By Ovamir Anjum
The conviction that the sharīʿa has been slain by modernity could be read as the resuscitation of the early classical debate on the sharīʿa’s fatigue. Yet it marks both a continuation and a departure from that debate’s original form. In its modern form, the question of the sharīʿa’s fatigue or death is entertained not by its jurists, but by historians trained in Western institutions. Under consideration is not only a concern with epistemology, but also with the material, metaphysical, and psychological challenges posed by a dominant global order of foreign, even hostile, secular origin. Yet the modern debate on the sharīʿa’s fatigue also continues the early classical debate insofar as it resumes the Juwaynīan concern with the very extinction of the conditions of the existence of the sharīʿa. This marks it from modern Muslim jurists’ dismissal of the possibility of extinction and almost exclusively constructive concern with debates around ijtihād and taqlīd built on a comfortable certainty about sharīʿa’s general health and metaphysical timelessness.
One of our age’s most erudite and provocative scholars of Islamic law, Wael Hallaq, has raised the alarm about the sharīʿa’s death at the hands of modernity. He made this argument in his 2004 article “Can the Sharīʿa be Restored?,”[1] his 2005 article “What is Shariʿa?,” and in his well-known The Impossible State (2012). Like Juwaynī, Hallaq conceptualizes the sharīʿa as high jurisprudence that requires certain developed institutions of learning and enforcement and, therefore, understands its death as an obliteration of its institutional and social bases. Like Juwaynī, he locates the sharīʿa not in the “raw” form expressed in scripture, the prophetic comment, or even the first generation’s relatively unsystematized and diverse understanding, but in the consolidated form that begins to take shape with rise of the personal madhhabs (schools of law) in the second/eighth and third/ninth centuries. This form reaches maturation only in the fourth/tenth century. In Hallaq’s maximally historicized understanding of the sharīʿa, it was nothing less than “a complex set of social, economic, cultural, and moral relations that permeated the epistemic structures of the social and political orders”[2] of the lands of Islam for over a millennium. It was, furthermore, a “discursive practice in which these relations intersected each other, acted upon each other, and affected each other in countless ways.”[3] Significantly, this “discursive practice” entailed “institutions operating upon, resisting and/or enhancing each other,” as well as a “cultural rendering of law in practice, where cultural categories meshed into fiqh, legal procedure, moral codes, and much else.”[4] The sharīʿa, then, far from being a mere judicial system or legal doctrine, “organically tied itself to the world around it in ways that were vertical and horizontal, structural and linear, economic and social, moral and ethical, intellectual and spiritual, epistemic and cultural, and textual and poetic, among much else.”[5]
Despite the sweeping scope of his conceptualization of the sharīʿa, Hallaq ultimately singles out the jurists as the lynchpin of this order. It is here that his spiritual continuity with Juwaynī and his equation of the sharīʿa with the art (malaka) of the master jurist reveals itself. The jurists and members of the legal profession were the “the educators, ‘writers,’ and thinkers who, on the one hand, were also the historians, the theologians, the men of letters, and the poets (if not also the chemists, physicians, and astronomers), while on the other, men of ideas who contributed to the forging of a complex set of relations that at times created, or conduced in the creation of, political truth and ideology while at other times confronting power with its own truth.”[6]
Yet Hallaq is also keen to democratize the sharīʿa. He acknowledges that “its textual and technical exposition [was], by necessity, of an elitist tenor, very little else in it was elitist.”[7] However, “its personnel hailed from across all social strata and operated and functioned within communal and popular spaces”[8] such as the mosque, the marketplace and the residential home. Hallaq illustrates his point by way of contrast with modern society, where the general population is “estranged”[9] from a legal profession that appears abstruse at best and immoral at worst. “Traditional Muslim society,” meanwhile, was “as much embedded in a sharʿi system of legal values as the court was embedded in the moral universe of society.”[10] This was a society which “lived legal ethics and legal morality, for these constituted the religious foundations and codes of social praxis.”[11] The sharīʿa was non-elitist, in other words, because in a very real sense it constituted and was constituted by Muslim society itself.
This expansive account of the sharīʿa effectively reimagines it as an organism, in more senses than one—its every part contains and sustains the whole, while the whole simultaneously organizes every part. This whole, furthermore, is cultivated through long-standing communally-grounded practices, not rationally constructed from discrete objectified units, and it is accordingly nothing less than culture itself. Thus, the sharīʿa emerges as an episteme unto itself, rather than a revealed meaning capable of encountering and contending with multiple epistemes. Its “structural death” in modernity is not easily reversible, insofar as the very conditions of modernity have sapped the social soil of the moral-epistemic nutrients needed to grow the institutions—and the ethical subjects and subjectivities—which constitute and are in turn constituted by the sharīʿa. To ask the sharīʿa to adjust to modernity is, Hallaq seems to suggest, like asking a marine organism to now inhabit a desert.
