Wael B. Hallaq (November 2005)

Wael B. Hallaq is James McGill Professor of Islamic Law at the Institute of Islamic Studies at McGill University in Montreal, Canada. Prof. Hallaq received his B.A. at the University of Haifa and his Ph.D. at the University of Washington. He has taught and lectured at a number of institutions, including the Institute of Islamic Studies (IAIN) in Jakarta and the National University of Singapore. Prof. Hallaq has written extensively on topics relating to Islam and Islamic law, including The Origins and Evolution of Islamic Law, Authority, Continuity and Change in Islamic Law, A History of Islamic Legal Theories: An Introduction to Sunni usul al-fiqh and Law and Legal Theory in Classical and Medieval Islam. The Legal History Project interviewed Prof. Hallaq in November 2005.

What in your view are the most significant historical eras of Islamic law (i.e. the shari`a), and which do you personally consider the most interesting?

In the case of continuously living traditions, which Islamic law was, any periodization is a mere construction of ours. Even if we were able, for the sake of controlling our subject, to separate between, say, a formative and a post-formative period, we would still have to use somewhat artificial criteria to determine when a period begins and ends. Yet, the more we know about Islamic law the more we realize that continuities are far more present than discontinuities – a fact which increasingly bars us from dividing Islamic law into periods. But while our periodization of Islamic law is largely arbitrary, it is possible to isolate the modern period as a distinct one, so distinct in fact that it certainly supersedes – in the force of its epistemic and legal ruptures – the period which begins with the monumental Quranic revelation/revolution fourteen centuries ago. But which is the "most significant" period is difficult, if not impossible, to say. And the reason is simple: All periods, however we divide them, and whatever we attribute to them, have contributed to the growth of Islamic law throughout history. They, all of them, constituted an integral part of the trajectory that was Islamic law. As for me personally, I have not yet decided which epoch/era/period/age of Islamic law is more interesting. I always like best the one I am working on at that particular moment.

In discussing English legal history, Prof. John Baker distinguishes between the visible law of official documents such as pleadings, and the often hidden expert knowledge shared and transmitted by the barristers in the Inns of Court. In analyzing Islamic legal history, can a parallel distinction be made between the "official" forms of the shari`a historically implemented and enforced by governments, and the professional or theological understanding of teachers (fuqaha, singular faqih) and judges (qudah, singular qadi)?

Well, you have pointed to one of the most nagging problems in our modern research about Islamic law, for Baker's distinction – as a methodological category – is right on the point, although the Islamic context dictates slightly different considerations of what constitutes covert/overt forms of knowledge. What Islamic governments did (which is, in legal terms, relatively little), especially over the past seven hundred years, can mostly be classified as overt/visible forms of legal intervention. The same goes for the massive production of juristic writings which tell us what the legal norms upheld by the Muslim legists were. Even the minutes of court proceedings can be subsumed under this visible law. However, one of the most invisible spheres in which law manifested its richest forms of existence was the qadi's court. We possess no more than miniscule insights as to how the Islamic court was really run prior to the nineteenth century; how different classes, men and women, Muslims and non-Muslims, old and young, represented themselves; what moral language they spoke, and how. The same goes for the legal profession: what, aside from the "official" pedagogical courses, did the training of a qadi really involve in terms of apprenticeship? How was it done? What, exactly, went on in the teaching sessions/circle? And how did the session/circle in the court metamorphose or transfer itself into a pedagogical circle and then to a circle of ifta' (issuing fatwas, authoritative legal opinions)? What is the significance of these contextual transformations? How did one circle affect another? All this remains largely invisible, and it is unlikely that it will ever be accessible to us on any considerable scale.

Can you explain the role of local custom (`urf) in the historical development of Islamic law, and whether it had a significant role in the growth of the four main schools of Sunni jurisprudence (i.e. Hanafi, Shafi`i, Hanbali and Maliki)?

