Even the most observant Muslims, according to Emon, should not be defined by their textual tradition. It all depends on their community and personal interpretations of the text. For example, Emon explains that some communities, such as Sufi Muslims, have a strong mystical relationship with the text that can take a politically non-violent tone. Others rely on a historically legalistic view of the duty to perform jihad as a communal duty, where, as long as certain groups of people are doing it, everyone else is off the hook.
Does Emon feel that he is betraying the Muslim community by helping to foster a deeper understanding of Jewish, and especially Zionist, legal issues? No, actually, for me it was exhilarating. They are doing the exact same thing. Emon claims that his books do not have policy goals and are focused solely on academic scholarship. His work responds to these winds by suggesting that they might be blowing in the wrong direction.
To problematize the Islamic the way that I do in my work is to make it harder to instrumentalize it for political purposes. And by making it harder to instrumentalize, because…it is a complex legal tradition, forces policy makers who want to instrumentalize it to think twice about their question, and think twice about the answer that they think Islam will provide them.
What was the point of the Brussels attack? From a historical perspective, Katz argued that the Islamic regime of ritual purity has a pre-Islamic heritage connected to, among others, Zoroastrian purity rituals. Katz noted how Muslim jurists were keen to distinguish Islamic practices from Zoroastrian ones, for reasons having to do with Islamic supersessionist claims to which Zoroastrianism was irrelevant.
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Identifying this distinction as theologically motivated, Katz thereby moved from the historical positivism of philology to the symbolic meaning arising from an anthropological frame of analysis to appreciate the purity rules as a discursive activity. Rituals as regulating, restricting, and ordering, give effect to what can be an otherwise unruly passionate life.
David Friedenreich impressively illuminated this politics in his remarkable study, Foreigners and their Food. Theory and Practice: Fiqh versus Fatwa Alongside the more recent literature on Islamic law and anthropology lies the fatwa as a site of legal practice, in contrast to the fiqh, which is assumed to be doctrinal, and thereby static.
Yet when he addressed the historical tradition of Islamic law e. However, an under-theorized fiqh genre in part explains the turn to the fatwa as more conducive to interdisciplinary analysis across the social sciences. As Powers has adeptly shown elsewhere, muftis often intervened in judicial disputes by bringing or being asked to bring their expertise on legal doctrine fiqh to bear upon complex factual scenarios.
In law, its predominant use has been to provide a reassuring representation of the place that law holds in society. Moreover, to view fatwa as a form of legal practice situates the fatwa in history, and concomitantly places fiqh out of time or even ex nihilo, pace philologists such as Crone. But for the purpose of this essay, the distinction reveals the limited approaches to reflecting about fiqh in time. Fiqh and Legal Theory Related to an interest in legal practice are studies that examine fiqh to infer more general theories of legal reasoning and, indeed, law-making. For Sadeghi, fiqh is not the deductive product of an Islamic epistemic theoretical framework.
Rather, it is the site of post-hoc justifications for doctrines that have already long existed. In other words, the techniques of legal reasoning collapse time to cover the historical origins of law with a timeless sense of rational justification that is subsequently used to inform later generations of jurists on what the law is and why.
Moreover, the genre reflects a juristic practice of writing and reflection for other jurists primarily, and thereby contributes to the disciplinary formation of law and legal education. The reasoning jurists offered was meant to justify a rule they already knew and accepted.
In some sense, it can reflect a wide range of theoretical interventions, and thereby pose a rich trove of legal materials for further analysis and explanation. For instance, Anver M. These different approaches reflected different legal balances between the interests of victims, defendants, and the ruling authority in service of a presumed public order. Of course, to infer an approach to legal theory from an analysis of fiqh need not be limited only to examining the fiqh genre.
Incorporating close attention to fiqh with scrutiny of extensive judicial archives of Ottoman Egypt, Ahmed Fekry Ibrahim has shown the importance of pragmatic decision-making to judicial practice, despite the jurisprudential shadow of presumably determinate doctrines of fiqh.
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Certainly, one cannot help but appreciate the significance of utilitarianism e. On this normative account, legal utilitarianism is intimately and ideologically associated with reform in the shadow of European colonialism, the imposition of the modern state in European form, and the project of modernity in the Muslim world. In contrast, Ibrahim has expertly argued that such pragmatism was present in judicial practice in courts in Mamluk Egypt, well before the onset of colonialism.
On his reading, pragmatism is better conceived as part of, if not endemic to, the very enterprise of law and legal decision-making. To suggest otherwise would render Islamic law outside law more broadly construed.
