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cultures in which they originate. Set aside the issue of the incommensu-
rability of single abstract values (such as liberty or equality) or bearers of
value (such as career), important as these may be for many contemporary
philosophers. The issue at hand is the incommensurability of value systems
or sets of values, each one as a whole, and in this context, incommensu-
rability is applied to Islamic and Western values in particular.
The popular version of the thesis (endorsed, to be sure, by intellectuals
of weight, such as Harvey Mansfield) assumes that the above-mentioned
incongruities owe their origins to religion and religious laws.1 The religion
in question is the religion of Islam, whose rigid legal character is anathema
to a core of values that can be ascribed to Western civilization. Note that
the clash is presumed to take place between Western and Muslim societies,
not a specific conceptualization of eithƒer Western or Islamic values.
Muslim societies possess a religion, so the thesis goes, which makes their
marriage to Western modernity difficult.
This assumption has an obvious daring quality. Societies tend to have
complex relationships with their religions, and for one to be able to
generalize about a society’s relationship to its religion(s), one must claim
quite a bit of knowledge of this society and its structure. Reflecting on the
two societies I know best (the Egyptian and the American), one repre-
senting each end of the presumed clash, I cannot take seriously any
argument that either one of the two societies is more religious than the
other. Both societies have their fair share of the ultrareligious (Muslim,
Christian, others), the religious, the areligious, the irreligious, and the
antireligious. To argue for incongruities triggered by religion (again, read
the religion of Islam) in this context, one must provide a more nuanced
account of how the various attitudes toward religion in Muslim societies
play into the purported incongruities.
Still, one may attempt to salvage the claim that religion underlies the
purported cultural incongruence by saying that the Egyptian (or any
other Muslim) society, as it stands today, reflects influences from the
West that do not represent its real, authentic self. The assumption here is
that modern Muslim societies have become westernized and more accept-
ing of Western worldviews than they used to be before their extensive
contacts with modern Western societies. According to this argument, the
Egyptian society, in its “pre-Westernization” phase, must have been more
religious than its current self and, in its religious phase, must have
enjoyed less of what is considered Western forms of freedom than it does
today. Also according to this argument, more congruence between
Muslim and Western societies can be identified in the twenty-first century
as a reflection of Western influences on Muslim societies in the modern
INTRODUCTION 3
MODERNITY
The complexity of Muslim societies on the eve of their exposure to
Western modernity, rather than the rigidity of Islamic law, may be
responsible for these societies’ hesitation to allow a larger space for adopting
(Western) modern ways of life. Muslim societies on the cusp of moder-
nity—that is, Muslim societies of the eighteenth and nineteenth centuries,
when interaction between Western modernity and Muslim societies
reached a heretofore unprecedented degree of intensity—could not simply
either westernize or modernize themselves because they had previously
achieved a level of complexity that required slow adaptation to the
changes brought by Western modernity (Chapters 2 and 3). This is not
6 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
to say that premodern Islamic legal theory could not accommodate modern
transformations through acknowledging newly adopted social customs in
Muslim societies as a source of law (Chapter 4).
Chapter 2 emphasizes the writing of Muhammad Amin ibn ‘Abidin of
Damascus (1784–1836), an encyclopedic thinker who enjoyed the status
of a religious authority trusted by the public, as well as knowledge of how
the government of his time functioned. My reading of Ibn ‘Abidin in
Chapter 2 aims to allow my readers to consider my critique of the incom-
mensurability thesis in light of a description of a Muslim society on the
cusp of modernity. This chapter will bring forth more materials about the
structure of Muslim societies than normally permitted by the thin references
to Muslim cultures one encounters during debates about Islamic and
Western worldviews.
Chapter 3 takes the reader to the Egypt of the second half of the nine-
teenth century. My source in this chapter, the legal responsa of Muhammad
al-‘Abbasi al-Mahdi (1827–97) provides a picture of another complex
Muslim society—the Egyptian, in this case—to highlight its everyday
practice of its Muslim identity, if one must use this language, and the
degree of freedom people enjoyed under the rule of Islamic law. A
companion to Chapter 2, Chapter 3 also fulfills the same aim of providing
a description of Muslim societies more detailed and less simple than the
one frequently encountered in common depictions of Muslim societies.
In Chapter 4, I introduce the aforementioned Ibn ‘Abidin’s theory of
the impact of social and market standards or customs (‘urf) on law, which
considers the social customs of (1) long-standing and (2) broad circulation
in Muslim societies a source of law, if they can be (3) reconciled with legal
and moral principles of textual (Qur’anic and Sunnaic) provenance. For
the purpose of illustrating further applications of this doctrine, I address
the question of equality in procedural privileges in divorce cases involving
men and women in modern Muslim societies. The question here, based
on this doctrine, is whether modern Muslim jurists would accept to erase
all distinctions in procedural privileges between men and women who
seek to end their marriages. I briefly discuss the implications of this appli-
cation and its impact on other provisions of Islamic law. Concluding with
a discussion of the broader conceptual and practical implications of the
doctrine of custom as a source of law in the Islamic legal system, the
chapter serves as a rebuttal of the notion of Islamic law’s unique inflexi-
bility in the face of change. As I agree with Ibn ‘Abidin’s conceptualization
of the nature of lasting “change” as inherently slow, cumulative, and
deliberate, I find his theory instructive for the purpose of addressing the
general question of Muslim societies’ adoption of the ways of Western
INTRODUCTION 7
VIOLENCE
The extent to which Islamic law sanctions violence against foreign enemies
through war and against individuals through apostasy laws, is exaggerated,
8 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
and the Islamic laws that are usually taken to justify violence against indi-
viduals and against collective enemies are more nuanced than often
assumed (Chapters 5 and 6).
Chapter 5 addresses the question of the laws of war in Sunni Islamic
law. In this chapter, I show that the question of the legitimacy of war was
addressed by jihad and just war theorists, as well as natural law theorists
who were engaged in defining a notion of human society with multiple
and often conflicting ideals and schemes. In this regard, it is difficult for
the historian who is aware of the range of views and the complex connec-
tions established between war and the idea of universally valid norms to
pinpoint a general character distinguishing jihad theorists from the rest.
This must not please the camp of writers who assert that jihad is a unique
phenomenon in human history, a notion not preceded or followed by any
idea of its type or class. On close investigation, jihad turns out to be none
other than the restrained war, waged for the sake of just claims, and jihad
theories address the same puzzling issues that engaged non-Muslim theo-
rists of war in ancient, medieval, and modern times. And given the aca-
demic function Muslim jurisprudence served over long periods of time
and the different degrees of distance between Muslim jurists and the
Muslim governments of their time, jihad jurisprudence provides an
example of lesser degrees of comfort with violence than many other
examples of war theorization. To avoid giving the wrong impression that
I am attempting to replace a condemnation of jihad with an unqualified
approval of it, I express, in no unclear terms, my hesitation to endorse war
in general, whether it is in the name of justice, humanism, God, or any
other. And to avoid giving the wrong impression that I am attempting to
replace an unfavorable comparison of jihad with just war and natural law-
based war theories, I hasten to reiterate that a full or pure comparison of
legal and political traditions, no matter what its results are, will remain
suspect in my eyes. My point in the comparison is much more modest
and is limited to pointing to general functional analogies rather than a
moral assessment of long and complex traditions.
Since jihad is rarely addressed in Western contexts without being
connected to the Qur’an and early Islamic history, Chapter 5 speaks to
the issue of how these two sources relate to discussions about Muslims’
relationship to their enemies. One of the points I make in this chapter is
that political readings of the Qur’an do not possess a higher capacity for
legitimacy than any other (say, a spiritual reading), and the same applies
to the reading of the history of the Prophet Muhammad and even the
history of his immediate political successors, his Companions. This
should be effective in exposing the folly of essentializing a political reading of
INTRODUCTION 9
EVERYDAY LIFE
Chapters 2 through 4 provide much evidence for the great degree of
autonomy granted to individuals, which can be discerned from Islamic
juristic writings. Chapter 7 demonstrates that Islamic law protects a right
to privacy despite the absence of a direct equivalent to the term “the right
to privacy” in Islamic juristic language. The protection of an individual’s
right to privacy is balanced against the enforcement of law in Islam, just
as the same conditional respect of privacy is found in many Western laws.
While recognizing the obvious fact that respect for the privacy of the
individual is only one aspect of the large picture drawn by the term everyday
life, the latter term is addressed in many of this volume’s chapters, as it
overlaps with my treatment of the question of modernity and thus
deserves to be seen as one of its parameters. Aside from the questions of
modernity—with their temporal limitations—and the questions of
violence—with their severe political limitations and capacity to take dif-
ferent forms at different stages in society—a sense of what it means to be
a member of a Muslim society in everyday life merits consideration in its
own right. I bring attention to this axis of the discussion of Muslim
societies and cultures to insist on its lasting nature as an inevitable aspect
of Islamic studies in any academy. With much care and critical reflection,
scholars must consider Muslim societies and cultures with a genuine
desire to understand the qualities of these societies and cultures that
reflect their unique sense of themselves. Again, with much self-questioning
and constant reflection, they might note the processes through which
these societies negotiate authority, how they balance individual and
community, and how they maneuver to achieve continuity-and-change
equilibrium. I hope the reader will not miss this emphasis while
perusing the following chapters.
INTRODUCTION 11
THEORETICAL
CONSIDERATIONS
the past is abandoned. That is, when those with ambivalence about the
past finally acknowledge that they have at least some interest in it, they
still seem to combine with their interest in history some indifference
about its details. Many of those who declare history unimportant still
speak of history as if it is a done deal, and make unverifiable and flatly
mistaken claims about it, thinking that even if they were wrong, this did
not matter.
I take it that skepticism about the possibility of knowing the past,
reluctance to investigate it, and irritation by its surprises, by and large, do
not stop people from believing things about the past. Statements about
focusing on the future and leaving the past to dead people can only be
hyperbolic and dramatic, since those who make these statements do not
usually take them seriously. Even distant history, though sometimes
mediated by interpretations provided by recent history and culture, con-
tinues to live with us. This is because nobody seems to afford to live
without history. While acknowledging the disanalogies between collective
and personal memory, one can find a parallel between people’s relationship
to their (collective) history and their own memories of their personal
lives. Knowing that personal memory of previous events of one’s life
inevitably distorts them does not deter us from using our memory, since
our memory is an essential depository of our identity. Similarly, doing
away with collective memory altogether cannot be practically espoused by
most people for its high emotional cost, which no social body can afford
to bear. I will therefore assume that history, both distant and recent,
matters in the present, though to various degrees to different people.
But even if ignoring history were a genuine position to be held, it is
hardly a sophisticated one. Indeed, wholesale rejection of the possibility
of knowledge of the past is as simpleminded as gullible acceptance of a
national or tribal narrative. Mahmud Muhammad Shakir (d. 1996) ends
a polemic against students of Arabic and Islamic studies who justify
wholesale rejection of the authenticity of the historical records of early
Islamic history by quoting Abu ‘Uthamn ibn Bahr al-Jahiz (d. 868):
(Ibn ‘Abidin and ‘Abbasi, in this case) and how these sources read their
context on a spectrum of continuity and change within Islamic cultural
and legal history. My main defense of my reading remains its limited
goal. My goal is to point to the complexity of Muslim societies on the
cusp of modernity. This complexity may be seen even based on different
readings of the materials I investigate. For Ibn ‘Abidin or ‘Abbasi to have
forged this complexity out of thin air would be impossible, regardless of
their specific positions about any of the specific or general issues addressing
what went on in their environment.
I also refrain from searching for the correct tone in evaluating the
differences between the different sources. Once again, my focus in
Chapters 2 and 3 will remain the societies these two jurists describe, and
other studies may investigate these two minds’ contribution to Islamic
legal thinking in the nineteenth century and after. Chapters 2 and 3
construct Muslim cultures on the cusp of modernity, cultures that
continue the traditional and historical Islamic heritage and possess a
degree of complexity, which necessitates a deliberate and slow adaptation
to the changes brought by Western modernity. As they stood, these pre-
modern cultures had developed their own ways of achieving some of the
goals modernity had to offer: a measure of freedom to be enjoyed by the
individual and a measured balance of the different interests of private and
public entities in the society.
Other chapters address other issues. In Chapter 4, I provide a close
reading of a juristic view explaining how market standards and social
customs may function as a source of law in Muslim societies. Many may
disagree with the substantive claims of the view I study (which is Ibn
‘Abidin’s view), but this will not affect my limited claim of the availability
of this view and the limited claim of the availability of the notion of social
custom as a factor in deciding legal cases according to Islamic jurispru-
dence. Chapters 5 and 6 address the fraught questions of war and apostasy
laws in Islamic law. My claims remain limited to exposing the weakness
of common treatments of these subjects, rather than defending any
surprising claims about the Islamic juristic discourses on war or apostasy.
In a similar vein, Chapter 7 establishes the limited claim of Islamic law’s
respect for individuals’ privacy. This is also a thesis that can hardly be
denied despite possible disagreements about the details of any right to
privacy in different madhhabs or school doctrines.
Hence, in this volume, I take serious critiques of the reading of history
and culture seriously while ignoring sophisticated-looking pseudocritiques
of the investigation of history. I move now to other aspects of the difficulties
inherent in handling history, beginning with the issues of looking for tidy
THEORETICAL CONSIDERATIONS 23
“advanced” than those of the present. Many scholars who study European
intellectual history do away with (or even counter) the strong version of
progress-based assumptions when they study premodern European intel-
lectuals, which lead them to unearthing much creativity in the works of
European philosophers, theologians, and scientists. Some distinctively
modern ideas have been traced back to quite mature, early modern, or pre-
modern precursors.7 But more important than the history of specific
debates and ideas is the very interest in centuries and texts that were
judged irrelevant to modern life. Some studies show that creativity
reached a height in medieval Christian theology and could present us
with minds equal to many admired ancient and modern minds.8 More
could be, and, I suspect, will be, done. But when it comes to medieval
Islamic history, despite the lip-service acknowledgment that medieval
Muslim civilization may have established a unique model for civilization,
we are yet to recover from the assumption that medieval Muslim culture
must be a few beats behind modern culture, morally, intellectually, and
organizationally, in most respects, in all these areas.
Other prejudices also apply to the main outlines of historical studies.
A modern reader of a medieval theologian or jurist, for example, often
begins by asking whether this theologian or jurist was educated in the
Aristotelian tradition, which indicates a degree of sophistication and the
capacity to engage in certain discussions. When the modern reader finds
evidence of this person’s knowledge of Aristotle and his interpreters, the
reader often jumps to the conclusion that she or he will think in a certain
manner, and will even likely reach certain conclusions. Here, the powerful
assumption of lack of creativity impedes an open-minded reading of the
materials. A bit ironically, if the modern reader assumes that their subject
is a marginal or a rebellious type of thinker, the reader is more open to
finding instances of creativity in this thinker’s opus. Hence, many aca-
demics are lured by the beauty of studying marginalized medieval
intellectuals and “failed” academics of the medieval academies, basically
because this allows them to break from the narratives of how
Aristotelianism ruled the Christian and Muslim medieval minds for
centuries.
I know from previous studies I conducted that creativity can be found
in the writings of Muslim jurists of all centuries and all generations, some-
times predictably in the writing of a major jurist whose innovations were
accepted by later generations and incorporated into the legal tradition of
which the jurist was once a novice. But sometimes the creativity comes
from a local judge or a jurist of a lesser fame and even no bibliography—
that is, those jurists who have no writings of their own and are known to
26 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
us only through the writings of others. Creativity comes from those who
lived one thousand years ago and those who lived a couple of hundred
years ago. For serious students of Islamic legal history, it is simply
impossible to classify jurists by era in order to evaluate their intellectual
contribution. I fail to determine the backward centuries and the forward
centuries in Islamic legal history. This may explain why histories of
Islamic law that assume a certain line of development in that history,
from original creativity to lethargy to possible modern revival, are not
satisfactory in my view.
An open-minded reading must constantly question its suppositions
and aim at delving into the world of the text with more curiosity than
judgment, avoiding assumptions about the quality of the ideas coming
from certain traditions or time periods or the capacity of these to compare
with its modern counterparts. If reading texts that describe Muslim soci-
eties of the eighteenth and nineteenth centuries, with fewer suppositions,
leads to conclusions that do not fit previous biases, this is both natural and
desirable. If a reader finds evidence that a Muslim society on the cusp of
modernity displays the qualities of a successful and advanced society, one
should not ask, why did not this society modernize itself faster? One
would find it bizarre, in fact, if this society should modernize itself
quickly or at all (Chapters 2 and 3). By the same token, if a more inquis-
itive reading of the theoretical and practical treatment of war and apos-
tasy in Islamic legal history necessitates a reevaluation of our
understanding of the issues of violence against the individual and against
foreign enemies, we should undertake that reevaluation rather than shy
away from it or retreat to our initial positions and presumptions on the
subjects (Chapters 5 and 6). If a surprising measure of respect for the pri-
vacy and the autonomy of the individual in a Muslim society seems to
force itself on us when we read Islamic legal texts of different times
(Chapter 7, among other chapters), we should accept the obvious con-
clusion rather than resort to unexamined and underexamined assump-
tions about what these societies are like, as we learned from common
assumptions before our reading.
social and legal systems, and were indeed invested in expressing contempt
for basic Muslim traditions and practices from time to time. But many
Orientalists were actually parasitic in their work on medieval Muslim
intellectuals, and their scholarship was more or less a continuation of
many themes that can be located in the Islamic intellectual traditions.
The dependency of Orientalists on their Muslim predecessors (and
contemporaries) and the similarities between the works of Orientalists
and medieval Arab thinkers is not only an understudied aspect of the
history of Orientalism, but it also might appear to be a suspicious inquiry
to many, despite the fact that the Islamic intellectual traditions are replete
with diverse tendencies, trends, and countertrends. It still appears, to
many, to be simply counterintuitive to assume that Ignaz Goldziher’s
critique of the sources of Prophetic hadith is simply a radicalization of
principles employed by many Hanafi and Maliki jurists who championed
rationalist jurisprudence (contrasted to traditionist jurisprudence as
represented by the Musannafs of ‘Abd al-Razzaq al-Himyari [d. 827] and
Ibn Abi Shayba’s [d. 849]),13 with the goal of establishing laws based on
reason rather than tradition. It would be easier to assume that Goldziher’s
critique of traditionism was influenced only by advances in Biblical text
criticism, a European offspring of the Enlightenment. Similarly, very few
would assume that Theodor Nöldeke’s (b. Harburg, March 2, 1836; d.
Karlsruhe, 1930) attempts at understanding the content of Muhammad’s
prophecy by analyzing it psychologically and sociologically mimics and
develops Farabi’s (d. 950) theory of prophecy. This theory (long before
Schopenhauer (1788–1860), who seems to have held a similar theory)
teaches that (1) prophecy is a context-based, metaphorical expression of
philosophical truth, (2) that this metaphorical expression may deviate little
or much from its philosophical basis, and (3) that the philosophical basis
of any prophecy may itself be philosophically sound or unsound. It would
be natural, by contrast, to argue that, unlike Orientalists, rationalist
Muslim jurists questioned the attributability of specific hadiths to
Muhammad rather than the historicity of the whole tradition—which
distinguishes their project from that of Goldziher’s—and that Farabi’s
excessive labeling of all prophetic statements as allegorical does not, after
all, trace a good proportion of Muhammad’s teachings to pre-
Muhammadan religions, as many Orientalists did. However, it is these
links and similarities between medieval Muslim thinkers and modern
Western scholarship on Islam that remain understudied. To provide an
example of the complex ways in which major Orientalists may have been
influenced by their Arabic sources, including being in the business of
recycling and modifying views they read in these sources, I shall draw a
30 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
brief comparison between Nöldeke and the Muslim writer Jalal al-Din al-
Suyuti’s (d. 1505) effort to assess the traditions they inherited in the
history of the Qur’an and the life of the Prophet Muhammad.
Studying the Qur’an as a historical parallel to the life of Muhammad
is one of the principle questions of Islamic studies. And studying the
history of the Qur’an, especially its conception and first iteration by
Muhammad, is often a concomitant of the study of the transmission of
the Prophet Muhammad’s tradition, by and large, which continues to be
pursued by researchers in Islamic studies.14 Despite the interest of many
Muslim exegetes, chroniclers, and jurists—among others—in the issue,
recovering and constructing the history of Muhammad and the Qur’an is
admittedly difficult. The intrusion of the hagiographic shama’il literature,
which depicts an image of a larger-than-life prophet beyond his context,
is but one of the difficulties, since even in sources that proclaim to be
reporting historical facts, one is at sea trying to ascertain the date of a
given report and whether its content includes conjecture. Ascertaining
the dates of certain events, such as the birth date of the Prophet, for
example, is one of the issues that Muslim historians and Orientalists alike
have struggled to achieve.15
Nöldeke’s active interest in the history of the Qur’an began with his
1859 text De Origine et Compositione Qorani (only to be published as
Geschichte des Qorans in Gottingen a year later) and continued at least
until 1910 when his “Zur Sprache des Qur’ans” appeared. Geschichte des
Qorans won its author a prize from the Academie des Inscriptions,16 but
it is, most importantly, credited with beginning a new tradition in the
study of the history of the Qur’an and the life of the prophet of Islam.
Nöldeke is an example of a nineteenth-century Western scholar of
Qur’anic studies who relied on and conversed with medieval Islamic
sources more than is often assumed. (Engagement with and heavy
reliance on medieval Muslim writers in Qur’anic studies, in fact, goes as
far back, as Thomas E. Burman demonstrated, as the earliest Latin
translation of the Qur’an in the 1140s, but this is another matter.17)
Orientalists like Nöldeke had to begin to develop a metaperspective to
employ in reading their sources, and their Arabic sources, which are
constantly involved in self-assessment, provided an obvious point of
departure. Moreover, relations between many Orientalists and their con-
temporary Arab scholars, during the time Nöldeke produced his work,
facilitated for Orientalists much access to sources. We are told, for example,
about Arab scholars of means, such as Ahmad Taymur, who would make
“a good photograph” of needed manuscripts available to those who
needed it.18
THEORETICAL CONSIDERATIONS 31
At any rate, Nöldeke could find in his Arabic sources a great deal of
variety to engage, tantalize, and challenge him. Suyuti’s writing, by itself,
is a major source of variety, as Suyuti enjoyed demonstrating his knowledge
of his sources and recounting many views on any subject he discusses.
This is the starting point in comparing the works of Suyuti and Nöldeke
on the topic: the apparent encyclopedic nature of the first and the eclectic
and experimental nature of the second tend to paper over major influ-
ences by the first on the second. While context plays a major role in shaping
each critical project, similarities can still be detected between Suyuti and
Nöldeke’s treatment of the history of the Prophet Muhammad and the
Qur’an. This remains true despite methodological (and, indeed, religious)
commitments, on the part of Suyuti and Nöldeke. Take the issue of
understanding the relationship between Qur’anic verses and their context.
Both Suyuti and Nöldeke recognized the limitations of any attempt at the
historical situating of verses based on a presumed relationship between
the verse and a given event or based on the psychology of historical players
who witnessed this event. Nöldeke often described determining the time
at which certain verses may have been iterated by the Prophet for the first
time as impossible in some cases, and, in his 1909 introduction to his
Geschichte, he lets out signs of a sense of exhaustion and regret of some of
his early views. This position is not particularly different from the position
of many Muslim historians of Muhammad’s life, especially Suyuti. These
medieval Muslim students of Qur’anic and Muhammadan history seem
to have accepted the conclusion that full knowledge of the Prophet’s history
and the evolution of the Qur’an might never be attained, a position
applied by modern scholars of biblical studies to biblical and Christological
history, too. Suyuti is especially good at pointing to the diversity of opinions
on any matter he discusses, and his restraint from judgment is a near
constant in his work.
