An Introduction to Islamic Law 1st Edition

Hallaq is a towering figure in Islamic legal studies. He started his career with a bang, by dismantling the thesis of the "closing of the gate of ijtihad" which was championed notably by Joseph Schacht, an unassailable authority of the earlier scholarly generation. Not only that, he managed to convince the rest of the field that Schacht was wrong, as one can see from modern reference works. He's been churning out insightful research for the 30 years that followed.This is his first book written for a general audience. In part, it is an abridgment of his much more detailed recent book "Shari‘a: Theory, Practice, Transformations" which omits Arabic terminology, occasional theoretical obscurities, and a whole lot of footnotes. It is also more than that. This book shows that Hallaq can manage a real page-turner -- in any case, for those interested in the subject. What this book is emphatically not is a collection of rules plucked from classical law manuals, as many other texts on this subject are. It examines the intellectual underpinnings of classical Islamic law, complementing the more technical introduction to the subject by Bernard Weiss ("The Spirit of Islamic Law"). It spends even more time examining how that law fit into the classical legal system and the broader society. What emerges is a portrait of a pre-modern legal tradition viewed on its own terms, rather than by projecting modern ideas about law and state onto snippets of medieval legal writings. Hallaq wants you to share his feeling that it was a pretty impressive one and he makes a persuasive case.The book does not have a happy ending. Its second half examines how the classical legal system was transformed in the crucible of modern state-building and colonial encounters. It didn't fare well. Most of it was swept away by the tide of modernity, and what was left became a travesty of its former pre-modern self. In any case, that's the picture Hallaq paints in his work. This perspective is shared by some scholars, while others tend to regard the modern transformations of Islamic law as a testament to its vitality. For a more detailed and dispassionate introduction to the subject, this book can be complemented by another excellent recent work, "Between God and Sultan" by Knut Vikør.

Provides a great explanation of what Shariah law really is as a whole system of governance rather than just a couple of strict laws as it is portrayed in the West today. Also provides a history of Shariah law in different countries and an insightful commentary on how Muslims are dealing with the absence of Shariah in the modern Muslim-majority state. A compelling read.

Wael B. Hallaq teaches at Columbia University. He is an expert on Islamic law, and he has published several books on the subject over the years, including "A History of Islamic Legal Theories" (1997), "Authority, Continuity, and Change in Islamic Law" (2001), and "The Origins and Evolution of Islamic Law" (2005). In 2009, he published "An Introduction to Islamic Law" - a work he describes as a "select abridgement" of his previous book "Shari`a: Theory, Practice, Transformations", which was published earlier that same year. Unfortunately, I have not yet had the opportunity to read the latter book, and so I cannot comment on it here. However, I have read "An Introduction to Islamic Law", and I would strongly recommend it to others.Islamic law is a complex phenomenon, and it can be studied from a number of different angles. Thus, any author who sets out to write an introduction to Islamic law must make some difficult choices about what material to include. When comparing Hallaq's book with the standard introductions to the subject (e.g., those of Joseph Schacht and Bernard Weiss), one is immediately struck by the amount of emphasis that Hallaq places on history and society. It is not that the standard introductions ignore the historical and social dimensions of Islamic law. In fact, quite the opposite is true. But Hallaq's book is occupied with history and society in a way that these other books are not. Indeed, I think it is fair to say that Hallaq's book is dominated by two main concerns: (1) the various roles of Islamic law in shaping the political, economic, and social institutions of Islamic society, and (2) how these roles changed between the pre-modern and modern periods. The importance of these concerns to Hallaq's book is reflected in its very structure; "An Introduction to Islamic Law" contains ten chapters, with chapters one through six falling under the heading of "Tradition and Continuity," and chapters seven through ten falling under the heading of "Modernity and Ruptures." Moreover, while the first six chapters are largely dedicated to expositing Islamic law in the pre-modern period, the comparisons between the pre-modern and modern periods begin on the first page of chapter one, and they continue in earnest throughout chapter six (and, indeed, the rest of the book). This focus on history and society is crucial for a full understanding of Islamic law, but it comes with a cost - i.e., Hallaq is forced to dedicate less space to various aspects of the theory and practice of Islamic law than one finds in the standard introductions. Nonetheless, Hallaq provides adequate coverage of the theory and practice of Islamic law, and one can always supplement Hallaq's book with the standard introductions in order to learn more about