By Cem Tecimer
Abstract: Joseph Lowry questions whether the Qurʾān can be Read as a Law Book. Lowry argues that the Qur’ān is a text full of literary references, often cannot be read as imposing obligations onto its readers, and varies in its choice of legal form and vocabulary, all of which prevent it from being read simply as a legislative textbook.
Source: Reading the Qur’an as a Law Book Yale Law School Occasional Papers, Paper 13 (2015). See also the lecture, available at: http://yalelaw.mediacore.tv/media/reading-the-quran-as-lawbook-joseph-lowry.
In this paper, Lowry challenges the assumption that the Qurʾān could easily be read as a legislative text. In particular, he identifies three prominent features of the Qurʾān that complicate reading it as a law book: (1) “its literary form;” (2) “its ambivalence toward the imposition of legal obligations;” and (3) “its variation in legal form and vocabulary across different suras.”
To support his first claim that the Qurʾān is replete with literary features, Lowry draws attention to repetition, assonance, and end-rhyme of its verses. These features are constantly employed throughout the text and suggest that a primary purpose of the Qurʾān might have been performance before audiences, quite similar to a literary text.
Further, despite containing recurring ideas about law and duties, overall, the text of the Qurʾān can be said to be ambivalent about imposing duties that govern conduct. First, the text is full of many other themes alongside relatively minor references to law and duties, such as narratives, short prayers, and historical episodes – including some episodes that concern Jewish law. Second, the Qurʾān mostly speaks of general moral duties that one should perform as opposed to specific legal obligations. Third, in opposition to the burdens of law and of imposed duties, unburdening and exceptions to liability seem to pervade the text. This latter feature again serves to undermine the idea that the entire text could be read as a legal code full of legal impositions.
Finally, Lowry turns to specific commandments of the Qurʾān and considers some specific examples. Looking at the Qurʾān’s references to the Decalogue (the Ten Commandments), Lowry shows that some of these references are “merely allusive” – not meant to be precise references aimed at governing conduct. Second, in the text typically thought to regulate a certain part of the ḥajj pilgrimage in Mecca that Muslims complete once in their lifetimes (sa’y), Lowry reinterprets the text to show that obligations long thought to have been express conduct-governing commandments might as well be read as mere permissions (non-prohibitions). Third, looking at the Qurʾānic text to identify the duty of prayer, Lowry again contends that multiple uses of the word prayer throughout the text for varying purposes might suggest that some references to prayer can be read as “general injunctions [to pray]” instead of specific legal obligations.
In the end, Lowry notes that, despite some very specific legal stipulations in the text (such as those on inheritance), in general, reading the Qurʾān as a legislative text is a complicated task. It is, he contends, a task in which jurists of the early 8th century engaged to create a whole jurisprudence of Islamic law.
(i) Qurʾān: as a law book (p. 3); the idea of “Qur’anic law making” (p. 3); contrast between Meccan and Medinan suras, the latter being more “legislative” in content (pp. 4-5); Qurʾān’s emendation (p. 4, footnote 2); how the text generally and in an aspirational tone (as opposed to specifically imposing a legal duty) speaks of ‘amilū al-ṣālihāt (good deeds) (p. 7); Qurʾānic reference to Jewish law and Jewish dietary laws, where these laws are described as punitive legislation (p. 8); Qurʾānic retaliation / lex talionis as well as Jewish retaliatory laws (p. 9); the idea of Qurʾān being revealed to make good things, al-tayyibāt (p. 10); how the text speaks of hardship and ease, ʿusr and yusr (p. 10); how Qurʾān speaks of khaffafa (to lighten), lā junāḥ (no sin/liability), ḥaraj (exception) as evidence to its unburdening tone (pp. 11-12); how Qurʾān is not “hyper-legislative” especially with regard to its references to how in certain dietary matters, ban on usurious interest and certain incestuous marriage; the Qurʾān allusions to the biblical Ten Commandments and how merely allusive in general they are (pp. 14-16); how the sa’y (processing between two hills during the Hajj) can be read not as a strict obligation but merely as a permission of continuing a pagan ritual, further evidencing the fact that the Qurʾān does not specifically regulate human conduct as much as it is thought to do (pp. 16-17); how Qurʾānic vocabulary about prayer varies with a multitude of words employed at various parts of the text (such as sabbaha, dhakara, istaghfara, da’ā, qāma, sajada, raka’a, kharra and tahajjada – for these terms see p. 19) suggesting that the parts of the Qurʾān on prayer may not all be legislative but rather “general injunctions to the frequent performance of generally pious acts” (pp. 18-20).
(ii) Sīra: do not depict the Prophet as reciting the suras “in a liturgical setting” (p. 5).
(iii) Islamic law: how “the seeds of Islamic law were sown” after “the closure of the Qur’anic text” and the rise of Islamic scholars – during the early 8th century (p. 24).
(iv) Islamic criminal law: “Qur’an’s penal provisions” regarding brigandage, unlawful sexual contact, marital recalcitrance (nushūz) and how there are exceptions to liability (illā alladhīna tābū – “except those who repent”) and immunities from legal proceedings (lā sabīl ‘alā – “one may not proceed against”) (pp. 12-13).
(v) Islamic finance law: ban on usurious interest and how the Qur’ān dictates that pre-Qurʾānic law is applicable in the sense that the “illā mā qad salafa – except for what has already been done” rule prevails – thus proving that the Qur’an cannot be regarded as “hyper-legislative” with its partial condoning of the previous legal order (p. 13).
(vi) Islamic family law: ban on certain incestuous marriages and how, similar to ban on usurious interest, the illā mā qad salafa principle applies (p. 13).
(vii) Islamic dietary law: and how the illā mā qad salafa principle applies (p. 13).
(viii) Islamic inheritance law: some parts of the Qurʾān such as the part on inheritance laws “point to a dense web of legislation,” proving that legislation is nevertheless still a theme of the Qurʾānic discourse (p. 22).