Law in Action, in the Peripheral Vision of the Sources

In my last post I referenced Jack Tannous’s metaphor of “dark matter,” which draws our attention to the scattered traces of the vast majority of premodern Muslims who have left us few direct records of their opinions. In this post I’d like to suggest another metaphor, “peripheral vision.” We can think of the disciplines and genres of premodern Islamic scholarship as “fields of vision” in which the central elements are in sharp focus, while other elements of the scholars’ religious and social worlds are only glimpsed out of the corner of the eye. Of course, everyday life – even that of the largely elite and learned authors of our normative texts – is largely located in this peripheral vision. This life has many facets, but here I’d like to think a little about the mundane life of individuals as the context where the frameworks elaborated in our normative texts played out on the ground.

Sometimes we see this process as largely binary: people either obey or flout clear rules that we can assume them to know. For instance, it seems safe to assume that, historically, most Muslims have been aware of the obligation to pray five times a day, and that some were willing or able to fulfill it while others weren’t. This phenomenon is clearly visible in our scholarly sources, which often bewail human sinfulness and sloth. In other cases the picture is more complicated, with a given activity potentially subject to several different modes of evaluation (for instance, fiqh, akhlāq, prevalent custom, and social honor). This possibility raises questions about the normative frameworks that were available to different kinds of people, how these frameworks meshed with each other, and to what extent they informed actual behavior.

Modern scholars have offered varying assessments of the scattered evidence for broad knowledge or ignorance of fiqh rules and values among pre-modern Muslims. Wael Hallaq has argued for the wide dissemination of fiqh norms, suggesting that they were inculcated in individuals through mechanisms including ritual practices that habituated them to the practice of certain virtues.[1] Others have pointed to examples that, in the words of Sherman Jackson, raise “questions about the effectiveness of the mechanisms relied upon for disseminating knowledge of the law in Muslim society.”[2] Scholars also disagree on the degree to which fiqh sources can be taken as evidence for broadly shared ethical and social values in the communities within which they were produced  One of the most vivid and influential accounts again comes from Hallaq, who envisions pre-modern Islamic societies where  “[l]egal norms and social morality, if they could be at all separated, were symbiotic beings, one feeding on and, at the same time, sustaining the other.”[3] Other scholars have pointed to divergences between normative discourses that were in wide and simultaneous circulation within the same social contexts. For instance, Zahra Ayubi’s new book Gendered Moralitiesdemonstrates that Islamic philosophical ethics – as embodied in works that achieved long-lasting canonical status among Persianate Muslims – promoted a very different model of the marital relationship than did fiqh.[4] As I have found in the research for my current book project, on wives’ domestic labor, values and expectations grounded in social custom could diverge from both of these frameworks. These examples suggest that individual premodern Muslims may have had a quite varied “tool kit”[5] to bring to bear on their life decisions, whether as personal guides to action or as justifications in public debate.

In this post, like the last one, I’d like to illustrate the issue at hand with a fragment from my recent primary reading. While reading Ibn al-Jawzī’s (d. 597/1200) Ṣayd al-khāṭir, I came upon his brief yet bitter account of a legal dispute in which he had been embroiled. Like the other short chapters of this impressionistic work, the passage is framed as an edifying reflection on an issue of Islamic normativity – in this case, a discussion of people’s reliance on custom (al-ʿāda) rather than on the guidance of fiqh. However, both its ethical messiness and its direct (if biased) description of a concrete interpersonal conflict stand out from the generally abstract and idealistic tone of the work as a whole.

Ibn al-Jawzī writes:

There once came to me an old man, eighty years of age; I bought a shop from him, and concluded the contract with him. Then, when we had parted, he reneged after a few days.   I asked him to appear before the judge, and he refused. So I had him summoned, and he swore a false oath saying, “I did not sell it.” I said, “He will not survive another year!” He began to pay bribes to unjust people to protect him from me. I found that among the common people (al-ʿawāmm) there was one too dominated by custom to heed the opinion of a jurist who said, “This person did not take possession of the sale price, so how can the sale be valid?”, another who said, “How is it permissible for you to take his shop without his consent?” and another who said, “You must release him from the sale!” When I did not release him from the sale, [the old man] and his relatives began to attack my honor; he believed that he was defending his property. Then he denounced me to the sultan by disseminating lies that astonished me. He paid money as bribes to a number of unjust people, who went to great lengths and schemed [against me], but God delivered me from their malevolence. Then I established the evidence against him with the judge, but some worldly people said to the judge: “Do not rule in his favor!” — so he refrained from giving a ruling after the evidence had been established in front of him.

