Islamic Law: Theory and Practice by Robert Gleave (Editor). London-New York: I B. Tauris Publishers, 1997. 248 pp.
Reviewed by Arlene T. McCarthy, Southern University Law Center.
In the introduction to his book, Islamic Law: Theory and Practice, editor Robert Gleave describes the book’s content as a series of papers resulting from a conference of the same title for emerging Islamic Law Scholars. Gleave makes it clear by his writing that the book is a contribution to an on-going scholarly debate. Also in his introduction, Gleave advises the reader that the book is unlikely to satisfy those looking for an integrated examination of theory and practice in Islamic Law. For these reasons, Gleave is likely to lose some of his readership. To illustrate why, one merely has to read the first of the four parts of the book, which is entitled "Legal Theory."
Of the two articles in this part, not all readers will read I ric Chaumont’s article, "Ijtih~ d et histoire en islam sunnite classique selon quelgues juristes et quelgues thJ ologiens," which is written in French. The other article in this part, written by Gleave, does not attempt to offer an overview or survey of Islamic legal doctrine to the non-Islamic scholar. Instead, Gleave’s article, "Akhb~ r§ Sh§ § uÕ é l al-fiqh and the Juristic Theory of Yã suf b. Ahmad al-Bahr~ n§ ," focuses on an individual scholar’s views of ijtih~ d (effort of interpretation) as a source of law.
Gleave’s article is particularly difficult to follow for a non-Islamic law scholar. The names and terminology, so often used without accompanying definitions, as well as the author’s tendency to vacillate between educating the reader and informing without making that effort clear, are disorienting. In truth, the motivated reader will pick up a sense of theory as she reads each article in the book. To this extent Gleave’s division in parts appears to be somewhat arbitrary.
The article most likely to serve as a companion piece to Gleave’s is found in Part Two of the book relative to "Ift~ , Fatw~ s and Muft§ s." "Ijtih~ d in Ibn Taymiyya’s Fat~ w~ " by Benjamin Jokisch defines the relationship between theory and practice for us in the context of one muft§ ’s rulings. The author concludes, by looking at three fatw~ s that are representative of his work, that Ibn Taymiyya demonstrates a willingness to use his own ijtih~ d (effort of interpretation), various forms of qiy~ s (analogies) and restricted definitions of ijm~ ! (consensus) in making his rulings.
In total there are eleven articles that comprise the book. In addition to "Legal Theory," "Ift~ , Fatw~ s, and Muft§ s," the other parts of the book are "Minorities under Islamic Law" and "Modern Islamic Law." By his introduction, Gleave identifies several themes that the book contains: a search for an adequate definition of ijtih~ d and juristic interpretation and the need to clarify its relationship with judicial practice; the importance of fat~ w~ collections as evidence of judicial and juristic activity; and the flexibility of the law through time and circumstances. All of these themes were revealed in my reading. My overall impression of the book was that it gave the reader a clear understanding of the tension between the religious and the secular in the interpretation of Islamic law and the perceived threat this tension represents to Islamic legal doctrine. The book highlights that in Islamic law, as in all law, the greatest controversies arise in the areas of changing customs in society.
Issues of family law play a prominent role in most of the articles in the book. Mohammad Fadel’s article, "Rules, Judicial Discretion and the Rule of Law in NaÕ rid Granada: An Analysis of al-Had§ qa al-mustaqilla al-nadra f§ al-fat~ w~ al-Õ ~ dira ‘an ‘ulam~ ’ al-hadra" examines the book’s themes in the microcosm of NaÕ rid Granada. To represent practice, Fadel relies on the only rulings that have been preserved from this pre-Ottoman period, the fatw~ s. The article includes descriptions, summaries, and tables of the various muft§ s and their fatw~ s, which allows for comparisons with the doctrine of the Mukhtasar Khalil, the theory. Some interesting facts are revealed including contradictions between the muft§ s and their rulings and the school of thought to which they belong, and the nature of the contradictions, which occurred most often in rulings on divorce and ritual slaughter of animals. Fadel concludes that his micro-study is one of many more that need to be conducted before any truths can be ascertained regarding the dynamics of theory and practice in Islamic Law.
"Kaf~ ’a in the M~ lik§ School: A fatw~ from Fifteenth–Century Fez" by Amalia Zomeno also reveals the unique problems that family law posed for Islamic scholars and practitioners. Kaf~ ’a has to do with equality of the parties to marriage. The author begins by presenting the many disagreements that exist amongst scholars in regard to kaf~ ’a. Then Zomeno turns to the fatw~ , which she chose because it allowed for an in depth study of judicial practice. Zomeno concludes three things from the fatw~ : that kaf~ ’a controls the actions of the wal§ who must arrange for a bridegroom for his ward, that the practice is adapted to theoretical legal considerations, namely the minimal annulment of marriages, and that the application of kaf~ ’a in disputes is more a social question than a legal one.
Ruth Mitchell’s article entitled "Family Law in Algeria before and after the 1404/1984 Family Code," examines the confusion created in family law in Algeria as a result of French colonial rule and the conflict between traditionalist and modernists. After summarizing the 1984 Family Code, which was adopted to regularize family law, Mitchell writes about the law in practice. She concludes that the code upholds the traditional view of women within society and the family. Most significantly, the code fails to resolve all the social and legal problems that pre-existed it.
