The Islamic School of Law Evolution, Devolution, and Progress. Edited by Peri Bearman, Rudolph Peters, Frank Vogel - Muhammad Qasim Zaman.pdf

Book Reviews / Islamic Law and Society 16 (2009) 95-111101 e Islamic School of Law: Evolution, Devolution, and Progress. Edited by Peri Bearman, Rudolph Peters, Frank Vogel. Harvard Series in Islamic Law, 2. Cambridge, MA: Islamic Legal Studies Program, Harvard Law School. Distributed by Harvard University Press, 2005. Pp. xvii + 300. ISBN 0-674-01784-6. $39.95. is collection of essays represents an important contribution to the study of a central Islamic institution, the madhhab or school of law, in pre-modern and modern Islam.1 e chapters range from legal developments in the 2nd/8th century to the present and, in geographical terms, from the Middle East and Central Asia to Spain, on the one hand, and Indonesia, on the other. Most of the attention is devoted to the Sunnī schools of law, though there is a chapter on the Ẓāhirīs of al-Andalus and one on the late classical Imāmī Shīʿa. e volume also provides a substantial discussion of how the madhhab has fared in modern Islam. Peri Bearman and Frank Vogel begin the book with a brief overview of the evolution of the madhhab, followed by an account, by Bernard Weiss, of conceptions and forms of authority in Islamic legal theory. As Weiss observes, pre-modern scholars tended to view the madhhab as a body of doctrine articulated by master jurists (mujtahids), with the understanding that all those—both jurists and lay people—who were themselves incapable of “toiling over” the authoritative texts needed to follow (taqlīd) those who had demonstrated such an ability. is view had intellectual as well as social consequences. “e fact that only the few can be mujtahids and that many must be their followers sets up a hierarchy of roles that is fundamental to Muslim thinking about the place of the mujtahid within the social order and represents an important first step in the containment of disorder in the law” (p. 3). But if recognizing the authority of the master jurists was crucial to the development and coherence of the legal tradition, it scarcely precluded continuing advances in legal thought, not infrequently in the form of explicit disagreement with earlier views. In his excellent study of the Ḥanafī madhhab as it existed in the 4th/10th century, Eyyup Kaya draws attention to the existence of significant regional variation among Ḥanafī scholars based in Iraq, Balkh, and Bukhara. ese scholars and their followers frequently privileged the doctrines that had developed within their geographical centers over those from other Ḥanafī locales, and it was not uncommon for them to diverge even from the opinions of the school’s founding fathers. is regional variation raises the question, of course, of whether one can legitimately speak of a Ḥanafī madhhab at this time. Kaya answers it in the affirmative, arguing that a Ḥanafī identity had come to consist in continuous scholarly engagement with the “juristic past.” “ere are Ḥanafīs such as al-Karkhī who rejected the typical opinions of Abū Ḥanīfa,” Kaya writes, “or those, such as Abu’l-Qāsim al-Ṣaffār of 10th-century Balkh, who disagreed with Abū Ḥanīfa on thousands of 1) e term madhhab is not italicized in this volume, and this review follows it in this convention. DOI: 10.1163/156851908X413784 © Koninklijke Brill NV, Leiden, 2009 Examining the “Umayyad madhhab” of al-Awzāʿī (d.” as they are sometimes characterized. like others. Gleave also argues that. as Gleave observes. accentuated by their having to decide—in line with evolving conceptions of a madhhab as being rooted in the doctrines of an eponymous figure—whether one followed al-Awzāʿī or al-awrī. e development of the institution of the madrasa may have helped consolidate school boundaries in some measure. A number of essays in this collection attend not only to how a madhhab evolved in terms of doctrine. Yet as Daniella Talmon-Heller shows in her study of 6th/12th-7th/13th century Syria. Indeed. which had a considerably richer history in pre-modern Imāmī law than it did—at least in terms of formal claims to it—in contemporaneous Sunnī circles. but there was not one Ḥanafī who did not take the Ḥanafī juristic tradition as a legal source” (p. Al-Awzāʿī came to have reasonably good relations with ʿAbbāsid authorities whereas al-awrī died while in hiding from them. but also to the social and political contexts in which it did so. who sought to base their views directly on the teachings of the Prophet and the imāms.102 Book Reviews / Islamic Law and Society 16 (2009) 95-111 issues. 