Yes, Suyuti’s Itqan (his study of the history of the Qur’an and the main
branches of its content and exegesis) and Nöldeke’s Geschichte reflect
different personalities. Suyuti’s juristic orientation makes him concerned
with the practical consequences of the history of the verses (especially his
interest in understanding the circumstances of the revelation to understand
them). His Sufi tendency makes him hold dear the idea that Muhammad
is the perfect man (Insan Kamil), which influences his perspectives on
both evaluating and understanding available historical records of his life
and the conception of the Qur’an. Nöldeke is responding to a context
that included, among other things, developments in the study of psychology
and medicine (with new ideas about an individual’s urge to speak of
receiving revelations), the romanticization of the Qur’an and Muhammad’s
32 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
East by the likes of Goethe, and the rise of biblical critical studies. But
Suyuti and Nöldeke display similar attitudes about available knowledge
of the life of Muhammad and the revelation of the Qur’an.
The question of Muhammad’s psychology, in the writings of Suyuti
and Nöldeke, is intriguing. Based on historical and religious grounds,
Suyuti could believe that Muhammad had to undergo divine preparation
for his awesome message. The Qur’an explicitly states that Muhammad
needed that divine support: “Did not He find you an orphan and sheltered
you; did not He find you in need and enriched you; did not He find you
misguided and guided you?” (Qur’an 93: 6–9). Muhammad’s transfor-
mation from a common man with men’s imperfections into a perfect man
thus originated in divine support more than anything else. Nöldeke tells
what appears to be a different story. At the outset of his work, Nöldeke
depicts a picture of a prophet who was not strong willed by nature, but a
combination of the internal urge of his prophecy and subsequent events
transformed him. Nevertheless, Nöldeke interestingly tries to convince
his reader, in the opening pages of his book, that Muhammad must have
been a prophet because his natural inclinations would have been to live
under the radar of the politics of his society and refrain from challenging
its authorities, but his internal urge (responding to his nagging prophet-
hood) led him, despite himself, to go against the grain. Suyuti and
Nöldeke are reading from the same sources and reading their main lines
fairly similarly. The difference is more or less a matter of “attitude” and
“tone” reflecting their personal relationship with the subject of their
inquiry.19
The persistence of a psychological criterion for historicizing verses
(more directly and crudely applicable in the case of Muhammad, as
compared with the Bible, which has long intervals separating its authors
and sources) in Nöldeke is understandable. But Nöldeke, not unlike
Suyuti, duly acknowledges the limitations of psychology-based reading of
the history of a single man and questions most obvious applications of
biblical critical studies to Qur’anic history.
One striking element of comparison between Suyuti and Nöldeke is
that Suyuti’s almost ostentatious counting of myriad sources he used to
compose his work does not find an exact parallel in Nöldeke. The number
of Arabic sources mentioned at the outset of the Itqan is exhausting.
These include a few books Suyuti counts as belonging to the same genre
to which his Itqan should properly belong (such as those of Bulqini’s [d.
1403] and Zarkashi’s [d. 1370]) and others that range from being
commentaries on the Qur’an, or aspects of it in one way or another, to
being sources of Arabic and Islamic studies in the largest sense. This is not
THEORETICAL CONSIDERATIONS 33
to say that Nöldeke’s stock of sources is thin. It is, however, obvious that
the Arabic sources Suyuti uses include sources that were unavailable or
not known to Nöldeke. Yet, this difference offers an opportunity to
restate the basic similarity between Suyuti and Nöldeke on the issue of
dating the Qur’anic revelations, determining which parts of the Qur’an
were revealed to the Prophet in Mecca, and which parts belong in the
Madinan years. Suyuti discussed this issue at the beginning of his work,
reporting an abundance of opinions, including a disagreement about how
one should define the Meccan and the Madinan revelations themselves.
Suyuti finds much to report but ends with doubting the possibility of
producing a neat history of the evolution of the Qur’an. Nöldeke also
displays a measure of reluctance to make a final decision about this history.
In their treatment of verses of relevance to Muslim and non-Muslim
relations in the Qur’an and the events in Muhammad’s life that correspond
to them, both authors, by and large, vacillate between projecting the
confidence to be able to tell a full story of the events and expressing despair
of historical knowledge of the events, given the scarcity or abundance and
conflict of the sources.
Nöldeke has even gone beyond reiterating and sharing the ideas of his
Muslim predecessors; he internalized a sense of sharing the Arab heritage
with those who inherited the Arabic language and culture. This may be
seen in Nöldeke’s use of Arabic expressions in his correspondences as part
of his own way of expressing himself, as opposed to citing Arab writers
(e.g., he ends a postcard that he sent to Goldziher on October 3, 1896,
with wa-s-salam [Peace] and a letter of August 7, 1906, with in-sha’-Allah
[God-willing]).20
This is not to say that the relationship between the Nöldeke-Schwally-
Bergsträsser history of the Qur’an (Friedrich Schwally lived between
1863–1919 and Gotthelf Bergsträsser 1886–1933) and the Islamic sources
of Qur’anic studies is one of following or imitation. As these Western
students of Islam conversed with their medieval Muslim predecessors,
they have also created their own tradition of Qur’anic studies (often
dialoguing discreetly or not so discreetly with biblical studies, with an
emphasis on sociological, psychological, and literary analyses as tools for
the examination of the historicity of Scripture), thus forming a dialectical
relationship of acceptance and rejection with the works of their Muslim
predecessors, such as Muhammad ibn Jarir al-Tabari (d. 923), Hibat
Allah ibn Salama (d. 1019), Suyuti, and others. Consequently, Western
students of Qur’anic studies after Bergsträsser (d. 1933) began to find
enough to debate in the works of their Western predecessors, and while
continuing to use Muslim sources in their research, they could engage
34 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
more and more with the details of their Western predecessors’ works (a
similar situation will obtain in studies of Islamic legal history after
Josepoh Schacht’s [d. 1969] Origins of Muhammadan Jurisprudence).
Over time, two traditions have continued to pursue their own interests
and questions, with occasional “crossing” from one side to the other.
An assessment of the exact influence of medieval Muslims on the
Orientalist tradition will not detain us for too long. My point here is that
the idea that Orientalistic readings of Islamic history must diverge from
Muslim readings of it cannot be defended, nor can the influence of these
Western readings be denied, especially those Western influences on reading
that can be located in these Orientalists’ convictions about the position of
Islamic history in their form of world history, the type of world history
that takes Europe as its focal point.
his opponents as he grew stronger in the last few years of his life. At any
rate, the language of “no compulsion” will have a context only if com-
pulsion was possible, which is another reason this verse does not represent
a stage where Muhammad was incapable of using force against his
opponents. But Pope Benedict seems to be sure that Islam is violent no
matter what.21
The pope dedicates three paragraphs (about a page out of his seven-
page speech) to a comparison (or, rather, a contrast) between Islam and
Christianity. Since the pope’s speech is about the Christian faith’s
compatibility with reason, the contrast between Islam and Christianity
attempts to make the point that Islam is incompatible with reason (by no
means a new idea for medieval Christian polemics against Islam). Here
lies an irony. The pope’s speech pretends to project a confident tone,
arguing for Christianity’s ability to “penetrate the soul” and convince the
intellect, while his personal history and language reflect unique insecuri-
ties and fears of Islam’s growing presence in Europe. But aside from this
irony, the pope’s inquiry about the relationship between faith and reason
is an instructive one, because all his claims about the harmony between
the Christian faith and reason, as he understands them, are made in
connection with the incompatibility of the Islamic faith and reason
(defined in ways similar to the pope’s definition of reason). This leads us
to identifying another irony in the pope’s argument: the more successful
he is in making the case for the compatibility of faith and reason in his
tradition, the less successful he is in convincing anybody with decent
knowledge of Islam that the Islamic faith is incompatible with reason, as
he defines it.
The most significant aspect of this speech, however, remains its eclectic
reading of the history of violence involving Christian and Muslim armies.
Eclectic readings of the history of violence serve as distractions from
understanding the reality of excessive violence involving Western societies
today, given their hegemonic posture in the world. Subsequently, clashes
of Western and Muslim entities are explained (away) by self-appointed
representatives of Christian or Western values as signs of the incongruence
of Islamic and Western values. They are less and more than that.
Qur’anic verse 9:122). This means that both men and women must take
part in fulfilling this duty. Similarly, Muslims are (collectively) expected
to provide services for their fellow men and women in society. That is
why both men and women should shoulder these responsibilities together.
Based on this analysis, women have the responsibility (not only the right)
to contribute to their society in a manner that fulfills its needs.
Despite qualifying as simple facts that should be known to all participants
in any debate about women’s issues, some of the above will sound surprising
to many. Yet, women’s issues are in the forefront of discussion about
Islam and human rights and about Islamic and modernity. This is why a
mature debate about these issues is lacking, and the discussion continues
to be about how open Western societies should educate Muslim societies
about liberating women. The way out is easy: those interested in women’s
issues in Muslim societies should be educated about the debates on
women’s participation in Muslim societies of the past and Muslim
women’s expectations today. This will open up the door for fruitful
debates and end the dialogue of the deaf we are witnessing today.
* * *
ON THE CUSP OF
MODERNITY
Muslim society. This raises questions about the need of a Muslim society
like Ibn ‘Abidin’s to “modify” itself in order to enjoy these newly discovered
modern freedoms and liberties through Westernization.
JURISTIC PROJECT
Being a voice of tradition in Ibn ‘Abidin’s case hardly negates that he
occupied a critical and evaluative stance within the tradition. Evidence of
this evaluative stance can be found in Ibn ‘Abidin’s constant evaluation of
views attributed to a multiplicity of Hanafi jurists and the views of
Haskafi (d. 1677), the source of his long supercommentary, the Hashiya
or Radd al-Muhtar, as we will see later in this chapter. In fact, Ibn
‘Abidin’s overall juristic project can be said to be mostly evaluative, as it
addresses the basic sources of the Hanafi tradition, the interaction of
juristic production with social movement, and the dynamic of continuity
and change resulting from this interaction. First, Ibn ‘Abidin studied and
delineated the sources of the Hanafi legal tradition, referring here both to
the classics of Hanafi law and individual authorities, for example,
Muhammad ibn al-Hasan al-Shaybani (d. 805), Hasan ibn Ziyad al-
Lu’lu’i (d. 819), Abu Hafs al-Kabir Bukhari (d. 878), Abu Ja‘far al-
Tahawi (d. 933), al-Hakim al-Shahid (d. 945), Abu Ja‘far al-Hinduwani
(d. 973), Ahmad ibn Muhammad al-Quduri (d. 1037), al-Sarakhsi of al-
Mabsut (d. 1097), al-Sarakhsi of al-Muhit (d. 1149), al-Hasan ibn
Mansur Qadi Khan (d. 1196), ‘Ali ibn Abi Bakr al-Marghinani (d. 1197),
‘Abdullah ibn Ahmad al-Nasafi (d. 1310), ‘Ubaydullah al-Mahbubi (d.
1346), Ibhrahim ibn Muhammad al-Halabi (d. 1549), Zayn al-‘Abidin
ibn Ibrahim Ibn Nujaym (d. 1563), among many many others. Ibn
‘Abidin would have learned about these sources from the start of his studies,
and he will now articulate a hierarchy of the legacies of these authorities
and a critical method of reading them. This is the subject of the above-
mentioned didactic poem called ‘Uqud Rasm al-Mufti and an explication
of it in a treatise Ibn ‘Abidin dedicates to elaborating its main points. The
authorities of the school have lived among different communities and in
48 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
different geographic areas with their own customs and varieties of sensus
communis. This leads Ibn ‘Abidin to studying the dialectical relationship
between custom and law, as custom is a maieutic to legal institutions, and
law, at times, performs a function of social engineering. The dialectical
relationship of law and custom and the theoretical question of how a tra-
dition could continue to apply in lives never witnessed by the initiators of this
tradition are addressed in a treatise on custom (‘urf ) by Ibn ‘Abidin. But
the long Radd al-Muhtar, Ibn ‘Abidin’s legal digest, teaches us more
about the actual applications of custom as a source of law in considerable
details. (Chapter 4 of this volume provides further elaboration of the doc-
trine of custom as a source of law, according to Ibn ‘Abidin.) Finally, Ibn
‘Abidin sets out to achieve an accounting of the different juristic func-
tions performed over the centuries, not necessarily focused on a topology
of jurists distinguishing inferior from superior jurists, although this is
included, but mostly on what function is performed by each jurist or doctor
of law to infer the correct legal doctrine of the school. Ibn ‘Abidin’s
Rasa’il, or treatises, are full of comments about this crucial issue, and his
comprehensive legal commentary, Radd al-Muhtar, remains the most
informative in this regard as well. The message Ibn ‘Abidin’s writing
offers is thus threefold: Jurists must be trained to (1) read the sources of
the legal tradition and to (2) recognize the vital importance of custom
and its impact on law while (3) being aware of their juristic function,
according to their position in the juristic hierarchy.
For my purposes, the most significant aspects of Ibn ‘Abidin’s juristic
project remain the perspective it offers on the role of religion in society
and the richness of this society’s structure and the complexity of its
institutions. With this focus in mind, one thing will become immediately
apparent: Ibn ‘Abidin’s writing and thinking assumes a matrix of moral
and religious affinities and a societal life much richer and more tolerant
than the one represented by literalist and judgmental modern Islamic
movements, such as Wahhabism. Religion, in Ibn ‘Abidin’s matrix,
evolves with the society, influences it, and is influenced and interpreted
by it. Religion defends rights rather than simply restrict them. But religion
does not simply take over the individual and the community, since the
legal theory and practice of a religious jurist like Ibn ‘Abidin allow a
reasonable space for people to make a choice about the ways and the
extent to which they would like to apply the religious teachings in their
lives.
ON THE CUSP OF MODERNITY 49
focused on negotiating the present with the past but did not always state
his task in clear terms. I will aim at reading the message Ibn ‘Abidin never
wrote but, in the view of the author of this chapter, would be able to see
its importance to posterity as the most important message of the Islamic
law of his time.
cases (furuq). But the law was not simply a matter of ivory-tower tradition
handed down from one generation of jurists to another. The movement
of society and the change in public mores, market, and social standards
(‘urf) was adopted as part of the mechanism to develop the law at the slow
speed at which society changes. The principle that custom influences the
law and the discussion of the limitation of state power in an Islamic society
was debated in juristic references on the theoretical level and applied in
specific cases in a variety of ways. Jurists like Ibn ‘Abidin addressed the
influence of market and social conventions on legal practice. But outside
of these books and societal movement, there were also worlds of law,
including Sultanic orders and other state arrangements and conventions,
commercial and trade agreements, and international treaties that affected
the lives of great many people, directly or indirectly.
When it came to daily matters, the jurists assumed that the laypeople
submitted to juristic religious authorities for religious, rather than political,
reasons. A jurist’s opinion delivered to the public was nonbinding. A
layperson, according to Ibn ‘Abidin, is not expected to follow a specific
madhhab or school of law, since an affiliation with a school of law would
have to be based on an understanding of the methods of legal reasoning
in that school, which is not something a nonspecialist in law expects to
attain.8 A layperson may ask his religio-juristic counsel to explain his legal
view and tell the questioner about the school of law from which this view
springs. A layperson should not attempt to change his madhhab affiliation
for the sake of finding lenient opinions, since the motive behind this
change will lead to another change, and a third, and so on—thus defeating
the purpose of seeking religious legal counsel. Yet, people had all the
freedom to make up their minds after they had heard the jurist’s counseling,
since this counseling, after all, was nonbinding.
The jurist was interested (at least theoretically, but, in many ways,
practically, too, as we shall see) in negotiating the power of three players
in law: current custom, current state policies, and tradition. The tradition
needs explication, social and market customs need evaluation, and state
policies may ultimately need to be negotiated according to moral, religious,
and other imperatives. The jurist held a unique position, since he did not
necessarily represent a branch of the government; he was sometimes simply
independent. But the jurist still wields much authority, in the eyes of the
public, as he could evaluate the actions of the government and interactions
among its branches. If one of the U.S. Supreme Court’s tasks is to explain
how trade customs affect, for example, the Commerce Clause (Article I,
Section 8) of the U.S. Constitution—which stipulates that Congress shall
regulate trade within the United States and between the United States
52 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
and the outside world9—so was the trained, unappointed jurist responsible
for explaining acceptable and unacceptable relations that involved the
state and its integral parts (institutions, agencies, etc.)—relations involving
the state and foreign entities and relations between the state and individuals.
In the juristic literature authored by jurists like Ibn ‘Abidin, one can
clearly see how power was distributed among the state, the people, and
the voices of the religious tradition. Not only was power shared among
the three parties (people, jurists, state)—each party influenced and was
influenced by the other two parties. It was a trialectical affinity. It cer-
tainly was not a context for a simple dictatorship or a duopoly that
emphasized the power of the representatives of the religious tradition and
the sultan.
One last complicating factor was rising foreign influence. By Ibn
‘Abidin’s time, foreign influences had already begun to be felt due to,
inter alia, growing trade with Europe going back generations before Ibn
‘Abidin.10 Thus, added to the Mamluk and Ottoman administrative and
state policies, an international element became relevant to some of Ibn
‘Abidin’s legal queries and research.
I shall now attend to specific issues discussed by Ibn ‘Abidin, such as
the degree to which the sultan’s authority must be restricted, the nature
of acceptable evidence in a court of law, the relationship between law and
public mores, non-Muslim communities in a Muslim society, among
others.
of public funds coming directly from the treasury (Bayt al-Mal), where
the condition can be seen as a mere recommendation, and where the
specifics of the language of the sultan may not be interpreted stringently.
In this case, a Hanafi legal principle allows a jurist to benefit from that
public fund (1) if he needs the money and, Hanafi jurists add, (2) if he is
known for his piety. Ibn ‘Abidin criticizes his contemporaries who
engaged in loose applications of this principle and allowed themselves to
benefit from funds of the first type when the authorities allowed them to
do that, based on a stretched interpretation of the conditions attached to
them. Ibn ‘Abidin refers to this as “a violation of the conditions” (or
mukhalafat al-shurut) rather than a bad interpretation of them. Ibn
‘Abidin here notes that this issue is not new—stating that these unlawful
appropriations of public funds took place during the reign of Circassian
Mamluk Barsbey (who ruled between 1422–38)—and endorses the
position of another Hanafi jurist, Ibn al-Humam (d. 1460), who lamented
the practice in Barsbey’s time.11
PRESUMPTIVE OWNERSHIP
If Ibn ‘Abidin criticized inappropriate use of public money and endow-
ment and defended the government in some contexts, he also criticized
government authorities for attempting to challenge people’s presumptive
ownership of property they possessed and administered, or dwelled in, for
generations by demanding proof of their ownership of that property. Ibn
‘Abidin makes it clear that this is a recurring problem, since the Mamluk
Baybars (ruled between 1260–77) attempted to challenge estate owners
to provide documents establishing their ownership of lands and houses
they possessed, as did their parents and grandparents, which the Shafi‘i
jurist Yahya ibn Sharaf al-Nawawi (1233–77) argued was unreasonable.
The same happened later, which caused jurists to make this same point
repeatedly, and the problem surfaced again in Ibn ‘Abidin’s time. In the
course of the discussion, Ibn ‘Abidin emphasizes that one set of principles
applies to the lands of Egypt and Syria, since they have been administrated
in an identical way for centuries. Ibn ‘Abidin even suggests, at one point,
that some of the arrangements affecting estates might go back to policies
adopted by Umar ibn al-Khattab (d. 644).12 Here, Ibn ‘Abidin clearly
attacks the government in its unreasonable attempt to appropriate private
property under the pretense that it aims to certify people’s ownership of
what appears to be their property. Ibn ‘Abidin ultimately defends the
average individual who is asked to provide evidence of his or her owner-
ship of property they inherited for generations, when producing such
evidence would be unavailable to them.
54 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
Here, Ibn ‘Abidin ultimately attempts to state a position that balances the
interests of community and affords it a degree of autonomy while
acknowledging the authority of the central government in regulating the
general affairs of the state.
NON-MUSLIM JUDGES
Non-Muslims living in a Muslim country are assigned a judge of their
own religion to resolve disagreements that arise among them. Thus, Ibn
‘Abidin decides that the appointment of a non-Muslim judge is accept-
able, and when jurists count “Islam” among the qualities of a judge (in
addition to knowledge and intelligence, etc.), they mean to indicate what
would be required in a judge who handles cases involving Muslim subjects.
Non-Muslim subjects in Syria (al-qutr al-shami) include Christians and
Druze residents. Ibn ‘Abidin dwells on a technicality about the appoint-
ment of these non-Muslim judges, stating that it is expected of the caliph
or the sultan of general jurisdiction to issue that appointment. In Sidon
and like towns (al-thugur wa-l-bilad), the local prince takes responsibility
for that matter, but Damascus annually awaits a Sultan-appointed judge.
Aleppo’s prince is also not expected to intervene in the appointment or
the deposition of judges.16 At any rate, the appointment of non-Muslim
judges is endorsed as a natural part of the Islamic legal system in Ibn
‘Abidin’s society.
ZONING LAWS
The state sometimes reserves to itself the right to issue zoning laws, regu-
lating access to certain public areas or residences. These laws can be indirect
and subtle—such as imposing high taxes for services related to residing in
a certain area or zone so as to guarantee that those living in that area will
be residents who earn a certain income. These laws can also be plain and
direct—such as assigning certain areas for the residence of students, given
these areas’ proximity to their educational institution. Are there any zoning
laws to be found in Hanafi jurisprudence, according to Ibn ‘Abidin, that
distinguish residents based on their religious affiliation?
The short answer is “no,” since Muslims and non-Muslims are, in
principle, allowed to live, trade, and participate in any activity anywhere
in the country. Exceptions include a juristic disagreement about whether
a non-Muslim can enter the Sacred Precinct (al-Masjid al-Haram) in
Mecca. Ibn ‘Abidin relates the disagreement, stating that Muhammad ibn
al-Hasan al-Shaybani, Abu Hanifa’s student, agrees with both Shafi‘i (d.
820) and Ahmad ibn Hanbal (d. 856) in preventing non-Muslims from
entering into the precinct, and Haskafi seems to consider this the prevalent
opinion in Hanafi law. Ibn ‘Abidin begs to differ. He states that the view
enshrined in the mutun (terse legal manual), which is Abu Hanifa’s, is
that dhimmis (non-Muslim residents) should not be prevented from enter-
ing the precinct or other mosques. In this context, Ibn ‘Abidin iterates the
ON THE CUSP OF MODERNITY 57
NEIGHBORS
Muslim jurists discuss a group of rights that are deserved in relation to the
ownership of real estates. These are known as the rights attached to utilities or
ON THE CUSP OF MODERNITY 59
those values deemed to be universal occurs in real life. This can happen if
somebody either lives in an isolated, small community or in a community
of regular size that is not emphatic on the prohibition of adultery, so that
an individual may truthfully claim to not have known that it would be a
major offense within a Muslim community, even if this individual is a
recent convert to Islam. If there is sufficient evidence that the claim of
ignorance is made unreasonably, such as when the person who made it is
known to have lived for a long time among Muslims, then one may apply
the opinion that holds that person responsible for their actions.23
SOCIAL INTERACTION
Claims about Muslim jurists’ obsession with “sex,” either between men
and women or between individuals of the same sex, collapse after exam-
ining Ibn ‘Abidin’s writing on these matters. Ibn ‘Abidin is more descriptive
than prescriptive in addressing sexuality in general, but he importantly
rejects condemnation of normal behavior out of fear of the possibility of
bordering on sinful action. If a male and a female stranger share a resi-
dence, where each one of them has his or her own entrance to their private
place, that arrangement is acceptable.28“Homosexuals are of different
types: some look and observe (yanzurun), some shake hands and hug
(yusafihun), and some engage in homosexual acts (ya‘malun),”29 but mere
attraction or the desire to look to a beautiful face is acceptable, since even
infants and animals experience this innocent desire.30 Ibn ‘Abidin rejects
any tendency to raise suspicion about natural human interactions among
people, despite his awareness of the occurrence of what could be deemed
inappropriate interactions among males and females in his society.31 A
“measured” laissez-faire attitude can be found in Ibn ‘Abidin’s writing on
the questions of interaction among people and their arrangements of
domestic partnerships. After all, Islamic law regulates a slim sector of
these interactions and domestic partnerships, as it stipulates the unusually
62 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
According to Ibn ‘Abidin, all residents who are competent to stand trial
have the right to complain about an intervention in the shared public
space by another resident, if this intervention delivers harm to them. The
legal manual of Haskafi casually indicates that Muslims and non-Muslims
are equal in this regard, and Ibn ‘Abidin elaborates that by stating that all
those who “have a right to the public road” enjoy that right, and then
quotes from the Tatarkhaniyya that “all unbelievers are included in that
right, especially the dhimmis”32 (i.e., non-Muslims permanently residing
in a Muslim country).
