Fatawa and the Realities of Islamic Law
First, unfortunately this is the last post before Memorial Day. I have my doctoral ceremony tomorrow, my wife gets her master's on Saturday, we've got family coming to New York, going to Pittsburgh, heaven knows what and therefore it will be a bit hectic for the next few days. Tune in after Memorial Day, about five days from now, and we should be back full swing then. wa amma ba'ad.
The fatwa, which I translate loosely as the rendering of an Islamic religious opinion by a qualified authority, has been used in any sort of ways in describing how Islamic law works in practice. Some renowned scholars, including my friend at Toronto Mohammad Fadel and then Baber Johansen up at Harvard, have used them to try to refute the claim of the early Orientalist Joseph Schacht that the rules of the shari'a, the fiqh, was really all just theoretical pie in the sky aspirational stuff that had no bearing on life on the ground. They try to grab some of the fatawa of old and say, well hold on, here are legal rulings on cases brought to people, and we can see from them that they are indeed taking fiqh quite seriously. Some folks even seem to misunderstand my own thesis when I say there's too much focus on the jurists and we need to look at actual practice. We're beyond the age of Schacht, I've heard in any number of conversations, we do relate theory to practice, we care about practice.
Of course that's not my point. See, the person who says law is what it does on the ground doesn't take some pie in the sky stuff somebody else said, the brooding omnipresence in the sky to use Holmes' phrase, and then try to show its relationship to what's on the ground. And they don't become Realists by demonstrating the relationship is closer than some other guy like Schacht said. Because they're still playing with some conceptual stuff, calling that law, and comparing it to other stuff, calling that practice, and seeing where it's similar and where not. The Realist approach, my approach, would be to say I don't care about the brooding omnipresence, stop talking about it. Stop bothering me with this juristic stuff, I don't need to hear it. It doesn't control decisionmaking. Here's what I need to hear--what are the decisionmakers saying, and what are they doing. When they pull on a juristic text to make the case, then we can look at it, in that context. We can examine the extent to which it's really relevant, how it's used, etc. But heavens we don't need a theoretical construction of what the jurists said, to compare against practice, because practice, on the ground determinations, are really what we're supposed to be looking for. That's it. That would be under this perspective of course, which so dominates our other legal fields it deserves a voice in Islamic legal studies.
But there's a problem even with this--who says that the fatwa is even a proper indication of actual practice? Even I've used fatwas in earlier posts as examples of practice, but it seems to be cheating. Sure there's a legal problem, sure it's defined, and sure the authority issues an opinion, but who says anyone paid the slightest bit of attention? The fatwa giver is not a judge, he can't force compliance. Not being an historian, I won't even begin to try to frame the question for the classical era, but I will say for the modern age this is a particularly acute problem, as in the Sunni world in particular every nutjob and his mama claim authoritative status to render these opinions. How do we know what does and does not have an effect on the ground?
I think it's not something that's really properly studied, neither by those who seem rather fond of attacking Islamic opinions at every possible opportunity (and really, it's pretty easy to get on the net if you know Arabic and collect some really wacko fatawa by some pretty well known sources and have some fun) nor by Muslims themselves, who often hurl fatawa at one another in defense of whatever position they happen to favor. I'm not about to initiate this kind of study in a blog post. But I will say I think it's critically important, as one can learn quite a bit about Islam and where it's going and what it's really all about, if one stops just reading the fatwas and starts paying attention to what effect they are having. Here's some easy examples.
The ignored fatwa. Respected cleric at the Azhar comes out not long ago and says that if women are really afraid of being secluded with men after hours for work reasons, there's a simple solution. The man should drink the woman's breast milk, and all will be well. By way of background, there is a shari'a rule that suggests that a child's wet nanny, by virtue of having breast fed the child, counts as effectively a mother for marriage purposes and therefore doesn't need to cover herself in front of the kid, or be worried about being secluded with him, etc. All makes sense, except that it becomes rather stupid extended to the work place between adults. And it was widely ridiculed, within the scholarly world, by Muslims more broadly who mostly regarded it as an embarrassment, and slowly disappeared. you don't hear that one anymore, it's not circulated as a real recommendation, I have no studies, but it seems to me it's a good example of where the community clearly rejected the fatwa.