136. with the jurists not only adhering to the doctrines handed down to them from earlier authorities but also continuing to sift through them. Judd’s broader argument is that the early history of this and other madhhabs is best studied not with reference to the neat but often misleading “regional and eponymous paradigms [but rather by] … simply asking who associated with whom … and what views and loyalties these circles of scholars shared …” (p. the Akhbārīs. also showed considerable reverence for many earlier jurists and continued to engage with their work. were part of the Imāmī legal tradition. cumulative. “a major part of the mujtahid ’s knowledge [was recognized to consist] of bibliographic skills” (p. as Daphna Ephrat suggests in her study on 5th/11th century Baghdad. A similar point is made by Robert Gleave in his discussion of how the late classical Imāmī jurists viewed their own madhhab. striving to resolve their ambiguities. the Akhbārīs. emphasis added). even the Akhbārīs were not “anti-madhhab. too. e Imāmī legal tradition is. their contrasting political trajectories posed problems for their followers. was a matter not of bypassing this inherited tradition but of delving deeper into it. Unsurprisingly. And inasmuch as it is this juristic past that constituted a madhhab. 39). a great deal of the scholarly acumen was seen to consist in navigating the complexities of this tradition while adapting it to new imperatives. even the madhhabs that turned out to be successful in the long run had uncertain beginnings and long exhibited considerable fluidity in their relations with other evolving schools. and arguing over how to rank and reorganize them in relation to one another. 157/774) and Sufyān al-awrī (161/778). for all their criticism of the Uṣūlī jurists and of their ijtihād. In this sense. the dynasty that replaced the Umayyads in 132/750. As in any traditional culture. Even ijtihād. While these two figures had shared much in terms of their legal approach. Steven Judd argues that its demise had much to do with the rise of the ʿAbbāsids. 25). these boundaries were anything but impermeable and fidelity to the madhhab often . For instance. the legal tradition continued to adapt itself to new pressures and needs.Book Reviews / Islamic Law and Society 16 (2009) 95-111 103 competed with other loyalties—ethnic. 1985. in the relatively few instances that they served as judges. Alfonso Carmona meticulously delineates the slow and uneven dissemination of the writings of Mālik b. even in an age of taqlīd and standardized texts. ed. ough Peters does not raise this question. (Beirut. 529-30. and Maribel Fierro shows that it was only in the 4th/10th century. Maʾāthir-i ʿĀlamgīrī. 1068-1118/1658-1707). Sāqī Mustaʿidd Khān. [1973. the 11th/17th century Fatāwā ʿAlamgīriyya (often called al-Fatāwā al-Hindiyya). the Majmaʿ al-anhur. 114). even the Ẓāhirīs (discussed in this volume by Camilla Adang) were expected to rule according to the norms of the Mālikī madhhab. e existence of such handbooks made it possible for the Ottomans to rationalize judicial administration in their realm. 67-70). produced under the patronage of the Mughal emperor Awrangzeb ʿĀlamgīr (r. Anas and his students in al-Andalus.]). 1078/1667) commentary on it. pp. developments within a madhhab could.2 Quite apart from the 2) Cf. Significantly. Ḥanafī law had come to be increasingly standardized with a relatively clear delineation of what opinions were to be deemed the most authoritative. ough she arrives at her conclusions quite differently from the Ẓāhirī scholar Ibn Ḥazm (d. 456/1064). ʿAlī (Osnabrück. al-Fatāwā al-Hindiyya fī madhhab al-imām al-aʿẓam Abī Ḥanīfa al-Nuʿmān. it would be illuminating to examine how the standardization of Ḥanafī doctrine under the Ottomans might compare with the career of Ḥanafism elsewhere. that “the image of al-Andalus as having been ‘Mālikī’ since Mālik’s times began to be built” (p. also position it well for official recognition. Ḥanafī works such as Ibrāhīm al-Ḥalabī’s (d.A. 956/1549) Multaqā al-abḥur and Muḥammad Shaykhzāde’s (d. 108. n. 1:2-3. If royal patronage contributed significantly to the fortunes of some schools of law. both by giving official recognition to what the Ḥanafī legal circles had themselves come to see as their authoritative norms and by stipulating that particular Ḥanafī doctrines be followed to the exclusion of certain others. and geographic. when Mālikī legal scholars had become well-entrenched in the Iberian peninsula. political. also cf. 1310 A. as Peters shows.d. were especially influential compendia of the standard doctrine in Ottoman lands. between the 6th/12th and the 11th/17th centuries. Rudolph Peters shows that Ḥanafism was able to play the role of an “official madhhab” under the Ottomans in part because. In an important contribution to this volume. reprint of the Bulaq edition. is illustrates not only the symbiotic relationship between Ottoman judicial practice and the Ḥanafī madhhab but also the fact that. 61).H. among others (cf. reprint of the Calcutta 1870-73 edition). 