Book Review

This book is part of a new series, for which Alan Watson serves as the General Editor. Entitled The Spirit of the Laws, the series includes monographs devoted to Biblical, Japanese, Classical Canon, Traditional Chinese, and Roman law. As the title of the series suggests, these volumes devote only indirect attention to rules of law per se. Rather, the authors explore the "spirit" of the respective legal systems by examining relationships between law and religion, the degree of complexity and abstraction of each system; classifications, attitudes to sources of law; authority; and values enshrined in the law. The Spirit of Islamic Law, by Bernard Weiss, fulfills these objectives admirably. The book has been carefully conceived, researched, and organized. In eight intelligent and highly readable chapters, Weiss identifies and analyzes the religious, moral, and theological foundations of Islamic law and the salient features of Muslim juristic thought. What follows is merely a thumbnail sketch of a lucid and highly nuanced book.	1
In chapter one, Weiss situates Islamic law in its historical context, with special attention to similarities to and differences from the role of law in Judaism and Christianity. After tracing the historical development of Islamic law in its formative period (seventh–ninth centuries c.e.), Weiss begins the task of identifying the salient features of what I would call "the Islamic legal imagination." All legal systems confront the problem of authority. More than other legal systems, Islam grounds the authority of its law in divine sovereignty. Law is inextricably related to theology and the first element of the Islamic legal imagination is the existence of God. During the formative period, Muslim theologians--many of whom were jurists--attempted to establish the existence of God from premises that are grounded in our direct experience of the world. Like their Jewish counterparts, Muslim scholars defined the relationship between God and humanity in terms of a covenantal relationship. In the Bible, the covenant is embodied in the figure of Abraham. In the Qur'an, it is embodied in that of Adam. Qur'an 7:72 refers to a primordial moment, prior to the creation, when God gathered all of Adam's descendants and addressed them, as follows: "And [remember] when your Lord brought forth from the Children of Adam, from their loins, their seed, and made them testify against themselves [saying]: Am I not your Lord?" In response, the children of Adam replied, "Yes, verily. We testify." This exchange, according to Muslim exegetes, served as the basis of a convenantal relationship between the Creator-Lord and His creature-slaves. Subsequently, this Creator-Lord revealed the Qur'an to his prophet Muhammad, issuing a body of commands and prohibitions that define the obligations of humanity to its Creator. Other commands and prohibitions were communicated to mankind through the agency of Muhammad, in the form of a prophetic sunna ("tradition"). The authenticity of the Qur'an is guaranteed by the multiple and invariant transmission of the text from one generation of "reciters" to the next; that of the prophetic sunna is guaranteed by its transmission from the Companions of the Prophet to Followers and Successors during the first centuries of Islam. Thus there emerged two foundational texts, Qur'an and sunna, that serve as the bedrock foundation of Islamic law. Together, these two sources constitute the Shari'ah.	2
The formation of these foundational texts leads Weiss to the notion of "textualism," a "Fixation" on sacred texts. The Qur'an and the sunna of the Prophet constitute a closed canon. Law is either found in these texts or must be derived, inductively, from them; any law formulated independently of these texts lacks authority and validity. Divine and prophetic pronouncements are expressed in language. The proper understanding of the foundational texts therefore requires an expert knowledge of the function of language as a lexical code and system of signs. Muslim jurists sought to master this code in order to discover the meaning of the foundational texts, which they regarded as being identical with the intention of the divine author, hence, what Weiss calls Islamic "intentionalism." But language is intrinsically equivocal. Even the seemingly clear commands of the Qur'an may be subject to multiple interpretations, as demonstrated by juristic disagreement over the meaning of Qur'an 5:38: "As for the male thief and the female thief, cut off the hands of the two of them." Here the imperative "cut off" was variously understood as a clear command, a recommendation, or as a general idea of a calling for an act; and the noun "hand" (yad) was variously understood as referring to the hand, forearm, or arm of the thief. Sunnaic texts are equally ambiguous and, in addition, suffer from the fact that their authenticity, in many instances, is merely probable (whereas that of the Qur'an is unassailable). Many Muslim jurists conceded this point, which compelled them to accept the authority of sunnaic law despite its mere probability (hence "probabilism").	3
