Wednesday, May 6, 2009

New Encyclopedia Published on Islam, Part of Series on World's Religions

Posted by Alan Childress41Sp7kBk8RL__SL500_AA240_

Frequent commenter Patrick S. O'Donnell passes along this link to purchase the new Facts On File Publishing volume, Encyclopedia of Islam, the newest part of its world's religions series.  This volume's editor is Juan Campo at UC Santa Barbara, and Patrick contributed relevant entries.  (Paperback is here and quite affordable.)  Congrats, Patrick.

http://lawprofessors.typepad.com/legal_profession/2009/05/new-encyclopedia-published-on-islam-part-of-series-on-worlds-religions.html

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This was very kind of you, although we perhaps we should attempt to placate the "strictly legal" folks by noting the encyclopedia does have entries on shari'ah (divine will or law), fiqh (Islamic jurisprudence) and the major legal schools!

Posted by: Patrick S. O'Donnell | May 6, 2009 11:10:27 AM

Patrick gets my vote for "most useful and prolific commentor." Patrick, is there any chance that Sahri'ah covers the ethical role of the advocate?

Posted by: John Steele | May 6, 2009 11:47:22 AM

John,

I don't know. But I'll probably prompt you to retract your vote with the following, which is NOT one of my entries in the encyclopedia, but is the best description of Shari'ah I've come up with (it's part of an Islam study guide I distribute to students). It should be complemented by an entry on fiqh, but I'll leave that for another day or place.

Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper, i.e. righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one's life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. The latter involves the human process of understanding and implementing the divine law. It is a serious (religious, epistemological, ontological, ethical…) mistake to conflate Sharī‘ah and fiqh, or to use these terms, as often happens today, as synonyms. The Sharī‘ah, writes Khaled Abou El Fadl, ‘is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will. In this sense, the Sharī‘ah is always fair, just and equitable, but the fiqh is only an attempt at reaching the ideals and purposes of Sharī‘ah (maqāsid al-Sharī‘ah). [….] The conceptual distinction between Sharī‘ah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.’ The function of Sharī’ah is here analogous or similar to that of Natural Law among the Stoics.

Recently, Abdullahi An-Na‘im has made the provocative argument that ‘precisely because sharī‘a is supposed to be binding on Muslims out of religious conviction, a believer cannot be religiously bound except by what he or she personally believes to be a valid interpretation of the relevant texts of the Qur’ān and Sunnah. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of the state.’ Moreover, such ‘objections to the enforcement of sharī‘a through positive law and the notion of an Islamic state do not, of course, preclude Muslims from personally conforming with every aspect of sharī‘a.’

We might describe the function of Sharī‘ah along the order of a Platonic Form, at least in its ‘bedrock version’ as outlined by T.K. Seung in Intuition and Construction: The Foundation of Normative Theory (1993). In this account, intuition and construction are two integral processes intrinsic to the functional role of Platonic Forms (or ‘Ideas,’ ‘Archetypes,’ etc.). Platonic Forms—like the Sharī‘ah—are (is) indeterminate, while nonetheless serving as normative, intuitive, and nonpropositional foundations (in theory, accessible to any Muslim) for constructing (propositional) models as guides for determinate social realities, thus, for example, (the Form) Justice is only the normative foundation for constructing models of determinate social orders, none of which fully realizes Justice, and all of which endeavor to approach Justice, succeeding by degrees. What is more, the attempt to instantiate or embody the model is never wholly successful, given the nature of the human condition and the model’s idealized qualities in reference to the Form itself: ‘The indeterminacy of Platonic Forms makes them flexible standards, and their flexibility assures their eternal durability.’ Sharī‘ah is like the Platonic Form in being universal, abstract, indeterminate, and nonpropositional, and thus cannot directly serve as a normative standard (i.e., any interpretation of the Divine Will needs religiously rationalized justification by way of textual hermeneutics and exegesis). This is perhaps one reason Norman Calder writes that, ‘in modern academic analysis of Islamic law, the word Sharī‘ah is of little use: what we can study and describe is always fiqh.’ Fiqh represents a Platonic-like endeavor to translate Sharī‘ah into direct, concrete, and normative models for particular contexts.

