Review of Sherman Jackson's Islamic Law and the State by Adam Sabra

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Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi bySherman A. JacksonReview by: Adam SabraJournal of Law and Religion, Vol. 15, No. 1/2 (2000 - 2001), pp. 413-416Published by: Journal of Law and Religion, Inc.

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ISLAMICLAWAND THESTATE:THE CONSTITUTIONALURISPRUDENCEF

SHIHABL-DINAL-QARAFIVol. 1: Studies in Islamic Law and Society). By

ShermanA. Jackson.Leiden:Brill1996. Pp.xlii, 249. Pricenotavailable.

ISBN:9-004-10458-5.

In a sense, this is a book which swims against the currentofmodem Islamic legal scholarship. Islamic modernism and Western

scholarshiphave focusedon the existenceof, or potentialfor, creative

adjustmento changingsocial andhistoricalcircumstances. This focushas led many authors to emphasizethe significance of independentreasoning ijtihad)on thepartof jurists,at the expenseof delegationof

authority,or imitation,as the termtaqlidis frequently ranslated. Onthis basis, scholarshave differed n their estimationof the significanceof ijtihadin Islamic legal history. Some, frequentlymotivatedby adesire to reformIslamic law for modempurposes,have emphasized he

significanceof ijtihadas a legitimatedevice for reinterpretinghe law.

Others,dissatisfied with traditional Islamic

legal thought,have

condemned that thought as insufficiently flexible to accommodatemodemrealities.

As ShermanJacksoncorrectlypointsout, such debatesare out of

touch with the mainstreamof the Sunni legal tradition(and, in asomewhat differentmanner,with Shi'ism). Since the late eleventh

century, he vast majorityof Sunni uristshave chosento affiliatewithone of fourschools of law, or madhhabs, achnamedaftera deceased

eponym. The eponym of each school, considereda masterjurist, is

known as a mujtahid,while the affiliates to his school are known asmuqallids. In principle, he muqallid s required o acceptthe opinionsof themujtahid s authoritative,lthough,as we will see, the situationsmore complicated. This process of affiliationraises certainhistoricaland theoreticalproblems. Jackson'saccount focuses on two of these

problems:pluralismandcreativity. Using the work of the well-known

Egyptian Maliki jurist Shihab al-Din al-Qarafi (d. 1283 or 1289),especiallyhis book, Kitab al-Ihkami Tamyizal-Fatawa 'an al-Ahkamwa

Tasarrufatal-Qadiwa l-Imam

(TheBook of

Perfectingthe

Distinction between Legal Responsa, Judicial Decisions and the

DiscretionaryActions of Judgesand Caliphs),Jackson addresses the

problemof taqlid n thirteenth-centurygypt.

413







JOURNAL FLAW&RELIGION

In the context of Sunni Islam, pluralismis a problembetween

madhhabsand within them. The existence of four Sunni schools(Shafi'i, Maliki, Hanafi, and Hanbali) means that the jurists werecommitted o differing,butusuallymutually olerant,positionson manylegalpoints. I illustraten more detailbelow that differencesof opinionalso exist amongjurists of each school. These differencesposed a

particularproblemwhen a jurist acceptedthe position of judge, sincethatmeantthathispositionwouldbe enforcedby the state,sometimes othe exclusionof alternative ointsof view. Suchrulings (ahkam)werenot

subjectto

appeal,anddiffered rom

legal responsa(fatawa),which

were the opinions of individuallegal experts. Such opinions were

morallybindingon a petitioner, utwere not enforcedby the state sincethemufti heldno officialposition n thisperiod.

Jacksonargues hatal-Qarafi'sext was composedas a response o

just these problems. Specifically, he chief Shafi'ijudge of Egypt, Tajal-Din Ibnbintal-A'azz(d. 1267)refused o enforce herulingsmadebyjudges of otherschools, including he Maliki school to which al-Qarafi

belonged. This led to a crisis in the Egyptian udiciary,whichwas only

resolvedwhen SultanBaybarsofficially recognizedchief judges fromeachof the fourschoolsin 1265. Jacksonbelieves thatal-Qarafiwrote

his workduring hisperiodof stressbetweenthe schools in an effort to

argue that the rulings of judges of all four schools were valid, and

should be enforcedby the state. The main body of this historical

argumentappears n articleshe has publishedseparately. Jackson'shistorical heory s notaltogether onvincing. Theproblemof pluralismdid not endwith therecognition f all four schoolsby the state. Indeed,it