In a sense, custom made Islamic law. It gave this law its subject matter. The Quran and the evolving Islamic ethic during the first three centuries reshaped, integrated and defined various customs, thus producing the law that we have come to know. But the Quran did not contribute much in terms of subject matter (hence, it is wrong to call Islamic law Quranic law; there are only specific Quranic rules). One can say that the bulk of sunan (pre-Islamic Arabian and Near Eastern exemplary customs) have been largely converted into Prophetic narratives and were made to provide a major foundation and source of the law. That the four schools were – as part of this process – also shaped by these custom-based sunan and by the later juristic reasoning on the basis of conflicting Prophetic narratives is something we should take for granted. But we must realize that custom continued to be a social force to reckon with during the long centuries after the formative period (i.e., after the A.D. 7th-10th centuries), which explains why the schools kept adapting themselves to the specific regions they happened to inhabit. So if you look at Malikism in Egypt and Andalusia during the middle and later periods, you see significant differences in the paradigmatic doctrine of the school in the two regions. The same goes for the Hanafites and the Shafi`ites.

The Salafist reforms of Ibn Abd al-Wahhab in the eighteenth century (of the Christian calendar) seem to have been aimed at returning Islam to its original historical state during and immediately after the life of the Prophet Muhammad. From the Salafist perspective, what is the status of the established schools of Sunni jurisprudence? More generally, does Salafism perceive itself within the context of the evolved Islamic law, or as one with the original Islam, with the intervening period of no jurisprudential relevance?

The term "Salafism" has been much misunderstood and distorted in the West. Like much else about Islam, it has been given a narrow and negative connotation, when in fact it is a term that designates a wide, mutative and divergent range of phenomena. The Wahhabite theology – and it is a theology in the first instance – has indeed called for a return to a pristine spirit of Islam, but juristically and legally, it has in practice accepted the Hanbalite legal school as a valid manifestation of "worldly" management (although, in theory, it continued to call for fresh legal reasoning on the basis of a direct interpretation of the Quran and the Sunna of the Prophet). In fact, ideologically, today's Saudi Arabia is the result of a very particular mélange of Wahhabism and Hanbalism. But there are other types of Salafism. Some twentieth-century Salafist reformers, in order to promote what I have elsewhere called a "utilitarian" agenda, called for a return to the early Islam of the first two or three generations. This is a technique used to circumvent the imposing and formidable body of jurisprudence produced by the schools, but a body that was seen to inhibit reform.

While Salafism may seem to a Western observer as an uncompromising and extremist (and thus scary) word, from another perspective, it can be interpreted as a liberating technique. Liberating in the sense that reform is freed from what is seen as the shackles of tradition. At the same time, the call to go back to the ways of the salaf, the exemplary early founders, is often – if not always – another legitimating technique used to construct a legal and political identity that is no less modern than anything else we experience today. For the "pure" past of the early founders is obviously not an objective reality that sits ready in history awaiting to be retrieved by the Salafists. It is a constructed entity, and the agents of construction are people and minds who are modern and who can never perceive the first centuries of Islam except through their modern gaze.

Could you explain the main differences between the Sunni and Shi`i schools of Islamic jurisprudence?

On the whole, the differences are more political and theological than legal. On most points of law, Shiism no more differs from Sunni legal opinions than the Sunni jurists differ amongst themselves. In this respect, both the Zaydism of the Yemen and the Jafarism of Iran can be seen as fifth and sixth legal schools, on par with, and similar to, the four Sunni schools. Inheritance and temporary marriage are two main areas of real difference, however. In Shiism, inheritance took a different configuration in the allotment of shares from that which came to prevail in Sunnism, and this was because of political considerations having to do with lines of descent of political authority. So the positive and substantive rules in this sphere are different. Also, the Sunnis do not deem temporary marriage to be lawful. But the more fundamental, structural difference has to do with the legal authority of the Shii Imam who is deemed infallible and who is, in theory, the source of all law. Sunnism has no such equivalent figure.

Does the reigning Iranian clerical establishment view itself and its relation to historical Shi`i Islamic law in the same way as the Salafists do with respect to Sunni Islamic law?

Not entirely. The Sunni tradition, theologically, legally and juristically, experienced a major rupture during the nineteenth century. I mean a foundational, structural and epistemic rupture. The law colleges that produced the legal profession, and everything that these colleges meant and implied in terms of theory and practice, disappeared. So did the judiciary. The Shii tradition of learning and legal knowledge maintained a good measure of continuity, and herein lies the difference. The present Republic and its Mullas draw in good part on this continuity, but the Salafists are forced to imagine/create/recreate and invent their own tradition, which is not always free of indirect, yet heavy influences from – and direct reactions to – Orientalist/colonialist narratives and forms of knowledge.