6 vols. It is a measure of the state-sponsored hegemony of the Mālikīs that. A. . had also sought to rationalize judicial practice in Mughal India. some of the sultans’ decrees to this effect also made their way into the Ḥanafī legal handbooks. she ultimately concurs with him on the major role Umayyad patronage played in the success of the Mālikī madhhab in al-Andalus (pp. in turn. carried a regular section devoted to addressing requests for fatwas from across the Muslim world. In formulating his own opinion on this question—which was also in favor of such insurance. How the institution of the madhhab has fared in conditions of modernity is a question crucial for an understanding of issues of religious authority in the modern world.104 Book Reviews / Islamic Law and Society 16 (2009) 95-111 question of its actual impact. Nor is it only in the face of new questions that many a jurist has been impelled to step beyond his madhhab.” the boundaries of the madhhab have reached the point of dissolution as countless “micro-mujtahids” have taken 3) For one view on this question. . see Muzaffar Alam. as discussed by Mark Cammack. inter alia. as Ihsan Yilmaz argues in his account of “inter-madhhab surfing. As Messick sees it. Other. e Shāfiʿī mufti’s fatwa was then sent to Muḥammad Rashīd Riḍā (d. Riḍā’s approach. e contributors to this volume seem to concur that the madhhab does not have much of a future in Islam. e nation-state has had its own claims to legislation and to the codification of the law.3 it is worth noting that this compendium of Ḥanafī norms gives extensive coverage to the broad range of juristic disagreement that the school tradition had come to recognize by this time. for guidance. e Languages of Political Islam: India 1200-1800 (Chicago: University of Chicago Press. and even when such legislation professes to be guided by the “spirit” of Islam or by resources from the Islamic legal tradition. is suggests not only that Mughal judges would have continued to enjoy considerable room for maneuver in drawing on their internally variegated legal tradition but also that the standardization of Ḥanafī doctrine may have meant somewhat different things in different contemporaneous regions. along with the course of action the Shāfiʿī mufti had adopted. showing himself to be attentive to general considerations of the common good rather than to the norms and methods of any particular madhhab. 2004). Brinkley Messick analyzes a fatwa issued at the turn of the 20th century by a Shāfiʿī mufti of Singapore on the question of whether it was permissible for Muslims to have their merchandise on European ships insured with non-Muslim insurance companies. there have been persistent calls for the development of an “Indonesian madhhab. for instance. though on grounds different from those on which the Shāfiʿī mufti had argued—Riḍā drew on the resources of the Islamic legal tradition as a whole.” though the question of precisely what this would entail remains unsettled. 1935). the celebrated 19th-century Ḥanafī jurist of Damascus. forces have also been at work. often stronger. to the work of Ibn ʿĀbidīn. If the nation-state has continued to tear at the seams of the madhhab. In recent decades. the Shāfiʿī mufti had not found any clear answer in his own madhhab and had turned. so have globalization and the new information and communication technologies that go with it. In Indonesia. ough he ultimately ruled in favor of such insurance. al-Manār. the Salafī journalist-scholar whose influential journal. 13. it is seldom the doctrinal legacy of any single madhhab that has guided such legislation. presaged the madhhab’s declining fortunes in the modern world. for instance. e I ʿlāʾ al-sunan. has undergone significant changes in colonial and post-colonial times. 1997). 