these topics.Hallaq's book is packed with basic information about Islamic law, but it also contains many claims that are more ambitious in nature. I will not try to address all of these claims - there are simply too many of them - but I will mention the most important ones. Here, then, is an overview of the major claims of the book. [Note that items (1)-(4) are concerned with the pre-modern period, whereas items (5) and (6) are respectively concerned with the colonial and post-colonial portions of the modern period.](1) In the pre-modern period, the legal decisions of muftis and judges were relatively free from state interference. (Hallaq prefers not to use the word "state" for pre-modern Islamic governments, as they lacked much of the bureaucracy, function, and ideology of modern nation-states, but I won't follow his terminological scruples here, well-founded though they are.) While it was understood by all parties that the state would have the power to collect taxes, build roads, and provide for the common defense, it was also understood by all parties that law was essentially the responsibility of the muftis, judges, and other legal experts - not the caliph. Though decided by muftis and judges in some sense, law was ultimately ordained by God, and its principal sources included the Qur'an and hadith - difficult texts, to say the least. Thus, only those pious Muslims who were highly educated in the Qur'an, hadith, etc. could possess true legal authority. True, judges depended for their appointment (if not part of their salary) on the caliph, but the caliph badly needed the approval of the legal class in order to secure his legitimacy, and so could not afford to antagonize that class by intruding into their sphere of expertise. In addition, the muftis - whose erudition and influence far exceeded that of the average judge - were not appointed by the caliph, and they only received remuneration from the state if they served as a judge or law professor in a state-funded madrassa, which many did not. Therefore, many muftis were financially as well as politically independent of the state.(2) In the pre-modern period, Islamic law was not regulated by the state in anything like the way in which it is regulated by modern states. Law professors (typically muftis) issued certificates certifying that the recipient had mastered a particular body of teachings, and many (though definitely not all) madrassas were funded by the caliph and his associates, but there were no formal exams or licenses that one needed to "practice" Islamic law. Judges were often appointed on the recommendation of muftis, and muftis were not appointed at all - what made one a mufti was not a diploma or degree, but one's erudition. In other words, one was a mufti if others - especially other muftis, but also lay Muslims - accepted one as a mufti. Furthermore, many muftis had a day job, and it was not uncommon for judges to supplement their state stipends (if they received such) with a second occupation. Thus, judges and muftis were not professionals in today's sense, and there were no bar associations.(3) Pre-modern Islamic law was accessible and personal. Court fees were small where they existed at all, and lawyers were not used. Anyone could bring a case before the mufti or judge, whether rich or poor. In addition, judges were firmly rooted in the communities they served, and litigants were often acquainted with the local judge. This was advantageous for a number of reasons, one of which was that judges served not just as arbitrators, but also as mediators, guardians, construction supervisors, endowment managers, etc. Potential litigants were encouraged to settle their differences before going to trial, and thus many unnecessary cases were undoubtedly avoided.(4) Pre-modern Islamic law was highly flexible and diverse. By the middle of the tenth century, the doctrinal schools of Islamic law (madhhabs) had reached maturity. The schools disagreed on both the theory and practice of law, and it was generally expected that muftis and judges would uphold at least some of the theory and case law of the schools to which they personally belonged (or that dominated their region - more on this below). However, the pressure to conform was far from absolute, and it was widely accepted that even muftis and judges who belonged to the same school - let alone those of different schools - might disagree on particular cases, if not also various aspects of theory. Moreover, while many regions of the Islamic world were dominated by one school of law, there was often an attempt on both the part of the caliph and the legal class to accommodate the other schools to some extent. These are just a few examples of the flexibility and diversity of Islamic law in the pre-modern period. Here are a couple more. When faced with a challenging case, judges would frequently consult a mufti, who would issue an opinion (fatwa). And judges were under some pressure to accept these opinions. But again, this pressure was not absolute, and there was no general obligation on judges to accept the opinions of muftis. Nor was there a general obligation on judges to uphold the previous legal decisions of other judges, though it was certainly expected that precedent would not be set aside casually. Thus, the schools imposed some checks on muftis and judges, but these checks were not absolute, and there was tremendous diversity between the schools themselves. (Note that chaos would have prevailed if the schools hadn't tried to impose some measure of uniformity on their adherents. What prevailed instead was a stable pluralism.)