The current debate over whether the shari`a can or should be modernized often turns on the technical question of whether 'ijtihad (independent interpretation of the Qur'an and Traditions, a.k.a. ahadith) can again be used to create or change doctrine. Could you explain this controversy, and in doing so could you also explain why the "door was closed" on 'ijtihad in the first place?

This is a big question/subject that can take us to the core issues of what and who created the genre that we call "Islamic legal history"; that is, as a field of academic enquiry. I must first dispel the myth that the so-called "gate of ijtihad" was ever closed. This idea of closure was an Orientalist discursive strategy – a ploy, if you will – that was utilized in a truly mythical fashion, as an invented reality, to construct a larger history of Islamic law that renders this law "objectively" rigid and hopelessly stagnant. And once this knowledge was raised to a status of paradigm, then the next step, logically, was to justify why Muslims should be happy to adopt Western forms of law-making (including codification and, expectedly, a strongly bureaucratized and centralized nation-state) in lieu of their "decadent" legal tradition.

In actual history, this also happened: Largely on the basis of this newly invented knowledge, the Sharia was largely shoved aside, and Western and Western-inspired laws came to replace it. The entire traditional legal culture, with its educational trusts, personnel, systems of education, and the very communities that Islamic law was serving for centuries, went down in a total collapse. Structurally and institutionally, and therefore epistemologically and legally, Islamic law is no more. What is left is a veneer that survives in the law of personal status in Muslim countries today. It is no better than an orphaned embellishment that has emerged from the ruins of the past by the feat of a decree issued by the modern state. But in its present configuration, it is not a juristic, fiqhi, production.

All this goes to say that – despite the floating notion that modern reform requires or presupposes ijtihad – there is no such thing today as ijtihad in any meaningful sense; that is, in the sense contained and implied by the classical Islamic practice. There are no Sunni jurists today who know what real ijtihad involves and means. These jurists ceased to exist a century ago, and even if a clever individual were to learn nowadays the old techniques of the jurists, he or she would not know what to do with them. The society that sustained Islamic law, was sustained by it, interacted with it, and stood in a complex moral dialectic with it, is no more. Islamic law is a system that is entwined with morality, and therefore presupposes for its workings what some postmodern writers have called a "moral community." So to answer your question: if we were to speak of ijtihad in the modern context, it has to be a new form of ijtihad, totally different from the one used by the pre-nineteenth century jurists of Ottoman lands and pre-eighteenth century South Asia. And if this is the case, then there is no reason to call this new practice "ijtihad." It would be misnomer.

It is interesting that 'ijtihad comes from the same root as does the word jihad, namely J-H-D, which signifies the concept of struggle, the basic verb being jaahada. Can you discuss the jurisprudential implications of this etymological connection?

You are right, this is an interesting etymological as well as conceptual connection. The idea of "working hard" to live an ethical and moral life lies at the center of this concept, in its two variants. Exerting yourself for the sake of God or for promoting the higher goals of the Muslim community was an act that was characterized by the use of jaahada/ijtahada during the first two centuries of Islam, where the conceptual connection between the two terms was still made. Jihad is the realm of the "private" individual who will have to "struggle" or "do his or her best" to live by a moral conduct prescribed by the law. Ijtihad, on the other hand, is the realm of the "professional" or elite (not elitist) jurist who will have to do his best to reach, by his highly competent reasoning, that positive ruling for the benefit of the "private" individual, the consumer of the law.

One, and only one, of the meanings of jihad is the duty – prescribed by the law – to fight in defense of one's community. In theory, jihad can also be offensive, and in this form, it was mainly a theoretical abstraction teased out of the series of conquests during the first Islamic century or two. Obviously, historical reality changed over the centuries, and this offensive nature of the theory was reinterpreted accordingly. What we hear today about this term is much more politics and stereotyping than any sober assessment. As is so often done, people pick on those negative elements, expunge them from their organic contexts, and put them together in a way that produces a new narrative, a new form of knowledge. The result is an ugly picture. This is typical of how Islam is portrayed, with regard to ijtihad, women, and much else. And because of the sensitive nature of these subjects, they tend to put many Orientalists and Westerners on the defensive. But the truth of the matter is that the history of jihad is yet to be written.

