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Islamic Law and Jurisprudence

Panel VII-18, 2022 Annual Meeting

On Saturday, December 3 at 8:30 am

Panel Description
  • Kamal Gasimov
    Adam’s Fall as An Origin of Social Order: ‘Abd al-Wahhab al-Sha‘rani (d. 973/1565) on Genealogy of Islamic Law, Human Deficiency, and Salvation The stories of the prophets (qisas al-anbiya’) and the salvation history have been employed by many generations of Islamic scholars to construct and convey variegated narratives and messages. Muslim authors harnessed and recycled stories about prophetic self-sacrifice, repentance, and faithful service to God to offer different interpretations that reflected social contexts and problems of their own era. This paper examines an interesting theory of the sixteenth-century jurist and head of the Sufi institution (zawiya) in Cairo that explains how Adam’s fall and humans’ sinful condition are related to the Islamic rulings that were shaped by the four Sunni schools of law. It shows that the way al-Sha'rani employs the “Quranic myth” on Adam’s fall to rationalize Islamic rituals corroborates several conflicting theories in contemporary ritual studies. Al-Sha‘rani synthesized a variety of exegetical and Sufi materials on Adam and Eve in Islam to create a coherent narrative that explains the telos of the worship rituals (purity rules, prayer, fasting, pilgrimage, alms-tax) and the rules of corporal punishments, economic transactions, and political system in the Muslim societies. The importance that al-Sha‘rani assigns to the story of Adam’s fall, the forbidden fruit, and their consequences for humanity suggests that the idea of the “original sin” found its unique way into the Islamic intellectual tradition, especially into the Sufi thought. This paper argues that the “Qur’anic myth” in al-Sha‘rani’s theory of Islamic law responds to the immediate social concerns of his Sufi disciples and readers who lived in a time of political turmoil and crisis in sixteenth-century Egypt. The creative imagination of a mystic and the practical skills of a jurist enabled al-Sha‘rani to transform the pessimism of the exegetical narratives associated with the stories about Adam and Eve into optimistic mystical theology that promised salvation and hope in the context of chaos and disorder. To resolve the problem of Adam’s disobedience, al-Sha‘rani reconciles and synthesizes the dominant Ash‘arite and Sufi concepts of the infallibility of the prophets. Ultimately, he transforms the story of Adam’s fall into the ethical discourse and didactic narrative that instills into his Sufi disciples, such virtuous abilities as “thinking well of others”, “helping the poor”, “humility”, and “redemption”.
  • The jurisprudence of reality (fiqh al-wāqiʿ) represents a new trend in the contemporary Islamic discourse that aims to provide a suitable and legitimate framework for the actualization of Islamic renewal and the guaranteeing of authentic Islamic modernity. Muslim scholars have portrayed it as essential for the construction of a new dialectical relationship between texts (naṣṣ) and contextual reality (al-wāqiʿ) as well as the elaboration of a new modern jurisprudence relevant for the modern times and responsive to the needs of contemporary Muslims. In my paper, I intend to analyze the ways the jurisprudence of reality is theorized in contemporary Islamic thought. What kind of genealogy have Muslim scholars constructed for the jurisprudence of reality and how have they situated it in the broader mosaic of the contemporary Islamic reform? What part of the tradition have they mobilized to conceptualize the modern structure of the jurisprudence of reality? What notion of reality have they displayed and what traditional legal mechanism have they invoked in their articulation of the jurisprudence of reality? The paper argues that the contemporary articulation of reality (al-wāqiʿ) constitutes a shift in focus and content compared with the traditional Islamic discourse on the topic. Whereas the classical discussions on the notion of reality tend to be mainly focused on the epistemological, the ontological, and the metaphysical aspects of the issue, contemporary discussions tend to discuss reality only in relation to its relevance for practical and imminent concerns related to the Islamic call and renewal. The paper identifies four principal ways in which the jurisprudence of reality is conceptualized in contemporary Islamic thought. They can be described as the theological, the reformist, the political, and the legal approach. The paper gives a detailed account of each of these approaches and highlights their particularities and limitations. In terms of its role in contemporary ijtihād, the jurisprudence of reality refers to the modern phenomenon of the creation of new legal subfields for the purpose of justifying and regimenting the use of utilitarian modes of juristic reasoning. In this context, the jurisprudence of reality consists in bringing novel legal development through subdivision, readjustment, reorganization, expansion, or restriction of classical Islamic legal frameworks and structures. In the new legal subfields, the contextual and utilitarian considerations are invested with an unprecedented role and power to limit, suspend or circumvent, in their name, the import of traditional legal rulings.
  • Latifeh Aavani