(5) Many of the features of pre-modern Islamic law listed above were obliterated or severely weakened in the modern period. This was largely due to Western interference, and especially Western colonialism. As Western nations began to control or exert influence over Islamic states such as Mughal India, Indonesia, and the Ottoman Empire, the following changes gradually took place: (a) law was annexed and heavily regulated by the state; (b) positive law was codified (at first, Islamic law books were translated into European languages and used as legal codes; later, these were replaced by European-based codes); (c) hierarchal court systems were introduced, with the highest positions commonly staffed by European judges; (d) judges were expected to reach uniform rulings on similar cases and uphold judicial precedent; (e) Western court procedure and rules of evidence were introduced, along with lawyers and courts fees; (f) traditional Islamic mediation was largely abandoned; and (g) European powers generally engaged in propaganda campaigns designed to convince native populations of the evils of Islamic law. The effects were devastating. The independence, flexibility, diversity, accessibility, and personal quality of traditional Islamic law were largely destroyed. Traditional Islamic law no longer held sway in these states, except in the spheres of family law (where it was often considerably restricted) and ritual law. The mufti was deprived of all role in the law, as judges no longer consulted them in deciding difficult cases. Women lost rights, and the nuclear family began to supplant extensive kinship networks as the basic unit of society. Moreover, law was completely severed from religion, or at least the religion of Islam. Whereas before the colonial period the Qur'an and hadith were vital sources of law, the legal codes of the British, French, Dutch etc. were now the main textual sources for law in colonized (and quasi-colonized) Islamic countries. In short, traditional Islamic law survived only in a severely truncated form. The story is a sad and terrible one that many Westerners have yet to acknowledge.(6) In the post-colonial period, Islamic states retained many or most of the legal reforms -including the deep structural reforms - imposed on them by European colonial powers. This was true even in post-revolution Iran, where the regime was dominated by clerics. (Iran was never directly colonized by a European power, but the Pahlavis instituted many of the same kinds of legal reforms that the Europeans had imposed on other Islamic states.) And it was true in states like Zia-ul-Haq's Pakistan, where the regime embraced - at least in principle - the re-Islamization of society and law. In many cases, the reforms were doubtlessly retained for practical reasons (it's hard to get the toothpaste back in the tube). Still, post-colonial regimes had little interest in relinquishing the control over the law that those reforms had granted them. As we have seen, Islamic law was relatively independent of the state throughout the pre-modern period, but the modern state subordinated all law - all power - to itself. The rulers of post-colonial Islamic states may have castigated the colonial states for dismantling traditional Islamic law and transferring all power to a central administration which they dominated, but they had no intention of surrendering that power and returning it to the muftis and judges of yore. In any case, as Hallaq notes, it would have been impossible to return to the days of pre-modern Islam. Traditional Islamic law was embedded in a social context which no longer existed. Repristination is not an option. The West may criticize the "shari`a" of modern Islamic states, while the leaders of those same states may claim to uphold "shari`a," but in many respects traditional Islamic law has been dead for over two hundred years.Hallaq is not the first scholar to advance all of these claims, but some of them are new, and he develops many of the claims that are not original to him in far greater detail than one usually finds in the standard introductions to Islamic law. Moreover, he weaves these claims into an historical narrative that is both penetrating and engaging. In general, Hallaq presents strong arguments on behalf of his claims, and I was convinced by most of them. Actually, of all the claims mentioned above, there were only two that I would criticize. First, although I am persuaded by other authors that Islamic law enjoyed a large measure of independence from state interference during the pre-modern period, I do not believe that Hallaq has marshalled adequate evidence for this claim, at least in this book. Second, while I am open to the claim - again, largely thanks to the efforts of other authors - that women and religious minorities fared much better under pre-modern Islamic law than is commonly appreciated, and perhaps that they fared better than their counterparts did under pre-modern (and even, in some cases, pre-twentieth century) European law, I do not think that Hallaq has presented enough evidence in this book to substantiate his own claims to this effect. Thus, Hallaq may not succeed in adequately defending all of his major claims, but he certainly succeeds in defending most of them, and the few problematic