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Islamic Law and Jurisprudence: Studies in Honor of Farhart J. Ziadeh.

In May, 1987, a conference on Islamic law and jurisprudence was held at the University of Washington to honor Farhat J. Ziadeh on the occasion of his retirement. This volume contains the papers presented at that conference, as well as a brief biographical sketch of Professor Ziadeh and his bibliography. For publication, the papers have been expanded into articles and grouped in three topical sections; Islamic jurisprudence, Islamic law and its relation to the West, and Islamic law in the modem period. All eleven of the articles are informative in themselves, and they also work well together to provide an overview of the kind of research currently in progress in the whole field of Islamic law.

The articles on Islamic jurisprudence deal with the medieval period. In "On Inductive Corroboration, Probability and Certainty in Sunni Legal Theory," Wael Hallaq starts by discussing the problem of certainty which is based on the testimony of witnesses in court. Second, he explores a number of questions related to the kind of knowledge that can be acquired through mutawatir reports. This in turn leads to a discussion of different components of tawatur. Finally, Hallaq describes the way in which the jurist Abu Ishag al-Shatibi (d. 790/1388) based his theory of usul al-fiqh on inductive principles. This is a dense article, and Hallaq's ample annotations will readily allow the reader to look further into any portion of it.

In "Interpretation of the Divine Command in the Jurisprudence of Muwaffaq al-Din Ibn Qudama," Jeanette Wakin starts by providing the context of Ibn Qudama's arguments. Muslim jurists were concerned with developing methods that would lead to the establishment of standards for evaluating individual human acts in accordance with God's determination of the moral value of each of these acts. Questions arose about how we can know what God's determination is, and whether our human knowledge of it is certain or probable. For, even though we have certain knowledge of the authenticity of revelation through the Qur an and Sunna, we cannot have certain knowledge of the correctness of any particular interpretation of the revealed texts. Therefore, how is it possible to determine the status of an act performed in response to a divine command? An attempt to answer this question requires in turn an understanding of the divine command. Wakin devotes the major portion of her article to explaining and commenting upon the discussion of divine command in Rawdat al-nazir wa-jannat al-munazir. Ibn Qudama was a subtle thinker, and Wakin's elaboration of this portion of Rawdat al-nazir provides a welcome insight into his treatment of this complex topic.

Bernard Weiss's article, "Exotericism and Objectivity in Islamic Jurisprudence," is an explanation of the issues involved in understanding the way divine speech becomes manifest to human beings. This is a matter of crucial importance for jurists, because divine speech is the instrument through which we receive divine law. Weiss explains these issues with great clarity, in particular, bringing out the interaction between the strands of theological and juristic thinking on the delicate problem of the relationship of God's speech to the created world. Weiss notes that this study is based mainly on the works of the jurist and theologian Sayf al-Din al-Amidi (d. 631/1233).

In "Integrity (Adalah) in Classical Islamic Law," Farhat Ziadeh starts from the observation that the presence of adalah in the communal life of Muslims has always been a societal concern. He goes on to discuss the special importance of adalah as a necessary personal moral virtue in two particular classes of people, those who qualified as legal witnesses and those who claimed to be authoritative transmitters of hadith. Tracing the evolution of the precise definition of juridical terms is a complicated task, but Ziadeh offers a clear and comprehensive historical overview of the development of ideas about what constituted integrity for both groups.

The comparative section starts with David Forte's "Lost, Strayed, or Stolen: Chattel Recovery in Islamic Law." Forte compares early common law and the contemporaneous Islamic law and shows how common law favored possession whereas in Islamic law an effort was made to maintain the claim of the original owner. This is an interesting comparison, but more precise historical information would have helped the reader assess its significance. The definition of darak (different on pp. 107 and 1 12) is a bit confusing.

In "Magisterium and Academic Freedom in Classical Islam and Medieval Christianity," George Makdisi continues to compare Christian and Muslim centers of learning. Here, he examines the doctorate, or license to teach, in three historical stages. The first, the Arabic-Islamic ijazat al-tadris; the second, the Latin-Christian licentia docendi; and the third, the modem Ph.D. He tells us that in the first and third periods, this license was, and is, granted on the basis of the completion of similar programs of study and qualifications, while in its second period, it was modified to bring it into accord with its new circumstances in the Christian hierarchy of teaching authorities. Of particular interest in this description of the similarities and differences between the three doctorates is Makdisi's explanation of the way the scholastic method functioned in its Islamic and Christian environments.

In "An Inquiry into Islamic Influences during the Formative Period of the Common Law," John Makdisi suggests that the Islamic institution of istihqaq, an action for recovery of land which has been usurped, was adapted and incorporated into English common law in the twelfth century. Henry 11 of England (reigned 1158-89) was responsible for legal reforms that gave tenants protection against the unjust seizure of their land by their feudal lords. Makdisi makes a convincing case that King Henry had learned of istihqaq through his contact with Sicily and his knowledge of Sicilian legal culture.

The modern section starts with William Ballantyne's "A Reassertion of the Shari ah: The Jurisprudence of the Gulf States." Ballantyne describes efforts made in various of the gulf states to integrate foreign and Islamic law in civil and commercial cases and shows that recent legal guidelines issued by some of the Gulf governments indicate a swing toward favoring shari ah principles over Western codes. He illustrates this with a particularly apt selection of quotations from the codes of different countries.

In "The Development of Decennial Liability in Egypt," Ian Edge traces the incorporation of a French legal concept into Egyptian law. Originally found in the Napoleonic Code, decennial liability was a liability imposed upon contractors which assumed that any defects that showed up within a ten year period were defects of construction. Edge indicates the way the Egyptian law of decennial liability has changed over the years, and points out that various other Middle Eastern countries have adopted different forms of it. Then he gives details of recent problems, both theoretical and practical, involved in the understanding and application of decennial liability laws in several countries.

In "The Shari ah: A Methodology or a Body of Substantive Rules?" Ann Mayer summarizes the development of the traditional, premodern attitude toward usul al-fiqh and emphasizes that the premodern jurists enjoyed a prestige " . . . due to their status as the masters of legal interpretation and their monopoly of legal authority." She then goes on to point out that modem Muslim governments no longer treat Muslim jurists as authoritative. Thus when Islamicizing legal reforms are put into place, they are enacted by legislative bodies or rulers and jurists remains on the sidelines. This inevitably leads to tension between the efforts of Muslim states at codification and the classical understanding of Islamic law as a jurists' law, a method for interpretation, that does not necessarily produce uniform results. This is an incisive article and mandatory reading for students of modem Islamic legal systems.

Finally, David Pearl in "Executive and Legislative Amendments to Islamic Family Law in India and Pakistan" takes as his starting point the Muslim Family Laws Ordinance introduced into Pakistan family law in 1961 and discusses the motives behind subsequent efforts at family law reform in both Pakistan and India.

In a couple of instances, the juxtaposition of the articles is valuable. In the section on jurisprudence, those by Wakin and Weiss approach the problem of interpreting Islam's revealed texts in a complementary manner, and since Ibn Qudama and al-Amidi were near contemporaries, a full picture emerges of sixth/twelfth century jurisprudence. In the modern section, Mayer's thorough investigation of the theoretical questions that are inevitably raised by legal reforms provides a framework for Pearl's examination of specific laws and cases. The book ends with a note on the contributors and an index. All told, this is a useful collection and a fitting tribute to a widely respected scholar and teacher.
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Author:Spectrosky, Susan A.
Publication:The Journal of the American Oriental Society
Article Type:Book Review
Date:Jul 1, 1992
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