57-65. (Beirut: Dār al-kutub al-ʿilmiyya. for instance. illustrating something of the continuing strength of the Ḥanafī school in the Indian subcontinent. Yet. Metcalf. e Ulama in Contemporary Islam: Custodians of Change (Princeton: Princeton University Press. especially those belonging to the Deobandī doctrinal orientation. Ḥanafī scholarship of a strongly partisan color has continued to thrive in circles of ʿulamāʾ. is is the case. drawing indiscriminately on whatever legal opinions are accessible to them and by going back to the foundational Islamic texts for unmediated guidance. it is anything but clear that this school of law is on its way to dissolution. a twenty-one volume commentary on ḥadīth-reports with a primarily legal content. on occasion. 2002). inter alia. Muhammad Qasim Zaman. had to step outside their school tradition. Nor are all Ḥanafī ʿulamāʾ of contemporary South Asia committed to the regimen of taqlīd in quite the same way. South Asia’s Ḥanafī scholars have also. which advocates the need for a “collective ijtihād ” as a way of meeting some of the problems facing the Muslims of India. On the contrary. a Salafī movement whose adherents reject the authority of the schools of law and insist on basing themselves directly on the Qurʾān and the ḥadīth. ough the Ḥanafī madhhab. 5) Ẓafar Aḥmad ʿUthmānī. Indeed. a region that houses nearly a third of the world’s Muslim population. Ḥāzim al-Qāḍī. 6) Cf. see Barbara D. it is probably premature to write the obituary of the madhhab.4 A good deal of this scholarship has been produced in response to the Ahl-i Ḥadīth of India. adhered to by the overwhelming proportion of South Asian Muslims. Oddly. with India’s Islamic Fiqh Academy (founded in 1989). some have become increasingly open to certain forms of ijtihād. it has also retained considerable vitality in others. 2008). Like Singapore’s Shāfiʿī mufti discussed by Messick.6 In many instances. 4) . 1982). Even so. I ʿlāʾ al-sunan. the ʿulamāʾ have had little choice but to go along with state-sponsored legislative initiatives that have little to do with any madhhab methods or boundaries.5 Yet the scope of Ḥanafī scholarship extends beyond the Ahl-i Ḥadīth challenge. contrary to the sense that emerges from this volume. Muhammad Qasim Zaman. 1860-1900 (Princeton: Princeton University Press. If the madhhab has fared poorly in many places. there is no chapter in this volume on South Asia. ed. many of those associated with this institution retain a strong commitment to the On the history and politics of the Deobandi doctrinal orientation. Islamic Revival in British India: Deoband. 21 vols. was. written by a Ḥanafī-Deobandī scholar to help answer the Ahl-i Ḥadīth allegation that Ḥanafī norms have a rather tenuous basis in ḥadīth.Book Reviews / Islamic Law and Society 16 (2009) 95-111 105 it upon themselves to find or provide answers to their questions by. Ashraf ʿAli anawī: Islam in Modern South Asia (Oxford: Oneworld Publications. “al-Ijtihād al-ijtimāʿī. Muḥammad Fahīm Akhtar Nadwī. Mujāhid al-Islām al-Qāsimī. 6-8. vol. Buḥūth fiqhiyya min al-Hind (Beirut: Dār al-kutub al-ʿilmiyya. 2. e precise implications of such differences. Muhammad Qasim Zaman Princeton University Cf.” Tarjumān-i Dār al-ʿUlūm (Delhi). “Tīpū ke shahr Mysore main Islāmic Fiqh Academy India kā pandarahwān fiqhī seminar. 73. 71. 161). rather. was a leading Deobandī scholar. ed. Ẓafīr al-Dīn Miftāḥī.9 at modernity itself is best spoken of in the plural.. 2007). nos. 8) Cf.8 Others are considerably more ambivalent about self-consciously embracing the language of ijtihād. merit much further study. also serves as the chief mufti of the Deoband madrasa. Yet professions of taqlīd do not necessarily preclude possibilities of legal change. 2003). e point here is not. is volume represents a commendable step in that direction. so far as the madhhab and questions of religious authority are concerned. 7) . to dispute the decline of the madhhab in particular contexts (India’s Fiqh Academy itself might well contribute to that decline in the Indian milieu). the founding president of the Islamic Fiqh Academy. Muslim Legal ought in Modern Indonesia (Cambridge: Cambridge University Press. suggests as much. e current president of the Academy.” as Messick aptly puts it (p. any more than they did among earlier generations of putatively taqlīd-bound scholars. 8-9 (April-May.” in Mujāhid al-Islām al-Qāsimī.106 Book Reviews / Islamic Law and Society 16 (2009) 95-111 Ḥanafī madhhab. R. with its “differing frames and … differing paces. 9) For an example of such rethinking in contemporary Indonesia. 2006). Michael Feener. 2002). but to note. 167ff. al-Qāsimī (d. of course. cf. that this complex institution continues to follow varied trajectories and that contemporary efforts to rethink legal norms with reference to the madhhab deserve no less attention than do signs of the madhhab’s dissolution.7 some even profess to see Abū Ḥanīfa himself as the forbear of collective ijtihād.