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Habituation in the Law: A consideration of ethical concepts as found in works of fiqh
Abstract
Early Western writing on “Islamic law” has tended to note that fiqh, on its classical formulation, was “a composite science of law and morality” which had “a much wider scope and purpose than a simple legal system in the Western sense of the term.” (Noel Coulson, A History of Islamic Law, 83; see also Joseph Schacht in An Introduction to Islamic Law). Despite this awareness, however, much of this early work chose to focus exclusively on the “properly legal” subject matter of fiqh, on the premise that this latter could be neatly distinguished from its “religious” or “ethical” elements. More recently, however, scholars have observed the extent to which such a distinction is indebted to a secular logic inappropriate for a juristic tradition that experienced both its formation and maturation in the pre-modern world. In response, emergent scholarship has begun to sketch out the way in which “law” and “ethics”, as currently understood, commingled in an organic manner within the sharīʿa system, itself in turn a well-integrated institution of Islamic society. For the most part, such arguments tend to highlight the capacity of legal processes, instruments and personnel to carve out room for ethical considerations within the judicial system, and in the latter’s interface with political governance. This re-framing of the issue represents a significant advance, especially inasmuch as it makes use of insights drawn from other fields like anthropology and social history. However, the resulting account, in its heavy reliance on the discretion and intervention of juristic personnel, also threatens to reaffirm two old Orientalist tropes: Islamic law as Kadijustiz, the arbitrary judgment of individual jurists haphazardly dispensing justice from under a palm tree; and Islamic law as characterized by a gap between theory and practice. My paper, in contrast, seeks to avoid these pitfalls by returning to the textual record in an effort to locate sites in which the interdependence of “law” and “ethics” is evident within written works of fiqh themselves. To do so, I trace the history of a cluster of concepts used by fiqh writers to actively cultivate virtues among the populace by linking them to legal integrity, or standing, before the court. These concepts cluster around the notion of habituating the subject to avoid sinful acts, affirming Hussein Agrama’s observation that, against the liberal insistence on freedom as the constituent ingredient for a proper ethics, authoritative constraints are in fact productive of ethical agency.
Discipline
History
Geographic Area
None
Sub Area
Islamic Law