Ibn ‘Abidin, however, makes reservations about non-Muslims’ ability
to acquire buildings and convert them to houses of worship they did not
have at the time of their agreement of dhimma with the Muslim authorities.
The principle, for Ibn ‘Abidin, is that dhimmis have entered into an
agreement with the Muslim government that specified their rights and
responsibilities, which may not later be violated without consequences.
The conditions of the dhimma agreement include a stipulation that the
dhimmis can keep all their houses of worship, which may not be dese-
crated or violated in any way, and it is the responsibility of the authorities
to defend these houses of worship against any violation. These conditions
also include allowing them to practice what would be considered viola-
tions of Islamic beliefs and laws, such as worshipping the way they worship
and drinking wine, for example (this goes under the umbrella of “letting
them practice what they believe” [natrukuhum wa ma yadinun]). But with
this goes the stipulation that the dhimmis are not expected to expand the
number of these houses of worship. In a case Ibn ‘Abidin dates to the year
1248 after the Hijra (1832), a non-Syrian Karaite Jew agreed on behalf of
Karaite Jews—those who do not acknowledge the authority of the
Talmudic body of literature as authoritative, a sect that has become, Ibn
‘Abidin tells us, practically extinct in Syria over time—to sell a house of
worship (previously belonging to them in Damascus) to a group of
Christians who had planned to convert it to a church. Ibn ‘Abidin’s
answer to the query of whether this was acceptable was a negative one. As
he elaborates the arguments for his answer, it appears that principles
other than the above one were at work in his reasoning. These include an
argument from analogy, which builds on the ruling that a school dedicated
ON THE CUSP OF MODERNITY 63
CONCLUSION
Ibn ‘Abidin’s society is a complex society that cannot be expected to be
easily swept by newcomers’ ideas, no matter how developed these are. As
this society’s institutions guarantee, among other things, free movement
and belief, as well as ample space for trade and ownership, Western
modernity will not seem to provide new possibilities or options that
could not be attained otherwise. For this society to attempt any wholesale
adoption of Western modernity, therefore, would be an unlikely turn of
events.
My argument does not assume that only complex societies resist external
change—a simple society may have as many reasons to reject outside
influences. My argument is limited to establishing that a Muslim society
on the cusp of modernity, such as Ibn ‘Abidin’s, had good reasons to be
lukewarm about Western ideas in the realms of social, political, and
economic organization.
On the one hand, Ibn ‘Abidin’s society had many reasons to be reluctant
about adopting Western modernity, as it enjoyed many of the freedoms
modernity had to offer. on the other hand, Ibn ‘Abidin’s society was on a
path toward partial transformation. By the time Ibn ‘Abidin died in
1836, Muhammad ‘Ali Pasha had been in power in Egypt for three
decades, during which he established relations (of cooperation and conflict)
with the West much stronger and different in nature than relations
established between Muslim and European countries until his time. The
new times will witness a slow transformation of Muslim societies as well
as Western societies. Consequently, today’s Muslim societies will ask the
question of its relationship to Western modernities and cultures from
standpoints distinctly different from those of Ibn ‘Abidin.
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C H A P T E R 3
Mosque. God has already granted him much knowledge in our sciences.
He is full of yearning to immerse himself in the sea of which he has tasted
a few salty drops . . . Thus, it is the decision of God that this youth become
a student-resident (mujawir) of our Mosque, and one must not obstruct
the decision of God. Ignaz is recommended into my protection, as long as
he is worthy of it. He will at first present himself to Shaykh Ashmuni.
Signed: al-‘Abbasi, Shaykh of the Mosque of al-Azhar.9
QUESTION:
The question is regarding a man who had two male servants with whom he
was accused (by his wife) of having a homosexual relationship. The man
pledged, by what is sanctified (bi-l-haram; understood to indicate he was
bound to divorce his wife if he failed in his pledge),16 that they would never
serve him in his house and that he would never practice homosexuality with
them, and the man expelled them from his house and steered away from
them. Later the man traveled to Cairo (Misr) with a friend of his. This
friend requested one of the two servants to serve his friend, and the servant
came to where the two friends stayed and assisted them in their business
and stayed with them in the same place, and the man would be alone with
his former servant in that house, and he was asked about that; so, he
responded by saying that I never assigned any payment to that servant, and
he never entered my house, and I never did anything with him which would
displease God and his messenger. Given all that, would not this man have
been within the bounds of his earlier pledge, since the servant never
entered his house and he never did any thing unacceptable with him?
ANSWER:
‘Abbasi here has no desire to reprimand the man in question for his bad
reputation or for his hairsplitting defense of himself and his apparent per-
sistence in doing what he wants without having to face any consequences.
‘ABBASI’S (D. 1897) EGYPT 71
‘Abbasi may have had reasons not to allow men to act on pledges to
divorce their wives, since these may have been made recklessly by many
people. Yet, his answer is a direct indication that the man in question did
not provide any material or circumstantial evidence to breach the essence
of his pledge, the pledge to steer away from his alleged male sexual partner.
Whether or not ‘Abbasi assumed that homosexuality was practiced by
some married men in his society cannot be known from this text. What is
most significant is ‘Abbasi’s sense that either this matter is inconsequential,
or that addressing it is not the task of a religio-legal counsel.
In fact, the pattern of accepting individuals’ autonomy is repeated in
many other fatawa. ‘Abbasi is rarely disturbed by the social implications
of questions presented to him, and he seems to think of his job as limited
to providing an authoritative answer to the technical question given to
him. Note the following answer to a question about a man who possibly
thought he could convince his friends that he was a Muslim, but apparently
did not want to take his commitment to Islam very far, since he was
straightforward (at least in the reported short version of the story) in
denying his commitment to Islam when his matter was investigated.
QUESTION:
ANSWER:
QUESTION:
Regarding a rational, adult Muslim male who cursed God Almighty and
the religion of his wife in an explicit manner. If the wife proved these facts
through upright testimony (bayyina ‘adila) in the face of the above-
mentioned husband and before a judge (hakim shar‘i), would not the wife
be separated from him in an unconditional manner (talaq ba’in), and the
man could remarry his wife only after she accepts that.
ANSWER:
Yes, he becomes an apostate based on the facts, and the apostasy of one of
the spouses results in immediate repudiation, which does not reduce the
number of allowed divorces [from three], and the man’s repentance is to
be accepted if he becomes an apostate by cursing God Almighty, and he
can remarry his wife after this repentance, if she agreed to remarry him;
otherwise they remain separate.19
‘Abbasi must have received similar claims about people uttering inap-
propriate statements about God and their religion or the religion of their
friends and family friends. (Indeed, regular legal manuals seem to include
these questions as paradigm cases rather than intricate or exceptional
cases.) The main question for ‘Abbasi is not whether this person should
be punished by death; rather, it is the practical consequence of his temporary
lack of affiliation with the faith, which is the dissolution of his marriage.
It is as if ‘Abbasi is content to apply the punishment that the man be
required to ask his wife to remarry him as deterrence for him from making
the same offensive remarks in the future.
In his answers, ‘Abbasi focuses on what is significant from a legal point
of view and does not take notice of indications of attempted stratagems
by those whose cases are reported to him. The following question concerns
a pledge of divorce (triple divorce, in this case) contingent on an action.
What matters for ‘Abbasi is whether the action took place while the wife
was still technically married to the husband who made the pledge. Since
‘ABBASI’S (D. 1897) EGYPT 73
the answer to this question was in the affirmative, his answer was that the
pledge was binding to the husband. Evidence of a possible was presented
in the case, which ‘Abbasi ignores.
QUESTION:
ANSWER:
Yes, this triple-divorce is binding to the said husband, which is made con-
ditional on an action, since the condition was satisfied during the waiting
period after the divorce-for-money. Thus, the two spouses must be sepa-
rated, and the wife cannot remarry that husband unless she marries somebody
else—if all the facts are as mentioned, and God knows best.20
QUESTION:
Regarding a man with whom his wife has engaged in a quarrel, after which
the wife said “You are not bound by any of my rights and bear no respon-
sibility towards me (abra’tuka min al-haqq wa-l-mustahaqq) and I am
responsible for my evidence (tahammaltu bayyinati).” So, he said “If your
relinquishing of your rights is legally valid, then you are divorced.” If the
wife was not aware of the amount she relinquished, and if she was presumed
unwise (safiha), since she does not perform the daily prayers, then would
not the divorce be invalid? And if you say the divorce is valid, would the
husband be not liable for what she relinquished?
74 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
ANSWER:
In this answer, ‘Abbasi, the religious adviser, does not even have a
quick word of advice for the woman to commit to regular daily prayers.
If anything, he defends her against attacks on her character that would
deprive her of some of her financial rights, and distinguishes between her
piety (a matter apparently left to her conscience) and her financial
dealings.
Another noteworthy quality in many of ‘Abbasi’s fatwas is that they
reflect indifference to the authority of the male guardians or chaperones,
as he defends Hanafi legal doctrines allowing girls to make decisions
affecting their own lives. Here is an example.
QUESTION:
ANSWER:
Yes, the marriage contract is valid in this case, since an adult female has the
right to relegate the matter of her marriage to a non-relative, who could
then marry her off to a fit husband with an appropriate dowry for her.
‘ABBASI’S (D. 1897) EGYPT 75
Here, ‘Abbasi did not hesitate to apply the traditional standard that
accepts, in principle, that a female can delegate the matter of her marriage
to a nonrelative, according to Hanafi law, irrespective of any opposition
from her relatives.
Men’s claims to have divorced their wives under the threat of force are
treated with suspicion by Hanafi jurists. ‘Abbasi points to this fact, as he
dismisses a man’s claim that he was forced to divorce his wife. ‘Abbasi’s
answer reminds the questioner that claims of divorce under compulsion
do not serve as a defense in Hanafi law.
QUESTION:
Regarding a man with whom his wife had a quarrel because of his drink-
ing. So, he pledged to never drink wine again and offered her triple-
divorce [which would make the husband unable to retake his wife again],
contingent on his failure to fulfill his pledge. Then he drank wine again
after a period. Then she quarreled with him again, and he offered her
triple-divorce in the presence of a group of Muslims. If all these facts are
proven to be true, and he claimed that he was forced to pledge to divorce
her, would not his claim be ignored and the triple-divorce be ruled binding
to him and would not the wife be prohibited from marrying him until she
marries somebody else?
ANSWER:
Yes, the said man should be ruled to have divorced his wife three times
after this [event] has been established with legally accepted evidence, and
he cannot remarry his wife, in this case, before another husband marries
her, and the divorce by a compelled man is binding in our doctrine
[Hanafi jurists].23
QUESTION:
ANSWER:
‘Abbasi does not hesitate in issuing fatwas that are likely to disturb the
status quo and support the claim of one party, possibly against all others
in the case. He considers the claim by a co-wife that her other co-wife and
mother-in-law harmed her sufficient grounds for granting the questioner
the right to ask for a separate residence, not only a separate apartment on
the same premises, but a separate home away from where the co-wife and
the mother-in-law live.
QUESTION:
Regarding a man who has two wives, whom he made live in one house,
while each of them had her own residence with its separate utilities within
that house. One of the co-wives and the man’s mother-in-law harmed the
other co-wife, while they lived in the same residence, even though each one
had a home of her own (within the building). If this harm by the co-wife
and the mother-in-law happened because of the proximity in the resi-
dence, would the other co-wife be entitled to request from her husband to
provide an appropriate residence for her in a separate house, where her
co-wife and mother-in-law do not live.
ANSWER:
Yes, if the harm is delivered to one of the co-wives by her other co-wife and
mother-in-law because they lived in the same house, even if each one had
her own residence within the same premise, then the above-mentioned
‘ABBASI’S (D. 1897) EGYPT 77
wife has the right to request her husband to provide a legally acceptable
house in a separate house that is appropriate for her, and God knows
best.25
QUESTION:
Regarding a man whose wife quarreled with his mother, and the man beat
his wife to deter and punish her; so, she left his house and went to her
mother’s house and refrained form obeying him and wanted to remain in
this state of disobedience (nushudh), and the husband refused that. If the
husband has fulfilled all his duties towards her, then is not it the case that
she couldn’t be left alone, based on the law, and she must obey him and
dwell in his house, even by force, and he must afford her a residence that
does not house his and her family?
ANSWER:
The husband must afford his wife a house where neither his nor her family
lives, and she does not have the right to disobey him without a legal justi-
fication, since he fulfilled his husbandly duties, and God knows best.26
QUESTION:
between them based on Islamic law and rule the divorce valid, since it was
established with sound evidence.
ANSWER:
If the said Scriptuaries came to our courts, we rule between them based on
our law in the matter they ask us to rule in, and the man who divorced his
wife is to be prevented for being with his wife until he renews the marriage
contracts, fulfilling its conditions, and God knows best.27
Based on this fatwa, the husband needs to renew the marriage contract
with his divorcée, which would require the divorcée’s consent. If she
agrees to remarry her now ex-husband and goes back to a Muslim court
later to get a divorce, the husband could refrain from cooperating with
the court and insist that the matter be resolved before a Christian court,
since the non-Muslim husband can refuse the authority of a Muslim
court and thus not be bound by its decisions.
When a spouse embraces Islam, however, things are different. The
following case shows how ‘Abbasi’s answers display a measure of insistence
on applying the religious law, even though the case, as it presents itself,
seems to show tacit acceptance of the status quo from the parties. The
following fatwa addresses the marriage between a Coptic man and a
woman who converted from Christianity to Islam. As the case stood, no
judge had intervened in the matter, which ‘Abbasi considers unacceptable.
He advises that a judge must intervene to allow the man to consider
conversion to Islam and then proceed to issuing a repudiation of the
marriage if the man rejects Islam.
QUESTION:
ANSWER:
What is explicitly stated in the legal manuals of the [Hanafi] school is that,
if one of the two Magian/Manichean spouses or the wife of a Scriptuary
[Jewish or Christian] converts to Islam, then the other spouse must be pre-
sented with the option of becoming Muslim, and if she/he accepts, then
that is that, and if she/he rejects, then the spouses must be separated [and
the marriage repudiated]. And as long as the judge did not issue such repu-
diation, then this woman is still the man’s wife. The judge thus must offer
the husband of the above-mentioned [former] Christian woman the
option of becoming Muslim, and if he becomes a Muslim, then the
marriage is as it was; otherwise, they must be separated [and the marriage
repudiated]. After this repudiation, she waits before marrying as if she was
divorced [three menstruating periods or three months] and can marry after
that. The child before becoming an adult follows the better religion of
either of the two parents. Thus, if this woman who became Muslim had
young children, they are judged to be Muslims following their Muslim
mother, and she takes custody of them, as long as she is fit for that and as
long as there is nothing impeding her from her taking that duty. And God
knows best.28
QUESTION:
Regarding a man from the country of the Berbers (bilad al-barabira) who had
a wife from his country, and the man never divorced his wife (equivocally or
80 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
ANSWER:
Yes, if they go to the Hanafi judge and he found no proof that necessitates
a separation between the wife and the first husband according to some
legitimate evidence, then the second contract (of the marriage with the
second husband) would be judged invalid, and the woman remains the
wife of the first husband.29
CONCLUSION
This chapter attempted to draw attention to the responsa of Muhammad
al-‘Abbasi al-Mahdi, which focus on legally relevant materials, while ignoring
the social implications of many of the questions the jurist addresses yet
provides a wealth of data about social life in nineteenth-century Egypt.
‘Abbasi’s unintrusive (if a little detached) tone continues a tradition of
juristic involvement with the public’s juristic queries with varying degrees
of interest in educating the questioners about the law in detail. (‘Abbasi’s
responsa also initiates a tradition of the official jurist’s measured involvement
in issues concerning the separation of the realms of jurisdiction of Islamic
law and modern state law, but this is a separate matter.) In his answers to the
public’s juristic queries, ‘Abbasi chose a minimalist approach to the question
of the reconciliation of the realms of the two legal systems and engaged in
lengthy juristic research only when the matters involved official entities.
‘Abbasi’s society witnessed both a continuation of premodern norms
that governed the Egypt of the late medieval era as well as glimpses of
change. It is obvious that this society had enjoyed a measure of complexity
that allows its existing custom to be self-enforcing as a default situation. It is
also evident from this collection of questions and answers that the Egyptian
society of the second half of the nineteenth century enjoyed considerable
measures of freedom, contested by individuals at times, while not always
acknowledged explicitly or conceptually. I made no attempt to depict
‘Abbasi’s society as a liberal society, and I am sure modern readers will have
‘ABBASI’S (D. 1897) EGYPT 81
many reservations about the attitudes displayed in these responsa, but one
cannot deny the author’s skillful solutions to some of the problems he
encounters. More importantly, one cannot deny the direct relationship
between this jurist’s opinions and the freedom individuals would enjoy
under the religious law he champions.
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C H A P T E R 4
SOCIAL CUSTOM AS A
SOURCE OF LAW IN
MODERN MUSLIM
SOCIETIES
PREFATORY NOTES
THE HIERARCHY OF THE SOURCES OF ISLAMIC LAW
in this legal tradition will also rely on certain legal techniques to derive
laws that can properly be considered Islamic. These techniques include
analogical reasoning (qiyas) and reasoning based on legitimate utility
(maslaha). Down the list of techniques the Muslim jurist can employ to
devise Islamic laws is the endorsement of social customs (‘urf) as a source
of law. This creates, in Sunni Islamic legal theory, a hierarchy of the
sources of Islamic law, which usually begins with four sources in the fol-
lowing order: the Qur’an, the Sunna of the Prophet, consensus, and analogy.
The “top four” are followed by a list of other sources whose ordering is
more contested than the ordering of the “top four,” and one of these
post-top-four sources of Islamic law is social custom or ‘urf.
No one in particular can be credited with preparing the way for social
custom to enter into the list of the sources of Islamic law. From the dawn
of Islamic law, Muslim jurists recognized the legitimacy of certain social
customs without hesitation. For example, even when the Prophet
Muhammad specifically regulated “usury” based on the habits of exchange
(sale and barter) of his society, Muslim jurists revisited the concept of
usury, producing, in the process, many answers to the question “what is
usury?” as they constantly debated how social custom in effect shapes
usurious transactions. Gradually, and through the backdoor of legal maxims
(al-qawa‘id al-fiqhiyya), the legal principle “custom rules!” (al-‘adah
muhakkamah) established popular collective behavior as a virtual source
of law in Sunni Islam. It seemed obvious that considering social custom
in deciding legal matters was good legal common sense—what remained
controversial was the extent of that consideration.2
Despite its appearance at a relatively inferior position in the list of
Islamic law’s foundational sources, social custom can be the definitive
factor in deciding a legal inquiry, given its capacity to practically trump
the sources above it. This is simply due to its very nature: if social custom
is to be accommodated, other considerations—even those of textual
provenance—must be adjusted and reconciled with social custom, or else
social custom would be ignored. Take a case where a jurist suggests that,
to conclude certain contracts, the parties should use a certain wording,
specifying the rights and responsibilities entailed by the contract. In this,
the jurist will have toiled to ascertain that the language of the contract
does not allow any usurious elements mentioned in the Qur’an, the
Sunna of the Prophet, and the unanimous agreements of generations of
jurists before him. Suppose that the Muslim population in a certain
geographic area ignores the jurist’s suggestion in favor of a linguistic for-
mula more commonly acceptable to them, one they already share and
understand (albeit one that is apparently inferior to the jurist’s from the
86 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
In his article, “Rules, Judicial Discretion, and the Rule of Law in Nasrid
Granada,” Mohammad Fadel demonstrated that social custom is one of
the important modifiers of legal doctrines in Maliki jurisprudence.3 As he
analyzed a collection of Maliki juristic responsa from fourteenth- and
fifteenth-century Spain, Fadel offered ample evidence that Muslim
jurists, at least of the Maliki school, interpreted their school’s doctrine
and seemed to practically amend it to account for changes in family life,
the market, and political and judicial cultures. Fadel rightly argues that
drawing a conclusion about a unique disparity between theory and practice
in law, in this context, is unreasonable. A better reading of the simultane-
ous evolution of law and custom in a society of this type would be that the
theory employed in the laws of this society must be seen as multilayered.4
Social customs, therefore, provide one of the layers of juristic discourse
and reasoning.
Fadel’s central concern remained a critique of the theory versus practice
analysis advanced by Noel Coulson.5 To focus on the relationship
between social customs and law, I shall offer an analysis of the subject
based on a treatise by one of the later masters of Hanafi law, Ibn ‘Abidin.
Ibn ‘Abidin provides an example of juristic treatments of the dialectic of
law and culture that assume the main juristic task in this context to be
SOCIAL CUSTOM AS A SOURCE OF LAW 87
reconciling law and custom and showing where custom could shape law
and where law should shape culture.
tends to shape and modify legal norms, as judges and jurists defer to custom
in deciding matters involving rights and responsibilities. Thus, custom
generates law. At the same time, one of the functions of the law in Islam
is to promote good habits and sensibilities in the lives of practicing
Muslims. Thus, law generates custom. The analytical jurist and legal theorist
must find a way of reaffirming the importance of both the good habits
and sensibilities promoted by the law, while accepting those social customs
common in Muslim societies that do not fundamentally purport to undo
desirable habits and sensibilities.
To illustrate this point, I shall offer an example. One of the objectives
of the law in Islam is to create a just and fair environment for trade. To
achieve this goal, Islamic law outlaws all transactions that (1) put one
party at an unfair advantage vis-à-vis the other party or parties, and (2) are
bound to cause conflict between or among the parties. Accordingly,
Islamic law prohibits transactions involving vague expectations, such as
an exchange of goods where one of the exchanged goods is not clearly
specified. Hence, when two parties agree to an exchange of (1) a specified
quantity of a specified currency for (2) a piece of merchandise that is still
under construction, they engage in a transaction with vague expectations,
given the uncertainty in the merchandise that is under construction. The
purported vagueness could potentially give one of the parties an unfair
advantage over the other and cause subsequent conflict between them.
But what if some type of these transactions is so commonly practiced
among a certain population and the people never complain about it?
Moreover, what if the people would in fact be burdened by the prohibi-
tion of this type of transaction? Here, custom may prevail. An example of
a transaction with an exchange of an unspecified good is the exchange of
a suit or dress to be tailored in exchange for a certain price. A strict
application of the prohibition of transactions with vague expectations
would render this transaction prohibited, due to the uncertainty in the
qualities of the resulting suit or dress in this case. Hanafi law allows this
type of transaction while asserting the general prohibition on vagueness
in other not commonly practiced transactions.8
Ibn ‘Abidin’s Treatise on Custom explains how law and custom modify
each other in a Muslim society. This leads us to the following detailed
elaboration of Ibn ‘Abidin’s doctrine on custom.
Before any analysis of Ibn ‘Abidin’s Treatise on Custom, a note about his
style of authorship is in order. Ibn ‘Abidin’s legal research makes the ending
points of his juristic predecessors his own starting point. He writes by cit-
SOCIAL CUSTOM AS A SOURCE OF LAW 89
ing Hanafi authorities and follows these citations by one of four reactions:
full approval, qualified approval, rejection, or silence. As I said, his
Treatise on Custom can arguably be approached as a restatement of the
Hanafi legal doctrines on custom as a source of law, given its unique com-
bination of comprehensiveness and authority. This, among other reasons,
makes this legal text particularly fruitful for the purpose of an exposition
of the scope of the juristic views on the topic at hand. Ibn ‘Abidin always
has a way of letting us know what he thinks about a given topic, and in
principle, the reader can easily identify what Ibn ‘Abidin believes about a
given topic by observing his reaction to his sources. In the cases when Ibn
‘Abidin’s reaction to his sources is silence, the reader should simply read
on to discover that the author occasionally revisits the issues he had
elected to leave undecided in an earlier part of the text. Since my focus is
not to show where Ibn ‘Abidin’s doctrine on custom differs from that of
his Hanafi predecessors, I shall pay as much attention to doctrines and
arguments he extracts from Hanafi authorities as I will to his own. For my
purposes, it is just as important to relate what the Hanafi juristic discourses
on the topic looked like.
