An Introduction to Islamic Law (42 page)

Substantive Shari
a law gave direction and method to, but generally did not coercively superimpose itself upon,
social morality. Because the
qadi
was an immediate product of his own social and moral universe, he was constituted – by the very nature of his function – as the agency through which the so-called law was mediated and made to serve the imperatives of social harmony. Procedurally, too, the work of the court appealed to pre-capitalist and non-bureaucratic social constructions of moral integrity that sprang directly from the local site of social practice. The institution of witnessing would have been meaningless without local knowledge of moral values, custom and social ties. Without such knowledge, the credibility of testimony itself – the lynchpin of the legal process – would have been neither testable nor demonstrable. Rectitude and trustworthiness, themselves the foundations of testimony, constituted the personal moral investment in social ties. To fail their test was to lose social standing and the privileges associated with it. Thus, the communal values of honor, shame, integrity and socio-religious virtue entered and intermeshed with legal practice and the prescriptive provisions of the law
.

Furthermore,
legal pluralism – a pervasive and fundamental feature of the Shari
a – not only was a marker of a strong sense of judicial relativism but also stood in stark contrast with the spirit of codification, another modern means of homogenizing the law and, consequently, the subject population. Nor was Shari
a’s substantive law limited to being merely a mechanical and interpretive manifestation of divine will. It was also a socially embedded system, a mechanism, and a process, all of which were created for the social order by the order itself.

From this perspective, then, religious law operated in a dual capacity: first, it provided an intellectual superstructure that culturally positioned the law within the larger tradition that conceptually defined Islam, thereby constituting it as a theoretical link between metaphysics and theology on the one hand, and the social and physical/material world on the other; and second, it aimed discretely at the infusion of legal norms within a given social and moral order, an infusion whose method of realization was largely mediation rather than imposition. The Muslim adjudicatory process was therefore never remote from the social world of the disputants, advocating a moral logic of distributive justice rather than a logic of winner-takes-all. Restoring parties to the social roles they enjoyed prior to the legal process called for moral compromise, where each party was permitted to retain a partial gain. Preserving social order presupposed both a court and a malleable law that is acutely attuned to the system of social and economic cleavages. For despite the fact that cleavages – including class and other prerogatives – constantly asserted themselves, morality was the lot and indeed the right of everyone
.

Moreover, in the world of practice, religious law did not constitute a totalizing statement of what
must
be done, nor was it engaged in transforming reality or managing or controlling society. Attributing to this law roles of control and management would be a distinctly modern misconception, a back-projection of our notions of law as an etatist instrument of social engineering and coercion. This misconceived attribution perhaps explains why modern scholarship has for long insisted on the “divorce” between “Islamic law” and social and political realities since the early ninth century, saving only for the areas of family law and, obviously, ritual. What this scholarship took to be a divorce was really a state of affairs in which the legal system allowed for the mediation of the agency of custom and social morality. In this picture, flexibility and accommodation were not taken for their constructive values, but were construed as signs of inefficiency, weakness and decline. It would be a mistake then to equate the Shari
a and its so-called law with
law
as we conceive and practice it in our world of modernity.

Shari
a law was a process of explicating doctrine, an intellectual engagement to understand all the possible ways of reasoning and interpretation pertaining to a particular case. It was not the case that was of primary importance, but rather the principle that governed a group of cognate cases. On balance, the particular cases were more illustrative than prescriptive. Individual opinions, therefore, did not constitute law in the same sense in which we now understand the modern code, regulation or “case law,” nor was it the “legal effect” of stating the will of a sovereign that the Muslim jurists intended to accomplish in any way. Their law was an interpretive and heuristic project, not “a body of rules of action or conduct prescribed by [a] controlling authority.”
¹
It was not a “solemn expression of the will of the supreme power of the state,”
²
for there was – as we repeatedly said – no
state
in the first place. The religious law was the intellectual work of private individuals, jurists whose claim to authority was primarily based on their erudition, legal knowledge, and religious and moral distinction. It was not political in the modern sense of the word, and it did not involve coercive or state power. The jurists were civilians and as such commanded neither armies nor troops. Nor was the Shari
a subject to the fluctuations of legislation, reflecting the interests of a dominant class – as the modern state is. In its stability, but without rigidity, the Shari
a represented an unassailable fortress within which the rule of law compared very favorably to its much-vaunted modern counterpart.

Furthermore, Shari
a’s law was not an abstraction, nor did it apply equally to “all,” for individuals were not seen as indistinguishable members of a generic species, standing in perfect parity before a blind lady of justice. Each individual and circumstance was deemed unique, requiring
ijtihad
that was context-specific. This explains why Islam never accepted the notion of blind justice, for it allowed the rich and the powerful to stand on a par with the poor and the weak. In the Shari
a, the latter had to be protected, and their disadvantage was turned into an advantage in the Shari
a courts of law. This in part explains why there was no point in
stating
the law in the way that it is recorded in today’s legal codes. Rather, the law was an
ijtihad
ic process, a continuously renewed exercise in interpretation. It was an effort at mustering principles as located in specific life-situations, requiring the legists to do what was right at a particular moment of human existence. Even in its most detailed and comprehensive accounts, the law was mostly a juristic guide that directed the judge and all legal personnel on the ground to resolve a situation in due
consideration of the unique facts involved therein. As a fully realizable and realized worldly experience, Islamic law was not fully revealed unto society until the principles meshed with social reality and until the interaction of countless social, moral, material and other types of human relations involved in a particular case was made to come full circle. In other words, Islamic law is not that found in the books of the jurists, but rather the outcome of a malleable and sensitive application of rules in a complex social setting. To know what Islamic law was, therefore, is to know how actual Muslim societies of the past
lived
it; but most certainly it is not merely the law as abstracted in the books of jurists.