Islamic Law

Reprinted from the Middle East Studies Association Bulletin, Winter 2000 (with changes in orthography to HTML standards).
Copyright 2000 by the Middle East Studies Association of North America
Annäherung und Distanz: Schia, Azhar und die Islamische Ökumene im 20. Jahrhundert, by Rainer Brunner. 328 pages, bibliography, index. Berlin: Klaus Schwarz Verlag, 1996. ISBN 3-87997-256-7

In July 1959, Mahmoud Shaltut, then rector of the Azhar, issued a historic statement recognizing the J’'fari or Imami (Twelver) Shiite madhhab as an authentic, orthodox Islamic legal tradition. To many Sunnis, Shiites, and outsiders alike it seemed incredible that a leading scholar holding a prominent position in a conservative Sunni organization could adopt such a bold stand, going against prejudices built up over centuries of conflict, polemic, and discrimination. In this work, Brunner provides a detailed account of the events leading up to this attempt at reconciliation between Sunni and Twelver Shiite Islam, putting Shaltut’s historic statement in context by documenting the personalities, organizations, and trends of thought involved in the movement for rapprochement, their activities, debates, and negotiations, and their successes and failures in striving to promulgate a more ecumenical view of Islam.

Annäherung und Distanz, a revised version of a 1995 dissertation at the University of Freiburg, consists of an introduction on the historical polemics between Sunni and Shiite Islam, ten chapters, and an epilogue. Chapter One presents pre-twentieth-century attempts to overcome the historical schism, beginning with Nader Shah’s well-known attempt to have the Ottoman Sultan recognize Twelver Shiism as the fifth orthodox madhhab in the eighteenth century. Chapter Two describes Azhar reforms in the early twentieth century which paved the way for the acceptance of more liberal visions of Islam at the official level. Chapter Three presents the 1911-36 correspondence between the rector of the Azhar Salim al-Bishri and the Lebanese Twelver mujtahid `Abd al-Husayn Sharaf al-Din which was subsequently published by the latter in a volume entitled Muraja’at. Chapter Four recounts the abolition of the Sunni Caliphate and its aftermath, including the General Islamic Congress in Jerusalem in December 1931, where 150 delegates from 20 Muslim countries gathered to discuss the possibility of pan-Islamic cooperation. The meeting produced a confrontation between Sunni Rashid Rida, famous author of al-Manar, and the Iraqi Shiite jurist Muhammad al-Husayn Al Kashif al-Ghit’. Chapters Five through Nine deal with the Jama’at al-taqrib, the organization dedicated to Sunni-Shiite rapprochement with which Mahmoud Shaltut was closely involved. Headed by Iranian Shiite scholar Muhammad Taqi Qummi, it operated in Egypt between 1946 and 1972 and published its views regularly in the journal Risalat al-islam. Chapter Five treats the founding of the organization following World War II, Chapter Six discusses the Sunni and Shiite scholars involved with the movement, and Chapter Seven discusses the possibilities and limits of the ecumenical debate. Chapter Eight covers 1952-57, examining the effects of the Egyptian revolution and subsequent Azhar reforms on the ecumenical debate. Chapter Nine recounts the short-lived triumph of ecumenical thought with Shaltut’s famous statement and the movement’s subsequent foundering. Chapter Ten and the epilogue describe the declining popularity of rapprochement, characterizing the 1979 Iranian Revolution as the death-knell of the movement.

Thorough research and careful documentation render this work the best account by far of the Jama’at al-taqrib and its historical background, making a fascinating chapter in the history of Sunni-Shiite relations available to a wide audience.

Devin Stewart
Emory University
Islamic Law: Theory and Practice, edited by Robert Gleave and Eugenia Kermeli. 248 pages, endnotes, bibliography, index. London and New York: I. B. Tauris, distributed in the U. S. by St. Martin’s Press, 1997. $75.00 (Cloth) ISBN 1-86064-119-9.
In his introduction to Islamic Law, Gleave identifies three themes that recur in its articles (originally papers presented at a conference at the University of Manchester in 1995). These themes are the role of ijtihad in Islamic law, the use of fatwa collections as sources for judicial practice, and the application of the law under local circumstances. Indeed, a number of these articles could be placed under more than one of these categories.

Ijtihad is the subject of articles by Eric Chaumant, Gleave, and Benjamin Jokisch. Chaumant’s contribution examines the writings of Shafi`i scholars of legal theory to challenge the idea that the “`gate of ijtihad” was ever closed,” (p. 18) and to assert that some theorists recognized the creative role of ijtihad in forming legal norms. Gleave revisits the Usuli-Akhbari controversy. He presents the arguments against ijtihad made by the eighteenth-century scholar Yusuf b. Ahmad al-Bahrani, who attempted to find a middle way between the two parties. Jokisch’s article deals with Ibn Taymiyya’s use of ijtihad. Unlike the preceding articles, however, he focuses his attention on fatawa, rather than on works on usul al-fiqh as such. This inductive approach is intriguing, but would have to be pursued more systematically to produce meaningful results.