Ibn ‘Abidin’s Treatise on Custom consists of a short introduction and
two sections. In the introduction, Ibn ‘Abidin offers general remarks
about the subject, while the two sections address the two possible types of
clash between social customs and established legal doctrine. The first type
of clash is what may be called the clash between social custom and a
foundational source of law (dalil shar‘i), and the second the clash between
social custom and some of the established doctrines of the Hanafi school
of law (zahir al-riwaya).9
In the introduction, Ibn ‘Abidin cites Zayn al-‘Abidin ibn Nujaym (d.
1563), a major Hanafi jurist and the author of a treatise on legal maxims
titled al-Ashbah wa-l-naza’ir. In the course of a quotation from al-Ashbah,
Ibn ‘Abidin cites textual evidence establishing social custom as a source of
law. The Prophet Muhammad is reported to have said, “What Muslims
find agreeable is agreeable in the eyes of God.” After this report is cited,
its authenticity is questioned, with authorities asserting that the statement
is probably only attributable to a Companion of the Prophet, ‘Abdullah
Ibn Mas‘ud. But this is followed by a strong assertion of the employment
of custom in answering so many legal queries, which made legal theorists
acknowledge that custom is a de facto source of law. Here, Ibn ‘Abidin
may have provided a history of the evolution of the doctrine of custom as
source of law, as he states that deference to social custom in legal reasoning
was practiced before an articulation of the principle that social custom is
a source of Sunni Islamic law. Ibn ‘Abidin finally cites various juristic
90 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
Ibn Nujaym, the same authority already cited twice, is quoted again to
assert that considering hardship and inconvenience (mashaqqa and haraj)
a valid cause for relaxing legal requirements can be acceptable only where
no explicit text can be found (mawdi‘ la nass fih). Therefore, just as social
custom would be of the bad type, and thus not efficient in altering a text-
based law, so is a presumption of hardship on the part of practicing
Muslims incapable of challenging a legal doctrine of textual origin.
By the end of this short introduction, it becomes clear that Ibn ‘Abidin
can accept neither the extreme of ignoring social custom altogether nor
the extreme of allowing the populations or sectors of them regulate their
own code of practice. Ibn ‘Abidin’s back-and-forth in this short intro-
duction to his Treatise on Custom reveals a sense of the difficulty of making
general statements about the subject at hand. The difficulty ultimately
impels him to conclude the introduction and move to the heart of the
Treatise, where he distinguishes two forms of conflict between social custom
and legal doctrines: the first being the conflict between social customs
and essential laws established by the foundational sources of Islamic law,
and the second, the conflict between social customs and the laws of a specific
madhhab or school of law, in this case, the Hanafi school of law.
Essential Laws
The first section of Ibn ‘Abidin’s Treatise on Custom deals with diver-
gences between social customs and the legal content of the foundational
sources (Qur’an, Sunna) yielding only one valid reading. These sources
then establish essential laws, as opposed to the laws of a given school of
jurisprudence, such as Hanafi laws, with which non-Hanafi jurists may
reasonably disagree.
A law that is established by a textual source (Qur’an, Sunna) belongs
in a list of essential laws if the legal content of this textual source is evi-
dent. We shall refer to this as the doctrine of essential laws. Islamic legal the-
orists employ an extensive jargon for the degrees of explicitness in
Qur’anic or Sunnaic texts to explain this doctrine. These theorists speak
of a topology of texts of clear content, classifying these into four grades:
the zahir (apparent), the nass (explicit), the mufassar (evident), and the
muhkam (impermeable). When Hanafi jurists say that a legal doctrine is
established by a text of the mufassar or evident variety (the third in the
above list of four), they mean to imply that the certainty of a doctrine
based on that text is incontrovertible.
Here I must briefly digress. From the point of view of some seasoned
historians, Islamic law is a body of discursive literature, with disagree-
ment being characteristic of almost every piece of law it contains. But this
92 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
is not necessarily the way many participants in the Islamic legal tradition
see it. These participants (i.e., jurists) see their tradition as including
essential laws that are not subject to disagreement or altering. Yes, they
would likely disagree on spelling out a list of these laws that no able jurist
could dispute (just like believers in natural rights can be certain that natural
rights exist but always argue about any [long or short] list of these rights).
But the doctrine of essential laws remains functional and applicable
within certain schools of law or legal circles. I shall thus refrain from
questioning the assertion that Islamic law includes a corpus of essential
laws and let the examples clarify what these essential laws are.
Back to Ibn ‘Abidin. Two uncontested principles open the first section
of the Treatise. The first principle is that social customs are inefficient as
a source of law if they contradict a foundational source of the law in every
respect. For example, the habits of drinking wine and dealing in usury do
not establish any normalcy, let alone normativity, for these practices, no
matter how common they are, since these practices simply clash with
texts that unequivocally prohibit them. If this first principle seemed
straightforward, the second principle will require more explanation. The
second principle states that if a specific social custom conflicts with a
general ruling established by analogical reasoning (qiyas), then social custom
prevails in its specific realm. For example, the Prophet is reported to have
prohibited a market practice known as the miller’s basket transaction
(qafiz al-tahhan). A miller’s basket transaction takes place when a man
provides a basket of grain to a miller to grind it and promises to pay a
portion of the resulting flour as compensation for the service of grinding.
The compensation for grinding here is contingent on the grinding itself,
and the amount of the resulting flour to be given to the grain owner is the
remainder of the flour after the miller receives his compensation from the
same flour. This makes miller’s basket dealings problematic, as they
include an element of vague expectations and the potential of conflict. By
employing analogical reasoning, jurists might conclude the prohibition of
all transactions that include similar vagueness, such as a tailor’s sale of a
(conceived) dress or suit that does not exist at the time of its sale. While
there is no text addressing the specific case of tailor’s sales, the prohibition
of miller’s basket sales seems to be extendable to tailor’s sales by analogy.
(Ignore, for a moment, the dissimilarities between the two types of sale.
In the case of a tailor’s sale, one party would provide cloth sheets to be tai-
lored to become the desired dress or suit, and the parties may agree that
the unused cloth-sheets would be discarded, and they may agree that the
compensation for tailoring would be external to the cloth sheets.
Irrespective of these and other potential dissimilarities between the two
SOCIAL CUSTOM AS A SOURCE OF LAW 93
clearly in the contract. For example, given that the old funduqi
currency is worth 25 piaster and the new one 20 piaster, one who
stipulates in a contract that payment be made by the funduqi currency
must specify the type he meant (old or new); otherwise, the
transaction may be invalidated.15
3. When gold or silver is treated in a transaction based on their intrinsic
value as gold or silver, the weight becomes relevant, again, in deciding
whether the transaction includes an element of usury.
customs must be well defined and ascertained before they are deemed
operative or normative in society. From Ibn ‘Abidin’s Treatise on Custom,
one learns that customs that do not clash with textual principles will be
endorsed and sanctioned by the jurist as functional in their social and
business theatre, as long as all involved understand them and will not
contest them. As this section of the Treatise nears its end, Ibn ‘Abidin has
shown that social customs that are universally accepted in Muslim societies
govern the same areas of the law as the higher foundational sources of the
law. The foundational sources must be reconciled with universally
accepted social and market customs, and neither one can make the other
legally irrelevant.
At the end of this section, Ibn ‘Abidin rejects the notion that for any
social custom to be efficient in establishing legal norms, this custom must
originate from the time of the Prophet’s Companions. Ibn ‘Abidin argues
that no debate among the masters in Hanafi law seems to recognize this
condition, and this can be seen by investigating the arguments of both
sides regarding the extent to which a given social custom may be considered
as a source of law. Whether a jurist is for or against the adoption of a certain
social custom, as a source of law, cannot hinge on whether this custom
originates in the time of the Companions. Many social customs that
originated after the Companions’ generation have been debated as mod-
ifiers of legal norms, and this would have been impossible if such a condition
were a necessary condition in legally operative customs. Ibn ‘Abidin thus
concludes that the legitimacy of a given social custom hinges on its circu-
lation among the Muslim population (among other things), but that it
will not be affected by its affinity with an early social practice or a custom
of the first generations of Muslims.
The discussion, so far, applies to essential laws, laws that all Muslims
would agree on, as opposed to the laws of specific madhhab or school of
law. The laws of a given madhhab hold less power than essential laws,
given that followers of other madhhabs can reasonably ignore them and
follow those of their own madhhab. This is because disagreement among
madhhabs occurs outside the area of essential laws. After discussing the
dialectic of social realities and essential laws, Ibn ‘Abidin moves to discuss
how the laws of the madhhab differ from essential laws in their interaction
with the social realities of the followers of that madhhab.
social custom may thus become the norm within its limited sphere, while
the text-based principle remains sovereign in its larger sphere. Nonuniversal
social customs can only modify laws that are based on analogical reasoning,
but they also can, in principle, modify the doctrines of any madhhab or
school of law (e.g., Hanafi doctrines) whether these doctrines are based
on analogical reasoning or a reading of a Qur’anic or Sunnaic text.17 This,
as I indicated, is a function of the fact that madhhab (e.g., Hanafi) legal
doctrines can be reasonably rejected by those who follow other schools of
law, such as the Maliki, Shafi‘i, or Hanbali schools of law. In all cases,
social custom operates only within its social sphere. For example, a nonuni-
versal social custom modifies school doctrine only within the city, where
it is prevalent, while universal social custom would operate universally.
In this section, Ibn ‘Abidin reiterates that being qualified to issue legal
opinions (or practice ijtihad) presupposes knowledge of common cus-
toms.18 Those who claim to be mujtahids, while being ignorant of the
social customs prevalent in their towns, can only be counted among
amateurs, rather than jurists of genuine mastery. Given the context in
which the statement is made, this would apply to the qualification of a
mufti within Hanafi jurisprudence. Thus, those who study school doc-
trines through books are unqualified to answer any legal queries whatsoever,
since one must have a teacher to be trained in the art of understanding
how social customs affect one’s legal opinion in a given matter.19
Ibn ‘Abidin offers many examples of how fatwa (the legal opinion in a
specific case) changes based on changes in society. For example, later gen-
erations of Hanafi jurists stipulated inquiring into the character of witnesses
before accepting their testimonies in a court of law, against the earlier
practice of relying on witnesses’ apparent good character. This change in
practice is an instance of a change in fatwa, based on changes in society,
since the early practice stands on an argument that lost its validity because
of these changes. In other words, early practice relied on a presumption of
the dominance of good character in society (ultimately an argument from
silence, i.e., from lack of evidence to the contrary), which may have been
valid in societies where good character was the rule rather than the
exception. Over time, compromised character became more common,
and the legal practice had to change accordingly.20
If this social development moves society toward raising the standards of
scrutiny of witnesses, some social conventions allow communities to
apply easier or lower standards than standard legal doctrine demands. For
example, standard legal doctrine demands that people testify to what they
witnessed (e.g., a sale contract or a marriage contract they witnessed).
However, when social practice pushes in a different direction, people are
SOCIAL CUSTOM AS A SOURCE OF LAW 99
Some cases of business practices are too close to call and might bear further
reflection. In contracts involving an owner of an arable land and a
“renter” of this land, conflict might occur regarding whose responsibility
it was to make needed water and nourishment available. Some people
make it the responsibility of the landowner to make these available, so as
to avoid potential conflict in case the harvest failed. Ibn ‘Abidin has
reservation about this condition, regardless of its commonality. One can
make the argument that, as long as the parties agree, the condition is
valid, but one may also argue that the stipulation that the land owner
must exert his best effort to irrigate and nourish the crop until it ripens is
prohibited in principle, as it resembles usurious contracts that include
conditions guaranteeing an advantage to one of the parties over the other.
Ibn ‘Abidin says that he is not sure what the correct view is, and he advises
his readers to study the issue further before making up their minds.23
In this section, Ibn ‘Abidin also introduces what some readers today
might consider a problematic suggestion about the consideration of social
customs in legal reasoning: that the social customs that are operative in
modifying the law may be specifically related to a certain social class, at
least on some views in Hanafi law. The case at hand concerns a man who
paid for his daughter’s furniture at the time of her marriage and then
claimed, after she died, that he meant the furniture to be a loan (rather
than a gift) to her and her husband. Hanafi jurists hold that the man
should not be believed, in principle, since the father would normally (i.e.,
according to prevalent custom) pay for the furniture in this case as a gift.
But what if the father is from a poor family? In one view, this father may
be believed, considering what may be commonly accepted among people
of his social class. This view would consider customs to be, more or less,
class-specific. After introducing this idea, however, Ibn ‘Abidin mentions
three other Hanafi juristic views on the subject that reject this reasoning.24
Another insight in this section of the Treatise is that people’s habits of
speech ultimately take priority over grammatically correct habits of
speech. Ibn ‘Abidin shows little hesitation about a broad application of
this principle in the laws of vows and contracts.25
Moreover, social standards and expectations may lead the jurist to
answer a legal case by offering a juristically inferior legal opinion and
ignoring a juristically superior one, if the jurist thinks that the inferior
opinion will likely have a more positive social impact than the alternative.
Take the case where a questioner asks the jurist about the consequences of
an inappropriate action. Suppose that two views exist about what conse-
quences ensue in this case, and a juristically inferior view provides for
harsher consequences than the superior and more legally grounded view.
SOCIAL CUSTOM AS A SOURCE OF LAW 101
Suppose further that the jurist believes that the questioner is about to take
that action and that the consequences provided by the superior view will
not deter the questioner from taking it. In this case, the jurist may warn
the questioner of harsher consequences, even if this warning is established
on an inferior legal view. Only one condition applies here: the inferior
opinion has to at least be based on some sound reasoning.26
Aside from all the specific examples Ibn ‘Abidin offers, which are of
different value and applicability in the modern context, his main contri-
bution remains his delineation of a theoretical framework for the debate
on social custom as a source of law in Sunni Islamic law. In addition to
common circulation and the reconcilability with Qur’anic and Sunnaic
doctrines, Ibn ‘Abidin stipulates that a custom be of residing, rather than a
temporary and accidental, nature to be considered in legal discussion.27
This goes hand in hand with the idea that normalizing common social
custom aims at removing undue hardship. It is obvious, for example, that
changing a practice that has begun to take hold within a few years, and
reversing a tradition of fifty years, for example, are totally different questions.
That is why Ibn ‘Abidin introduces this condition in no uncertain terms.
Ibn ‘Abidin may have (at times) displayed a strong conservative streak
in his Treatise on Custom, but there is no doubt that he acknowledges
social custom as a source of law. For him, a local custom is normative
only when it does not seem to challenge a text of evident content, while a
universal custom is more powerful than a ruling based on analogical
reasoning. Furthermore, when the law is established by the views of the
jurists of one school of law, which is most of the rich corpus of Islamic
law, both local and universal custom may prevail over abstract legal rulings,
if good arguments can be made to support their necessity and establish
undue hardship on the part of the Muslim population if these customs
are not adopted. In practical terms, social custom is a legitimate source of
law unless one can make the argument that it clashes with the legal content
of a text with an evident purport.
Ibn ‘Abidin’s reader will have learned that social customs of long-standing
and universal circulation must be taken into account in devising the law
in Sunni Islamic legal theory. Understandably, these social customs must
leave room for the jurist to reconcile them with incontrovertible moral
and legal provisions embedded in the textual sources of the law (the
Qur’an and the Sunna). That is, these social customs should not contradict
a text of evident content in every regard (as Ibn ‘Abidin states). When
102 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
they pass this bar, their integration into the legal practice will be a matter
reasonable jurists can debate.
This reading of Ibn ‘Abidin’s Treatise on Custom provides us with
what might be called the tripartite doctrine on custom: social customs of
(1) universal circulation, (2) residing nature, and (3) capacity to be rec-
onciled with basic Qur’anic and Sunnaic doctrines must be taken into
account in legal reasoning. The tripartite doctrine on custom captures
Ibn ‘Abidin’s toiling on the issue of basing some laws on custom, as he
states in the title of his treatise. More importantly, the doctrine supplies
insights that are crucial in debates on the role of social custom as a source
of law in modern Muslim societies.
cease to promote Islamic ways of life that comport with the Islamic norms
their traditional laws and cultures promote?
Though it seems to enjoy immediate seriousness and urgency, the latter
question may be standing on a conceptual fallacy. If the question at hand
were to presuppose an ideal democratic society that purports to cherish a
core of cultural mores, one can ask, what happens when the mores of this
society seem to veer in a novel direction? The answer may be that the new
mores (or new versions of the old mores) trump the earlier ones, or it may
be that some aspects of the old ones will still be supported. This makes it
obvious that a situation where a society fully undoes itself is not mean-
ingful. Absent full transformation of the people’s mores and their
worldview, which is feasible only after long periods of change, one is
advised to remember that constant interpretation of the past is inevitable
in configuring the present, and that full survival of the past into the present
is more or less a product of the imagination.
But when the people gradually change their way of doing things, this
may begin a new history. Between the seventh and thirteenth centuries,
the people of Egypt slowly converted to Islam and formed a new society.
This invites a historical question, a question about a society that used to,
but no longer sustains a given law and its attendant culture. If Muslims
chose to cease being Muslims, there is no question to ask about the diver-
gence of Islamic laws and cultures. Rather, one may ask about the conditions
under which Islamic laws and culture ceased to exist in a given society.
This question would obviously be historical in nature, and the answer to
it would be to tell a story rather than produce any theoretical framework
that would explain how laws and cultures of different orientation might
be marriable.
The fallacy embedded in a question about how Muslim societies can
be ruled by Islamic law while they reproduce un-Islamic social norms
must now be clear. Today’s Muslim societies are changing, but as long as
their peoples and religious counsels attempt to reconcile themselves to a
version of Islamic norms, they will have the right to reinterpret their own
Islamic tradition unimpeded. The assumption that law and culture
within one society may advance at different tempi and ultimately part
ways is certainly meaningful. However, one cannot simultaneously assert
that (1) today’s Muslim societies would like to be governed by Islamic law
and that (2) these same societies fail to produce Islamic social norms that
can be incorporated into modern Islamic legal reasoning. In other words,
if these societies can be governed by Islamic law, they must presumptively
be capable of nurturing a form of Islamic culture that is commensurable
with the degree to which they presume to apply Islamic legal norms in
106 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
their lives. When the disparity between these societies’ social norms and
all forms of Islamic law is unbridgeable, an application of Islamic law in
these societies will not be possible.
applied the principle of equal protection of the law. For these societies,
the degree to which Islamic law provides equal protection for spouses
would be incompletely and unfairly represented by focusing on divorce
procedures, as if these are an independent element of family law, totally
detached from the rest of its provisions. For Muslim jurists in these societies,
divorce procedures are relevant to what financial responsibilities are
placed on the husbands’ shoulder and whether wives could abuse a system
that gives them the right to unilateral divorce, while keeping other aspects
of Islamic family law intact, namely, the husbands’ shouldering of all
financial responsibilities in establishing and maintaining the family. A
complicating factor for this reasoning is that the reality of many poor
families in Muslim countries necessitates that husbands not be expected
to shoulder all the financial responsibilities of their families, and modern
Muslim jurists went in different directions to address how this affects the
question at hand. At any rate, many modern lawyers would see the par-
ticular inequality in the power to issue a divorce as substantial and would
not be impressed by the above explanations of Muslim jurists for the
disparity in access to divorce according to Sunni Islamic law.
One need not insert herself or himself into this debate in order to follow
the argument considered here, however. What we are considering is the
impact of a process of establishing women’s right to unilaterally divorce
their husbands, which allows many Muslim women to avail themselves of
that right and creates a culture that expects them to have that right. On
one reading of Ibn ‘Abidin’s doctrine on custom, social acceptance of the
idea that women must have the right to unilateral divorce may not be
adequate to establish this right. This reading would cling to the apparent
contradiction between a doctrine of women’s unilateral divorce and the
Qur’anic language ascribing divorce to men. One could also argue,
against accepting this custom’s impact, that the push for such a right to
unilateral divorce for women will be, by no means, universal in the
Muslim world, which shows that the condition of universality in a social
custom that could affect the law would be lacking. Furthermore, the cost
of restructuring family law to account for this significant change would
be immense. Thus, on this argument, the practice of women’s unilateral
divorce fails to meet the bar of universal circulation, on top of its clash
with many essential laws. The practice of women’s access to unilateral
divorce would also arguably fail to satisfy the requirement that a social
practice be of a residing, rather than a temporary or accidental, nature, since
it is unlikely that Muslim societies would be in favor of this practice for a
long period of time during which the society must (1) establish a new
expectation that either spouse may end the marriage and (2) adjust the
108 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
BROADER IMPLICATIONS
In the final section of the chapter, I shall consider three implications of
my argument. First, I shall consider the characterization of Muslim societies’
acculturation into Western ways of life as Islamically accepted westernness
and the legal implications of this characterization. Second, I shall consider
the implications of the doctrine on custom in understanding and assessing
the projects of reformists in modern Muslim societies, as well as the
110 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
to change the way Islamic law addresses modern issues, but it must also
be to change modern Muslim societies themselves. Yet, sometimes one is led
to wonder whether reformists believe that real change in Muslim societies
must happen on the legal and political as well as on the social and popular
levels. The debate on the legitimacy of Islamic feminism is a case in
point.33 In this debate, intellectuals attempt to lend legitimacy to their
reformist positions based on “interpretations” of texts/principles rather
than a complex of texts/principles-cum-social practice. If the criterion
of valid change, from an Islamic point of view, is the change of social
realities themselves, Islamic feminism will remain an intellectual phe-
nomenon unable to affect Muslim societies or modern Islamic law in
any significant way.
One cannot accept the assumption that Muslim societies’ customs
have always reflected the legal doctrines held by Muslim jurists in a perfect
manner. This is why there is a task for the jurist to accomplish—that is, a
measure of disparity between law as principles, on the one hand, and legal
practices shaped by culture, on the other, could be found in any context,
and the jurist must take a stance by legitimizing or delegitimizing certain
practices or reconciling principles and practices one way or another. A
reformist must at least be capable of seeing the questions of reform from
this standpoint so as to be able to introduce viable options for both society
and the legal system governing it. One of the implications of bringing to
fore the doctrine on custom is that reformists have to at least answer to
the question of how they relate their reform project to a consistent and
residing transformation of their societies.
In the area of women’s rights in particular, the two extremes of either
(1) dismissing advocacy for equality between men and women or (2) saying
that arguments for equality are the only ones that matter34 is sympto-
matic of the lack of clarity about the role of social custom in establishing
legitimate legal norms. A discriminating approach will incorporate both
abstract ideas and the pulse of society, thus coinciding with the thesis that
any movement aiming at creating more equality for women must be
based on social movements rather than (or at least in addition to) ideas.35
In addition to its rigorous character, this approach will become a democ-
ratizing force in modern Muslim societies. Reformists who consider
democratization a desirable end must also make use of this approach to
advance their case for democracy.
Modern Islamic Law between the Customary and the Discursive Models
Modern, sophisticated law must take the form of a cluster of institutions
that can be distinguished from social customs, despite its evolution in
SOCIAL CUSTOM AS A SOURCE OF LAW 113
society, and despite its constant interaction with it.36 Based on this under-
standing, one must believe that law can only be modified by social custom
through a slow and deliberate process. If the law can be modified by social
customs in a more or less abrupt manner, then this law must be of an
underdeveloped, traditional, or customary variety. Thus, if modern
Islamic law seems to be capable of reinventing itself in major areas of family
law, let alone civil and criminal law, then it must be at a customary law
stage and even a primitive one at that, rather than a full-fledged and
developed legal system. On this understanding, Islamic law may be about
to enter a new form of stability, but as of now, it seems to continue to be
a representative of the traditional, customary law type.