To be sure, Hallaq eminently succeeds if the task that he had set for himself was to challenge hegemonic Western readings of the sharīʿa as morally inferior or irrelevant, a museum artifact the scientific interest in which could only be justified as archeological or forensic. Nevertheless, the internal logic of Hallaq’s compelling organicist (and democratic) account of the sharīʿa, where everything sustains everything, sits uneasily with his incomplete account of the agency that created and sustained this system, apart from an elite class of master jurists. The supposed egalitarianism of Hallaq’s sharīʿa is further undermined by his account of its destruction in modernity. What displaced and ultimately eradicated the sharīʿa, in Hallaq’s view, was the modern state’s systematic “desiccation and final dismantling of the Shariʿa’s institutional structures, including its financially independent colleges and universities, and the very jural environment that afforded Muslim legists the opportunities to operate and flourish as a professional group.”[12] The structural carnage of the modern state ultimately resulted in “the extinction of this group [jurists] as a species,” and with it the sharīʿa.[13] In the final analysis, then, the extra-legal but legally-grounding “moral universe of society” is effectively assimilated into the institution of the jurist, incapable of surviving without the legal class that it sustained.
Yet it is precisely this conception of sharīʿa as an organism that helps us ask certain questions neglected in Hallaq’s idealized narrative, which centers just one part of that organism: the institution of the jurist. Yet by Hallaq’s own admission, the jurists—whatever the significance of their role in forging (and disseminating) legal knowledge—could not do so were it not for their rootedness in the extra-legal “moral universe of society.”[14] That is, were it not for the vast social base and superstructure that imbued them with the requisite local, cultural, and ultimately moral knowledge to produce law. This “moral universe,” in turn, was inextricable from the political order, which is conspicuously absent from Hallaq’s account. Or more precisely, the political is imagined as the nemesis of the legal. As I have argued elsewhere, it is the political order that not only creates a legal order but also sustains it, as it did in the case of the sharīʿa.[15]
Hallaq’s sharīʿa, divorced from the realm of collective agency and human decision-making implied in politics, is somehow sustained by an extra-institutional culture yet reducible to the institution of the jurist. It thus becomes not only unimaginable in modern circumstances, but hard to attest even historically. The problem perhaps is less with the organic metaphor on which Hallaq relies than with his reluctance to follow the metaphor to its logical end. One misses something quite crucial if when describing an organism one focuses solely on, say, its diet, but neglects its reproductive cycle, its nervous system, its skeletal anatomy, and other sources of its resilience.
Thus, although Hallaq seems to adopt a Juwaynīan notion of the sharīʿa that is rather fragile and prone to extinction, his own framework does not necessitate it. One wonders how his account would change if he adopted Walī Allāhian optimism instead. In fact, we do not need to even step beyond the parameters of Hallaq’s account to arrive at a more optimistic and renewable reading of the sharīʿa. As Hallaq argues, “[t]he jurists emanated from the very society and culture that they served. Indeed, “it was one of the most striking features of the Shariʿa, as a substantive and jural system, that it was generated at the very social level at which it was applied.”[16] If all of the above is true, and if indeed “the Muslim court was eminently the product of the very moral community which it served and in the bosom of which it functioned,” and “the consumers of law and of the court’s services were themselves the loci of the moral universe,”[17] then why, exactly, should these diverse participants, should this community, not count among the standard-bearer of the sharīʿa?
The obvious reason for Hallaq’s pessimism is his recognition of the modern hegemonic state’s fundamental incompatibility with the sharīʿa, which is no doubt a serious concern. But the lacuna in Hallaq’s description of the sharīʿa appears to be any account of its ability to resist, which is the result of focusing too sharply on one class of actors.[18] Another way to wrestle with Hallaq’s important challenge is to question if the nation-state, in 2024, is as invincible and stable as he assumes. New forms of governance loom large on the horizon: multinational corporations, tribal militias, civilizational states, cybernetic management, etc. This is to say nothing of the emerging technologies and movements shaking the foundations of the current order and gesturing toward a new world with contours yet unknown. Once at home in a semi-global premodern order that transcended political fiefdoms, the sharīʿa might be uniquely fit to thrive in a post-Westphalian order.
Notes:
[1] Wael B. Hallaq, “Can the Shariʿa be Restored?” in Islamic Law and the Challenge of Modernity,
eds. Y. Haddad and B. Stowasser (Walnut Creek: Altamira Press, 2004), 21–53.
[2] Wael B. Hallaq, “What is Shari‘a?,” Yearbook of Islamic and Middle Eastern Law Online 12, no. 1 (2005): 155.
[3] Ibid.
[4] Ibid.
[5] Ibid., 155–56.
[6] Ibid., 156.
[7] Ibid.
[8] Ibid.
[9] Ibid., 158.
[10] Ibid.
[11] Ibid.
[12] Ibid., 169.
[13] Ibid.
[14] Ibid., 158
[15] To be sure, this scheme assumes a difference between law, meaning the imperatives and the community created by the Prophet’s mission, and the legal order. I make this case in Politics, Law, and Community in Islamic Thought: The Taymiyyan Moment (Cambridge, UK: Cambridge University Press, 2012).
[16] Hallaq, “What is Shari‘a?,” 159.
[17] Ibid., 158–59.
[18] See, for instance, Samy A. Ayoub, Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Ḥanafī Jurisprudence (Oxford University Press, 2020).
(Suggested Bluebook citation: Ovamir Anjum, Against Impossibility, Islamic Law Blog (Jan. 25, 2024), https://islamiclaw.blog/2024/01/25/against-impossibility/)
(Suggested Chicago citation: Ovamir Anjum, “Against Impossibility,” Islamic Law Blog, January 25, 2024, https://islamiclaw.blog/2024/01/25/against-impossibility/)