Gleave’s book demonstrates to the reader that scholars and practitioners of Islamic law approach controversial legal issues in much the same way as any legal scholar or practitioner would approach them. The authors reveal that Islamic scholars and practitioners recognize the fundamental purpose of law- as a tool to resolve disputes in their society.
In her article, "Water Rights and Irrigation Practices in the Medieval Maghrib," Patricia Kabra describes a process of change and adaptation of Islamic legal practice. She concludes that the nature of disputes changed when a purely agricultural economy became more urban; scholars had to be versed in the technological principles as well as the legal principles in order to resolve disputes; and scholars ventured beyond the principles laid down by M~ lik to rules of partnership and equity , when the former were insufficient to arrive at an adequate response to a dispute.
In the article by Birgit Krawietz entitled "Daã ra in Modern Islamic Law: The Case of Organ Transplantation," the author focuses on organ transplantation in order to raise the myriad of legal issues that arise under Islamic law when considering the legality of modern medical practices. In so doing, Krawietz introduces the concept of "maÕ laha", meaning welfare, benefit or utility. She explains how scholars have regarded maÕ laha with great suspicion because citing it to sanction modernizations can only serve to reduce Divine law to man-made law. Relying on classical Islamic legal theory, Krawietz suggests that organ transplantation may be legal if based on darã ra, (necessity and need). Krawietz acknowledges that scholars must first answer such preliminary questions as whether the concept of brain-dead is accepted under Islamic law. Scholars must also reconcile the conflicting Islamic principles concerning the sanctity of the human body and the physical integrity of the living. Krawietz concludes that the disagreement between scholars and the analogies made in order to answer these questions, evidence the adaptability of Shar§ ’a (Muslim judicial system) to modern life. Rather than secularizing Islamic legal theory, Krawietz suggests Islamic law becomes enriched by addressing these questions.
"Halakha, Shar§ ’a and Custom: A Legal Saga From Highland Yemen 1900-1940," by Issac Hollander traces the legal affairs of four generations of the Madd~ r clan, members of the Jewish minority in al-Adh~ rib village in Yemen, a rural Muslim-majority community. The comparative law and choice of law issues raised in this article offer an interesting perspective for considering how practitioners might circumvent Islamic legal doctrine. The various tribunals called upon to resolve a dispute over the division of property included the local mor§ (Jewish learned person), the Jewish court and the Muslim court. Hollander concludes that the litigants demonstrated an awareness of how both legal procedure and substantive doctrine might impact their claims.
Yitzhak Reiter is the author of "Q~ d§ s and the Implementation of Islamic Law in Present Day Israel." This article is a nice juxtaposition to Hollander’s article because it also touches upon choice of law issues and comparative law issues. The distinction in Reiter’s article is that it involves Muslims in a Jewish state. As backdrop, Reiter offers some insight as to why the Shar§ ’a (Muslim judicial system) in Israel is not held in high esteem. Although Reiter cites several reasons for this diminished esteem, including inadequate funding, staff and attention, Reiter focuses on the education of the q~ d§ s (the judiciary).
Proposals to impose the requirement of a law degree on the q~ d§ s are criticized because the requirement might bring more justice to the Muslim judicial system at the cost of secularizing Islamic law. In recognizing President Shaykh Ahmad al-N~ tã r of the Shar§ ’a Court of Appeal, Reiter clearly disagrees with this criticism. He praises al-N~ tã r for bringing the necessary learning to the court for both a procedurally and substantively correct application of Islamic law. Reiter credits al-N~ tã r’s reformist orientation with restoring credibility to the Shar§ ’a in Israel. He attributes to al-N~ tã r the view of the Shar§ ’a as "an all-embracing, living body of law that can be interpreted and adapted to changing realities."
Eugenia Kermeli’s article "Ebã ’s Su`ã d’s Definitions of Church va± fs: Theory and Practice in Ottoman Law," is unique amongst the articles in the book because of its subject matter. By including it, Gleave has provided wonderful insight to the vitality of Islamic law throughout the centuries. Kermeli’s article provides a historical look at how monastic trusts were treated under Islamic law in the Balkans.
Custom allowed the monastic trust or church va± f to endure in the Balkans following Byzantine rule, but Kermeli writes that such va± fs were merely tolerated. In 1568, Ebã ’s Su`ã d, an Islamic authority, attempted to address the legality of such va± fs under Islamic law. Su`ã d’s conclusion, which derived from Hanafi doctrine, was that a va± f for the benefit of a church contravenes Islamic doctrine, but not a va± f for the benefit of the monks. Kermeli notes that Su`ã d offered a practical and legitimate solution to the problem of permitting the custom of monastic va± fs to exist in the Balkans while at the same time respecting Islamic law. Kermeli observes that Su`ã d evidenced that Islamic legal theory in the Ottoman Empire was not stagnant and unresponsive to the call of society.
Ultimately Gleave’s book is a satisfying and thorough look at the on-going scholarly debate concerning theory
and practice in Islamic law.