There are severe limitations to this understanding of the development
of Islamic law as it incorporates new social realities. A more accurate
characterization of the evolving modern Islamic law is that it neither fits
the customary law model nor the standard model for a modern legal system.
The evolution of modern Islamic legal traditions, as untidy as it may have
been and is likely to continue to be, will maintain a quality that was char-
acteristic of its premodern predecessor: its discursive nature. This quality
contrasts with the common image of customary laws as based on tribal
and honor traditions that operate among certain populations, given their
social binding force acceptable to these populations.
In this context, Ibn ‘Abidin’s resistance to the idea that social customs
can simply turn any legal doctrine on its head is significant. If social custom
is not the sole source of law, then the law enjoys an identity that is separate
from its social or customary sources. As I indicated, this identity possesses
a discursive nature, consisting, as it were, in legal discourses about inter-
preting texts and institutions, rather than rules. This discursive legal
production, however, has as much capacity to establish this law’s
integrity and distinguish it from folk law.
In understanding the impact of social custom on modern Islamic legal
reasoning, one must therefore purposely reject any anthropological
emphasis on the connotations associated (rightly or wrongly) with the
concept of customary law or folk law, such as anonymity of source, being
old, primitive or rural.37 The two main characteristics of ‘urf-based law is
its flexibility and capacity to change (also shared by customary or folk
laws). It may be apt to refer to this form of law as lex non scripta in its
embryonic stage, but orality is not really one of its stable features. As we
learned from Ibn ‘Abidin, for a social custom to become a ‘urf-based law,
it needs to (1) gain wide acceptance and (2) be acknowledged as a source
of law by a trained jurist.
114 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
CONCLUSION
This chapter was a defense of the thesis that premodern Islamic legal theory
can view modern, partially westernized Muslim societies as enjoying the
same measure of authority in generating legal normativity enjoyed by
premodern Muslim societies. The significance of this thesis is that it
shows the ability of these modern Muslim societies to engage in its dia-
logue with the challenges of Western modernity, while employing the
tools inherent in its over-a-millennium-long legal and cultural traditions.
My exposition of Ibn ‘Abidin’s traditional doctrine on social custom as a
source of law demonstrates the limitations of the claim that modern
Muslim societies constitute a new order for Islamic legal theory, which it
did not have to face in premodern times. As an application of how social
customs may transform legal doctrines in the modern context, I addressed
the question of equality in procedural privileges among men and women
in divorce law.
My argument should not be read as an unqualified celebration of
social realities in Muslim societies as the sole foundation of law’s evolution
that must lead modern Muslim juristic production. My argument is lim-
ited to an attempt at an accurate description of the process of legal reasoning
in modern Muslim societies. Many reformist Muslims have advanced
their agenda through textual and juristic arguments based on the Islamic
tradition, and have shied away from arguing on the basis of common
customs, I presume, out of the fear that an argument from common customs
would be dismissed out of hand, or out of fear that social custom will
not support their reform projects. In the first case, they fail to under-
stand an important quality in Islamic legal thinking, and in the second
case, they fail to realize that their reform projects would remain abstract
ideas with next to no value without adoption by the Muslim populations.
My reading of Ibn ‘Abidin’s Treatise on Custom revives the possibility of
SOCIAL CUSTOM AS A SOURCE OF LAW 115
WAR
* * *
It all began after the Prophet’s passing, when the Muslim community
had to answer two central questions, one theoretical and one practical: (1)
whether the Muslim community is meant to be a universal community or
a regional community with a universal message and (2) how one is to go
about implementing whatever position one takes on the latter question.
120 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
community began to ask some (but not all) of the questions that jurists
like these had to address. As international affairs became more and more
complex, even the genius of the first leaders of the Muslim community,
coupled with the divine revelation with all its latent power, will not suffi-
ciently satisfy the needs of an ever-evolving world order. The questions
Muslim jurists needed to address could only get more complex, as these
jurists had to deal with aspects of warfare and international law, such as
the classification of territories into Muslim and non-Muslim territories
(dar al-Islam and dar al-harb) and the implications of this classification in
international treaties, jurisdiction of Muslim courts over Muslim and
non-Muslim subjects.
If it is true that authoritative texts can be read differently for different
purposes, then one need not attempt to delegitimize juristic readings of
authoritative texts to build legal discourses and develop a legal system.
Yet, one must not fail to draw a distinction between the approach of
politicians, political advisors, and some jurists, on the one hand, to the
question of war and peace and that of the average individual Muslim in a
given community, on the other. Political theorists and practitioners often
search for legitimation for their political actions in the same authoritative
texts others read for the purpose of moral and spiritual inspiration for
everyday life. These different readers are bound to draw different conclu-
sions. An individual with no political concerns, reading the Qur’an as a
source of religious and moral inspiration, finds the general message of the
text to be consistent in emphasizing forgiveness and acceptance of suffering
the injustice inflicted by others as a better option compared to inflicting
injustice on others. The Qur’an teaches, “Repel evil with what is best”
(Qur’an 23: 96); “Good and evil are not the same; thus respond with
what is best, and your enemy will become your friend!” (Qur’an 41: 43);
“True servants of the Merciful walk gently on earth and, when the rash
and violent address them, they reply with words of peace” (Qur’an 25:
63); and “Those who exercise patience for the sake of their Lord . . . and
repel evil with good . . . for these is given the good reward, paradise of
perpetual bliss” (Qur’an 13: 22). The Qur’an accepts that those who take
revenge after suffering injustice may not be reproached (ma ‘alayhim min
sabil [Qur’an 42: 41]), but reminds the believers that to exercise patience,
having suffered injustice is an indication of the strength of one’s faith
(min ‘azm al-umur [Qur’an 42: 43]). This individual will reasonably
embrace the repel evil with what is best paradigm, which is rooted in
Qur’anic teachings and might even find juristic and political readings of
the Qur’an to be irrelevant to his needs.
122 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
Other readers can ignore the repel evil with what is best paradigm as
irrelevant to political questions, or engage in a discussion of whether what
is best may be to aspire to create unity and stability in the world by spreading
the correct faith. Legitimation of political action through religious
authority purports, unapologetically, to be a search for political guidance
in the same religious texts that people consult as a source of moral guidance.
In either one of these two cases, the reader’s metaperspective rules the
reading.
Despite the common availability of the above basic facts, treatments of
Islamic history and the Islamic juristic theories of war continue to reiterate
old ideas about the inevitably political nature of Islam or the Islamic
teachings. I shall not concern myself further with the common blindness
to these simple facts, despite its negative effect of depriving many of seeing
the complexity of how the Qur’an addresses the tension of justice and
forgiveness in people’s lives. I shall proceed to delineating the categories
of Qur’anic verses and the actions of the Prophet Muhammad, which
constituted the raw materials for the Islamic theories of the rights of war
and peace.
“Endure with patience the evil which they may say, and avoid them
with a comely avoidance” (Qur’an 73: 10).
However, waging war is permitted to respond to those who wage war
against the
Muslim community and threaten it:
“Fight, in the cause of God, against those who fight against you and do
not transgress! Indeed, God does not approve of transgressors” (Qur’an 2:
190).
“If they fight against you, fight against them” (Qur’an 2: 191).
“Would you fail to fight against those who have broken their solemn
pledges and have done all they could do to drive the Prophet away and
have been first to attack you? Do you fear them?! It is God alone whom
you ought to stand in awe?” (Qur’an 9: 13).
“Fight against those who do not believe in God and the Last Day and
do not prohibit what God and His messenger prohibit and do not believe
in the correct faith among those to whom the book has been revealed
until they offer a tax payment in humility” (Qur’an 9: 29).
“Fight against the polytheists as a united group, just as they fight
against you as a united group” (Qur’an 9: 36).
The Prophet’s history with regard to the question of war and peace is
subjected to the same type of hermeneutics to which the Qur’an is subjected.
In these hermeneutical exercises, a whole range of theories can be found.
Some of these emphasize the Prophet’s rejection of war as a means to
assert the truth of his message, and some advance an image of the Prophet
as a warrior. It is the authoritativeness of the Prophet’s example (almost
tantamount to that of the Qur’an) that makes the stakes so high in the
eyes of both Muslim and non-Muslim exegetes of the Prophet’s tradition.
Analyzing these hermeneutical exercises can be useful, but that is not my
focus in this chapter. I shall thus proceed to a discussion of the post-
Prophetic era of Muslim history as an integral element of the roots of just
war theory in Islamic law.
these rebels he sent his armies to fight. Abu Bakr is reported to have given
three options to these “rebels” (and occasionally “unbelievers”):
When you encounter the enemy of the unbelievers, God willing, call upon
them to choose from one of three options. If they accept that, then accept
their position and do not attack them. Call upon them to embrace Islam.
If they accept that, then accept their embracing of Islam and do not attack
them. Then offer them the option to move from their houses to the houses
of the emigrants.3 If they accept that, then tell them they are equal with the
emigrants [the Companions who emigrated with the Prophet from Mecca
to Madina]; they have the same rights and duties as these emigrants do. If
they embrace Islam and choose to remain where they are, then tell them
that they are equal with Bedouins: God’s law applies to them, and they do
not deserve any of the spoils of war unless they join the army. If they refuse
to embrace Islam, then call on them to make a tax payment (jizya). If they
accept, then accept that from them and do not attack them. If they refuse,
then seek God’s aid against them and fight them, with God’s permission.4
When you meet your enemy of the polytheists, give them three options.
Call upon them to become Muslims, and if they accept Islam and chose to
live where they are, then they pay an alms tax (like Muslims) and none of
their money can be taken as spoils of war. If they chose to be among you
(the warriors), then they equal you in rights and responsibilities. If they
refused [to become Muslims], then ask them to pay the jizya tax. If they
concede to that, then defend them against their enemies and let them live
in peace to pursue their agricultural activities, and do not ask them to pay
what they cannot afford. If they refused to pay the jizya tax, then fight
them, and God will bestow his victory on you . . . and do not be treacherous
with them, and do not desecrate a dead body and do not kill an infant.17
AFTER ‘UMAR
The expansion of Muslim territories during the first decades after the
Prophet’s death (rather than any doctrines taught by the Qur’an or the
Sunna) created the abode of Islam, which appears in Muslim jurists’
treatment of intercommunal and international order, and Muslim and
non-Muslim relations. Jihad (“just war”)18 theories will be the intellectual
achievement of later generations of Muslim jurists who had to account
for events that took place before their birth and synthesize the experience
of the early generations of Muslims with authoritative texts (from the
Qur’an and the Sunna), while attending to the characteristics of academic
discussions, with hypothetical and theoretical frameworks and the need
for generalized principles. Yet, the early jihad theorists were aware of the
double nature of their laws of war. Their laws of war were based on both
general principles taken from revelation and policies adopted based on
circumstances. Shaybani, the author of the first extended treatment of the
subject, starts his texts by a statement of the Prophet distinguishing
between God’s judgment and that of the leader of a given army based on
an agreement with his enemies after the war concludes. Shaybani high-
lights the Prophet’s assertion that an army general should bind oneself to
his judgment rather than God’s judgment in these matters, since the
army general “does not know God’s judgment.”19 Islamic juristic treat-
ments of war theories have been masterfully used by many Western scholars
to produce an essentializing narrative about the Islamic laws of war that
ironically begins with history but ultimately provides an ahistorical
one-size-fits-all recipe for correct political and military behavior, allegedly
from the Islamic point of view. The next section will address the variety
in these theories, which is largely ignored in these treatments.
It is important, finally, to remind the reader of the main conclusions
that have been made based on our consideration of the evolution of
Islamic jihad and just war theories. As is the case in many histories, practice
often precedes and informs theory, which ends up influencing later practice.
130 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
whether we can trust that jurists who attempted to reconcile the political
views and behavior of the early generations of Muslims with authoritative
texts from the Qur’an and the Sunna have also provided the best reading
of early Muslim political history. But to the extent that these jurists’ readings
of early Islamic history have become the norm in reading this history,
they are responsible for any undue emphasis that may have resulted from
their engagement in reading this history to answer the specific questions
they deemed relevant.
For us [Hanafi jurists], the world contains two abodes (daran): dar al-
Islam and dar al-harb). For Shafi‘i, the world is one continuous terrain
(dar wahida). And there are applications for this [disagreement]. One of
these [applications] is that, if one of two spouses emigrates to dar al-Islam,
whether as a Muslim or as a protected resident (dhimmi), while the other
spouse remains in dar al-harb, then separation between them has occurred,
in our view, while for the Imam Abi ‘Abdillah al-Shafi‘i, separation does
not occur by means of the mere act of emigration (la taqa‘ al-furqa bi-nafs
al-khuruj). Another [application] is that, if the enemy appropriated our
property and took it to dar al-harb, they own it in our view, but in the view
of al-Imam al-Shafi‘i, they do not own it. Another [application] is that, if
the residents living outside the abode of Islam (ahl al-harb) seized our
property and transported it to dar al-harb and then converted to Islam
after seizing it, it is their property, while for al-Imam al-Shafi‘i, they do not
own it and must return it to their original owners.22
The second quote is from Mahmud ibn Ahmad al-Zanjani (d. 1258):
Differences between the two abodes (ikhtilaf al-darayn)—that is, dar al-
Islam and dar al-harb—do not entail difference in the law (la yujib tabayun
al-ahkam) for al-Shafi‘i (God be pleased with him). He argued that lands,
places, and terrains have no impact on the law, since the law is the privilege
of God—glorified is He (al-hukmu lillahi ta‘ala), and the call of Islam is
addressed generally to the unbelievers, whether they live in their countries
or in other countries. Abu Hanifa (d. 767; may God be pleased with him)
held that differences between the abodes entail differences in law. He
argued that moving to different lands, in reality and in legal considerations
(haqiqatan wa hukman), is analogous to [legal] death, and death ends own-
ership, and so should moving to different lands, too. He [Abu Hanifa]
said: this is because ownership is evidenced by control of property (al-
istila’ ‘ala al-mamluk), and such control ceases when the land changes both
physically and legally (haqiqatan wa hukman). As for the former, it is by
being out of the control of the owner, and as for the latter, it is by the
owner’s inability to exercise any legal rights relevant to it (inqita‘ yadih min
al-wilayat wa-l-tasarrufat). From this principle many applications branch
out (yatafarra‘ ‘ala hadha al-asl masa’il). One of these applications is that,
if one of two spouses emigrated to us [Muslim lands], whether as a Muslim
or a protected resident (dhimmi), while the other remained in dar al-harb,
the marriage does not dissolve by virtue of the act of emigration itself. For
them [Hanafi jurists], it dissolves, because of the difference in the land.
Another [application] is that, if a man from dar al-harb (harbi) embraced
Islam and emigrated to us, leaving his property in dar al-harb, and
Muslims later conquered those lands, then his property cannot be owned
[by a conquering Muslim army] in our view. For them [Hanafi jurists], it
can be owned and counted among the spoils of war. Another [application]
134 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
is that, whoever embraces Islam while in dar al-harb and does not emigrate
to the abode of Islam, then his/her life is protected (ma‘sum), and whoever
kills this new convert owes blood money [to his family] and exposure to
[the possibility of] retributive justice, and whoever destroys his/her property
owes its value, just as if this were to happen in the abode of Islam. Abu
Hanifa (God be pleased with him) held that it is prohibited to kill such a
person or seize his/her property, but no liability (daman) befalls [those
who destroy the property], since the sanctity of property is founded on the
land [where the law applies], while sanctioning his soul [during the state of
war] is founded on his/her embracing of Islam.23
As these texts illustrate, two views are expressed on the territorial juris-
diction of Islamic law. Shafi‘i believed Islamic law as God’s law is a valid
law in the whole of God’s world and has at least a theoretical jurisdiction
in non-Muslim lands since, as he points out, the whole earth is one,
continuous piece of land. This theoretical jurisdiction can therefore be
effectuated in certain cases. Jurists of the Hanafi school, by contrast,
make a distinction between lands where Islamic law applies and others
where it does not. According to Hanafi jurists, for example, dealing in
usurious transactions in non-Muslim lands is allowable, as long as these
transactions are allowed by the laws governing these lands. Furthermore,
crimes such as drinking wine and fornication when they take place outside
of “the abode of Islam” are not to be prosecuted in a Muslim state, if
Muslims who committed them return to the abode of Islam. On this and
similar issues, Shafi‘i does not share the position of Hanafi jurists, as he
disagreed with them concerning the underlying legal theoretical principle.
Yet, Shafi‘i does not condone the use of jihad as a tool of converting
non-Muslim populations. Both sides of the above argument are committed
to the traditional position of offering all populations the two options of
either embracing Islam or remaining non-Muslim and living as non-
Muslim members of a religiously mixed community, which is what the
Islamic Near East and other so-called Muslim lands have always been.
The fact that the majority of the populations of the Near East remained
non-Muslim for awhile, which represented no anomaly to either Hanafi
or Shafi‘i jurists who had opposing views on the jurisdiction of Islamic
law in the world. Decisions of war and peace remained the privilege of
political leaders who occasionally sought legal advice from different types
of jurists, and it was these leaders, again, who applied their understanding
of these paradigms of Muslim and non-Muslim relations.
While the connection between war and superior laws can be discerned
in theoretical discussions of war in Islamic legal literature, as these and
other texts demonstrate, the degree to which Islamic law applied as a
WAR 135
universal law in newly conquered lands varied, and Muslim rulers often
preferred not to impose Islamic law on their new subjects and even dis-
couraged its application in many cases. The two opposing theories, however,
persisted that for some jurists, the law of God was given to apply everywhere,
and for some, it was to apply only where Muslim populations had the
power to enforce them.
Out of different attitudes about world order come theories of legiti-
mate war or jihad. Sunni Muslim jurists do not use an Arabic equivalent
to the now familiar term just war; they use terms like jihad (a generic term
for warfare justly and appropriately conducted), ghazw or jihad al-talab
(offensive war), and ribat (defense of the borders) or jihad al-daf‘ (a
generic term for defensive war). Some medieval Muslim writers avoid the
normative questions completely in their writings on war and offer
descriptions of military expeditions and their consequences, such as the
distribution of the spoils of war or changes in land-tax laws in the con-
quered lands (some refer to this genre as the maghazi literature, although
the term maghazi can be used by those interested in the normative questions
of war). For those who address the legitimacy of war to consider partici-
pation in a given war acceptable or necessary, which Muslim jurists do, is
to consider it a just war. The Qur’an (16:90) states, “God enjoins justice
and compassion.” Thus, a jurist, speaking in God’s name, who allows the
participation in war, considers it just to do so. But whether it is called
“just war” will not concern us for a long time because our questions are
mostly about the details of just war theories and historical wars rather
than the concepts themselves.
The appropriate jihad must satisfy many conditions, some pertaining
to the prewar and some to the during-the-war stage of jihad. Before the
war, soldiers must acquire two permissions to fight: the permission of the
political leader of the Muslim community and the permission of the parents
of the soldier. The leader’s permission is required so that only “appropriate,”
rather than “seditional,” war will take place. The parents’ permission is
required to assert that the family takes priority over the larger community.
When this condition is observed, the government’s ability to force or
draft soldiers to battle would be severely limited. In addition to the
appropriate permissions, the soldier must satisfy many conditions for the
Muslim community to make sure about his or her readiness and suitability
to the awesome task at hand. These include physical, mental, and moral
qualities. Before war is declared, some jurists argue, a “warning” must be
given to the people who may be attacked, since treachery even in war
should not be allowed. During the battles, many restrictions apply, such
as the prohibition of burning the enemy or drowning them, the destruction
136 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
of war to its monstrous effects in the world, and from attacking the
overemphasis on defending the weak through the power of war to con-
sidering the external jihad through war secondary to the internal jihad
through self-refining. To deny the existence of pacifist attitudes about
war, despite the presence of two traditions of pacifist orientation, rather
than one, bespeaks the willingness to distortion.
The terminology of “just war” and “pacifism” invokes many questions
about the validity of ascribing these terms to the Christian traditions that
claimed them, as well as the legitimacy of insisting on their relevance to
other traditions. The reasonableness of seeing just war theories as truly
concerned with justice, in my view, must be questioned, but this is not
my task in this chapter. I need only state that the popular belief that
Christian thinking about war has the higher moral ground for the very
availability of the terminology of just war and pacifism cannot be taken
seriously. Worse still is the assertion that while a pacifist tradition can be
located in apolitical and antiestablishment Christian writers, the Islamic
theory and practice of war can be characterized by an absence of a pacifist
tradition in Islam.24 This cavalier assertion could only be made after over-
looking much of what I have presented in this chapter, including the
above acceptance by Muslim jurists of multiple bases for sovereignty in
their intercommunal or international law, as the above quote illustrates,
as well as the gamut of Sufi thinking.
WARS OF CONQUEST
The paradigm examples of this class of warfare in Islamic history are the
wars between Arab armies and the armies of the Persian and Byzantine
138 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
Empires in the seventh century. These wars ended with establishing new
borders for the nascent Muslim state, thus allowing a gradual change in
the cultures and institutions of the Middle East, leading to the founding
of an Islamic Middle East.
INTERNAL WARS
Among the examples of this class of wars in Islamic history are Ottoman
wars against the Mamluks of Syria and Egypt in the sixteenth century.
These wars ended in establishing the hegemony of one Muslim group
over another but added no territories to Muslim suzerainty.
FRONTIER WARS
must note, for example, that Alexander’s attitude toward other members of
the human society ranged from craving victory over them, and demanding
their acknowledgment of the supremacy of the Greek, to strong respect for
their sensibilities and cultural and religious views. Alexander combined
ruthlessness in fighting the Persians and a strong desire to be recognized
not as the Greek king of Asia, but Ahura Mazda’s representative on
earth—on the one hand—with anxiousness not to offend Persian sen-
sibilities, even unintentionally, by eating on a table on which Darius
ate—on the other.
Leaving the subtleties of the Aristotelian notion of human society aside
and moving forward in time, Cicero (106–43 BCE) draws one’s attention.
Springing from an Epicurean philosophy of nature that holds all animate
beings to enjoy some form of unity by nature (with humans as a class of
their own above animals and plants), Cicero considered the notion of nat-
ural law consistent with the physical makeup of the world. Thus, speaking
of a “human society” is found abundantly in Cicero. For example, “those
who say that we should think about the interests of our fellow-citizens,
but not those of foreigners, destroy the common society of the human
race [communem humanai generis societatem].” Richard Tuck warns that
“when Cicero talked about ‘the common society of the human race,’ he
may have meant little more than this: there is a kind of mutual recognition
between men which differs from the relationship between men and the
rest of the natural world, and which involves an appreciation of the
mutual benefits which men can provide for one another, without requiring
of us the sacrifice which a fully developed system of mutual aid will
entail.” Yet, the idea constitutes an important foundation to be exploited
later, as Tuck himself shows.
The notion of natural law has dominated Roman legal thinking, and
the Digest (which includes legal views of early Roman law assembled by
sixteen jurists under Justinian in 533 CE) begins with a division of laws:
the law of the state (ius civile), the law of nations (ius gentium), and the
natural law or the law of nature (ius naturale). The Digest also includes a
principle (known as the principle of postliminium) stating, “Roman citizens
taken as prisoners by an enemy were slaves in the eyes of Roman law,
until they returned to Roman jurisdiction.” The text of the Digest goes as
follows: “Pomponius: . . . The right of postliminium . . . In war: When
those who are our enemies have captured someone on our side and have
taken him into their own lines; for if during the same war he returns he
has postliminuim—that is, all his rights are resorted to him just as if he has
not been captured by the enemy. Before he is taken into the enemy lines,
142 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
Later came medieval natural law theorists who drew on a broad array
of writings, including (1) pre-Christian writers, such as Aristotle, Cicero,
and the already mentioned Justinian Digest, and (2) Christian writings,
such as Paul and the fathers. Scholastic Christian just war theories, which
purport to restrict war by producing just war theories that require the
soldiers to fight, despite themselves and not out of the desire for revenge,
agree with the notion (found in the Benedictine monk Gratian’s
Decretum in 1140) that “mankind is ruled by two things: natural law and
custom. Natural law is that which is contained in the law and the Gospel
where everyone is commanded to do to another as he would be done by,
and forbidden to do to another what he does not wish to have done to,
himself.” The commentators on Gratian’s text, the Decretum (known as
the Decretists), provided different definitions of natural law, ranging
from “natural law is the teaching of Scripture, or it is what is left unde-
termined by divine command or prohibition; it is the human capacity to
distinguish right from wrong; it is natural equity; it is also the natural
instinct of all animals and as well a general law of all creation.”27
These ideas persisted and were significantly modified in later centuries.