claims can be supported by additional evidence, some of which I imagine Hallaq has presented in his longer books. The results are impressive. Indeed, when one considers both the range of Hallaq's major claims and the strength of the evidence he adduces on their behalf, I think that "An Introduction to Islamic Law" must be regarded as a significant achievement.I turn now to the negative portion of the review. The merits of "An Introduction to Islamic Law" are substantial, as I believe I have made clear. However, the book also contains a number of flaws; and, while these flaws do not seriously diminish the value of the book (at least in my opinion), they still deserve mention. I will focus on the most serious of these flaws in the remainder of the review. (In assessing the severity of these flaws, one should keep in mind that Hallaq's book is an introduction, not a state-of-the-art monograph. In particular, one should expect to find that the treatment of many important issues is not as thorough as one might prefer, though it is still appropriate to call attention to such cases.)First, while the book contains a wealth of interesting historical detail, the amount of information can be overwhelming, and readers without a strong background in modern Islamic history will likely be frustrated and confused. On a related note, the book often mentions historical events such as the Great Rebellion and the Six-Day War without stopping to provide even a brief description of them.Second, Hallaq's explanations of historical events are occasionally weak. For example, in explaining the decline of secular modernism in the Arab world after the 1960's, he cites the Six-Day War as the sole factor, which is plainly inadequate. (The failure of the United Arab Republic, the vicissitudes of the Ba'ath party in Iraq and Syria, the lack of a successor to Nasser among the secularists that possessed his charisma and accomplishments, as well as various economic conditions, are all factors that should be mentioned.)Third, the book contains almost no discussion of Saudi Arabia, a striking omission in a book such as Hallaq's. (For a bibliography of relevant works on Saudi Arabia, see Natana DeLong-Bas's article in the Oxford Handbook of Islam and Politics.)Fourth, Hallaq's discussion of the theory of Islamic law is not always clear. For example, his explanation of isislah/maslaha will almost certainly be confusing to non-specialists.Fifth, although the book surveys a few areas of applied law, such as inheritance law, one never gets a good sense of how exactly judges and muftis employed the sources of traditional Islamic law (for Sunnis, the Qur'an, Sunna, consensus, and qiyas) in order to arrive at judgments about particular cases. (For a helpful contrast, see pp. 136-42 of Bernard Weiss's The Spirit of Islamic Law.) Moreover, Hallaq says little or nothing about several basic aspects of traditional Islamic law, such as penal law. (Interested readers may wish to consult Rudolph Peters' Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century.) And, with the exception of the case of Indonesia (the treatment of which is still quite vague), the book says almost nothing about the role of customary law in traditional Islamic law.Sixth, the book fails to engage recent debates about the composition and redaction of the Qur'an and hadith. Furthermore, Hallaq says little to discourage the common misconception that the acceptance of hadith as a source of Islamic law was inevitable and uncontested. (I'm not talking about the disputes over which hadith were genuine, which Hallaq mentions. Rather, I'm talking about the debates over whether hadith - as opposed to other sources of Sunna - had any legal authority at all. See, e.g., Jonathan Brockopp's article "Competing Theories of Authority in Early Maliki Texts" in Studies in Islamic Legal Theory, ed. Bernard Weiss.)Seventh, while Hallaq rightly argues that traditional Islamic law has largely ceased to function as law in modern Islamic states, he fails to explain that Islamic law continues to exist, indeed thrive, as a source of morality for millions of Muslims around the world, including the United States. Today, traditional Islamic law (shari`a/fiqh) functions for many Muslims in much the same way that traditional Jewish law (halakhah) does for Jews, a crucial point that Hallaq should have addressed.Eighth, Hallaq often describes modern Western law in simplistic terms. I'll give three examples. First, on p. 88 of the book, he characterizes stare decisis as the "obligation of courts to follow the uncontroversial previous judicial decisions of higher courts." Now, I am not a lawyer, but it seems to me that his characterization of stare decisis is far too strong, and that the obligation is not nearly as binding as Hallaq suggests, notwithstanding the qualifier "uncontroversial." (See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992).) The issue is an important one, for Hallaq repeatedly contrasts the flexibility of traditional Islamic law with the rigidity of modern Western law, with the doctrine of stare decisis serving as a key piece of evidence for the latter. (It is worth recalling that while Islamic judges were under no general obligation to uphold judicial precedent during the pre-modern period, their freedom to set aside precedent was not absolute.) Second, Hallaq implies that modern Western law has refused to accord any significant role to customary law (p. 91), which is flatly wrong. Third, Hallaq tersely remarks at one point that the modern state, and so modern Western law, eschews "diversity." He then cites the supposed fact that diversity is "inconsistent with the aims and nature of the modern state system" in trying to explain why Britain pressured Egypt in the 1880s to streamline its court system. However, the notion that the court systems of modern Western states like Great Britain, France, and the United States are less complex than their pre-modern ancestors is absurd, and so Hallaq's criticism of the lack of diversity in modern Western law can only be regarded as a blunder - the result, no doubt, of overheated polemic. Moreover, while the doctrinal schools of Islamic law were often tolerant of one another during the pre-modern period, relations were not always friendly, and there were occasions when one school managed to subjugate its rivals (see p. 80). Thus, traditional Islamic law did not always embrace diversity, contrary to what Hallaq's rhetoric might suggest.Ninth, Hallaq describes the modern state as inherently "masculine" and "patriarchal," and he asserts that it has an inherent tendency to promote the nuclear family over traditional extended kinship networks. I find these judgments to be rather implausible, if not absurd. If Hallaq wants to convince the critical reader of their veracity, he needs to do a lot more work.Tenth, Hallaq is clearly convinced that traditional Islamic law was superior in many if not most (all?) respects to modern Western law. I can respect that opinion, and I myself am inclined to agree with Hallaq on many individual points of comparison. Still, no scholar should assert the superiority of any legal system over another in any significant respect without detailed support. Unfortunately, Hallaq often fails to provide rigorous arguments in this area - he simply asserts the superiority of traditional Islamic law over modern Western law on some issue and then races ahead to his next topic. As a result, many important questions go unexamined. Such scholarship is unworthy of any professor, let alone the holder of an endowed professorship at Columbia University.Eleventh, while Hallaq expends a great deal of energy comparing modern Islamic law with its modern European counterpart, he neglects to compare pre-modern Islamic law with pre-modern European law. In particular, he fails to acknowledge that pre-modern Islamic law shared many of its features with pre-modern European law, including several of those features that he singles out for special praise. Consequently, it remains unclear which features of pre-modern Islamic law might be explained by Islam and which might be explained by pre-modern society in general - a question that is relevant not only to pre-modern Islamic law itself, but also to the nature of its clash with modern European law during the colonial period.Twelfth, Hallaq deplores the European colonization of the Islamic world that began in the eighteenth century, and rightly so. However, he fails to criticize modern Islamic states for the colonialism in which they engaged. The Mughals, the Ottomans, and even the Qajars acted as colonial powers that seized foreign lands and subjugated foreign peoples. Hallaq discusses these empires at length, but he never expresses a single word of disapproval about their imperial actions, although he frequently condemns the colonial ambitions of the British, the French, and the Dutch. This is bias, plain and simple, and it sometimes reaches comical heights in the book. For example, in commenting on the widespread use of the phrase "the sick man of Europe" to describe the Ottoman Empire before World War I, Hallaq writes the following: "That the Empire was "sick" became, by virtue of European military and economic superiority, a self-evident reality; that it had been of "Europe," being all but directly colonized by it, was an undeniable truth." It is remarkable that Hallaq can criticize Europe for imperial aggression toward the Ottoman Empire while failing to mention that the Ottoman Empire colonized large swathes of North Africa, the Middle East, and even Europe. We should not ignore the fact that various Western European empires acted as imperial aggressors against the Ottomans, but nor should we ignore the fact that the Ottomans themselves conquered and subjugated many different peoples, including millions and millions of Europeans, Arabs, and Africans. (It should be noted that the connections between the Ottoman Empire and Europe run far deeper than the history of their mutual aggression. See, e.g., Daniel Goffman's book The Ottoman Empire and Early Modern Europe.) I could produce numerous additional examples of such bias, but I will refrain in the interest of space and tact. Let me just say that I was surprised to find such blatant bias in a work of serious scholarship. Any intelligent reader will easily be able to identify and dismiss Hallaq's bias, but it is nonetheless inexcusable.Despite these flaws, Hallaq has written an important and powerful book. It is a shame that Americans prefer to get their "information" on the Islamic world from popular media instead of academic books like this; Hallaq is a great antidote to much of the nonsense about Islamic law that circulates here under the name of "journalism." Still, one can hope that the book will reach many undergraduates, and I will assign portions of in my class on Islam in the fall.