The body of law that can be found in, or derived inductively from the Qur'an and the sunna, is limited. If the law was to develop, Muslim jurists would have to play a role in the process. The authority of these jurists, however, is regarded as derivative. Human attempts to identify the divine intent are, by definition, uncertain and fallible. The authority of the Muslim jurist is dependent on the methodology that he deploys and the skills that he possesses. The declaration of a jurist is authoritative only because it is presumed to have been derived in a valid manner from the foundational texts; it is the method employed by the jurist that guarantees that the result is acceptable as an expression of the divine will. This methodology was worked out, in exquisite detail, by jurisprudents (usulis) who produced a body of literature known as usul al-Fiqh, literally, "the roots of the law."	4
The efforts of Muslim jurists to develop the law by discovering the divine intent embodied in foundational texts was carried out during two broad historical stages. In the formative stage, master jurists or mujtahids (literally "toilers"), such as Abu Hanifa, al-ShaFi'i, Malik, Ibn hanbal, and Ja'far al-Sadiq, derived the law directly from foundational texts. Over time, the law produced by these master jurists grew and was transformed into a secondary tradition, embodied in school texts that other, later jurists studied, organized, preserved, and communicated to members of the communities in which they lived. In this second, postformative stage, jurists known as muftis sought authority for their pronouncements in the school texts that had emerged and in the authoritative opinions (fatwas) of earlier jurists. The product of this juristic activity is Fiqh, jurists' law. The distinction between Fiqh law and shari'ah is important for Weiss: Shari'ah is the (presumably) explicit divine commandments found in the Qur'an and the sunna; Fiqh law is the body of rules and principles that Muslim jurists extrapolated from both foundational texts and alter school textbooks. Shari'ah is certain and unchanging, whereas Fiqh is probable, and, in theory, subject to change.	5
Also in the postformative stage, Muslim jurists, through careful inductive study of the foundational texts, identified five underlying "purposes" of the law. These were the preservation of religion, life, offspring, property, and rationality. These five purposes constitute what Weiss calls "the Islamic social vision." By invoking one or more of these purposes, Muslim jurists might even derive new rules that were regarded as valid. In chapter seven Weiss uses these five categories as a lens to explore the moralistic outlook of Muslim jurists. Thus, laws relating to worship, the testimony of the faith, congregational prayer, the status of non-Muslims, the law of war, and the family are linked to the preservation of "religion." Laws relating to maintenance, the treatment of minors and females, and homicide are related to the preservation of "life." Laws relating to marriage, the regulation of sexual behavior, the treatment of sexual relations outside of legal marriage (and concubinage), and dress are related to the purpose of "offspring." The notion of just exchange (and the abhorrence of exploitation and usury), theft, and brigandage are related to "property." And the prohibition of wine, on the one hand, and the use of legal fictions, on the other, are related to "rationality."	6
In a final chapter, Weiss treats private and public dimensions of the law. He observes that the shari'ah expresses a very high level of concern for the affairs of individuals, especially in the domains of family relations and contracts. At the same time, the law places severe limits on the power of the state. Rights pertain either to individuals or to God--not to the state. Thus, the state may never be a party to a dispute or make a claim against a party. When a Muslim pays taxes or serves in the military, he is fulfilling an obligation toward God, not a duty as a citizen. An Islamic state is needed to secure the Islamic social order, but this order is best realized by a government that knows the limits of its authority.	7
This masterful and lucid exploration of the spirit of Islamic law deserves to be read by a wide audience of both Islamicists and non-Islamicists. Appearing over a quarter of a century after the Introduction of Schacht and the History of Coulson, The Spirit of Islamic Law incorporates many of the achievements and insights of Western scholars who have worked on Islamic law during the intervening period. And the categories that Weiss uses to discuss Islamic law ("textualism," "intentionalism," "probabilism," and so forth) will make the book easily accessible to non-Islamicists and comparativists. Spirit will be a standard text for many years to come.	8
David S. Powers Cornell University

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