The embraced fatwa. This one is easy--Sistani's call for the Iraqi Constitutional Committee to be elected by the Iraqi people in a free and fair election, and not selected by Bremer or through some enormously complicated (and manipulable) caucus system that nobody really understood. That fatwa was made and started appearing everywhere. I was on the streets in Iraq then, it was incredible how the Shi'a in particular were agitating in favor of this, how it came up in television again and again, how important it was and how clueless for weeks and weeks the Americans were about its popularity, esconced as they were in their Green Zone, certain they actually ruled the country because they wrote things and called them orders (talk about ignored fatawa). Months later, Sistani won that battle. Sure Sistani is more authoritative than any comparable Sunni, but still, the embrace of this fatwa was really remarkable. This was clearly an example of the extent to which notions of democracy have indeed penetrated the Muslim consciousness, both among clerics clearly (note Sistani) and among the lay people who take these calls very seriously. I think you see that elsewhere too, when Islamists are stripped of an election after winning it, they are genuinely outraged, they feel cheated. There is an idea of elections granting legitimacy. Of course the LIBERAL part of liberal democracy is proving more difficult, but that's another post, or several past posts.
The persistent yet marginal fatwa. So there are the fatwas that come out that are pretty much dropped as really embarrassingly stupid as per first example above, but then there are those that hardly receive very much popularity, but keep being repeated, as part of a broader campaign. My favorite example of this is the supposed prohibition of soccer, which I've heard for any number of reasons but most often in my experience that it's a game invented by the infidel and to imitate the infidel is forbidden unless that is sufficient numbers of Muslims do it in which case it becomes somehow absorbed into Islam as well. That's why riding a car is okay. Leaving aside the utter ridiculousness of that reasoning (or at least its very high level of ambiguity--how can soccer not be said to have fully penetrated the Muslim world?), each time I see the fatwa I sort of scratch my head because I can't imagine anything more hopeless than trying to ban soccer in at least those parts of the Muslim world I know well. It's such a popular game, and the national teams are so widely admired, and in no country are the games banned that why there is this extremist marginal effort to ban it deserves inquiry.
I think it is the popularity that is the problem. Here's this game, this international game, played by everyone, that helps break down national barriers and creates forms of dialogue across civilizations. Islamists despise that, they LOVE the clash of civilizations, Qutb's works begin and end with that clash, even the more thoughtful MB Sadr makes it clear he thinks there are three worlds, the East of the Communists, the West and Islam (he wrote in the Cold War era). The idea that people can go so crazy for something that has nothing to do with Islam and indeed that draws people away from clerics into a broader world community clearly disturbs these folks a great deal, and even their reasoning reflects it. Of course it's gone nowhere, but the effort continues.
Just musings for further consideration .. . .
HAH
The fatwa, which I translate loosely as the rendering of an Islamic religious opinion by a qualified authority, has been used in any sort of ways in describing how Islamic law works in practice. Some renowned scholars, including my friend at Toronto Mohammad Fadel and then Baber Johansen up at Harvard, have used them to try to refute the claim of the early Orientalist Joseph Schacht that the rules of the shari'a, the fiqh, was really all just theoretical pie in the sky aspirational stuff that had no bearing on life on the ground. They try to grab some of the fatawa of old and say, well hold on, here are legal rulings on cases brought to people, and we can see from them that they are indeed taking fiqh quite seriously. Some folks even seem to misunderstand my own thesis when I say there's too much focus on the jurists and we need to look at actual practice. We're beyond the age of Schacht, I've heard in any number of conversations, we do relate theory to practice, we care about practice.
Of course that's not my point. See, the person who says law is what it does on the ground doesn't take some pie in the sky stuff somebody else said, the brooding omnipresence in the sky to use Holmes' phrase, and then try to show its relationship to what's on the ground. And they don't become Realists by demonstrating the relationship is closer than some other guy like Schacht said. Because they're still playing with some conceptual stuff, calling that law, and comparing it to other stuff, calling that practice, and seeing where it's similar and where not. The Realist approach, my approach, would be to say I don't care about the brooding omnipresence, stop talking about it. Stop bothering me with this juristic stuff, I don't need to hear it. It doesn't control decisionmaking. Here's what I need to hear--what are the decisionmakers saying, and what are they doing. When they pull on a juristic text to make the case, then we can look at it, in that context. We can examine the extent to which it's really relevant, how it's used, etc. But heavens we don't need a theoretical construction of what the jurists said, to compare against practice, because practice, on the ground determinations, are really what we're supposed to be looking for. That's it. That would be under this perspective of course, which so dominates our other legal fields it deserves a voice in Islamic legal studies.
But there's a problem even with this--who says that the fatwa is even a proper indication of actual practice? Even I've used fatwas in earlier posts as examples of practice, but it seems to be cheating. Sure there's a legal problem, sure it's defined, and sure the authority issues an opinion, but who says anyone paid the slightest bit of attention? The fatwa giver is not a judge, he can't force compliance. Not being an historian, I won't even begin to try to frame the question for the classical era, but I will say for the modern age this is a particularly acute problem, as in the Sunni world in particular every nutjob and his mama claim authoritative status to render these opinions. How do we know what does and does not have an effect on the ground?