mayhave

grownworse. As Jacksonhimself

notes, al-Qarafiwas

concernedestpetitioners nhappywith the decision issuedby onejudgego to a judge of another choolto obtainanotherrulingmore amenable

to them. The problemof forum shopping-petitioners playing one

school againstanother-can only havebeen complicatedby the official

recognitionof fourmadhhabs.As we mentioned arlier, heproblemof pluralisms not limitedto

inter-madhhab isputes,but also appearsin controversieswithin theschools. Indeed,without the ability to disagreewithin one's fellow

muqallids, he schools would have become the moribundpurveyorsofunthinking radition hat they are sometimesportrayedas being. Bypaying attention o the concept of the madhhabas delineatedby al-

Qarafi,Jackson orcesus to acknowledge he creativityof the muqallidjurists. Here Jacksondiffersfromthe conclusionsof scholars ike Wael

Hallaq,whohaveargued hat he"gateof ijtihad"was neverclosed,that

414 [Vol.XV







BOOKREVIEW

mujtahidsnever ceased to exist. Rather,Jackson employs Joseph

Schacht's term "regime of taqlid" to indicate a sea change in theorganizationof Muslimlegal thinking n the MiddleAges. He pointsoutthat affiliationwith a schoolmeantthe choice of an authority igure(the mujtahid, eponym), a choice that did not preclude individual

opinionson controversialmatters. AlthoughJackson s clearlycorrectto pointto a shift in attitudes,he doesnotexplainwhy this sea changeinfavorof affiliationwithauthorityiguresoccurred.

While convincingin some respects,Jackson'sargumentraises aseries of other problems,which he does not address in an entirelysatisfactorymanner. For example,at one pointhe writes,"it was nowthe madhhabas a whole that conferred his status[orthodoxy]upon aview." (83)1 It is not at all clear how the schools acted in the mannerdescribedhere. At times,(especially103-106)Jacksonappears o implythat the madhhabs unctionedas legal guilds,a positionput forwardbyGeorge Makdisi,but he suppliesno concrete evidence to support hisconclusion. The fact that some pluralismwithin legal doctrines was

permitteddoes not amount o a constitutional uarantee f individualor

collectivefreedoms. Rather,t was theinabilityof the state to intervenein legal disputesthat left mattersin the hands of the scholars. For

Jackson, hisautonomyof the scholarsamounts o therecognitionof themadhhab s a "corporateonstitutional nit." 103)

In fact, neitherJackson nor Makdisi has been able to provide a

satisfactoryaccount of the self-regulationby the schools of law.Jacksoncandemonstratehatcertainopinionswere held in higherregardwithin a given school, but he does not adequatelydescribehow this

process took place or who was empowered o reachdecisions for the

madhahab. Unlike trade guilds, which had clear and well-definedhierarchies,he Sunni schoolsof law werenotoriouslyackingin formal

organization.Jackson alks about"proper ndimproper aqlid," 123ff)butneveridentifieswho was empowered o determine he one from the

other, or what proceduregoverned the process of making such adecision. That consistent principles existed to make such adeterminations clear, but the problem of authorityis left largelyunaddressed.

The mainaccomplishment f this book is to have raisedthe issueof taqlid in a new and interestingway. Jacksondoes a good job of

accuratelydescribingal-Qarafi'suse of legal terminology,especiallyasrelates o intra-madhhabifferencesof opinion. His discussionof these

1. All citationsn the text refer o thebookunder eview.

413] 415







JOURNALOFLAW& RELIGION

termsintroducesa new sophisticationntoEnglish-language iscussions

of Islamic legal terminologyandconcepts. Perhapsmost importantly,he remindsus thatwhile the termtaqliddoes not promisemuchin the

way of creativity, he schools did in fact engage in importantdebatesover legal issues andconceptsoverthe centuries. A more detailedand

rigorousdiscussionof these debateswill allow us to achieve a greaterunderstandingf the historicaldevelopmentof Islamic law, and of the

madhhabso which most Muslim uristshavebelonged.

Reviewedby

Adam Sabra

t SarahLawrenceCollege,Bronxville,NewYork 10708.

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Review of Sherman Jackson's Islamic Law and the State by Adam Sabra