Ibn al-Jawzī recounts that the judge ultimately did execute a judgment in his favor (and notes, spitefully, that the old man did indeed die when the year was out). He concludes:

What becomes clear to me from the affair is that customs have become predominant over people, and they have turned away from the divine law. If something happens in conformity with the divine law, it is by chance or because of custom. A person would not break his fast during Ramadan even if he were to be lashed with a whip, because [fasting] is a continuous custom. But he will attack people’s honor and wealth, because it is a custom that is predominant! How often I have seen this old man pray and be regular in his prayers – and then when he feared to lose what he desired, he tossed the divine law aside.[6]

This account arguably gains credibility from Ibn al-Jawzī’s willingness to represent himself in a distinctly unflattering light; it is hard not to sympathize with the elderly shop-owner. Nevertheless, Ibn al-Jawzī’s position, as he represents it, is firmly based on established fiqh. His wording carefully establishes the legal elements of a binding sale according to the principle of khiyār al-majlis (“option of the meeting”), which dictates that a sale can be revoked at will until the parties part ways. (Jurists who did not espouse this rule held that the sale was binding immediately upon offer and acceptance.) However, Ibn al-Jawzī’s account suggests either that his contemporaries did not widely know or routinely apply this rule, or that they found other standards more appropriate to this particular case. The first reported objection implies that contemporaries may have hesitated to enforce a sale when no money had yet changed hands. The second implies the belief that a person should not be compelled to carry through a sale against his will – perhaps a reflection of the Qur’anic principle that sales should occur by mutual consent (c.f. Qur’an 4:29). Finally, of course, there may have been a sense of propriety relating to the seller’s advanced age and economic need. Overall, while Ibn al-Jawzī pressed his claim on the basis of fiqh, his opponents seem to have responded by attacking his honor (ʿirḍ) – in other words, his adherence to social standards of respectable behavior.

Ibn al-Jawzī envisions a model in which it would be the rulings of the Sharīʿa (defined through the interpretations of the jurists) that would inform people’s ethical sensibilities. However, he laments that in fact the opposite dynamic prevailed: people’s commitment to the norms of the Sharīʿa is contingent on those rules’ conformity to personal and social habit. Any congruence between the two, he claims, is purely fortuitous. In this view, people have a visceral resistance to violating the Ramadan fast not because of the strength of the divine commandment, but because of the strength of social custom supporting the fast. Ibn al-Jawzī’s description of the old man suggests the Aristotelian habituation of virtuous conduct gone wrong: his practice of prayer is regular, but fails to produce a habitus of conformity to the divine law.

Although inevitably partial and impossible to verify in its details, an anecdote like this suggests the untidiness and versatility of moral and legal reasoning on the ground. Such fragments may let us glimpse – if only out of the corner of our eyes – how non-scholars may have engaged with fiqh.


[1] Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), pp. 225-6.

[2] Sherman Jackson, “Kramer versus Kramer in a Tenth/Sixteenth Century Egyptian Court: Post-Formative Jurisprudence between Exigency and Law, Islamic Law and Society 8.1 (2001), p. 38 (see p. 47 for another example of divergence between fiqh rules and popular assumptions).

[3] Hallaq, Sharīʿa, p. 173.

[4] Zahra Ayubi, Gendered Morality: Classical Islamic Ethics of the Self, Family, and Society (New York: Columbia University Press, 2019), p. 131

[5] On the metaphor of the cultural “tool kit,” see Ann Swidler, Talk of Love: How Culture Matters (Chicago and London: University of Chicago Press, 2001), pp. 104-106.  I thank Jeff Guhin for this reference.

[6] Abū al-Faraj Ibn al-Jawzī, Ṣayd al-khāṭir, ed. ʿAbd al-Qādir Aḥmad ʿAṭā (Beirut: Dār al-Kutub al-ʿIlmīya, 1412/1992), pp. 228-9.

Leave a Reply