Politics, Interrupted: An Interview With Professor Anver Emon
Critical Fiqh; Critique of Fiqh The above analysis has positioned fiqh as a genre of primary source that can serve certain methodological ends, whether the historical positivism of philology or the interpretive analysis of an anthropological approach to law. In some cases, the fiqh genre offers a useful vantage point from which to critique how Islamic legal knowledge is produced. It is also a central object against which many critique its operation, whether from a gender egalitarian, anti-domination, or other analytic standpoint.
Together, both approaches raise questions not only about how fiqh doctrine is created and construed e.
Critical fiqh An appreciation of the fiqh genre, with its various strands of texts and inter-textual encounters, provides a standpoint from which to examine the underlying politics implicit in how subsequent scholarship or judicial decisions select their relevant archive of fiqh sources. Such selections may be conditioned by colonial frustrations in management and regulation, or by the limits of institutional competencies. But in the examples below, what becomes painfully apparent is how fiqh is made determinate if not hyper-determinate in the service of the colonial or state project.
For instance, David S. Powers located the production of French scholarship on Islamic law squarely within the French colonial endeavor in Algeria: Specifically, the colonization of Algeria created an inevitable conflict between Islamic law and the colons French settlers.
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The colonial administration endeavoured to gain control over the endowment institution through a series of legislative enactments and was assisted by French orientalists who campaigned to discredit the institution among the Algerians themselves. This fiqh vantage point is no less pertinent when reflecting on how colonial translation of fiqh texts gives fiqh a hyper-determinism at the expense of a robust understanding of the genre itself.
As Emon has shown, the translation of certain Islamic legal texts into English to adjudicate Anglo-Mohammadan law in presented a problem for British judges on the Privy Council when they had to review decisions by Muslim judges who were trained both in the common law and in Islamic law. For instance, the case Baker Ali Khan v. Anjuman Ara involved a testatrix who created a charitable trust waqf by a will wasiyya. The relevant precedent on this issue was the decision by Mahmood J.
For the Privy Council, recourse to this untranslated archive of material undermined the determinacy of the law and could not be relied upon for purposes of judicial decision. In his opinion for the Judicial Committee, Wilson J. Despite Mahmood J.
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But as Emon suggested, the ambiguity was not so much in what the fiqh sources said, but rather in how selective translation allowed aspects of Islamic law not only to be legible for purposes of adjudication, but even hyper-determinate, given how the broader fiqh tradition was rendered illegible for purposes of legal consideration. Hyperdeterminacy, of course, need not be a function of translation or of the colonial enterprise. Certainly one could argue that codification of Islamic law has a tendency toward hyperdeterminacy in the service of the modern state, as many have argued in the Islamic legal studies field.
Ijtihad offers a conceptual vehicle to reflect on change and development but also discounts the salience of precedent, determinacy, and stability as equally important features of a legal system. Critique of fiqh Adopting fiqh as a vantage point will often presume fiqh as a constant in order to observe how and why it is managed, applied, and even manipulated in different contexts and in varying forms. But to presume it as a constant does not preclude critique of it as the output of a set of other variables that are often hidden by the disciplinary vocabulary of fiqh.
In other words, the more one appreciates fiqh as object of critique, the more one recognizes it as a legal mask covering a range of factors that go into the construction of the law, thereby opening fiqh to a range of critical approaches and methods e. Perhaps no area of fiqh is more subject to critique than those affecting gender equality e. Rather, Islamic family law remains one of the few areas of the historical fiqh tradition that remains vibrant in codified formats across Muslim majority states whose personal status laws al-ahwal al-shakhsiyya are based on or informed by the historical fiqh tradition on marriage, divorce, and child custody nikah, talaq, hidana.
The literature in this field is vast, and this is not the place to offer an examination of this subject area. The examples below are merely meant to illustrate different approaches to the critique of fiqh. Other essays in this volume will take up the sub-field of Islamic family law and feminist critiques. To appreciate the critique of fiqh is to recognize that it reflects a standpoint that transforms fiqh from a constant to a variable, or at least a potential variable whose concretization reflects a disciplinary endeavor that informs, if not constitutes, the political project of Islamic law.
The work of Kecia Ali is significant for showcasing how a gendered reading of fiqh offers a productive approach to critique. Drawing on the insights of earlier scholars of Islam and gender e.
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Sexual Ethics, in other words, offers a sustained critique of a range of fiqh areas that involve or inform gender and sexual relations. Ali expanded this analysis in her later study, Marriage and Slavery in Early Islam. But that same Arabic term was used to refer to the scope of ownership one exercised over a slave.
Ziba Mir-Hosseini likewise has brought a gender egalitarian perspective to the study of fiqh throughout her vast scholarly corpus. Her work, however, has a critical edge that is not merely directed at fiqh as an object, but also at how one construes a vantage point from which to critique fiqh.
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