Dante’s (d. 1321) De Monarchia makes an argument for a world govern-
ment, combining elements from the same Latin tradition of Cicero and
Christian political theories:28
Things are well and at their best with every son when he follows, so far as
by his proper nature he can, the footsteps of a perfect father. Mankind is
the son of heaven, which is most perfect in all its works; for it is “man and
the sun which produce man,” according to the second chapter on Natural
Learning. The human race, therefore, is best when it imitates the move-
ments of heaven, so far as human nature allows. And since the whole
heaven is regulated with one motion, to wit, that of the primum mobile,
and by one mover, who is God, in all its parts, movements, and movers
(and this human reason readily seizes from science); therefore, if our argu-
ment be correct, the human race is at its best state when, both in its move-
ments, and in regard to those who move it, it is regulated by a single
Prince, as by the single movement of heaven, and by one law, as by the single
motion. Therefore it is evidently necessary for the welfare of the world for
there to be a Monarchy, or single Princedom, which men call Empire. And
this thought did Boethius breathe when he said: “Oh happy race of men if
your hearts are ruled by the love which rules the heaven.”29
CONCLUSION
Islamic law is both a divine law and a human law, as it stands on the
divine inspiration embedded in the Qur’an and the Prophet’s statements
and actions, which are interpreted by fallible jurists who search for God’s
intent and do not usually claim to be directly inspired by Him in their
legal writings. The articulation of theories of war and intercommunal and
international order in Islamic law come almost two centuries after the
Arabs spread into the lands surrounding Arabia in the seventh century.
The Qur’an and the Prophet Muhammad’s statements on the matter
were ambiguous, but medieval Muslim jurists accepted the responsibility
of developing theories of war and world order to account for the realities
of their time, seeking the guidance of the scanty religious texts on the
subject. Only a few generations after ‘Umar (d. 644 CE), Muslim jurists
were in a position to devise laws of war that describe and shape this new
world order. Sunni Muslim jurists begin their inquiry with a study of the
behavior of the early generations of the Muslim community, who grappled
with issues attending their new position in the world, a position that
allowed them to change the balance of power in the Near East. Medieval
Muslim jurists developed the (perhaps counterintuitive) notion that at
least aspects of “intercommunal/international law” can be seen as a subfield
WAR 145
APOSTASY
confirm the conclusion that a death sentence for apostates was hardly a
recurring event the Muslim population expects to hear about. Given the
overall consistency of juristic writings in displaying little concern for
apostasy and apostates and the infrequency of “juristic anger” about the
government’s inaction about apostates, one must conclude that the few
cases of juristic anger about apostates should be taken to represent the
exceptional, rather than the paradigmatic, in Islamic law and jurisprudence.
What Western scholars have labored to establish in this issue ultimately
flies in the face of available evidence.
But how is this exercise in “scholarship” on apostasy—that leads us to
believe in the paramountcy of apostasy laws and their frequent applica-
tion—possible? The task of Western apostasy scholarship is to point to
“examples” where apostates were punished, and the author gets to tell us
as much or as little information about their context. It is only in this limited
exercise of eclectic treatments of the subject that an author can highlight
whatever establishes the forgone conclusion about apostasy laws as a tool
of oppression, while mostly avoiding any understanding of the specific
circumstances of these cases. In reality, the specific circumstances are
what makes applying the otherwise inoperative punishment for apostasy
possible and give the impression that these cases were frequent. In addition
to the violent summarizing of cases, Western “scholarship” on apostasy
conceals Muslim jurists’ emphasis on the difficulty of pinning down a
definition of the apostate to make the general definition of apostasy seem
abundantly clear. The juristic principles guiding jurists to err on the side
of innocence (al-asl bara’at al-dhimma; dar’ al-hudu bil-shubha), which is
terribly emphasized in capital crimes like apostasy, is similarly obfuscated
in these eclectic studies.
Here are a few simple facts. First, there is no shred of evidence attesting
to the occurrence in Islamic history of apostasy courts and public executions
similar to those of the Inquisition. An Islamic inquisition never took
place. Second, and this goes even further, voices of heresy in Muslim
cities have been heard and gone unpunished, and occasionally celebrated
for their poetic or philosophical originality. There is ample evidence that
even religious individuals fond of literature and philosophy engaged in
the reporting of what is heretical or lewd views rather than rejecting them
on religious grounds or reporting the authors of these views to the gov-
ernment for punishment. Third, there are debates among jurists who
attempt to capture the essence of a crime of apostasy, with hard-liners
broadening the definition of apostasy and skeptics saying that such an
offense can hardly be characterized or targeted for correction. Fourth and
last, the last two centuries have witnessed unprecedented interest in the
APOSTASY 149
HISTORICAL BACKGROUND:
WAS COLLECTIVE APOSTASY PUNISHED
BY WAR IN THE SEVENTH CENTURY?
The wars of the seventh century under Abu Bakr (ruled 632–34), which
later came to be known as the apostasy wars, were fought with Arab tribes
whose relationship to Islam remained a question of contest.6 Reports
inform us that, in his justifications of the attacks, Abu Bakr has referred
to these rebels’ failure to pay the zakah (alms), which they paid to the
Prophet. Instead of consistently using the language of apostasy (ridda, lit.
reverting), Abu Bakr mostly referred to his opponents in these wars as
“unbelievers.”7 Abu Bakr is reported to have given three options to these
“rebels”:
When you encounter the enemy, the unbelievers, God willing, call upon
them to choose from one of three options. If they accept that, then accept
their position and do not attack them. Call upon them to embrace Islam. If
they accept that, then accept their embracing of Islam and do not attack
them. Then offer them the option to move from their houses to the houses
of the emigrants (i.e., join the community of the Prophet’s Companions).8
If they accept that, then tell them they are equal with the emigrants [the
Companions who emigrated with the Prophet from Mecca to Madina];
they have the same rights and duties as these emigrants do. If they embrace
Islam and choose to remain where they are, then tell them that they are
equal with Muslim Bedouins: God’s law applies to them, and they do not
deserve any of the spoils of war unless they join the army. If they refuse to
embrace Islam, then call on them to make a tax payment (jizya). If they
accept, then accept that from them and do not attack them. If they refuse,
then seek God’s aid against them and fight them, with God’s permission.9
True, these reports may have come from a late date, since they smack
of the complex theory developed in Islamic law about the “three options”
given to the enemies at war: conversion, jizya payment, or war. At any
rate, it is unlikely that a doctrine of declaring war on apostates could have
developed at that early time. Some of the tribes Abu Bakr fought (especially
those Arabs of Najd) had signed treaties with the Prophet, accepting his
authority and the rules of Islam.10 These can be called apostates if apostasy
is understood to be a rejection of Islam after accepting it initially, no matter
152 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
how vague the concept of Islam in their mind at that time. (It is particularly
this point, the vagueness of one’s position vis-à-vis Islam, that would
become a central consideration in determining whether any alleged apostate
was genuinely an apostate.) Some later jurists would consider the refusal
to pay almsgiving on the part of all of Abu Bakr’s enemies a rejection of a
basic religious duty, which amounts to a rejection of the doctrinal basis of
that basic necessarily known duty (ma‘lum min ad-din bi-d-darura), but
we have no evidence that this theory was developed at the time of the
so-called apostasy wars.
This is not to say that no jurist relied on Abu Bakr’s wars against
Arabian tribes as a source for a law against collective apostasy. Shafi‘i
jurists believed that collective apostasy should be punished by war,11 and
that attacking apostate-rebels, whether these apostates are in a land adjacent
to Muslim lands or distant from it, takes priority over engaging non-
Muslims in war.12 Shafi‘i had argued that apostate rebels are similar to
unbelievers in certain respects, which distinguish them from Muslim
rebels (bughah). For example, apostates can be attacked even if they
retreat from the battle scene, while Muslim rebels can be attacked only if
they attack Muslim armies. Using fire against the apostates is permissible,
while, in the war against Muslim rebels, fire cannot be used. But Shafi‘i
also equated apostate rebels with Muslim rebels in ways that distinguish
them from non-Muslim enemies of Muslim armies. For example, a peace
treaty with the apostates cannot be concluded unless they return to Islam,
while such a treaty with non-Muslim armies is acceptable, and jizya pay-
ment is acceptable only from non-Muslims, while an agreement with the
apostates cannot be concluded based on their payment of jizya.13
Disagreement has arisen as to what Shafi‘i held about whether apostates
or Muslim rebels should compensate for the property they destroy, and
arguments for and against ranged from invoking precedents like Abu
Bakr’s wars to rational arguments and arguments from expediency.14
It is important to note that the punishment for apostasy as an offense
committed by a group was never mentioned in the Qur’an, while a
punishment for rebels, known as the bughah, was mentioned (Qur’an 49: 9).
Instead of considering Abu Bakr’s rebels a paradigm case for the
“bughah,” the paradigm case for the bughah, according to Sunni jurists,
were the Khawarij (Seceders), who rebelled against ‘Ali during his conflict
with Mu’awiya in the 650s. At any rate, Abu Bakr’s wars against the
apostates do not end up occupying a prominent position in juristic language
about the punishment of apostasy as an offense by an individual. Sunni
jurists would mostly resort to prophetic language in their treatment of the
punishment of apostasy.
APOSTASY 153
and a zindiq is that the zindiq is not expected to clarify his views or
declare his repentance, since his beliefs are ambiguous to begin with.20
The conceptual distinction between an apostate and an unbeliever is
not hard to make: the former is a person with a history of being a Muslim
who abandons Islam, while the latter has not embraced Islam at all. Thus,
every apostate, as long as he or she is an apostate, is an unbeliever, but the
opposite is not true. The unbeliever who is not an apostate can be a person
with stable or changing beliefs that do not comply with acceptable
Islamic creeds, and this status of being “unbeliever” offers him the pro-
tection given to all unbelievers in a Muslim society. The point is that an
“original unbeliever” is not addressed by the juristic discourses on apostasy.
Ghazali’s attack on the zanadiqa of his time, who professed to be
Muslim but held various creeds that are incompatible with the Islamic
creeds, recognized that these zanadiqa could have enjoyed the protection
of being original non-Muslim (original unbelievers) in the Muslim society
had they been original unbelievers. In his Fada’ih al-Batiniyya, Ghazali
reported three views on whether the Batiniyya should be considered
apostates, even if they do not seem to have any history of believing in
Islam:
If it was said: Why do you consider them (the esoteric sects) similar to the
apostates? Whereas the apostates are those who accepted the correct reli-
gion and embraced it and then exited out of it, reverting and denying it[s
truth], these were never committed to the truth; rather they grew up
believing in these [un-Islamic] creeds. Why do not you consider these (eso-
teric sects) similar to original unbelievers? We say . . . As for those who
grew up believing in these creeds as they heard them from their parents,
then they are the scions of apostates, since their parents and the parents of
their parents must be assumed to have believed in this religion after not
believing in it, since this is not a religion that relies on the authority of a
prophet and a revealed scripture, such as the beliefs of the Jews and the
Christians. Rather, these are ‘new heresies’ (bida‘ mustahdatha) by the
groups of the infidels and the zanadiqa in these recent times.21
DOCTRINAL HERESY
Sunni Muslim juristic literature distinguishes between two types of
heresy: doctrinal (qawliyya, lit. verbal, since it is manifested by declaration
of creeds) and action-based (fi‘liyya). Those who fall short of being apostates
are considered heretics of the first type.22
Among the heresies that Ghazali attacks are those of the Mu‘tazilites,
especially given their position on the attainability of moral knowledge
through the unaided intellect. The Mu‘tazilites were hardly alone in the
scene; voices of heresy abound. The Mu‘tazilites, after all, were not as
radical as some philosophers like Razi (d. 930) who seems to have
believed that knowledge is attainable by the unaided intellect, whether or
not revelation confirms that knowledge.23 The heresy of the al-Warraq
and Ibn al-Rawandi (ninth century) is of a different order. These, quite
admittedly, unclear figures are reported to have adopted sophist method-
ology, at least in different stages in their careers, showing signs of dissatis-
faction with many assertions in Muslim doctrines, including the very idea
of revelation and the inimitability of the Qur’an.24 Farabi (d. 950) may
have been the first systematic skeptic whose concern with political philos-
ophy led him to consider “religion” as a way for communities to organize
themselves. Religions come out of philosophies, which may be advanced
or primitive, but religions can be nothing but a metaphorical expression of
the truth that philosophy attempts to acquire.25
Examples of doctrinal heresy or bida‘ taken from early Islamic theo-
logical and philosophical debates continued to be given by later jurists.
These, according to Ibn al-Bazzaz al-Kardari (d. 1424), include the belief
that God possesses a body (though unlike other bodies), the belief that
grave sinners are condemned to eternal residence in hell, and the denial of
punishment in the graves.26 These beliefs would contradict the Maturidi
confession to which the author subscribes. When Ibn al-Bazzaz sets out to
explain what should be done with doctrinal heretics, he emphasizes that
if individuals found a person with such heretical views, they must “guide
him, and if he was a propagator of his heresy, they should prevent him
from propagating it, and if they could not, they should elevate the matter
to the judges so that they expel them from the town.”27 One unsuccessfully
searches Islamic chronicles for evidence that many people have used Ibn
al-Bazzaz’s last advice. When it comes to apostasy, Ibn al-Bazzaz asserts
that if one can find different interpretations that confirm an alleged
instance of apostasy and only one that raises doubt about it, then it must
be assumed that apostasy did not take place, since this is not a matter that
can be determined based on an accumulation of arguments.28 Ibn al-Bazzaz
158 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
clearly thinks of the claim of apostasy as a grave matter, not unlike jurists
before and after him.
distinguish Muslim juristic views that are unaffected by modern ideas and
ideologies. Ibn ‘Abidin is seen by his contemporaries as a master of
Hanafi law and a mainstream jurist rather than a critic of the juristic
tradition, such as Ibn Taymiyya. Close reading of works like his often
allows the reader to question sharp distinctions between participants in a
legal tradition and its critics, but the fact remains that Ibn ‘Abidin’s has
been considered by traditional scholars of law over the past two centuries
to be a masterful presentation that comprehended previous doctrines on
the subject.
Ibn ‘Abidin (d. 1836) hesitates both in ascribing apostasy and assigning
punishment to alleged apostates. The category of apostasy, for Ibn
‘Abidin, is almost a theoretical category, since any doubt about whether
the alleged apostates had a history of being Muslim and then reversed
their identification with the Muslim community saves the alleged apostates
from its punishment. Ibn ‘Abidin’s fears are directed toward the
zanadiqa—that is, those who pretend to be Muslims while functioning as
a fifth column amidst a Muslim society—but he sees them as original
unbelievers rather than apostates.
establishes that even if one suspects that an alleged non-Muslim uses the
declaration of Islam to gain the benefits of being a Muslim, he or she
must be granted the status of being Muslim.31 An alleged apostate needs
only profess to be a Muslim, and even if evidence supports the allegation
of his apostasy repeatedly, only a discretionary punishment may be insti-
tuted, rather than a condemnation to apostasy.32 Shafi‘i rejects the argument
that an alleged apostate who embraces esoteric beliefs of zandaqa must be
punished despite his or her declaration of being a Muslim (which clarifies
that Ghazali was not the first to espouse this view three hundred years
later) and cites agreement with his view from the jurists of Mecca,
Madina, and the East (mashriqiyyin).33
community.36 Even those who believed that the first two leaders of the
Muslim community (Abu Bakr and ‘Umar) were grave sinners, all that can
be proven in their case is heresy (thus, Shi‘i commoners are only heretics).37
Ghazali applies the same standard to the commoners among the
zanadiqa that he consistently attacked. It is not true that Ghazali
absolutely rejects the repentance of these groups—he divides them into
three groups. The first group includes those who reject their previous
beliefs without war. These should be forgiven, since people often realize
the faults of their ways and repent without fear of force. The second
group includes those who repent to avoid death. These should also be
forgiven, as long as they are not feared to continue to spread their faulty
ideas later (i.e., become preachers man lam yakun mutarashshihan li-d-
da‘wa). The third group includes those who do not believe in the cor-
rectness of the view they seem to espouse but use these views for to seek
leadership position. This group may not be forgiven right away nor
punished right away, but the political leader must make a decision about
them on a case-by-case basis.38
that may, in some views, amount to disrespect for the Prophet of Islam?
For Ibn Taymiyya, the need to express religious passion is much less
important than the need to explicate religious doctrines or contribute to
a juristic debate. Hallaj did not need to teach others his ideas about how
to worship God through total annihilation of the self into the Divine,
since this (annihilation) can mean different things to different people,
and clearly diverges from the straightforward language of Scripture that
distinguishes between the Divine and humans.
Just as expressing personal passion for the Divine might lead to aban-
doning the correct faith, so do religio-political sectarian doctrines that
purport to be part of the Muslim doctrines, but end up creating a parallel
system of beliefs that diverges clearly from Islamic “orthodox” beliefs. Ibn
Taymiyya condemns Isma‘ili Fadimid leaders such as al-Mu‘izz li Din
Allah al-Fatimi (d. 975).43 Al-Mu‘izz’s claim of “hidden” knowledge
amounts to, for Ibn Taymiyya, abandoning the correct Islamic beliefs for
personal preference. Ibn Taymiyya also condemns the Druze,44 whose
origin can be traced to another Fadimid ruler, al-Hakim (d. 1021). A
teacher by the name ‘Abdullah or Muhammad al-Darazi (d. 1020)
preached in Syria that al-Hakim was the end of a line of nobles who could
be seen as an incarnation of God, which line begins with ‘Ali Ibn Abi
Talib (d. 661), Muhammad’s cousin and son-in-law (sources tell conflicting
stories about al-Hakim’s approval of Darazi’s teaching). For Ibn
Taymiyya, are already far removed from correct Muslim doctrines and
cannot be seen as Muslims (today, the Druze would refer to themselves as
simply monotheists [muwahhidun] rather than Muslims).
Ibn Taymiyya thus expresses a measure of intolerance about political
and spiritual dissent, while defending scholars’ right to dissent as part of
their theological and legal deliberation. However, for Ibn Taymiyya,
mere faith in times of “religious indifference” is sufficient in guaranteeing
salvation from hell,45 and anyone with even a small measure of faith is
guaranteed to escape perpetual residence in the hellfire.46 (Ibn Taymiyya
also cautions that no one should believe that the mere statement of the
correct faith guarantees entry to paradise).47 Furthermore, inadvertent
errors about what is correct Islamic doctrine (a position into which even
the Prophet’s Companions have occasionally fallen) are forgivable.48 Ibn
Taymiyya’s tolerance with well-intentioned (ignorant) individuals stands,
in his view, in contradistinction with “willful” deviation from the straight
path of Islam.
164 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
GHAZALI’S CONTRIBUTION
The disagreement about who is an apostate seems to have reached a
degree of maturity and complexity before Ghazali came to the juristic
scene. But another important fact was that Muslim jurists did not need to
argue that a group of rebels are apostates to argue for the legitimacy of
combating them. The laws of the bughah, or rebels, have been developed
into a theory that allows the political authorities to punish rebels without
considering them unbelievers. Further, the istitaba of Shafi‘i (or the
opportunity to repent) was not only applied to apostates—in fact, Malik
applied it to rebels who were admittedly Muslims. Malik also believed
that these rebels must be attacked militarily (like the apostates of Abu
Bakr’s time), not as a punishment for their unbelief, but in order to
“neutralize their corruptive influence” (daf‘an li-fasadihim la li-kufrihim).60
Ghazali, however, attempted a twofold contribution to the juristic dis-
course on apostasy. First was his association of unbelief (kufr) with zandaqa
(a matter contested both before and after he wrote), and second was his
attempt to distinguish apostasy from mere heresy. Ghazali, indeed, was
aware of what he was doing; he knew that if he succeeded in including
both the philosophers and those who hold esoteric beliefs among the
apostates, his attacks on both the philosophers and the esoteric factions
would be most successful. Ghazali also attempted to provide clear defi-
nitions that distinguish doctrinal heresy from apostasy in his Faysal.
However, Ghazali ultimately failed on both counts. He failed in changing
the tenor of the juristic discourse, and the zanadiqa continued to be an
elusive term used differently by different jurists,61 and the elasticity of both
the concepts of apostasy and heresy survived despite his Faysal.
Ghazali’s double attack on philosophers and esoteric factions betrays
an awareness of the influence philosophers like Farabi (d. 950) have
(inadvertently) exercised on the formulation of Isma‘ili cosmology.62 In
fact, he states that a potential connection between the esoteric move-
ments (on the one hand) and Dualism/Manichaeism (al-Thanawiyya)
and philosophers (on the other).63 But this adds no clarification to the
position of either the esoteric or the philosophical “deviant” with
respect to the gradations of heresy and apostasy.
APOSTASY 167
CONCLUSION
The application of a punishment of apostasy to specific individuals before
a Sunni court of law included a large measure of judicial discretion. The
Sunni judge had to undo any possible conflation between a claim of apostasy
and a claim of doctrinal heresy in the case before him. The Sunni judge
also had to decide whether there was any question the alleged apostate
may be an original unbeliever who never fully embraced Islam. These two
168 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
A MULTIFACETED PROBLEM
The concept of privacy is admittedly elusive. People would agree that, in
a civilized society, the privacy of the individual must be protected, but
whether they would agree upon the limits of privacy is a separate question.
Neither a universal right to privacy nor one that can be fixed within one
society over time is available. A concept of privacy in currency within a
given legal system at a given stage in its development must differ not only
from the concept of privacy in use by lawyers of another legal system, but
also from the concept of privacy known to lawyers of the same legal system
at a different stage in its development.
One must simply take for granted the elasticity of the scope of privacy
as well as any concept or definition meant to capture its essence. Given
the dialectical nature of the relationship between legal rights and the
social realties in which they apply, one could safely assume that the elasticity
of privacy rights is both a reflection and a source of the elasticity of the
limits of private life. A historian of private life has concluded that
private life is not something given in nature from the beginning of time. It
is a historical reality, which different societies have construed in different
ways. The boundaries of private life are not laid down once and for all; the
division of human activities between public and private spheres is subject
to change. Private life makes sense only in relation to public life; its history
is first of all the history of its definition.
Furthermore, disagreement will arise as to what creates a right to privacy:
whether it is the occurrence of an act that must be considered private by
nature, the fact that this act occurred in a “private” place or something else
(perhaps the relationship between those involved in a given act?). (Aries
and Duby 1991, 3)
and therefore not contingent in their privacy on where they occur, but
the fact that they are “private” makes us think, after all, that “private”
places are their natural environ. On the other hand, defining the right to
privacy in reference to private places only is not less problematic—it creates
an artificial distinction between two identical acts when one takes place in
a private setting and the other occurs outside of that setting. Why should
the privacy of two people having (what they call) a private conversation
be more private when it takes place in their home than when it takes place
on a street side? It is at least an exaggeration to say, for example, that people
relinquish their privacy completely when they have private conversations
in public places.
The apparent clash between the protection of privacy and the enforce-
ment of the law in private settings raises interesting questions relevant to
the law of evidence in particular. When drug abuse, for example, takes
place in a private environment, the people who happen to be present in
the private place where this offense occurred represent the only chance
(beside the confession of the abusers) that the criminals be convicted and
punished. So, what should we do? Should the witnesses be prevented by
the law from delivering her or his testimony for the sake of protecting the
privacy of the one suspected of that offense? Or, alternatively, should the
suspect be given (what is called) an evidentiary privilege allowing her or
him to prevent those who intend to testify against her or him from
delivering testimony for the same reason? Or, should privacy take a back
seat in order that the rule of law receives more attention? Different legal
systems would deal with these questions differently. Some would prevent
the delivery of such a testimony regardless of the choice of the suspect and
make it the duty of the court to keep such witnesses off the stand. Some
would leave it up to the accused to decide whether to allow such a testimony
to be delivered. And, yet, other legal systems may disregard the relevant
right to privacy and allow the witnesses to deliver their testimonies.