I think it's not something that's really properly studied, neither by those who seem rather fond of attacking Islamic opinions at every possible opportunity (and really, it's pretty easy to get on the net if you know Arabic and collect some really wacko fatawa by some pretty well known sources and have some fun) nor by Muslims themselves, who often hurl fatawa at one another in defense of whatever position they happen to favor. I'm not about to initiate this kind of study in a blog post. But I will say I think it's critically important, as one can learn quite a bit about Islam and where it's going and what it's really all about, if one stops just reading the fatwas and starts paying attention to what effect they are having. Here's some easy examples.
The ignored fatwa. Respected cleric at the Azhar comes out not long ago and says that if women are really afraid of being secluded with men after hours for work reasons, there's a simple solution. The man should drink the woman's breast milk, and all will be well. By way of background, there is a shari'a rule that suggests that a child's wet nanny, by virtue of having breast fed the child, counts as effectively a mother for marriage purposes and therefore doesn't need to cover herself in front of the kid, or be worried about being secluded with him, etc. All makes sense, except that it becomes rather stupid extended to the work place between adults. And it was widely ridiculed, within the scholarly world, by Muslims more broadly who mostly regarded it as an embarrassment, and slowly disappeared. you don't hear that one anymore, it's not circulated as a real recommendation, I have no studies, but it seems to me it's a good example of where the community clearly rejected the fatwa.
The embraced fatwa. This one is easy--Sistani's call for the Iraqi Constitutional Committee to be elected by the Iraqi people in a free and fair election, and not selected by Bremer or through some enormously complicated (and manipulable) caucus system that nobody really understood. That fatwa was made and started appearing everywhere. I was on the streets in Iraq then, it was incredible how the Shi'a in particular were agitating in favor of this, how it came up in television again and again, how important it was and how clueless for weeks and weeks the Americans were about its popularity, esconced as they were in their Green Zone, certain they actually ruled the country because they wrote things and called them orders (talk about ignored fatawa). Months later, Sistani won that battle. Sure Sistani is more authoritative than any comparable Sunni, but still, the embrace of this fatwa was really remarkable. This was clearly an example of the extent to which notions of democracy have indeed penetrated the Muslim consciousness, both among clerics clearly (note Sistani) and among the lay people who take these calls very seriously. I think you see that elsewhere too, when Islamists are stripped of an election after winning it, they are genuinely outraged, they feel cheated. There is an idea of elections granting legitimacy. Of course the LIBERAL part of liberal democracy is proving more difficult, but that's another post, or several past posts.
The persistent yet marginal fatwa. So there are the fatwas that come out that are pretty much dropped as really embarrassingly stupid as per first example above, but then there are those that hardly receive very much popularity, but keep being repeated, as part of a broader campaign. My favorite example of this is the supposed prohibition of soccer, which I've heard for any number of reasons but most often in my experience that it's a game invented by the infidel and to imitate the infidel is forbidden unless that is sufficient numbers of Muslims do it in which case it becomes somehow absorbed into Islam as well. That's why riding a car is okay. Leaving aside the utter ridiculousness of that reasoning (or at least its very high level of ambiguity--how can soccer not be said to have fully penetrated the Muslim world?), each time I see the fatwa I sort of scratch my head because I can't imagine anything more hopeless than trying to ban soccer in at least those parts of the Muslim world I know well. It's such a popular game, and the national teams are so widely admired, and in no country are the games banned that why there is this extremist marginal effort to ban it deserves inquiry.
I think it is the popularity that is the problem. Here's this game, this international game, played by everyone, that helps break down national barriers and creates forms of dialogue across civilizations. Islamists despise that, they LOVE the clash of civilizations, Qutb's works begin and end with that clash, even the more thoughtful MB Sadr makes it clear he thinks there are three worlds, the East of the Communists, the West and Islam (he wrote in the Cold War era). The idea that people can go so crazy for something that has nothing to do with Islam and indeed that draws people away from clerics into a broader world community clearly disturbs these folks a great deal, and even their reasoning reflects it. Of course it's gone nowhere, but the effort continues.
Just musings for further consideration .. . .
HAH
I think you are on much less firm footing than you think, even on "realist" grounds. How does the "realist" know in advance just what matters to the jurist, just what the context is? How can the "realist" exclude *as a matter of hard-headed "principle"* even the mere possibility that tradition, doctrine, theory, norms and principles matter to him? If it turns out to the be the case as a result of an empirical-hermeneutic investigation that the judge, lawyer, jurist, plaintiff does care about all that, then so must the legal scholar and thus she must learn some of it. That is, fiqh qua legal theory and/or a discursive relationship to tradition is just as much a concrete, on the ground "lived practice" as sucking up to the local elites and drinking coffee out of finjan cups. I mean, people who study fiqh have no problem with history and legal anthropology. But that does not mean that a continuous discourse of legal theory and doctrine does not exist. And whatever its "true" ontological or epistemic status, can any one really deny that it has NO relation to what happens on the ground? So I simply do not see the argument against the Fadel/Johansen approach of studying both the texts and the rulings and noting that one and the same person is doing two different things in different contexts.
