim resident of a Muslim state) while she is in the middle of the ‘idda (a period that must pass after the termination of her previous marriage and before she remarries, according to Islamic law), they are left alone (yutrakan) [i.e., allowed to remain married] in Abu Hanifa’s view, while for the two students, these two people must be separated (yufarraq baynahuma). Another one of these [applications] is that, if a dhimmi marries a close relative (where this would be incestuous in Islam), they should not be separated [i.e., should be allowed to remain married] unless they both seek a court decision by a Muslim judge, in his view [Abu Hanifa’s], while for them [the two students], if only one of them resorts to a Muslim judge, the judge has the authority to separate them [annulling their marriage]. Yet another one of these [applications] is that, if a Magian/Manichean (majusi) married his mother and consummated the marriage and then converted to Islam, and was called an adulterer by another person, the latter must be punished for that, since— according to their religion—they were allowed to do what they did (kana yuqarran ‘ala dhalik). For the two students [Abu Yusuf (d. 798) and Muhammad al-Shaybani (d. 805)], the person who called the man an adulterer should not be punished for what he said. Another [application] is that, if a Manichean marries a female relative (whom he cannot marry under Islamic law), he owes her alimony, because the two [spouses] accept that relationship.

NOTES

16.

17. 18. 19. 20. 21. 22. 23.

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Abu Zayd al-Dabbusi, Ta’sis al-Nazar (Cairo: Muhammad Zakariyya Yusuf, 1972), 13–14; text in brackets is mine. See Chapter 5.“The unbelievers are addressed by the obligation to perform the practices of Islam (furu‘ al-Islam), according to Shafi‘i [d. 820] (God be pleased with him), and this is also the view of the majority of the Mu‘tazilites. He [Shafi‘i] argued that based on general statements in the Qur’an, such as His saying (glorified is He) [relating a dialogue among unbelievers and their punishers in Hell]: “They [Hell’s guards] said, ‘What brought you to Hell (saqar)’? They [the unbelievers] replied, ‘We have not performed the prayers’” (Qur’an 74: 42–43). This indicates that they are punished for failing to perform the prayers. Also, His saying (glorified is He): “They do not call upon other gods with God, and whoever does that incurs sins. His punishment on the Day of Resurrection will be multiplied.” (Qur’an 25: 68). Also, His saying (glorified is He): “Woe to the unbelievers, who do not pay obligatory alms (zakah)” (Qur’an 41: 6–7). Abu Hanifa (God be pleased with him) and the majority of his followers held that the unbelievers are not addressed [by these duties]. They argue that, if the prayer, for example, became obligatory for the unbeliever, it would be obligatory either while he/she is an unbeliever or after. The first is impossible, because the prayer is not acceptable from an unbeliever while he/she is an unbeliever. The second is also impossible, because we all [Hanafi jurists as well as Shafi‘is] hold that an unbeliever who embraces Islam is not required to perform the prayers he/she did not perform while an unbeliever. Applications branch out of this principle (yatafarra‘ ‘ala hadha al- asl masa’il). One of these is that an apostate (murtadd) who embraces Islam must perform the prayers he/she did not perform during his/her days of apostasy (ridda), and the same applies to unfulfilled fasting during the days of apostasy in our view. In this we disagree with him [Abu Hanifa], since he considered the apostate the same as an unbeliever in that he/she is not bound by religious practices. Mahmud ibn Ahmad al-Zanjani, Takhrij al-Furu‘ ‘ala al-Usul (Damascus: Mu’assasat al-Risalah, 1987), 98–101, see also 327–28; text in brackets is mine. Ghazali, Faysal at-Tafriqa Bayn-al-Islam wa-z-Zandaqa, ed. Sulayman Dunya (Cairo: Dar Ihya’ al-Kutub al-‘Arabiyya, 1961). See Khalil’s Mukhtasar (Summary of Maliki Law), published with alHattab’s Commentary, vol. 6 (Beirut: Dar al-Kutub al-‘Ilmiyya 1995), 279. Ibn al-Humam al-Siwasi al-Hanafi, Sharh Fath al-Qadir, vol. 4 (Cairo: Halabi, 1970), 408. Khalil, Mukhtasar, 6:286. Ghazali, Fada’ih al-Batiniyya, ed. ‘Abd al-Rahman Badawi (Cairo: al-Dar al-Qawmiyya lil-Tiba‘a wa-l-Nashr, 1964), 158–59. Ghazali, Faysal at-Tafriqa Bayn-al-Islam wa-z-Zandaqa, 187, 195, 197. Muhsin Mahdi, Alfarabi and the Foundation of Islamic Political Philosophy (Chicago: University of Chicago Press, 2001), 51.