The interesting point is always how balance is struck between the right
to privacy and the rule of law in a given society. Where does the law draw
the line between desirable protection of privacy and its abuse resulting in
the obstruction of justice? And how does this tell us something about the
degree to which the individuals governed by such a law enjoy the right to
privacy?
Thus, in the context of the American legal system, one may speak of the
right to privacy or, alternatively, of privacy rights. According to another
decision by the Supreme Court—Planned Parenthood of Southern
Pennsylvania v. Casey (1992)—privacy rights encompass two groups. The
first group includes those rights that are based on respect for the individual’s
bodily integrity, such as the right of a pregnant woman to exercise discretion
in deciding whether to abort her fetus, especially during the early stages
of her pregnancy (see also Roe v. Wade [1974]). The second group
comprises those rights compatible with the individual’s freedom to act in
her or his private environment as she or he pleases, including deciding
matters that affect her or his personal life. An application of this aspect of
privacy is preventing the state from regulating procreation (for example,
by prohibiting the sale or use of contraceptives), whether by married or
unmarried couples (Eisenstadt v. Baird [1972]), since the decision to
procreate or not to procreate is an aspect of people’s “private” life. Other
aspects of privacy rights permeate American civil law, criminal law, and
the law of evidence.
A right to privacy that has been stretched to justify women’s right to
choose whether to abort or not to abort their fetuses may arguably be seen
as quite broad. But, as I have noted, the expansion or erosion of privacy
has to do with many aspects of social life and not only with how the law
governing a given society defines (widely or stringently) the term “privacy.”
I will mention only one application of that in American society, where the
media and the cinema industry are used as tools to aggressively promote
tolerance about sexual preference. In the United States today, there exists
what Thomas Nagel called a “shredding” of public privacy, where, for
example, almost any public figure, especially a candidate for public
office, expects to have to answer questions about his private (e.g., sexual)
life in front of large crowds, if not on national television. This anomaly
between a broad right to privacy such as the one acknowledged by the
Supreme Court and the erosion of privacy in public life is instructive.
The breadth of the right to privacy acknowledged by the U.S. Supreme
Court does not guarantee that basic aspects of privacy are protected.
True, these eroding or eroded aspects of privacy may be seen as the core
of the concept of privacy by the U.S. Supreme Court (the argument
made for a right to abortion based on it, for example, is that women’s
right “to choose” is a ramification of their right to keep their communi-
cations with their doctors private). However, whether or not people
choose to enjoy this core of privacy hinges on other factors. In the
remainder of the chapter, I will focus on this core of the right to privacy
or the right to keep the content of one’s private life private.
174 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
other than those who apply it to themselves (such as the duty of fasting in
the month of Ramadan).
These two differences are of particular relevance to our discussion of
the subject of privacy in Islamic law and cultures. The fact that all human
actions are under the jurisdiction of the law in Islam, coupled with the
doctrine that Muslims are enjoined to encourage good acts and discour-
age evil ones (al-amr bi-l-ma‘ruf wal-nahy ‘an al munkar), has given some
authors the impression that the individual’s privacy in a Muslim society
must be meager—at least compared to its counterpart in a modern
Western society. This reasoning suffers from two deficiencies. First, it
does not account for the fact that this law’s application is not contingent
on enforcement by a state, as we said, which places a question mark on
assuming a necessary connection between the illegality of certain aspects
of people’s private life and state intervention in those aspects. Second, it
ignores the fact that intimate aspects of private life that Islamic law regulates
(such as sexual relations) can be disputed in a court of law only after espe-
cially high standards of evidence are satisfied (e.g., Muslim jurists agree
that only four witnesses who are willing to testify that they have witnessed
the act of sexual intercourse between two adults may be considered sufficient
evidence in a case of adultery). When a testimony that does not meet
these standards is delivered, those who have delivered it are punished as
slanderers. These facts must be taken into account before a conclusion is
made about whether regulating aspects of private life in Islamic law indicates
its lack of respect for privacy.
Another erroneous inference from the fact that Islamic law regulates
aspects of people’s private life is to say that matters such as sexual relations
must not be seen as private by nature in Muslim cultures. This also
assumes a necessary connection between law’s jurisdiction over private
matters and the very characterization of private matters as private. Islamic
law considers extramarital sexual practices illegal, not because these acts
are not “private” by nature in an Islamic culture; rather, these are illegal
despite their “private” nature. The fact that the argument for privacy
rights (in the U.S. Supreme Court decisions, for example) has been that
private matters should not be regulated does not entail that a legal system
that deregulates them will offer more privacy than any other that regulates
private matters. But even the promise never to regulate private life (in
these general terms) cannot be (and indeed was not) fulfilled by the
American or any other legal system, for reasons at which we hinted in the
previous section.
In short, the comprehensiveness of Islamic law, as described above,
should not be taken to stand in contradiction to the notion of privacy.
176 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
PRIVACY IN ISLAM:
SOURCES AND GENERAL PRINCIPLES
One must note that all religious texts from the Qur’an or the Sunna lie at
the highest level of authoritativeness as sources of law in Islam. This
makes the implications of Qur’anic and Sunnaic language a ready material
for legal principles to be devised based on them. Just as premodern
Muslim jurists were able to rely on these sources to articulate their legal
doctrines, a modern Muslim jurist could infer from these texts as much as
may reasonably be understood from their letter. It is to the Qur’anic and
Sunnaic texts relevant to the issue of privacy that we shall now turn.
Several Qur’anic verses emphasize the individual’s right to privacy.
The most prominent of these are two verses speaking of the privacy of the
home, stating, “O you who have attained faith! Do not enter houses other
than your own unless you have obtained permission—hatta tasta’nisu—
and greeted their inmates. This is [enjoined upon you] for your own
THE RIGHT TO PRIVACY 177
good, so that you might bear [your mutual rights] in mind. Hence, [even]
if you find no one within [the house], do not enter it until you are given
leave; and if you are told, ‘turn back,’ then turn back. This will be most
conducive to your purity; and God has full knowledge of all you do”
(Qur’an 24: 27–28). The expression hatta tasta’nisu, rendered as “unless
you have obtained permission,” may be translated more precisely as “until
you have made sure that your presence is welcome.” The word isti’nas
here means seeking to ascertain the host’s readiness or comfort—that is,
making sure that the potential visit by the prospective guest would be
received in a positive manner by the host and that the host is prepared for
it at its proposed time.
The Qur’an even establishes a right to privacy for people vis-à-vis their
family members—that is, within their own home. The Qur’an (24: 58)
specifies at least three times when explicit permission has to be taken
before people could enter into their parents’ private room: before the
dawn prayer, during the afternoon (possible time for napping), and after
the night prayer. This Qur’anic principle applies to all Muslims, but
young adults who have recently reached the age of puberty are simply
encouraged in this verse to get accustomed to the habit of seeking per-
mission when they want to enter rooms other than theirs, so that such
becomes second nature to all members of the family.
Moreover, the Prophet of Islam is reported to have stipulated that
potential visitors may not cast curious gazes into the inside of people’s
houses when they draw near these houses in order to seek permission to
enter them. The Prophet said, “If one’s eye has entered a private place,
the person her/himself has entered.” According to another report, the
Prophet stressed this point by saying, “If one’s eye has entered a private
place, why should any permission to enter the place be needed?” Further
more, the Prophet has stipulated that a person who attacks an intruder to
prevent that intruder from spying on his or her private home is not liable
for punishment for his or her attack.
These texts are sufficient samples of the textual basis for the protection
of the privacy of a particular place, exemplified by people’s private homes.
But this is not all. There are texts that establish people’s right to endow
privacy on meetings they attend in settings that are not seen to be private
in principle. Prophetic reports emphasize that if a gathering was meant by
those who attend it to be a private one, the privacy of those present
therein must be respected—irrespective of where the meeting occurs. The
Prophet Muhammad is reported to have said, “Private encounters result
in entrustment (al-majalis bil-amanat).” This entrustment, according to
178 ISLAM, MODERNITY, VIOLENCE, AND EVERYDAY LIFE
that respect for privacy could end in deterring the prosecution of those
who violate the law. The attitudes of Ibn ‘Abidin and ‘Abbasi I addressed
in Chapters 1 and 2 lend support to this claim.
The above may be sufficient to establish people’s duty to respect the privacy
of others in their private homes as well as establish respect for the privacy
of their private communications. However, none of the above-mentioned
texts establishes any rule with regard to the permissibility or prohibition
of conveying the content of private encounters that may be needed as
legal evidence—that is, by those who had access to the content of these
private encounters. To complicate matters, certain Qur’anic and Sunnaic
texts have emphasized the importance of voluntary conveyance of the
testimony needed to establish justice. According to the Qur’an, Muslims
are exhorted not to conceal their testimony and are considered sinful “in
their hearts” if they fail to perform their duty in this regard. The Qur’an
(2:283) states, “Do not conceal [your] testimony, and those who conceal
it have sinned in their hearts.” From this verse, Muslim jurists have
inferred that delivering a needed testimony is the duty of all capable of
conveying it unless already performed by other members of the Muslim
community. This is called fard kifaya—that is, a duty not incumbent on
all Muslims, but it is expected of some of them to carry it out, as opposed
to fard’ayn, or a duty that is incumbent on all Muslims, such as the daily
prayers. According to Muslim jurists, failure to deliver a needed testimony is
a grave sin. However, one may be exempted from such a duty in exceptional
cases, such as when one is unable to reach the court where the testimony
should be delivered. The question of reconciling respect for privacy and
the emphasis on the rule of law takes us to the last section of the chapter.
accused of it, but also a cause for those three witnesses to be punished as
slanderers.
The significance of the protection of the right to privacy by the Islamic
law of evidence consists in the fact that this branch of the law enjoys an
influential position for its penetration of both criminal and civil legal
matters, since it is the ultimate reference as to whether there would be any
fruits to considering an act illegal. When the law of evidence places
restrictions on trying people who are accused of privacy-related offenses,
it indirectly promotes privacy. There are also other aspects of Islamic law
that are as important in their relevance to the protection of privacy and
that, in my judgment, confirms the fact that Islamic law’s promotion of
privacy is remarkable.
The Prophet discouraged his followers from confessing to committing
shameful acts they committed that have not resulted in infringement on
people’s rights. He has reportedly said, “If you have been embroiled in an
embarrassing sin, which God chose not to disclose, do not disclose it
yourselves.” The Prophet even repeatedly turned his face away from a
man who wanted to confess before him that he committed adultery. After
the man insisted on conveying his confession for the third time, the
Prophet investigated the possibility that the confessor’s mental state or
drunkenness may have had led him to make this confession. Some
Muslim jurists have relied on this story to argue that people are not
encouraged to confess to committing crimes that have not been prosecuted,
if the rights of others (such as their property) are not involved. It is clear
that such a rule promotes the individual’s privacy. However, the Prophet
is reported to have insisted that once a complaint about a major crime is
elevated to the Muslim authorities, no one can stop the prosecution of the
criminal.
Another example of the protection of privacy offered in the Islamic
law of evidence is that Muslim jurists express their reluctance to accept
the testimony of individuals when it is made either for or against a family
member or a former family member of their own. Family members, it
goes without saying, are the ones most acquainted with the details of each
other’s private lives. Although Muslim jurists do not use the language of
privacy to justify their reluctance to hear these testimonies, their attitude
has definitely led to the enlargement of people’s privacy.
One more (rather striking) example of the protection of privacy in the
Islamic law of evidence follows. Under Hanafi law, if someone confesses
(in confidence) to committing a crime in the presence of another and asks
the latter not to convey to others the content of her or his confession, the
confession witness must refrain from testifying against the confessor. But
THE RIGHT TO PRIVACY 181
CONCLUSION
This chapter attempts to demonstrate how judging the degree to which
privacy is protected in a society governed by Islamic law is relevant to
more than an investigation of an existing or missing concept of privacy
within the juristic jargon of Islamic law. Under Islamic law, the right to
privacy is protected and balanced against many considerations, of which
the rule of law is the most prominent. This can be seen from scriptural
and prophetic texts, as well as from the understanding and behavior of the
Islamic political authorities in the early Muslim Caliphate. The Sunni
Islamic law of evidence, in particular, offers protection of privacy in many
ways, as can be seen from the texts and juristic interpretations I introduced
in this chapter.
WORKS CONSULTED
COMPARATIVE ISLAMIC LAW
Abd al-Rahman al-Jaziri, Al-Fiqh ‘ala al-Madhahib al-Arba‘ah, vol. 6 (Cairo: Dar al-
Hadith, 1990), 69.
HANAFI LAW
MALIKI LAW
SHAFI‘I LAW
Abu Ishaq Ibrahim al-Shirazi, Matn al-Tanbih fi Fiqh al-Imam al-Shafi‘i (Beirut:
‘Alam al-Kutub, 1983), 162.
Ibn al-Naqib al-Misri, Reliance of the Traveler (‘Umdat al-Salik wa ‘Uddat al-
Nasik) (Beltsville: Amana Publications, 1991), 637.
HANBALI LAW
AMERICAN LAW
Kelley Weisberg and Susan Frelich Appleton, Modern Family Law: Cases and
Materials (New York: Aspen Law and Business, 1998), 1–114.
Ronald L. Carlson et al., Evidence: Teaching Materials for an Age of Science and
Statutes (Charlottesville, VA: Michie, 1997), 661.
HISTORY
Philippe Aries and Georges Duby, A History of Private Life: Riddles of Identity in
Modern Times, trans. Arthur Goldhammer (Cambridge MA: Harvard
University Press, 1991), 3.
Fracoise Dunand and Christiane Zivie-Coche, Gods and Men in Egypt 3000 BCE
to 395 CE, trans. David Lorton (Ithaca, New York: Cornel University Press,
2004), ix.
OTHERS
Thomas Nagel, Concealment and Exposure and Other Essays (Oxford: Oxford
University Press, 2002).
A variety of sources of prophetic tradition. See, especially, the Sunan of Abu
Dawud (Riyadh: Maktabat al-Marif lil-Nashr wal-Tawzi‘), the chapter on
permission for entering private places, and the Musnad of Ahmad ibn
Hanbal (Beirut: Mu’assat al-Risala, 1933).
C H A P T E R 8
INCOMMENSURABLE
VALUES?
absence of the practice in the social life of that society. The absence of the
concept of privacy as a legal term in Islamic jurisprudence does not entail
the absence of protection for privacy in Islamic law and cultures. Respect
for the privacy of the individual is a complex issue, and one must investigate
many aspects of the legal and cultural makeup of any society before making
a general statement about the degree to which its individuals enjoy their
privacy and autonomy.
Implicit protection of certain liberty interests, such as privacy, raises a
larger point, namely, that the insistence on defining a right (such as the
right to privacy) might lead to more restrictions on that right than more
protection of it. As I indicated in Chapters 2 and 3, many of the freedoms
and rights we think of as modern rights have been accorded individuals in
premodern Muslim societies and may have been granted on a larger scale
without being granted explicitly. If we insist on the exercise of the
comparison of cultures and values, which encompasses many difficulties,
we must be willing to take the challenge of comparing rights and respon-
sibilities in a more comprehensive sense, both those explicitly granted and
exercised and those implicitly granted and exercised. Reasonable and
careful thinkers would find that daunting. It is one of the reasons that
make me believe that no one can seriously claim to possess a perspective
from which to decide on the question of the comparison of sets of values
or value systems.
* * *
INTRODUCTION
1. This was articulated casually, yet concisely and effectively, in his three-hour
In Depth interview on C-SPAN, September 4, 2005.
2. See John Tolan, Saracens (New York: Columbia University Press, 2002).
Tolan provides a lengthy account of medieval Christian perceptions of Islam
from the seventh century.
3. My argument does not intend to establish any essentialized correlation between
the degree of the development of a given society and its capacity to reject influ-
ences from other societies, either in the modern or premodern context. This goes
for the relationship between development and lack of susceptibility to influence
and between lack of development and susceptibility to influence.
4. See, for example, Robert Simon, Ignac Goldziher: His Life and Scholarship as
Reflected in His Works and Correspondence (Leiden: Brill, 1986), 143-57.
Historians of Islam in the West may have theoretically begun to accept the
notion that orthodoxy in Islamic history may not have been as homogenous
as previously assumed.
CHAPTER 1
1. M. M. Shakir, Namat Sa‘b wa Namat Mukhif (Cairo: Dar al-Khanji, 1996),
354–55.
2. Carlo Ginzburg, The Cheese and the Worms: The Cosmos of a Sixteenth Century
Miller, trans. John Tedeschi and Anne C. Tedeschi (Baltimore: Johns Hopkins
University Press, 1992), xvii.
3. Giorgio Agamben, The Idea of Prose, trans. Michael Sullivan and Sam
Whitsitt (Albany: State University of New York Press, 1995), 107. The
original Italian Idea Della Prosa was published in Milan in 1985.
4. Hans Blumenberg, The Legitimacy of the Modern Age, trans. Robert Wallace
(Cambridge, MA: MIT Press, 1983);Laurence Dickey, “Blumenberg and
Secularization: ‘Self Assertion’ and the Problem of Self-Realizing Teleology
in History,” in “Critiques of the Enlightenment” special issue, New German
Critique, no. 41 (Spring–Summer, 1987), 151–65, especially 154.
190 NOTES
CHAPTER 2
1. Hiseinrich Fichtenau, Ketzer und Professoren: Haresie und Vernunftglaube im
Hochmittelalter (München: Verlag C. H. Beck, 1992), 8.
2. The Completion of Radd al-Muhtar, known as Qurrat ‘Uyun al-Akhyar,
by Ibn ‘Abidin’s son Muhammad ‘Ala’ al-Din, printed as Volume 6 of
Ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar (Beirut: Dar Ihya’
al-Turath al-‘Arabi, 1987), 8.
192 NOTES
3. See also Haim Gerber’s treatment of the relationship between jurists and
the state in his book, Islamic Law and Culture 1600–1840 (Leiden: Brill,
1999), 18, 43–70.
4. Norman Calder sets out to contrast Islam and reformed Christianity on the
question of the layperson’s authority to participate in understating their
religion and the sense in which they express their “religiosity.” This contrast,
which I find quite amusing more than anything else, appears in the opening
of his article “‘Uqud Rasm al-Mufti of Ibn ‘Abidin” and includes the fol-
lowing statement: “Only the learned jurist could speak authoritatively, and
not by virtue of his access to the sources, but by virtue of his control of
tradition.” Norman Calder, “’Uqud rasm al-Mufti of Ibn ‘Abidin,” Bulletin
of the School of Oriental and African Studies, University of London 63, no. 2
(2000): 215–28. The above quote is from page 217.
5. For example, see Doris Behrens-Abouseif, Egypt’s Adjustment to Ottoman
Rule: Institutions, Waqf, and Architecture in Cairo 16th and 17th Centuries
(Leiden: Brill, 1994), 69–105.
6. For example, see Haim Gerber, Islamic Law and Culture, 56, 60, 61.
7. Ibid., 52, 65–68.
8. Ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar, vol. 3 (Beirut: Dar
Ihya’ al-Turath al-‘Arabi, 1987), 190.
9. See, for example, Arthur von Mehren, Law in the United States, 2nd ed.
(Cambridge: Cambridge University Press, 2007), 145–46.
10. See, for example, Daniel Crecelius, “Egypt in the Eighteenth Century,” in The
Cambridge History of Egypt, vol. 2, ed. M. W. Daly (Cambridge: Cambridge
University Press, 1998), 59–60.
11. Ibn ‘Abidin, Radd al-Muhtar, 3:418.
12. Ibid., 257.
13. Ibid., Radd al-Muhtar, 3:404. These jurists Ibn ‘Abidin debates include
Biri, whom Ibn ‘Abidin cites and then refers the reader of the Radd to his
al-‘Uqud al-Durriyya fi Tanqih al-Fatawa al-Hamidiyya, to which he refers
as Tanqih al-Fatawa al-Hamidiyya, which is his rearrangement and com-
mentary on the fatawa collections of Hamid al-‘Imadi (1692–1757).
14. Ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar, vol. 4 (Beirut: Dar
Ihya’ al-Turath al-‘Arabi, 1987), 356.
15. Ibid., 4:347–50, especially 349, 350.
16. Ibid., 4:299.
17. Ibid., 3:275.
18. Ibid., 4:299.
19. Ibid., 4:356.
20. Ibid., 3:52.
21. Ibid., 3:52.
22. Ibid., 4:189–191, especially 190.
23. Ibid., 3:142. The status of the individual with no residence permit (the
harbi, who is neither a Muslim resident nor dhimmi, or non-Muslim resident)
is expected to be an exception since their entry is essentially a breach of the
NOTES 193
law. Islamic law allows foreigners to enter into the Muslim state for any
acceptable objective (studying, doing business, etc.); therefore, if an indi-
vidual fails to legalize their presence in the Muslim state, that makes their
presence an exception to the rule.
24. It may be argued that this is a specific application of the general principle of
“the presumption of innocence” based on the istishab (presumption of
continuity) reasoning, but juristic language, in this context (even a special case
within the laws of hudud or major crime, such as adultery and robbery), makes
me believe that it is an added cautionary presumption in the particular case of
apostasy, given its nature and severe punishment.
25. Ibn ‘Abidin, Radd al-Muhtar, 3:298.
26. Ibid., 3:285.
27. Ibid., 3:310.
28. Ibid., 5:235.
29. Ibid., 5:233.
30. Ibid., 5:233. In a note on a statement in Haskafi’s text that homosexual
pleasure will not be found in paradise, Ibn ‘Abidin addresses the question of
whether homosexuality is prohibited in this world for its negative effect on
reproduction and the undesired contact with excrement or for being innately
undesirable. Ibn ‘Abidin reports a debate on the matter between Abu Ali Ibn
al-Walid al-Mu‘tazili and Abu Yusuf al-Qazwini (reported by Suyuti [d.
1505] from Ibn ‘Aqil al-Hanbali) without commenting on the value of the
arguments presented in the debate. Ibn al-Walid, in the debate, argues that
there is no reason to assume that homosexual pleasure would be excluded
from heavenly award, since its unacceptable qualities (mafsada) would not
be present in heavenly life. The reason for the prohibition of homosexual sex is
twofold, he argues. The first is that it negatively affects human reproduction,
and the second is that it involves the undesired source of human waste
(mahallan li-l-adha). That is why, Ibn al-Walid continues, wine is allowed in
paradise, since its negative effects of altering the mind and leading to harmful
behavior will cease to be present in paradise. Abu Yusuf al-Qazwini countered
that mere attraction by males to males is, by itself, a deficiency and cannot be
endorsed for an innate quality (qabih fi nafsih), since this locality (meaning the
human rear) was not created for coition, and that is why homosexual sex was
not allowed in any revealed law, while wine is not like that. Abu Yusuf also
continued that the rear is the source of excrement, and paradise does not
include such things. Ibn al-Walid replied that deficiencies are defined as those
that include harm, which is not present in paradise, and one can see that only
pleasure remains. Ibn ‘Abidin, Radd al-Muhtar, 3:156.
31. Ibid., 5:233–39.
32. Ibid., 5:380.
33. Ibid., 5:272–73.
194 NOTES
CHAPTER 3
1. Raphael Patai, Ignaz Goldziher and His Oriental Diary (Detroit: Wayne
State University Press, 1987), 150. The fact that one of ‘Abbasi’s ancestors
was a non-Muslim must have intrigued some Western scholars, but instead
of identifying ‘Abbasi’s grandfather as the convert to Islam, some sources
pointed to Muhammad al-Amin (‘Abbasi’s father) as a man who did not
grow up as a Muslim, and, instead of pointing to a conversion from Coptic
Christianity to Islam, ‘Abbasi’s father was made into a rabbi.