There is nothing unique or mystical here. What is the proper study of "public policy"? The theoretical discourses of academics and policy experts or the actual laws and directives of politicians and bureaucrats. Well, both, obviously.
What is the proper study of American constitutionalism? The tradition of theorizing about the constitution or SCOTUS decisions? Well, both, obviously.
And who is to say that only the latter "practical"-type things have impact on the ground? There are countless ways in which ideas, norms, values, discourses matter on the ground, including the fact that they impact what people think they are entitled to and what judges think is the right way to interpret something.
In other words, how do we know that the "realist" approach is not in fact the least realist approach (or at least deficient on empirical, realist grounds) by claiming to know a priori just what is and isn't "real" or impactful or possible and in doing so missing out on elements which are, in fact, real?
(I analogize this to some cynical "realists" in IR who claim to know with a great deal of certainty the limits of the possible and the plausible before history has had a say.)
So I really don't think that you have a case as long as people are precise, and honest and rigorous about what they think they can prove or claim with the specific sources they are using. This "what we're supposed to be looking for" line just raises eyebrows. Who's the "we" and what's the purpose of the "search." Why should there be one single academic research agenda?
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(edited May 24) I think you might misunderstand, and I misspeak, and whatever because I think my claim is narrower than you are making it. I don't think there should be one single research agenda, I didn't say there was something wrong with the Johansen/Fadel approach and I certainly would never suggest that you can safely ignore all doctrine. Quite the opposite, in fact, you have to take everything that might impact the decisionmaker into account, whatever that might be, even what she had for breakfast that morning.
I do say that realism as an approach beyond Islamic law is widely adopted in US law schools, and therefore that approach deserves far more consideration than it is getting in American law schools. I do say that the Johansen/Fadel approach is not realist in its partial focus on juristic theory. And most pertinent to your point I do say that when you look at doctrine, or theory, or norms or tradition, and you have to, I agree, because they might matter and even if they mostly don't (admittedly my view of the world) they certainly provide the rhetorical cover, then you look at these things from the point of view of the decisonmaker, not the original theorist, and I am thinking mostly of the modern world. In other words, if you really want to know something useful about Ibn Taymiyya from a realist's perspective, see how the decisionmakers are quoting him and their construction of him. What the guy actually thought I don't know, but I do know what Wahhabis quote of him and from that can get a pretty good idea of how they will use him in particular cases. And you might say that construction is only partially dependent on social and political factors and there are ethical, religious, whatever considerations too, and it's one big mess of factors that have to be taken into account. I don't think I dispute that, I feel strongly that social and political and economic and cultural factors do impact the law considerably, but of course it's fair to say there are other factors at work too and we should take them into account in figuring out why certain readings are preferred over others as the times roll.
But still, if we focus solely on what the decisionmakers say and even more importantly what they do--and you may criticize that conception of law if you wish, I can only say it's how I teach commercial law, it's how practically everyone I know teaches commercial law, history and ethics and normativity and traditions aren't what we do by and large, we wouldn't call any of that law, I don't think it bears any relationship to what lawyers do or how they think as lawyers. But if we take that conception, I don't need to know the actual classical tradition or the actual juristic theoriesof that era, however defined, compare it to the constructions of the decisionmakers and make that determination of its faithfulness. Again, fine if you want to do that, fine but really, as a lawyer, or as a realist, it's only the constructions that matter, as a possible, potential influence, one of many influences in how the decision came out (in addition to the hidden factors I highlight).
If these decisions in fact reflect tradition and history and whatever and someone wants to demonstrate the importance of these factors, then fine. If they don't and it's really about a false construction, or modern political and social factors really driving determination and all this stuff about ethics is rhetorical cover, then fine too. It's law either way to me. I don't think you need to go beyond what the decisionmakers say--and what they do, not assuming by any means that what they say necessarily reflects what they do, but not dismissing the possibility either--in order to be a "realist". I think you just need to put yourself in the mindset of the decisionmaker and try to figure out what she will say, and more importantly, what she will do. And to that, you need to understand the worldview and the ideas of the modern decisionmaking interpretive community, not the doctrine, not the history, not the tradition, beyond how that decisionmaker might view those things and a guess of how relevant all of that might be to her in reality in making that decision.
HAH
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