Oakeshott, Originalism and the History of Modern Islamic Law

By Junaid Quadri*

In On Human Conduct, the ambitious work he produced toward the end of his career, the philosopher Michael Oakeshott offers a distinction between two kinds of storytelling that is instructive for historians of Islamic law and indeed scholars of the intellectual history of Islam more broadly. Distinguishing between “In the beginning” stories and “Once upon a time” stories, Oakeshott argues that the task of the theorist is to provide a narrative that takes the latter form. These are accounts that take seriously the historical connectedness of human intellectual activity, but resist reducing individual instances of such activity to an overarching principle, a teleological end, or “a first or original occurrence in terms of which all subsequent occurrences may be understood.” Instead, moments of intellectual contribution are to be understood in conditional terms, connected to the past but only contingently – they “touch” their antecedents, displaying a tangential congruity with what went before.[1]

The historiographical mode Oakeshott advocates here has been a valuable one for me to think with in my own work. When one writes about Islamic law in the modern period, the temptation to read acts of intellectual virtuosity as imitations, usually pale, of what went before continually presents itself. An Oakeshottian analysis instead minimizes such an originalist emphasis, directing us away from the tendency to conceptualize the earliest instantiations of a given position as setting the terms for later ones in a manner verging on the deterministic. Given the vastness of the fiqh corpus, and the consequent likelihood that the dogged researcher with enough time is bound to find a precedent for most any latter-day determination, such an originalism amounts to an undue privileging of the classical over the modern. Imagining the production of fiqh instead in terms of contingency permits us to understand the juristic output of modern scholars in a different way: not as a mere recapitulation of earlier opinions nor as an ungrounded aberration nor even as an unearthing and revival of a previously underappreciated position, but rather as what Oakeshott would call a “response” to the discursive world in which they were operating.

I have found this a productive way of understanding the Egyptian muftī at the center of my recent monograph, Muḥammad Bakhīt al-Muṭīʿī (d. 1354/1935). The world to which Bakhīt was responding was constituted by a number of what Oakeshott would call “goings-on” that are relevant to understanding his interventions: these include the weight of the historical Ḥanafī madhhab to which he belonged; the various influences exerted on him by his transregional associates in the madhhab; the intellectual rivalries that animated his local Egyptian, especially Cairene, setting; the pressures of colonial modernity confronting Egypt and much of the Muslim world; and the rapid pace of technological change that pushed to prominence certain ways of thinking and acting. It is only within this complex conjuncture of contexts, and the conditions of possibility it presents, that Bakhīt’s writing on seemingly arcane points of furūʿ become intelligible to the historian.

Consider, for example, the case that motivated Bakhīt to write a lengthy and consequential treatise on the parameters of observing Ramadan in light of recent technological advances. The Irshād Ahl al-Milla ilā Ithbāt al-Ahilla was a response to a minor controversy that arose at the end of Ramadan 1328/1910.[2] Bakhīt had been asked by Egyptian authorities to pronounce on the validity of a telegraphic report from Aswan conveying news of a sighting of the new moon that heralded the end of Ramadan. He responded that reports of this sort ought to be accepted as legally binding and should therefore be acted upon. Accordingly, cannons were set off to announce the Eid festival. Soon, though, Bakhīt encountered resistance to his ruling. The Irshād was his considered defense of his position. What is most interesting about the text, however, is not the substantive conclusion at which our muftī arrives, but the argumentative moves he makes to get there and what those moves say about the intellectual terrain in which he was operating.

The question of transmitting reports across jurisdictions was far from unknown to medieval jurists writing long before the advent of telegraphy. Manuals of fiqh are replete with examples, and relaying the news that a community had sighted the Ramadan crescent is a particularly ubiquitous case. In the prevailing Ḥanafī tradition, the expectation was that such reports would travel through recognized sites of legitimacy – the courts – and would be regulated by fixed procedures. The Ḥanafī focus on proceduralism and oversight is succinctly captured in the term the madhhab used to describe a valid transmission – this was one that adhered to a ṭarīq mūjib, a specific procedure that obligates acceptance and compliance. Such reports were counterposed to mere retellings (ḥikāyāt) that circulate unrestrained outside of court authority.[3]