2. ‘Umar Rida Kahhala, Mu‘jam al-Mu’allifin: Tarajim Musannifi al-Kutub
al-‘Arabiyya, vol. 9 (Damascus: Matba‘at al-Taraqqi, 1960), 266.
3. ‘Umar Rida Kahhala, Mu‘jam al-Mu’allifin, 9:266; 10:121–22; Hans-Georg
Erbert, “Die Letzte Krankheint: Mohammed al-‘Abbasi al-Mahdi (gest.
1897) and die Reform der ägyptischen Rechsordnung,” Der Islam 81, no. 2
(October 2004): 306.
4. ‘Umar Rida Kahhala, Mu‘jam al-Mu’allifin, 1:4.
5. Edward W. Lane, The Manners and Customs of Modern Egyptians (London:
J. M. Dent; New York, E. P. Dutton, 1908), 118–21.
6. Jurji Zaydan, Tarajim Mohair al-Sharq fi al-Qarn al-Tasi‘‘Ashar, vol. 2
(Beirut: Dar maktabat al-Hayah, 1970), 250–55.
7. Khayr al-Din al-Zirikli, al-A‘lam, vol. 7 (Beirut: Dar al-‘Ilm lil-Malayin,
1987), 301.
8. Muhammad al-Abbasi al-Mahdi, al-Fatawa Mahdiyya fi al-Waqa’i‘ Misriiyya,
vol. 1 (Cairo: al-Matba‘ah al-Amiriyya, 1883), 3.
9. Raphael Patai, Ignaz Goldziher and His Oriental Diary, 24.
10. Rudolph Peters identifies the Fatawa as ‘Abbasi’s only independent work,
while some scholars mention two other works by him. At any rate, there is
no question that the Fatawa are the most well-known of ‘Abbasi’s works.
See Rudolph Peters, “Muhammad al-‘Abbasi al-Mahdi (d. 1897), Grand
Mufti of Egypt, and His Fatawa Mahdiyya,” Islamic Law and Society, 1
(April 1994): 73 and Ahmad Muhammad ‘Awf, al-Azhar fi Alf ‘Am (Cairo:
Majma‘ al-Buhuth al-Islamiyya at al-Azhar, 1970), 125. The two cited works
by ‘Abbasi are Risala fi Tahqiq ma-istatar min Talfiq (“A Study of Subtle
Forms of Inappropriate Eclecticism in Jurisprudence”) and Risala fi Mas’alat
al-Haram (lit. A Study of the Question of the Oath by what is Sanctified
(divorce).)
11. Peters, “Muhammad al-‘Abbasi al-Mahdi,” 66–82.
12. Ibid., 66.
13. Hans-Georg Erbert, “Die Letzte Krankheint,” 303–51.
14. Ibid., 350.
15. al-‘Abbasi al-Mahdi, al-Fatawa al-Mahdiyya fi al-Waqa’i‘ al-Misriyya,
1:299–300. Date of the opinion: 23rd of Rabi‘ II of the year 1269 AH (1853
CE).
16. ‘Abbasi clearly states that, in an answer to one of the questions, he reports
the following in his fatawa collection: “Question: Regarding a man who
NOTES 195
CHAPTER 4
1. For an account of the process by which the Sunna came to be considered
the second source of law, see Wael Hallaq, The Origins and Evolution of
Islamic Law (Cambridge: Cambridge University Press, 2004), especially chap.
2–6.
2. I am aware of a possible challenge to this statement based on the theoretical
controversies about whether ‘urf is technically a source of law in the eye of
legal theorists. However, based on my approach to legal maxims as an integral
part of late legal theory (as I explained in my Structural Interrelations of
Theory and Practice in Islamic Law: A Study of Six Works of Islamic
Jurisprudence [Leiden: Brill, 2006]), I find the insistence on usul al-fiqh
formulas in this context unnecessary.
3. Robert Gleave and Eugenia Kermeli, eds., Islamic Law: Theory and Practice
(London: IB Tauris, 2001), 49–77.
4. An old, similar argument can be found in Kant’s essay “On the Common
Saying: ‘This may be True in Theory, but it Does not Apply in Practice’.”
In Immanuel Kant, Practical Philosophy, translated and edited by Mary J.
Gregor (Cambridge: Cambridge University Press, 1996), 279–81, 296–304.
The argument is that diaprity between theory and practice point to the
inadequacy of theory rather than an inevitable disparity between theory and
196 NOTES
27. Ibn ‘Abidin’s treatise, Shifa’ al-‘alil wa ball al-ghalil fi hukm al-wasiyya bi-l-
khatmat wa-l-tahalil, published in Majmu‘at Rasa’il Ibn ‘Abidin, 1:153.
28. Charles Taylor, A Secular Age (Cambridge, MA: Harvard University Press,
2007), 25–33.
29. Ibid., 1, 3.
30. Article 99 of Lai’hat Tartib al-Mahakim al-Shar‘iyya (Shari’a Court
Procedures) made a claim to marriage without a supporting document
unsubstantial, and the Egyptians applied this principle starting August 1,
1931. Lai’hat Tartib al-Mahakim al-Shar‘iyya (Cairo: al-Matabi‘ al-Amiriyya,
1987).
31. Nathalie Bernard-Maugiron et al., eds., Egypt and Its Laws, Arab and Islamic
Laws Series 22 (Leiden: Kluwar Law International, 2002), 26.
32. Ibn Taymiyya, Iqtida’ al-Sirat al-Mustaqim Mukhalafat Ashab al-Jahim
(Cairo: Dar al-Sunna al-Muhammadiyya, 1950), 3, 6, 24, 47.
33. Valentine M. Moghadam, “Islamic Feminism and its Discontents: Toward
a Resolution of the Debate,” Signs, 27, no. 4 (2002): 1135–71.
34. Ibid., 1163.
35. Ibid., 1164.
36. See, for example, D. J. Galligan, Law in Modern Society (Oxford: Clarendon,
2007), 2, 4, 8, 70–80, 128–30, 213–20. The focus of this book is law in a
modern, developed society, but the few moments of contrast between this
law of modern sophistication and other laws (e.g., 70–75) makes the point
that underdeveloped or traditional legal systems would enjoy more fluidity
and less integrity as distinct institutions and systems of rules.
37. See a discussion of folk law and its qualities in Allison Dundes Renteln et
al., eds., Folk Law: Essays in the Theory and Practice of Lex non Scripta (New
York: Garland, 1994), 3.
38. Ibn ‘Abidin’s treatise Shifa’ al-’alil, published in the same collection we
mentioned earlier. Majmu’at Rasa’il Ibn ‘Abidin, 1:153.
CHAPTER 5
1. Muhammad Rawwas Qal‘a-Ji, Mawsu‘at Fiqh Abi Bakr al-Siddiq
(Damascus: Dar al-Fikr, 1983), 85–86.
2. Encyclopedia of Islam II, al-Ridda, vol. 12 (Leiden: Brill, 2000), 692–95.
3. Before the Prophet’s conquest of Mecca in 630, the option of joining the
Muslim community was given in armed conflict, since the Muslim com-
munity enjoyed a limited territorial sovereignty in Madina. This situation
seemed to have been repeated only during the reign of Abu Bakr. After the
latter secured most of Arabia as a Muslim land and the Muslim land was
bound only to expand, the requirement to join the Muslim community
became unnecessary.
4. Muhammad Rawwas Qal‘a-Ji, Mawsu‘at Fiqh Abi Bakr al-Siddiq, 88.
5. Jane D. McAullife, ed., “Apostasy,” in Encyclopedia of the Qur’an, vol. 1
(Leiden: Brill, 2001), 119–22, especially 122. See Wael Hallaq’s summary
198 NOTES
of the problem of the variance between the Qur’an’s attitude about apostasy
(which emphasized otherworldly punishment for apostasy) and the state-
ments attributed to the Prophet about punishing apostates in this world.
6. Mawardi, Kitab al-Hudud min al-Hawi al-Kabir, ed. Ibrahim Ibn ‘Ali
Sandaqji, vol. 2 (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 1077.
7. Ibid., 2:1075.
8. Ibid., 2:1078–79.
9. Ibid., 2:1088–94.
10. Muhammad Rawwas Qal‘a-Ji, Mawsu‘at Fiqh Abi Bakr al-Siddiq, 88.
11. Muhammad Rawwas Qal‘a-Ji, Masu‘at Fiqh ‘Umar Ibn al-Khattab (Kuwait:
Maktabat al-Salah, 1981), 230.
12. Ibid., 230.
13. Ibid., 235.
14. Ibid.
15. Ibid., 231.
16. Ibid.
17. Ibid., 233.
18. I do not aim to develop a defense of equating these, nor do I think that a
clear distinction can be made between them as Butterworth attempted
based on a forced reading of Ibn Khaldun’s treatment of the four classes of
war. See, for example, Michael Bonner, Jihad in Islamic History: Doctrines
and Practice (Princeton: Princeton University Press, 2006), 6.
19. Majid Khadduri, The Islamic Law of Nations (Shaybani’s Siyar) (Baltimore:
Johns Hopkins University Press), 75.
20. Ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar, vol. 3 (Beirut: Dar
Ihya’ al-Turath al-Arabi, 1987), 253.
21. Majid Khadduri, The Islamic Law of Nations, 158–60. The harbi husband
of a Muslim woman living in dar al-Islam can be given an aman by his wife.
22. Abu Zayd Abdullah ibn ‘Umar al-Dabbusi, Ta’sis al-Nazar (Cairo: Zakariyya
Ali Yusuf, 1972).
23. Mahmud ibn Ahmad Zanjani, Takhrij al-Furu‘ ‘ala al-Usul (Damascus:
Mu’assasat al-Risalah, 1987), 277–78.
24. Harfiyah Abdel Haleem and others, eds., The Crescent and the Cross: Muslim
and Christian Approaches to War and Peace (New York: St. Martin’s Press,
1998), 126.
25. Alan Watson, trans., The Digest of Justinian: Institutes 49.15.5 (Philadeplphia:
University of Pennsylvania Press, 1985).
26. The Ciceronian rebuttal of Hortestius view that the study of philosophy has
no social value and does not contribute to happiness is now lost. The text is
from Augustine, Confessions, trans. Henry Chadwick (Oxford: Oxford
University Press, 1998), 39.
27. Norman Kretzmann, Anthony Kenny, and Jan Pinborg, eds., The Cambridge
History of Later Medieval Philosophy (Cambridge: Cambridge University
Press, 1982), 705. Note that the quote from Gratian’s Decretum is cited on
707; see also 708.
NOTES 199
28. Whether or not it represents a passing stage in Dante’s thinking, the argument
he makes reflects a ready, if detailed, internal sense of the importance of
empire. Charles Till Davis also argues that “the longing for the restoration
of a universal empire, and its necessity for the attainment of human happiness,
are also a central theme of the Comedia.” Rachel Jacoff, ed., The Cambridge
Companion to Dante (Cambridge: Cambridge University Press, 2007), 258.
29. Dante, Monarchy, trans. and ed. by Prue Shaw (Cambridge: Cambridge
University Press), 13.
30. See Peter Green, Alexander of Macedon 356–323: A Historical Biography
(Berkeley: University of California Press, 1991), 299, 307, 318; Richard
Tuck, The Rights of War and Peace: Political Thought and the International
Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 17,
23–24, 32, 34, 36, 38; Richard Tuck, Philosophy and Government 1572–1651
(Cambridge: Cambridge University Press, 1993), 169–79; Norman
Kretzmann, Anthony Kenny, and Jan Pinborg, eds., The Cambridge History
of Later Medieval Philosophy, 705; and Alan Watson, trans., Justinian,
Institutes: 1.2: Concerning Natural Law, the Law of Nations, and the Civil
Law (Philadelphia: University of Pensylvania Press, 1985).
31. Zanjani, Takhrij, 98–101.
32. Richard Tuck, The Rights of War and Peace, 12.
CHAPTER 6
1. Rudolph Peters and Gret De Vries, “Apostasy in Islam,” Die Welt des Islams
17 (1975–77): 26–27.
2. Frank Griffel, “Toleration and Exclusion: Al-Shafi’i and al-Ghazali on the
Treatment of Apostates,” Bulletin of the School of Oriental and African
Studies, University of London 64, no. 3 (2001): 341–42.
3. Ibid., 342–54.
4. Muhammad ibn Muhammad al-Hattab, Mawahib al-Jalil li-Sharh Mukhtasar
khalil, vol. 6 (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 279.
5. Al-Mawwaq’s Commentary on Khalil’s Mukhtasar, published with al- Al-
Hattab’s Commentary, vol. 6 (Beirut: Dar al-Kutub al-‘Ilmiyya 1995), 279.
While there is no evidence that any systematic chasing of the Isma‘ilis, who
were considered zanadiqa by Ghazali, took place, we have sufficient evidence
that the term zanadiqa was applied to the Druze by Ibn ‘Abidin (d. 1836).
6. See Mark Lecker, “Ridda,” in Encyclopedia of Islam II, vol. 12 (Leiden: Brill,
2000), Supplement, 692–95. The exact beliefs of these tribes and the nature
of their agreements with the Prophet Muhammad before his death have
been contested before and after Shafi‘i’s Umm. Modern scholars are now
catching up to the realization that despite the official terming if these wars
as hurub al-ridda (or the apostasy wars), Muslim jurists and historians have
debated the basis for this term and held different views on the matter.
7. The Greek apostasiva (defection) consists of apo (apo, meaning apart)
and stasi" (stasis, standing).
200 NOTES
8. Before the Prophet’s conquest of Mecca in 630, the option of joining the
Muslim community was given in armed conflict, since the Muslim com-
munity enjoyed a limited territorial sovereignty in Madina. This situation
seemed to have been repeated only during the reign of Abu Bakr. After the
latter secured most of Arabia as a Muslim land, and the Muslim land was
bound only to expand, the requirement to join the Muslim community
became unnecessary.
9. Muhammad Rawwas Qal‘a-Ji, Mawsu‘at Fiqh Abi Bakr al-Siddiq (Damascus:
Dar al-Fikr, 1983), 88.
10. See Wael Hallaq’s summary of the problem of the variance between the
Qur’an’s attitude about apostasy (which emphasized otherworldly punishment
for apostasy) and the statements attributed to the Prophet about punishing
apostates in this world. Wael Hallq, “Apostasy” in Encyclopedia of the Qur’an,
ed. Jane D. McAullife, vol. 1 (Leiden: Brill, 2001), 119–22, especially 122.
11. Mawardi, Kitab al-Hudud min al-Hawi al-Kabir, ed. Ibrahim Ibn ‘Ali
Sandaqji, vol. 2 (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 1077.
12. Ibid., 2:1075.
13. Ibid., 2:1078–79.
14. Ibid., 2:1088–94.
15. See Chapter 5.For Abu Hanifa [d. 767], protected people (ahl al-dhimma)
are allowed to practice what they believe, and for his two students [Abu
Yusuf (d. 798) and Muhammad al-Shaybani (d. 805)], they are not given a
free pass to apply their law (la yutrakun), and this has applications. One of
these [applications] is that, when a dhimmi (a protected male non-Muslim
resident of a Muslim state) marries a dhimmiyya (a protected female non-
Muslim resident of a Muslim state) while she is in the middle of the ‘idda
(a period that must pass after the termination of her previous marriage and
before she remarries, according to Islamic law), they are left alone (yutrakan)
[i.e., allowed to remain married] in Abu Hanifa’s view, while for the two
students, these two people must be separated (yufarraq baynahuma). Another
one of these [applications] is that, if a dhimmi marries a close relative (where
this would be incestuous in Islam), they should not be separated [i.e., should
be allowed to remain married] unless they both seek a court decision by a
Muslim judge, in his view [Abu Hanifa’s], while for them [the two students],
if only one of them resorts to a Muslim judge, the judge has the authority
to separate them [annulling their marriage]. Yet another one of these
[applications] is that, if a Magian/Manichean (majusi) married his mother
and consummated the marriage and then converted to Islam, and was called
an adulterer by another person, the latter must be punished for that, since—
according to their religion—they were allowed to do what they did (kana
yuqarran ‘ala dhalik). For the two students [Abu Yusuf (d. 798) and
Muhammad al-Shaybani (d. 805)], the person who called the man an adulterer
should not be punished for what he said. Another [application] is that, if a
Manichean marries a female relative (whom he cannot marry under Islamic
law), he owes her alimony, because the two [spouses] accept that relationship.
NOTES 201
24. Sarah Stroumsa, “The Blinding Emerald: Ibn al-Rawandi’s Kitab al-
Zumurrud,” Journal of the American Oriental Society 114, no. 2 (April–June,
1994), 181–84; David Thomas, Early Muslim Polemic against Christianity:
Abu ‘Isa al-Warraq’s Against the Incarnation (Cambridge: Cambridge
University Press, 2002), 6–9. The Syrian poet Abu al-’Ala’ al-Ma‘arri (d.
1057) expressed another form of skepticism, amounting to a rejection of
many of the claims of revelation and an assertion that “power” imposes
itself as the only reality in the world. Ma‘arri writes: “These superstitions,
sacred books and creeds/These cults and myths and other noxious weeds/So many
lies are crowned in every age/While truth beneath the tyrant’s heel still bleeds,”
Abu al-‘Ala’ al-Ma‘arri, The Quatrains of Abu al-‘Ala’, trans. Amn Rihani
(New York: Doubleday, 1903), 59.
25. In the Western philosophical traditions, skepticism, as a systematic position, is
defined as either a commitment to the impossibility of knowledge or the
inability to decide whether knowledge is possible (Pyrrhonian and academic
skepticism). Richard H. Popkin, The History of Skepticism from Erasmus to
Descartes (New York: Humanities Press, 1964), ix–xi. Farabi seems to provide
a different form of skepticism that neutralized the universal claims of
religion without rejecting its partial validity for certain people.
26. Al-Fatawa al-Bazzaziyya, vol. 6 (Cairo: al-Maktabah al-Maymaniyya, 1892;
published at the margins of al-Fatawa al-Hindiyya), 319.
27. Ibid., 6:320.
28. Ibid., 6:321.
29. Frank Griffel, “Toleration and Exclusion: Al-Shafi‘i and al-Ghazali on the
Treatment of Apostates,” Bulletin of the School of Oriental and African
Studies, University of London 64, no. 3 (2001): 339–54.
30. Shafi‘i, al-Umm, ed. Muhammad Zuhri al-Najjar, vol. 6 (Cairo: Maktabat
al-Kulliyyat al-Azhariyya, 1961), 156–57.
31. See Shafi‘i, al-Umma, 6:156 for arguments from the Qur’an, and 167 for a
precedent from ‘Umar’s time.
32. Ibid., 6:158.
33. Ibid., 6:164.
34. Ghazali, Faysal at-Tafriqa, 175–78.
35. Ibid., 192.
36. Ghazali, Fadaih al-Batiniyya, 146–47.
37. Ibid., 147.
38. Ibid., 160–63.
39. Ibn Taymiyya, Majmu‘ al-Fatawa, ed. ‘Abd al-Rahman al-Najdi and
Muhammad al-Najdi, vol. 35 (Cairo: Dar al-Rahma, 1961–67). The
purported treatment occupies pages 99–207.
40. Khaled About El Fadl, Rebellion and Violence in Islamic Law (Cambridge:
Cambridge University Press, 2001), 271–73.
41. Ibn Taymiyya, Majmu‘ al-Fatawa, 35:100–102.
42. Ibid., 35:108–19.
43. Ibid., 35:122–44.
NOTES 203
CHAPTER 8
1. Maria Todorova’s summary of Carl Heinrich Becker’s vision, which he
presents in Vom Werden und Wesen der islamischen Welt: Islamstudien, vol.
1 (Leipzig: Verlag Quelle & Meyer, 1924), 16–39, in her lecture
“Historical Legacies between Europe and the Middle East,” supported by
the Fritz Thyssen Foundation and published by the Europa im Nahen
Osten; Der Nahe Osten in Europa program and the Wissenschaftskolleg in
Berlin in 2007. See, particularly, pages 58–62 or 28–33 for a German trans-
lation.
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206 BIBLIOGRAPHY
Abbasi (d. 1897), 6, 21, 22, 24, 41, Ibn al-Bazzaz al-Kardari (d. 1424),
58, 65–80, 179, 194 157, 165
Ibn ‘Abidin (d. 1836), 6, 21, 22, 24, Benedict XVI (pope), 34–36, 191
27, 41, 43–63, 83, 84, 86–102, Bergstr
104, 107, 108, 110, 111, 113,
114, 158, 159, 164, 165, 179 Cairo, 13, 55, 59, 66, 68, 70
Africa, 118 Carl Heinrich Becker (d. 1933), 183,
Ahmad ibn Hanbal (d. 856), 56, 58, 184, 203
167 Cicero (d. 43 BCE), 141–43
‘A’isha bint Muhammad ibn ‘Abd a- Dabbusi (d. 1036), 132, 154
Hadi (d. 1457), 37 Damascus, 6, 21, 43, 45, 49, 56, 59,
Alberico Gentili (d. 1608), 143 62, 87
Aleppo, 56 Dante (d. 1321), 143, 199
Alexander of Macedon (d. 323 BCE), Darazi (d. 1020), 163
140, 141 divorce, 6, 70–80, 84, 106–9, 111,
apostasy, 7, 9, 22, 26, 42, 60, 61, 71, 114, 171, 194, 195
72, 124, 125, 145, 147–62, khul‘, 73, 76, 106, 108, 109
164–68, 185, 193, 198–201
ridda, 124, 151, 199, 201 Edward W. Lane, 66
Ibn ‘Aqil (d. 1119), 193 Egypt, 6, 13, 21, 23, 38, 39, 43, 49,
Aristotle (d. 322 BCE), 25, 143 50, 53, 63, 65–68, 80, 84, 105,
Asia, 141 108, 109, 128, 138, 176
Augustine (d. 430), 142 Europe, 21, 27, 34–36, 52, 118, 138,
Azhar (mosque school), 66, 67 183, 203
Ibhrahim ibn Muhammad al-Halabi Ottoman, 34, 35, 43, 49, 50, 52,
(d. 1549), 47 138, 164
India, 39, 104
Portugal, 138
Abu ‘Isa al-Warraq (ninth century),
157 Qadi Khan (d. 1196), 47
Quduri (d. 1037), 47
Abu Ja‘far al-Hinduwani (d. 973), 47
Jahiz (d. 868), 18, 155 Ibn al-Rawandi (ninth century), 157
jihad, 8, 118, 119, 127, 129, 134–37, Rome, 140, 142
139, 146. See also war Rubayyi‘ bint Mu‘awwidh
Jurji Zaydan, 66 (d. 665), 38
Ibn Kathir (d. 1373), 39
Ibn Salama (d. 1019), 33
Madina, 33, 123, 125, 151, 160, 197, Al-Sarakhsi of al-Mabsut
200 (d. 1097), 47
Mahmud Shakir (d. 1996), 18, 19, Al-Sarakhsi of al-Muhit (d. 1149), 47
27, 28 Schwally (d. 1919), 33
Malik ibn Anas (d. 795), 123, 155, Shafi‘i (d. 820), 53, 58, 69, 120, 125,
166 126, 133, 134, 140, 141, 145,
Mamluk, 43, 48, 50, 52, 53, 138 150, 152, 158–60, 166, 168
Manuel II Palaeologus (d. 1425), 35 Shanawani (d. 1818), 66
INDEX 213
Shaybani (d. 805), 9, 47, 120, 129, ‘Umar ibn al-Khattab (d. 644), 53,
145, 165 125–29, 144, 161, 178, 202
Spain, 86, 138
Suyuti (d. 1505), 30–33, 193 Wahhabi/Wahhabism, 4, 45, 46, 47,
Syria, 38, 39, 43, 50, 53, 56, 62, 138, 48, 164
161, 163 Walter Benjamin (d. 1942), 47
war, 4, 7–9, 14, 22, 35, 42, 117–46,
Tabari (d. 923), 33, 37, 39 150–52, 161, 162, 168, 198, 199.
Tahawi (d. 933), 47 See also Jihad
Ibn Taymiyya (d. 1328), 110, 149,
158, 159, 161–63, 167, 168 Abu Yusuf (d. 798), 145, 200, 201