Recent calls in the West for an Islamic "reformation" along the lines of Christian history seem inapt for two reasons. First, the Christian Reformation began with a dispute over papal authority, which has no counterpart in decentralized Islam. Second, Christian doctrine is heavily based on interpretive extrapolations from Christ's ethical pronouncements, whereas Islam, like Judaism, endeavors to conform many areas of daily, family and communal life to specific and express divine laws and regulations. Would you agree with this reasoning, and can you speculate in any event on what an Islamic "reformation" along Westernized or "modernized" lines would entail in its legal aspects?

Yes, I very much agree. The Islamic experience has been different in many ways. But it is by now obvious that if anyone were to speak of "Islamic Refomation," there has to be a sort of "postmodernist" interpretation of Islam, in the sense that the modern denial of religion and of a "moral community" has to be seriously reassessed. No one can restore the past, nor is it desirable, wise or practical to do so. But modernity, at the same time, has proven to be – in many fundamental ways – a bankrupt project, a clinically disturbed condition. Any reformation, legal or otherwise, must attend to this situation and must reconsider how the past can instruct, or, if you will, how "postmodern" attempts at reconstructing the past can yield some lessons for the future. However, there remains the constant fear that what might be perceived to be a remedy will turn out to be yet another step in anchoring the disease.

Which historical figures and doctrines provide the most support for legal change in Islam, and which provide the most support for maintaining the status quo?

I think it all depends on how we construct and interpret Islamic legal history and the actors/figures who inhabited its terrains. For example, to effect the dismantling of Islamic law, colonialism, with its organ of Orientalism, resorted to a narrative in which this law became stultified, "beyond repair" and thus needing replacement altogether. Another way is to view the Sharia as a legal tradition that maintained constancy and stability while accommodating piecemeal change, which in fact it did. If we adopt the latter narrative, then we will not find "figures" who advocated change, since to isolate such figures would mean that they were the exception; i.e., an exception that promotes mutability in a larger context of immutability. It is better, and historically sounder to say, that the entire tradition built into its inner structures a mechanism of change, which explains why Islamic law did manage to change well over a millennium of its life (until the 19th century). All you have to do is look at law and – as indicator – law books in the ninth century and in the seventeenth. The difference is truly striking.

But in going about all of this here we are faced with a definitional problematic. What do we mean by "change"? Does it mean throwing away what we have today and instead adopting a new system tomorrow? This form of change – the feat and province of the modern state – is not what we are talking about in the context of Islamic law. Islamic law was largely run without a "state," and in any event could not change that fast. Our notion of change today was unknown to all humanity that lived before the eighteenth century. More importantly, Islamic law could not overthrow its foundational principles. The changes of modernity are too drastic for it to accommodate; and what has emerged in our modernity is the principle that change itself is the dominating principle. In a fundamentally capitalist modernity, there can be no truly moral principles, or principles that can render capitalism subservient or subsidiary to them. Hence the predicament of modern Muslim reformers: how to reenact Islamic law for a modern context while maintaining in this law a structural mechanism that will keep the moral and religious principles intact.

Do you feel that Islamic legal history can provide useful lessons to secular Western legal systems, and do you find that Western academics have succeeded in correctly identifying and explaining such lessons, and Islamic legal history more generally?

Yes, of course. It is now more obvious than ever that the retrieval, on our own terms, of morally-based communities (and all that which this implies and entails) may be part of a larger challenge in addressing problems of modernity in both Eastern and Western legal cultures. We are beginning to understand the nature of the Islamic moral communities of the past, but we still have a long way to go. Legal anthropologists and anthropological historians have been very helpful here, but little of value has come from the rest of the specialists, mainly from the legal philologists who have defined the field since the middle of the nineteenth century.

Are you working on any shari`a-related or other legal history projects at the moment?

Yes. I am at present engaged in a large project that will take stock of Islamic legal history from start to finish, so to speak. It consists of more or less three equal parts, one dealing with Islamic legal history until the break of modernity and the colonialist conquests; another is a portrait of substantive Sharia law during the same period; and the third deals with modern developments.

Prof. Hallaq was interviewed by Peter C. Hansen.

© Peter C. Hansen, The Legal History Project.