Fatwas are also the subject of articles by Mohammed Fadel, Amalia Zomeno, and Patricia Kabra. Fadel’s detailed and well-executed study compares a fatwa collection from the fourteenth-fifteenth centuries with the Mukhtasar of Khalil, which Fadel portrays as the standard Maliki text of its time. While one may disagree with Fadel’s description of the Mukhtasar as a ‘code’ and have some reservations about the use of fatawa as a reflection of judicial practice, this article raises important questions about the relationship between legal theory and practice. Zomeno uses a fatwa from fifteenth-century Fez to see how the doctrine of equality in marriage (kafa`a) was interpreted in the Maliki school. She concludes that this doctrine was used less to determine the suitability of a potential match (a decision left to the woman’s guardian) than to challenge the validity of a marriage with which the bride’s family was dissatisfied. Kabra, also using fatwas as a source, shows that Maliki law’s treatment of water rights evolved from purely agricultural concerns to deal with increasing urban disputes.

Eugenia Kermeli and Isaac Hollander address the role of non-Muslims in Islamic law. Kermeli uses the fatwas of Ebu Su`ud to demonstrate how the Ottoman authorities made room for monastic endowments without giving them the status of religious foundations or legal persons. Hollander’s article, based on legal documents from early twentieth-century Yemen, shows that Jews used Islamic courts to obtain rights not available to them in Jewish courts.

Finally, Brigit Krawietz, Ruth Mitchell, and Yitzhak Reiter address issues in modern Islamic law. Krawietz argues that the debate over the permissibility of organ transplant has been more heated than previous accounts have acknowledged. Mitchell examines the 1984 changes in Algeria’s family laws, and finds that their effects on women’s rights are ambivalent. Reiter’s article deals with Islamic courts in Israel and the attempts of one judge, Ahmad al-Natur, to reform that system and wean it off of its dependence on Israeli civil law. This collection of well-researched and well-written articles will be of interest to a wide readership in Middle Eastern studies.

Adam Sabra
University of Michigan
Schari’a und Moderne: Diskussionen über Schwangerschaftsabbruch, Versicherung und Zinsen, by Rüdiger Lohlker. (Abhandlungen für die Kunde des Morgenlandes) 156 pages, bibliography. Stuttgart, Germany: Deutsche Morgenlandische Gesellschaft, 1996. (Paper) ISBN 3-515065-822
Schari’a und Moderne contains three studies on various legal questions, comprising abortion, insurance law, and the problem of interest. These legal questions are dealt with through the presentation of selected original texts (sometimes given in Arabic, sometimes only in German summary) and the outlining of some Muslim discourses in these particular legal fields that have evolved in the process of confrontation with modern Western law. Regrettably, the book contains neither index nor glossary of important Arabic juridical terms. Lohlker, however, does include some Arabic terms in brackets in his summaries of the texts.

The first chapter deals with a fatwa of the Egyptian mufti Jad al-Haqq `Ali Jad al-Haqq from the year 1980 (reprinted in 1987). It is given in the original Arabic together with a German summary. This fatwa is Jad al-Haqq’s answer to a question asked by a medical doctor regarding the circumstances under which abortion may be allowed, if at all. The physician is particularly interested in the issue of whether hereditary diseases that are detected during pregnancy can be regarded as sufficient grounds for an abortion. In his answer the mufti presents the opinions of different schools of law ranging from unrestricted permissibility of abortion in the first 120 days (that is, before the soul descends) to absolute prohibition. Concerning the question of hereditary diseases he mainly refers to the Koran and sunna. It seems that the mufti himself would support the permission of abortion under coercive conditions in the first 120 days, but he is not very clear about this, and Lohlker does not elaborate either. Thus, the reader is left pondering the practical implications of this fatwa.

The second chapter is more comprehensive and relates to the Islamic discussion of insurance. As is well known, insurance contracts may pose a problem in Islamic law because they do not readily fit into existing types of Islamic contracts; they are considered to involve risk (gharar) and are normally discussed in connection with forbidden interest (riba). Lohlker presents in translation (but without the Arabic original) parts of the discussion about this topic which reflect the current negative evaluation of insurance. By contrast to these negative evaluations, he outlines the position of the Syrian jurist Mustafa al-Zarqa', who approves of insurance-contracts, challenges the traditional position that the contract types accommodated by the shari`a are fixed, and accepts new types of contract corresponding to new social and legal necessities.

