Lessons in Islamic Jurisprudence.
Brown, Jonathan A.C.
Lessons in Islamic Jurisprudence. By MUHAMMAD BAQIR AS-SADR.
Translated by Roy Parviz Mottahedeh. Oxford: ONEWORLD, 2003. Pp. x +
208. $26.95 (paper).
Muhammad Baqir al-Sadr (1935-1980) was one of the most influential
Shi'ite scholarly figures of the twentieth century. An Iraqi cleric
who taught in Najaf, he fused a novel, thematic approach to the
Shi'ite scholarly heritage with a keen sense for modern Western
thought and the challenges it presented. Works such as Iqtisaduna (Our
Economics) and Falsafatuna (Our Philosophy) were written as accessible
and convincing manifestos of Islam for Muslims tempted by the appeals of
Communism in Iraq. They became modern classics of Islamic thought.
AJ-Sadr was also a committed advocate of madrasa and curriculum reform
in the Shicite centers of learning in Najaf and Karbala. He joined with
the Islamist Dacwa party, which had grown in strength since 1958,
against Saddam Hussein. His involvement, as well as that of his equally
talented sister, eventually cost them both their lives. In 1980 they
were arrested, tortured, and executed by Saddam's government.
In this book, Roy Mottahedeh has provided us with a translation of
the first volume of al-Sadr's three-volume introduction to Imami
Shicite legal theory, Durus fl'ilm al-usul (originally published
1978). Mottahedeh provides an introduction, which includes a brief but
very insightful overview of the development of Islamic law, a short
comparison with the Western legal tradition, and finally a section on
al-Sadr's life and works. Then begins the body of the translated
text itself, which is divided into four chapters.
Chapter one is al-Sadr's characterization of the nature and
function of legal theory and its relation to jurisprudence. It centers
on the primary questions driving the process of Muslim legal thought.
How do we know what God wants (since, al-Sadr argues, the necessity of
knowing His will is manifest for humans from both a rational and
scriptural basis)? How does one understand the sea of proof texts from
God and His infallible representatives (the Prophet and the imams)? How
do Muslims derive a body of law from the Qur'an and Sunna, which,
taken in their entirety, furnish "a scattered heap of texts and
arguments" (p. 41)? Chapter one features a particularly lucid
discussion (pp. 47-53) of the history of the technical term ijtihad in
Shi'ite thought and the ideas and practices associated with it.
Here, al-Sadr explains clearly how historically some scholars could
condemn an idea held to be central to Islamic law by others; while those
who condemned the idea assumed ijtihad to mean making personal opinion a
source of law, the supporters of ijtihad emphasized the necessity of
using interpretive methods or reason when texts did not provide a clear
answer. Moreover, all acts of legal derivation involve interpretive
effort and thus ijtihad.
Chapter two treats the broad topic of "Substantiating
Arguments," or the scriptural sources of Islamic law and some of
the basic principles for interpreting and manipulating them. More than
in any other primary source I know, this chapter demonstrates how
Islamic legal derivation is more a dynamic tension than a firm or
standardized procedure. This chapter also deals with the questions that
Muslim scholars treated as essential for interpreting sacred scripture:
What is the nature of language, which forms the central point of
departure for dealing with a sacred text as a source of law? How is
meaning determined in language? Is signification revealed? And what is
the effect of conventional use on the meaning of words? What is the
proper relationship between the literal and figurative understandings of
phrases? What are the default implications of imperative statements?
This chapter also includes a discussion of the historical sources of
revelation (for example, akhbdr), and their episte-mological standing.
Chapter three moves on to discuss "Procedural
Principles,'' or the rational schemata and hermeneutic assumptions that scholars rely on when revealed texts provide no clear
answer to a legal question. Again, in this chapter al-Sadr shows us that
the principles employed by scholars are not hermetically sealed off from
one another, nor do they have exclusive and obvious roles. Rather, they
interact in competition, a fact that lies at the root of many scholarly
disagreements. For example, al-Sadr notes the "Principle of
Exemption" (that Muslims do not have any legal duty if they can
find no clear evidence on an issue) as well as the "Principle of
Precaution" (an assumption of continuity in legal status or
standing, based on "Presumption of Continuity"). Another
principle that al-Sadr notes is attributed to Ja'far al-Sadiq (d.
148/765) in Imami Shi'ism but is listed as one of the "greater
legal principles (al-qctM'ci'id al-kabraf according to Sunni
scholars such as al-Suyuti (d. 911/1505): "Certainty cannot be
destroyed by doubt" (pp. 133, 168)--an interesting possibility for
comparison between Sunni and Shicite legal theory.
Chapter four addresses the possibility of the Conflict of Arguments
between types of proofs: the apparent contradiction between revealed
proof texts, between revealed proof texts and rational principles, or
between two rational principles. Al-Sadr affirms the dogmatic stance
that there can be no real conflicts between revealed texts and rational
or procedural principles if the revealed texts are episte-mologically
certain. Here he addresses the fascinating question of ahad hadiths,
which arc not cpis-temologically certain and therefore can be involved
in such conflicts.
Mottahedeh then provides a useful "Analytical Summary" of
al-Sadr's text, which helps explain the occasionally complex
writing and also shares some of the translator's insights.
Last, we find what may be the most useful part of the whole work: a
glossary of technical terms used in the text as well as a list of the
Arabic equivalents. The text also includes a useful index.
Perhaps the greatest shortcoming of the work discussed here is not
actually the fault of the author at all. There are so few treatises on
Shicite legal theory that it is difficult as a reader to know where
al-Sadr's book fits. As a modern work, is it representative of
classical Shicite usul or is it a marked departure'z? Mottahedeh
himself notes this, calling the book "an orphan" and hoping
for more studies to supplement and contextualizc it.
I found particularly beneficial the manner in which al-Sadr makes
clear that. Islamic legal theory is a way of thinking, not a hard
science. In this capacity, this book would be very useful to anyone
interested in Sunni Islamic legal theory as well, since many of the
questions and rational templates are shared (Mottahedeh notes that the
ecumenical nature of the book may be a result of al-Sadr trying to
emphasize the scriptural basis of Shi'ite jurisprudence in order to
counter Sunni critiques, p. 21).
Perhaps the greatest contribution of this book is the excellent
translation lexicon it provides for many of the technical terms of
Islamic legal theory. These are all explained in the glossary.
Mottahedeh himself notes this, guessing that the book's most likely
contribution to the field will be in standardizing and making more
accessible the language of legal theory. For those readers (like me) who
lack a legal background, finding accurate translations for Islamic legal
technical terms can be challenging. This book will be a most useful
addition to any reference shelf. That is certainly where I will keep my
copy.
JONATHAN A. C. BROWN
UNIVERSITY OF WASHINGTON
