Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-25T13:50:55.405Z Has data issue: false hasContentIssue false
  • English
  • Français

Intent in Islamic Law: Motive and Meaning in Medieval Sunni Fiqh. By Paul R. Powers. Brill, Studies in Islamic Law and Society 2005. Pp. 248. $115.00. ISBN: 9-004-14592-3.

Published online by Cambridge University Press:  24 April 2015

Clark Lombardi
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Book Reviews
Information
Journal of Law and Religion , Volume 22 , Issue 2 , 2007 , pp. 607 - 613
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. I should clarify what I mean by “legality.” Islamic jurists worked with a five-part typology of actions: required, prohibited, recommended, reprehensible or neutral. For those interested in this idea, see generally any history of Islamic legal systems, such as the discussion in Hallaq, Wael, A History of Islamic Legal Theories 40 (Cambridge U. Press 1997)CrossRefGoogle Scholar. Which category an act fits into affects the moral status of an action and determines whether an actor will be punished or rewarded in the afterlife for performing this action. For an example of a classical text discussing the ramifications of an acts classification, see Qudāma, Muwaffaq al-Dīn Ibn, Rawḍat al Nāẓir wa Junnat al Munāẓir 16–24 (Maṭba'a al-Salafiyya 1385)Google Scholar. In state legal systems that were rooted in classical Islamic law, the legal categorization of an action might also influence—though sometimes only indirectly—the answer to the question of whether a person would be subject to civil sanction for engaging in this action. For the complex relationship between the jurists' determination of the moral status of a law and the positive law in an Islamic state, see generally Lombardi, Clark, State Law as Islamic Law in Modern Egypt 47–54 (Brill Academic Publishers 2006)Google Scholar. In areas like contract law or personal status law, jurists engaged in a separate analysis to determine whether a particular action had legal effect—as, for example, whether a contract was “valid” and enforceable or “invalid” and unenforceable. For the sake of space, I will refer to both a jurist's decision about the moral category into which an action should be placed and the attempt to determine its legal efficacy inquiries into its “legality.”

2. Its most famous practitioners were French-trained Muslim comparativists such as ‘Abd al-Razzāq al-Sanhūrī, Chafik Cheheta and a line of students and admirers in both Europe and the Arab world. For examples of their work, see Sanhūrī, A., Maṣādir al-haqq fi ‘l fiqh al-Islami (Beirut ed. n.d.)Google Scholar; Chehata, Chafik, Théorie générale de l'obligation en droit musulman Hanefite (Sirey 1969)Google Scholar. For a discussion of their influence, see Johansen, Baber, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh 57-59, 112–120 (Brill 1998)Google Scholar (discussing Sanhūrī at length at 112-120, although he sometimes disagrees with his conclusions). One might have wished that he had paid similar attention to Cheheta. But this is a quibble. I am not aware of any study in English that uses this approach for a subject as broad and elusive as the role of “intent” in shaping views about the legality of an action.

3. Jurists in different schools of law sometimes use different words to deal with something that we might recognize as “intention.” More confusingly, when discussing motive and the way in which an actors' motive will be relevant to the determination of the legal status of that actor's actions, a single jurist might not always conceptualize motive in the same way or even use the same word for “motive.” For example, when discussing the intention to perform a ritual action—an intention that is necessary for the action to even qualify as “ritual” as opposed to mere accident—a jurist may use one word. When discussing the intention behind an action that results in a person's death—a factor that determines the punishment to which the killer is subject—the same jurist may use a different word.

4. Each school's interpretive approach was considered a legitimate method of looking for God's rulings. And each accepted the orthodoxy of any interpretation of sharī‘a so long as it was derived (a) by a qualified jurist and (b) through a legitimate method of interpretation. As a practical matter, this meant that an interpretation of sharī‘a was orthodox if it was developed by a scholar trained (and licensed) by one of the four schools of law. Intriguing (and arguably admirable) as the doctrine of mutual orthodoxy was, the pluralism to which it inevitably gives rise makes for an unwieldy tradition in which to look for a single understanding of concept such as “intent.”

5. The focus on ritual law surely reflects the fact that Powers took his doctorate in the history of religions. Religion departments in the U.S. have recently focused a great deal on the role and regulation of ritual. His two chapters are thus directed toward internal discussions within the field of religious studies as much as they are to discussions within the field of Islamic law.

6. Searle's theory is discussed in the Introduction 14-19, and some of the implications for the study of Islamic laws of ritual are discussed there. After that, Powers re-engages regularly with Searle in his chapter on ritual law. See 47-48, 50-51, 56-60, 85-88. See also 98-99 (for the purpose of contrasting ritual and contract law).

7. Compare 130 and 144, and see discussion at 160-161.

8. See generally 158-167, and particularly the discussion at 166-167.

9. Research is continually revealing how much internal disagreement there was among scholars within a single school and revealing that schools adopted modes of reasoning that encouraged intra-madhhab disputation. For some shorter works, see for example Sherman Jackson, Taqlîd, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory: Mutlaq and ‘Amm in the Jurisprudence of Shihâb al-Din al-Qarâfi, 3 Islamic L. & Socy. 165 (1996)CrossRefGoogle Scholar. See also some of the contributions to the The Islamic School of Law: Evolution, Devolution and Progress (Bearman, Periet al. eds., Islamic Leg. Stud. Program, Harv. L. Sch. 2006)Google Scholar, such as Kaya, Eyyup Said, Continuity and Change in Islamic Law: the Concept of Madhhab and the Dimensions of Legal Disagreement in Hanafi Scholarship of the Tenth Century, in Bearman, at 26–40Google Scholar; Fierro, Maribel, Proto Malikis, malikis and Reformed Malikis in al-Andalus, in Bearman, at 57–76Google Scholar; Talmon-Heller, Daniella, Fidelity, Cohesion and Conformity Within Madhhabs in Szngid and Ayyubid Syria, in Bearman, at 94–116Google Scholar. For monographs discussing the institutional and theoretical structures that promoted such disputes, there have been a number of works looking at the subject, including Hallaq, Wael, Authority Continuity and Change in Islamic Law (Cambridge U. Press 2001)CrossRefGoogle Scholar; Wheeler, BrannonApplying the Canon in Islam: The Authorization and Maintenance of Interpretive Reasoning in Hanafi Scholarship (SUNY Press 1996)Google Scholar.