Bakhīt rejects this traditional insistence, arguing instead that extra-judicial narrations were an entirely appropriate way to convey binding reports of moon sightings. The relevant criterion for Bakhīt is not procedural but epistemological; what is decisive is the truth value of the report as judged by the standards of ḥadīṯh transmission. To effect this shift, Bakhīt focused his attention on the label under which moon sighting reports had long been categorized. For centuries, Ḥanafīs had classed such reports as umūr dīniyya, matters of religion. The umūr dīniyya were conceptualized as being hybrid in nature, sitting between testimonies (shahādāt) and narrations (riwāyāt) and sharing characteristics of each. Bakhīt’s strategy is to tilt the umūr dīniyya decisively in one direction, effacing their shahāda characteristics altogether to assimilate them entirely to the narration, the most prominent exemplars of which are the ḥadīṯh. Severing the links to testimony previously assumed to be part of the umūr dīniyya as a matter of course is to effectively remove them from the oversight of judicial authorities. Bakhīt justifies this move by reading the dīn in umūr dīniyya, the religious in religious matters, in a markedly modern sense. His understanding reflects a modern assumption that that which is religious is to be understood as altogether separate from the world, abstracted from materiality. Religious reports, then, are abstract matters of the mind that must be guaranteed space outside the court system to be properly religious. “Since they are dīnī reports,” Bakhīt writes, “there are no conditions on them other than that which is stipulated for relating Prophetic traditions (riwāyat al-aḥādīth).”[4] This understanding of religious reports as immaterial is extended to the case at hand. Bakhīt is insistent that “religious” reports transmitted via the telegraph are to be understood as no different than the default in-person transmissions that populate the pre-modern fiqh literature. The mediation of the telegraph does not impinge in any way on the truth value of the report because the latter transcends the materiality of technology just as it does the sociality of the courts. This is fitting, because, as Timothy Mitchell has pointed out, wireless telegraphy came to be seen starting in the late nineteenth century as the paradigmatic symbol of a new understanding of linguistic meaning as abstract, immaterial and communicable between otherwise private minds.[5] Here, an argument constructed from within the resources of fiqh intersects with a theory of language found outside of it to make possible a new way of thinking about the law that “touches” both.

It is tempting to read this move in an originalist vein, as but another invocation of an old Ḥanafī concept, the umūr dīniyya. In my view, such a reading shortchanges the import of the historical specificities of Bakhīt’s moment: the particularity of the discursive world in which he was operating and to which he was responding. I have tried to argue that the concept itself takes on a new signification in Bakhīt’s skillful hands, a signification that pivots on a changed understanding of dīn. Viewing his move here as routine or merely a minor, inconsequential modification to the inherited tradition is deeply unsatisfying to a historian’s sensibility. Assuming that any apparent departure can be seamlessly subsumed within the existing logic of the tradition leaves unaddressed the role of historical context and unanswered the question of motivation. Asking why a figure who belonged so squarely to the Ḥanafī-Egyptian establishment would put forth such distinctive argumentation opens us up to new conceptual possibilities, ones that push us to stretch beyond the instinct to think of fiqh in terms of familiar binaries: either original or derivative, new or old, reducible to precedent or never-before-contemplated. Oakeshott’s approach to historical inquiry instead commends us to understand intellectual activity in terms of a fuller picture, located contingently within a wider context. This, in my view, is vitally important for the study of modern Islamic law. It makes of our area of study a field of consequence, whose content merits intellectual engagement on terms that are irreducible to pre-modern fiqh.


* I am grateful to Aun Hasan Ali for his comments on this post.

[1] Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975), 104-105. A full explication of Oakeshott’s historical method can be found on pages 101-107.

[2] Muḥammad Bakhīt al-Muṭīʿī, Irshād Ahl al-Milla ilā Ithbāt al-Ahilla, ed. Ḥasan Aḥmad Isbir (Beirut: Dār Ibn Ḥazm, 2000). Originally printed as Muḥammad Bakhīt al-Muṭīʿī, Kitāb Irshād Ahl al-Milla ilā Ithbāt al-Ahilla. (Cairo: Maṭbaʿat al-Kurdistān al-ʿIlmiyya, 1329H).

[3] For an authoritative statement of this position, see Kamāl al-Dīn ibn al-Humām, Fatḥ al-Qadīr, vol. 2 (Beirut: Dār al-Fikr, n.d.), 314.

[4] Bakhīt al-Muṭīʿī, Irshād, 73.

[5] Timothy Mitchell, Colonising Egypt (Berkeley: University of California Press, 1991), 140-41.

(Suggested Bluebook citation: Junaid Quadri, Oakeshott, Originalism and the History of Modern Islamic Law, Islamic Law Blog (Dec. 9, 2021), https://islamiclaw.blog/2021/12/09/oakeshott-originalism-and-the-history-of-modern-islamic-law/)

(Suggested Chicago citation: Junaid Quadri, “Oakeshott, Originalism and the History of Modern Islamic Law,” Islamic Law Blog, December 9, 2021, https://islamiclaw.blog/2021/12/09/oakeshott-originalism-and-the-history-of-modern-islamic-law/)

Leave a Reply