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NOTES

24. Sarah Stroumsa, “The Blinding Emerald: Ibn al-Rawandi’s Kitab alZumurrud,” Journal of the American Oriental Society 114, no. 2 (April–June, 1994), 181–84; David Thomas, Early Muslim Polemic against Christianity: Abu ‘Isa al-Warraq’s Against the Incarnation (Cambridge: Cambridge University Press, 2002), 6–9. The Syrian poet Abu al-’Ala’ al-Ma‘arri (d. 1057) expressed another form of skepticism, amounting to a rejection of many of the claims of revelation and an assertion that “power” imposes itself as the only reality in the world. Ma‘arri writes: “These superstitions, sacred books and creeds/These cults and myths and other noxious weeds/So many lies are crowned in every age/While truth beneath the tyrant’s heel still bleeds,” Abu al-‘Ala’ al-Ma‘arri, The Quatrains of Abu al-‘Ala’, trans. Amn Rihani (New York: Doubleday, 1903), 59. 25. In the Western philosophical traditions, skepticism, as a systematic position, is defined as either a commitment to the impossibility of knowledge or the inability to decide whether knowledge is possible (Pyrrhonian and academic skepticism). Richard H. Popkin, The History of Skepticism from Erasmus to Descartes (New York: Humanities Press, 1964), ix–xi. Farabi seems to provide a different form of skepticism that neutralized the universal claims of religion without rejecting its partial validity for certain people. 26. Al-Fatawa al-Bazzaziyya, vol. 6 (Cairo: al-Maktabah al-Maymaniyya, 1892; published at the margins of al-Fatawa al-Hindiyya), 319. 27. Ibid., 6:320. 28. Ibid., 6:321. 29. Frank Griffel, “Toleration and Exclusion: Al-Shafi‘i and al-Ghazali on the Treatment of Apostates,” Bulletin of the School of Oriental and African Studies, University of London 64, no. 3 (2001): 339–54. 30. Shafi‘i, al-Umm, ed. Muhammad Zuhri al-Najjar, vol. 6 (Cairo: Maktabat al-Kulliyyat al-Azhariyya, 1961), 156–57. 31. See Shafi‘i, al-Umma, 6:156 for arguments from the Qur’an, and 167 for a precedent from ‘Umar’s time. 32. Ibid., 6:158. 33. Ibid., 6:164. 34. Ghazali, Faysal at-Tafriqa, 175–78. 35. Ibid., 192. 36. Ghazali, Fadaih al-Batiniyya, 146–47. 37. Ibid., 147. 38. Ibid., 160–63. 39. Ibn Taymiyya, Majmu‘ al-Fatawa, ed. ‘Abd al-Rahman al-Najdi and Muhammad al-Najdi, vol. 35 (Cairo: Dar al-Rahma, 1961–67). The purported treatment occupies pages 99–207. 40. Khaled About El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 271–73. 41. Ibn Taymiyya, Majmu‘ al-Fatawa, 35:100–102. 42. Ibid., 35:108–19. 43. Ibid., 35:122–44.

NOTES

44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64.