The last chapter discusses the question of riba, that is, interest, and refers to the Egyptian jurist al-`Ashmawi, who argued against the absolute prohibition of legal transactions containing riba (unfortunately again without the Arabic original). In this respect al-`Ashmawi issued a verdict in 1987.[1] It would have been interesting to read whether al-`Ashmawi’s arguments are still upheld in today’s Egyptian jurisprudence. The texts Lohlker deals with are undoubtedly very interesting and—even if the selection is somewhat haphazard—provide an insight into the legal discourses that have evolved in Egypt and elsewhere in the Muslim World in reaction to Western law. The reader misses, however, references to the legal context in which these discourses emerged, let alone the juridical practices entailed by them.

It is well known that Islamic law is not inflexible but can adapt itself to a changing social and political reality. Lohlker’s contribution is a successful attempt to show this adaptability.

Irene Schneider
Institut für Orientalistik der Universität Halle/Saale


[1] The arguments of Al-`Ashmawi are interesting. He points out the riba in pre-Islamic and early Islamic times led to the enslavement of debtors, as in the case of a debtor who was—according to a hadith—sold by the Prophet as a slave. For the interpretation and dating of this interesting hadith which is opposed to later Islamic law, see Irene Schneider, Kinderverkauf und Schuldknechtschaft (Stuttgart, 1999), p. 74ff. which is an answer to H. Mozki, “De Prophet und die Schuldner,” Der Islam 77 (2000), p. 1ff. Also see Irene Schneider, “Narrativität and Authentizität: De Geschichte vom weisen Propheten, dem dreisten Dieb und dem koranfesten Gläubiger,” Der Islam 77 (2000): 84ff.
The Spirit of Islamic Law, by Bernard G. Weiss. 211 pages, notes, glossary, bibliography, index. Athens, GA: University of Georgia Press, 1998. $45.00 (Cloth) ISBN 0-8203-1977-5
The Spirit of Islamic Law is a contribution to a larger series focused on the nature of legal systems throughout the world. As an interdisciplinary project, Weiss’s work has the formidable task of appealing to two disparate audiences: specialists in Middle Eastern studies and readers unfamiliar with Islamic law and history. By using semiotics and literary theory to illuminate themes and tensions within Islamic law, Weiss provides a thoughtful and sophisticated analysis that successfully negotiates the needs and interests of his two audiences.

The bulk of the work is concerned with the implications of the textualist/intentionalist bent in Islamic law. Textualism is defined as law grounded in texts, while intentionalism is a form of originalism in which divine intent is discovered within the foundational texts. Weiss uses this framework to argue persuasively that the Qur’an and the Sunna constitute a ‘lexical code,’ whose preservation via tawatur transmissions and Qur’anic commentaries safeguards access to understanding of divine intent, and ultimately, to the formulation of Islamic law.

After two introductory chapters to Islamic law and history, Chapters 3-5 explore the various tensions created by this textualist/intentionalist orientation. Weiss demonstrates how the use of analogical reasoning posed theoretical problems for Muslim jurists by opening the door to legal uncertainty, and exposing an underlying tension about whether God acted consistently with human reason. He extends this tension between certainty and probability to a discussion of the isnad as a device for ensuring certainty, and to the role of consensus and the ‘infallible doctrine’ as a means for resolving differences in legal interpretation.

In the remaining chapters Weiss focuses on the relationship between theory and practice. He exposes a series of tensions between political theory and reality, and between the moralistic bent of the law and its concessions to human behavior in matters of divorce and interest. Most interesting is Weiss’s use of David Powers’s work on the fatwas of Ahmad al-Wansharisi to illuminate an increasing divergence from the ideal of textualism. Although in theory classical muftis relied upon the foundational texts, Weiss observes that in actual practice muftis predominantly relied upon the opinions of their predecessors. Unfortunately, Weiss does not analyze how the Muslim jurists understood or rationalized this emerging gulf between theory and practice.

Despite the book’s many strengths–including its welcome incorporation of Shi‘i thought into the discussion of Islamic law–too little time is spent exploring these tensions between theory and practice. This deficiency is most apparent in Chapter 5 in which Weiss constructs an archetypal mujtahid to illustrate how jurists engaged in textualist, legal ratiocination. Although useful as a model, Weiss’s work suggests that mujtahids engaged in this laborious critical analysis every time they encountered a legal question. A discussion of the increasing role of precedent and the emergence of school founders might have provided a more balanced understanding of legal reasoning in the early and classical periods. Similarly, it would have been interesting if the author had devoted more analysis to the tensions created by the use of istihsan and istislah within a textualist/intentionalist framework. In spite of these criticisms, Weiss has done an admirable job of completing a very difficult task. By focusing upon the textualist/intentionalist spirit of Islamic law, Weiss has provided an important analytical framework for future comparative legal studies.

Peter C. Hennigan
Yale Law School