As with Platonic intuitionism in which all human beings have access to Platonic Forms, all Muslims, as noted by An-‘Naim above, have access to Sharī‘ah, indeed, they are under a spiritual obligation to attempt to understand (and live by that understanding) the divine law. Such understanding is necessarily partial and fallible and may vary according to the individual (every Muslim is different): ‘Indeterminacy and relativity are inseparable in the domain of realization.’ The divine nature of Sharī‘ah means it retains a normatively transcendent and evaluative function whatever the extent of its positivization as fiqh. In other words, law as such cannot exhaust the evaluative function of divine law as one’s understanding of same can always deepen, one’s intuitive discernment can always be keener. As a transcendent (nonpropositional) guide for action, and despite its integral relation to Islamic law, Sharī‘ah should not be confused or conflated with any of its propositional constructions by way of fiqh, or any political proposal for a putatively Islamic state. Nonetheless, fiqh can serve as an aid in coming to understand divine law insofar as it enables us to obtain further, dialectical insight into that which transcends positive law; discursive reasoning and rational understanding, in other words, and in this case intrinsic to the Islamic science of jurisprudence, are part and parcel of the process of acquiring nonpropositional insight into divine law. That is to say, there is a dialectical relation between divine and human law that represents, in epistemic terms, a dialectic between propositional knowledge and ‘knowledge by acquaintance’ in a Platonic sense or ‘knowledge by presence’ after Shihāb al-Dīn Suhrawardī: ‘The insight that transcends words cannot be attained except by means of words; what cannot be spoken of becomes manifest in the very act of speaking.’ Like Socrates in the agora, Islamic scholars (jurists, theologians and philosophers) can examine and refute propositions that claim to fully capture the nature or essence of the Divine Will, that pretend to fully embody the Sharī‘a. The jurist’s fallible, limited, and historical understanding of Sharī‘ah, in other words, is evidenced by his facility with ’usūl al-fiqh: how he has arrived at the determination of law, rather than simply the result, that is, the legal determination or ruling itself, or, in the case of furū‘ al-fiqh, the persuasiveness of the arguments explicating the concepts and rules that relate to religious rituals and ethico-religious conduct in the widest sense. And it is fitra, the Islamic term that designates our primordial inclination or general predisposition to the good as a constituent feature of human nature, that allows individual qua individuals, to have insight into the Divine Will (and thus functions like soul memory in Platonic thought: permitting individual intuitive awareness, however dim or partial, into the Good; this insight is what Socrates set out to awaken in his interlocutors in dialectical dialogue). In fact, fitra can serve as the Islamic equivalent of individual conscience, according individuals in effect the right of principled objection to interpretations of Sharī‘ah that violate their sincere and sustained endeavors (made in the context of the Islamic tradition) to realize this dispositional awareness of “the Good,” the Divine Will or Sharī‘a.

That said, consider following comments from Professor Haider Ala Hamoudi from his blog “Islamic Law in Our Times: A Realistic Assessment of Islamic Law in Today’s World” (http://muslimlawprof.org/), as it helps us see the difference between concern with the “conceptual” and focus on the “empirical” or how, in practice, the normative is entangled or even conflated with the descriptive:

"In Islamic studies departments, there's this notion of shari'a as this sort of idealized, highly stylized logic driven system that is sort of somewhere in the sky that nobody can see, and then there's fiqh, which is any given juristic interpretation of this beauty written down on paper always with the flaws of that jurist, and then there's actual law, which bears no necessary relationship to either. [….] Certainly shari'a and fiqh, the ideal and then the imperfect reflection of the ideal (still not real) is a favorite of this group, their law review articles go to great lengths to explain the difference between the two, because one must understand how this all works, this lovely thing up there in the sky, its shadow in the academy and then if you're lucky they'll attempt to relate all of that to reality in a way that is, ummm, perplexing. [….] [A]s with any law or rule of social order, when you want to understand what the shari'a is, you have to see what the shari'a actually does. What role in the social order? How? Who has the authority to declare it? Where and when does it conflict with national law and how do Muslims of various sorts react to that? Where is it important to most? Where do some care and not others? THAT is law."

Nonetheless, we end with a summary of the normative argument of Abdullahi An-Na‘im:

"When observed voluntarily, Sharī‘ah plays a fundamental role in shaping and developing ethical norms and values that can be reflected in general legislation and public policy through the democratic political process. But…Sharī‘ah principles cannot be enacted and enforced by the state as public law and public policy solely on the grounds that they are believed to be part of Sharī‘ah. If such enactment is attempted, the outcome will necessarily be the political will of the state and not the religious law of Islam. The fact that ruling elites sometimes make such claims to legitimize their control of the state in the name of Islam does not mean that such claims are true. The fact that the state is not a religious institution is the historical experience and current political reality of Islamic societies. [….] …[D]ispelling the dangerous illusion of an Islamic state that can enforce Sharī‘ah is necessary for legitimizing and implementing the principles and institutions of constitutionalism, human rights, and citizenship in Islamic societies." See Abdullahi An-Na‘im, Islam and the Secular State: Negotiating the Future of Sharī‘a. (Cambridge,MA: Harvard University Press, 2008).

Posted by: Patrick S. O'Donnell | May 6, 2009 1:15:33 PM

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