203

Ibid., 35:161–62. Ibid., 35:165. Ibid., 35:203. Ibid., 35:202. Ibid., 35:165. Radd al-Muhtar of Ibn ‘Abidin on the text of al-Durr al-Mukhtar by al-Haskafi is seen as an encyclopedia of late Hanafi law. Reference is made to the Beirut (copied) edition of 1987, Volume 3, pages 283–308. Ibn ‘Abidin, Radd al-Muhtar, vol. 3 (Beirut: Dar Ihya’ al-Turath al-Arabi, 1987), 289. Ibid., 3:269 Ibid., 3:297–98. Ibid., 4:299. Ibid., 3:309. Ibid., 3:301. Muhammad ibn Muhammad al-Hattab, Mawahib al-Jalil li-Sharh Mukhtasar khalil, vol. 6 (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 279. Ibn al-Bazzaz al-Kardari, Al-Fatawa al-Bazzaziyya, 6:321. Sulayman Ibn ‘Umar al-Bijirmi, al-Tajrid li-Naf‘ al-‘Abid, a Commentary on Manhaj al-Tullab of Zakariyya al-Ansari, vol. 4 (Cairo: al-Matba‘ah al‘Amirah, 1875), 205. Ibn al-Bazzaz al-Kardari, Al-Fatawa al-Bazzaziyya, 6:311. Ibn al-Humam al-Siwasi al-Hanafi, Fath al-Qadir, a commentary on Marghinani’s text, al-Hidaya, 4:408. This conclusion is also corroborated by a survey of the use of the word zandaqa outside of juristic writings. See the term “zindiq” in the Encyclopedia of Islam II, vol. 11 (Leiden: Brill, 2000), 510–13. Wilfred Madelung, Religious Trends in Early Islamic Iran, Columbia Lectures on Iranian Studies 4 (Albany, Bibliotheca Persica, 1988), 101. Ghazali, Fada’ih al-Batiniyya, 4, 9. Muhammad ibn Muhammad al-Hattab, Mawahib al-Jalil li-Sharh Mukhtasar khalil, vol. 6 (Beirut: Dar al-Kutub al-’Ilmiyya, 1995), 282.

CHAPTER 8 1. Maria Todorova’s summary of Carl Heinrich Becker’s vision, which he presents in Vom Werden und Wesen der islamischen Welt: Islamstudien, vol. 1 (Leipzig: Verlag Quelle & Meyer, 1924), 16–39, in her lecture “Historical Legacies between Europe and the Middle East,” supported by the Fritz Thyssen Foundation and published by the Europa im Nahen Osten; Der Nahe Osten in Europa program and the Wissenschaftskolleg in Berlin in 2007. See, particularly, pages 58–62 or 28–33 for a German translation.

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INDEX

Ibn al-Bazzaz al-Kardari (d. 1424), 157, 165 Benedict XVI (pope), 34–36, 191 Bergstr

Abbasi (d. 1897), 6, 21, 22, 24, 41, 58, 65–80, 179, 194 Ibn ‘Abidin (d. 1836), 6, 21, 22, 24, 27, 41, 43–63, 83, 84, 86–102, 104, 107, 108, 110, 111, 113, 114, 158, 159, 164, 165, 179 Africa, 118 Ahmad ibn Hanbal (d. 856), 56, 58, 167 ‘A’isha bint Muhammad ibn ‘Abd aHadi (d. 1457), 37 Alberico Gentili (d. 1608), 143 Aleppo, 56 Alexander of Macedon (d. 323 BCE), 140, 141 apostasy, 7, 9, 22, 26, 42, 60, 61, 71, 72, 124, 125, 145, 147–62, 164–68, 185, 193, 198–201 ridda, 124, 151, 199, 201 Ibn ‘Aqil (d. 1119), 193 Aristotle (d. 322 BCE), 25, 143 Asia, 141 Augustine (d. 430), 142 Azhar (mosque school), 66, 67

Edward W. Lane, 66 Egypt, 6, 13, 21, 23, 38, 39, 43, 49, 50, 53, 63, 65–68, 80, 84, 105, 108, 109, 128, 138, 176 Europe, 21, 27, 34–36, 52, 118, 138, 183, 203

Baghdad, 161 Abu Bakr (d. 634), 38, 124–26, 128, 151, 152, 161, 166, 197, 200 Barsbey (d. 1438), 53 Baybars (d. 1277), 53

Fatima bint Muhammad ibn ‘Abd aHadi (d. 1426), 37 fatwa/fatawa, 37, 45, 65, 68, 69, 70, 74, 76, 78, 79, 98, 161, 194 France, 138

Cairo, 13, 55, 59, 66, 68, 70 Carl Heinrich Becker (d. 1933), 183, 184, 203 Cicero (d. 43 BCE), 141–43 Dabbusi (d. 1036), 132, 154 Damascus, 6, 21, 43, 45, 49, 56, 59, 62, 87 Dante (d. 1321), 143, 199 Darazi (d. 1020), 163 divorce, 6, 70–80, 84, 106–9, 111, 114, 171, 194, 195 khul‘, 73, 76, 106, 108, 109