    The demand for the rule of law was one of the key characteristics of the Iranian constitutional revolution of 1905-1911. Modern law (qānūn) during this period was perceived as a tool to limit the absolute power of the Qajar monarch and to establish a constitutional state in which all public officials are under the supervision of law. In this paper, I will argue that the demand for the rule of law in Iran emerged decades before the constitutional period in the second half of the 19th century at least in two major contexts. First, it appeared in the treatises written by the Qajar officials and secondly through the Persian press printed outside of Iran particularly in Istanbul, Cairo and London. In the case of the treatises written by the Qajar statemen, modern law is defined as a statecraft in the form of codification. Moreover, these treatises promote legal reform as a central piece of overcoming political and economic decline in Iran by the enactment of codified law to regulate the actions of public officials. My discussion will be primarily based on an analysis of Daftar-i Tanẓīmāt (The Book of Tanẓīmāt) by Mīrzā Malkum Khān (d.1908), and Kitābchah-yi Majlis-i Tanẓīmāt (the Code of Tanẓīmāt Assembly) which is attributed to Farrukh Khān Amīn al-Dawlah (d.1871) . I will then focus on sections form newspapers such as Akhtar (printed in Istanbul), Qānūn (printed in London) and Thurayyā (printed in Cairo) to analyzes the role of press in shaping the necessity of modern law as the basis of reformism. I will demonstrate that Persian press printed outside of Iran depicted Ottoman Tanẓīmāt as a successful model of reformism Iran. I My primary method in this paper is based on the archival research based on my work in the Iranian Parliament archives and the Malik Library archives.
  • One of the ideas emphasized by modern Muslim reformers is the need to return to the original sources of Islam in order to acquire an authentic understanding of the religion’s teachings. Some studies (e.g., Bauer 2021; Hamdeh 2021) argue that this modern discourse constitutes a break from the pre-modern Islamic jurisprudential tradition. According to this argument, the reformers’ idea of “going back to the origin” enables them to break free from the restrictions of the traditional interpretations. Other studies (e.g., Brown 2015; Lauzière 2015) show a certain degree of continuity of this modern discourse with discursive approaches found in the pre-modern Islamic tradition. To contribute to this discussion, my paper tries to answer the question of whether the modern discourse of “going back to the origin” is fully or partially continuous with a pre-modern Islamic discourse. By comparing the application of this discourse in Muḥammad ʿAbduh and Rashīd Riḍā with the discourse of Ibn Ḥazm, a supposed ancestor of this idea, I argue that the modern discourse of “returning to the origin” is structurally different from the apparent similar discourses found in the pre-modern Islamic tradition. I formulate my argument through the analytical concept of multiple rationalities. I argue that the practice of fiqh found in the pre-modern Islamic tradition was based on multiple vertical rationalities. In the pre-modern tradition, the first layer of rationality was called pure reason (al-ʿaql al-mujarrad), which consists of a rationality shared between all people. The practice of pure reason is manifested in the tradition of theology (ʿilm al-kalām). However, when it comes to the practice of fiqh, pre-modern jurists depended on another layer of rationality they called dependent reason (al-ʿaql ghayr al-mustaqill) or restricted reason (al-ʿaql al-muqayyad), which consists of rationality that is derived from the Shariah’s sources and the inherited practices from the previous generations. This rationality is manifested in the genre of legal theory (uṣūl al-fiqh). Through a discussion of Ibn Ḥazm, I will argue that pre-modern jurists who emphasized the return to the origin and neglecting schools of law (madhāhib) did not dismiss the dependent reason. Rather, they aimed to establish a distinct dependent reason from the ones established by other schools. However, modern reformers, such as ʿAbduh and Riḍā, were influenced by a Cartesian conception of rationality. This is discerned in their dismissal of the second layer of rationality and their dependence on pure reason when reading the sacred texts.
  • Samira Musleh
    As a socio-economic institution, marriages generally enshrine two forms of labor: unpaid and paid. Unpaid labor, which constitutes housework and care work in the family, has long been a central topic of inquiry in feminist scholarship. This form of labor ensures smooth operation of the household and is conceptualized, in the Marxist tradition, as the labor of social reproduction essential for the generation and sustenance of workers outside of the household. Paid labor, on the other hand, is necessary for the financial upkeep of a marriage and has predominantly been studied in anthropological scholarship on kinship and gift economies. Both forms of marital labor have historically been gendered: unpaid labor is feminized, and paid labor is masculinized. While gendered labor in Muslim contexts received significant scholarly attention, the study of Muslim marital economies has been rarer and confined to the Middle East. Moreover, the intersection of labor and money in Bangladeshi Muslim marriages has been neglected in the study of both Middle Eastern and South Asian studies, considering Bangladesh’s peripheral geographic status, despite being home to one of the world’s largest Muslim populations. My research, based on ethnographic, textual, and media analysis of Bangladeshi Muslim marriages, draws crucial connections between the abundant existing scholarship on Middle Eastern and Bengali Muslim marital economies. Based on the findings from ethnographic interviews of Bangladeshi Muslim women about their negotiation of cultural, religious, and personal values on what constitutes an equitable division of labor and financial responsibilities in a marriage, I argue that engaging in the incorporation of Islamic marital norms in places historically outside of its birthplace can enlighten our understanding of gendered labor and economic practices in the Middle East and the impact of postcolonial capitalism on the interpretation of Islamic legal and ethical texts by scholars and practitioners alike. The impact of multigenerational households, stigmatization of paid labor for affluent women, the hindu religious tradition of dowry, as well as the cultural meaning and cost of divorce give Bengali Muslim marital economy its unique characteristics. Instead of introducing Bengali Muslims as a detached addition to ethnographic and feminist inquiries into Middle Eastern marriages, my goal is to analyze how Islamic marital customs changed across geographic, temporal, and linguistic boundaries and how non-Arabic-speaking Muslims engaged with Arabic textual traditions.