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What Is Islamic Law? https://islamiclaw.blog/2020/12/31/what-is-islamic-law-how-should-we-study-it/
A refreshing take on Islamic law, though the intractability of the problem persists as a result of the ambiguity inherent to the words "Islamic" and "law." Thread...
A refreshing take on Islamic law, though the intractability of the problem persists as a result of the ambiguity inherent to the words "Islamic" and "law." Thread...
2 questions without an answer: "what makes something Islamic" and "what is law"? I think the best one can do to answer the first is arrive at a workable heuristic, a fluid category that facilitates a provisional understanding of something...
As for law, Lowry aptly points out that modern law, entangled with power as it is, is a prejudicial model. Modern legal philosophy is of no help, detrimental in fact. The concept of "law" is entangled with a host of ideological markers, prestige, a je ne sais quoi...
To understand law in trans-historical/-temporal contexts, an "interpretive" (anti-naturalistic) approach is most persuasive. The work of post-analytic philosophers like Mark Bevir and @jasonwblakely is illuminating. Still no cigar though...
Because to "interpret" a phenomenon as law, you still need a concept, a point of reference to work from. This is because Muslims used different words with different conceptual grammars (e.g. fiqh, siyasa, qanun). Questions remain...
Does "law" have to follow a model of rules (see Powers)? Are institutions/enforcement/power necessary (see Hallaq)? Does Islamic law apply to both fiqh and siyasa (see Stilt and Baldwin)?...
Lowry: "The most important thing is to explain...what we mean by Islamic law, what sources we study and why, and why we hold the views we do." Close to an interpretivist approach, but still lacking.
For Lowry, Islamic law didn't exist until late 1st/early 8th c. So what did the earliest Muslims (or pre-Islamic Arabs for that matter) have? (I'm partial to L. Salaymeh's view that Islamic law began when Islam did). Greater sensitivity is needed towards the subjects we study...
What might they have recognized as "law"? You see now how the problem seems to recur indefinitely...
Another related problem: the urge to count things as "law" is beholden to the prestige the term carries. This leads some to broaden or constrict the term, depending on what they considering deserving of that hallowed quality.
What then? When a concept gets turbid, disambiguate. An interpretivist approach might lead one to conclude that some sort of system of social norms, thinly construed, might be studied as law. We can then reach into the lexical reserve of our subjects: fiqh, siyasa.
We then have fiqh-law, siyasa-law. This excludes social norms that fall outside the ambit of fiqh/siyasa, but is sensitive to the perspective of the historical actors. For them the relevant categories were fiqh and siyasa, not "law"...
The word "law" only helps to brings things closer to home for us, always with a risk. Might this (mostly) also divest us of the label "Islamic," which could then be reserved for distinguishing between law made by Muslims vs others (as opposed to types of laws w/in Islamdom)?...
I don't know. Much theoretical works remains. My point is to highlight the problems, not answer them. Pending some sort of consensus, Lowry's suggestion to scholars to always explain what they mean is crucial, but I think such explanations should follow an interpretivist method.