212

INDEX

Ghazali (d. 1111), 149–51, 154–58, 160–62, 164, 166–68 Goldziher (d. 1921), 28, 29, 33, 66 Granada (Spain), 86 Gratian (twelfth century), 143 Grotius (d. 1645), 140, 143, 144 Abu Hafs al-Kabir (d. 878), 47 Ibn Hajar al-‘Asqalani (d. 1449), 37 Al-Hakim al-Shahid (d. 945), 47 Hallaj (d. 922), 162, 163 Abu Hanifa (d. 767), 49, 56, 57, 133, 134, 145, 200, 201 Al-Hasan ibn Zyad al-Lu’lu’i (d. 819), 47 Haskafi (d. 1677), 47, 56, 57, 59, 62, 76, 193 Ibn Hazm al-Qurtubi (d. 1064), 37, 39 Hobbes (d. 1679), 143 Hugo von Hofmannsthal (d. 1929), 49 Ibn al-Humam (d. 1460), 53, 90 Ibhrahim ibn Muhammad al-Halabi (d. 1549), 47 India, 39, 104 Abu ‘Isa al-Warraq (ninth century), 157 Abu Ja‘far al-Hinduwani (d. 973), 47 Jahiz (d. 868), 18, 155 jihad, 8, 118, 119, 127, 129, 134–37, 139, 146. See also war Jurji Zaydan, 66 Ibn Kathir (d. 1373), 39 Madina, 33, 123, 125, 151, 160, 197, 200 Mahmud Shakir (d. 1996), 18, 19, 27, 28 Malik ibn Anas (d. 795), 123, 155, 166 Mamluk, 43, 48, 50, 52, 53, 138 Manuel II Palaeologus (d. 1425), 35

Marghinani (d. 1197), 47 Mecca, 33, 55, 56, 123, 125, 128, 151, 160, 162, 164, 197, 200 Mediterranean, 27, 50, 128 Muhammad ‘Ali Pasha (d. 1848), 66 Muhammad Amin al-Mahdi (d. 1831), 66 Muhammad al-Mahdi (d. 1815), 65, 66 Muhammad ibn ‘Abd al-Wahhab (d. 1766), 3, 164 Al-Mu‘izz (Fatimid ruler; d. 975), 163 Muslim ibn al-Hajjaj al-Naysaburi (d. 875), 38 Nasafi (Abdullah ibn Ahmad; d. 1310), 47 Nawawi (d. 1277), 53 Nöldeke (d. 1930), 29, 30, 31, 32, 33, 191 Ibn Nujaym (d. 1563), 47, 89–91 Ottoman, 34, 35, 43, 49, 50, 52, 138, 164 Portugal, 138 Qadi Khan (d. 1196), 47 Quduri (d. 1037), 47 Ibn al-Rawandi (ninth century), 157 Rome, 140, 142 Rubayyi‘ bint Mu‘awwidh (d. 665), 38 Ibn Salama (d. 1019), 33 Al-Sarakhsi of al-Mabsut (d. 1097), 47 Al-Sarakhsi of al-Muhit (d. 1149), 47 Schwally (d. 1919), 33 Shafi‘i (d. 820), 53, 58, 69, 120, 125, 126, 133, 134, 140, 141, 145, 150, 152, 158–60, 166, 168 Shanawani (d. 1818), 66

INDEX

Shaybani (d. 805), 9, 47, 120, 129, 145, 165 Spain, 86, 138 Suyuti (d. 1505), 30–33, 193 Syria, 38, 39, 43, 50, 53, 56, 62, 138, 161, 163 Tabari (d. 923), 33, 37, 39 Tahawi (d. 933), 47 Ibn Taymiyya (d. 1328), 110, 149, 158, 159, 161–63, 167, 168 ‘Ubaydullah al-Mahbubi (d.1346), 47

213

‘Umar ibn al-Khattab (d. 644), 53, 125–29, 144, 161, 178, 202 Wahhabi/Wahhabism, 4, 45, 46, 47, 48, 164 Walter Benjamin (d. 1942), 47 war, 4, 7–9, 14, 22, 35, 42, 117–46, 150–52, 161, 162, 168, 198, 199. See also Jihad Abu Yusuf (d. 798), 145, 200, 201 Zanjani (d. 1258), 133, 154