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Review Author(s): Robert Gleave Review by: Robert Gleave Source: Islamic Law and Society, Vol. 7, No. 1 (2000), pp. 102-104Published by: BRILLStable URL: http://www.jstor.org/stable/3399285Accessed: 13-07-2015 03:14 UTC

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BOOK REVIEWS

STEWART, Devin J. Islamic Legal Orthodoxy: Twelver Shiite Responses to the Sunni Legal System. Salt Lake City: University of Utah Press, 1998. Pp.280. ISBN 0-87480-551-1. $40.00.

The basic premise of this work is that "Sunni jurisprudence and legal institutions" are a "crucial backdrop for the formation of Shiite legal theory and institutions" (p. 23). Devin Stewart's hypothesis is that the various strands of Twelver Shiite legal thought are best understood as different reactions to Sunni (orthodox) legal thought. These reactions, according to Stewart, can be initially categorized into conformance to, adoption of and rejection of the Sunni legal consensus. After an introductory chapter and a competent survey of the early development of the Sunni schools of law and legal theory, Stewart devotes three chapters to each of these responses. In the penultimate chapter there is a useful, albeit perfunctory, comparison of the Sunni and Shiite legal academies. The book ends with a conclusion in which Stewart argues that the Twelvers created "a madhhab that is essentially functionally equivalent to the Sunni madhhabs (p. 280)", almost urging that it be recognized as such by Sunnis. The book as a whole is meticulously and thoroughly referenced and will undoubtedly serve as a touchstone for future scholarship in the area. It made this reviewer think hard about why he considers Stewart's approach inappropriate.

My major criticism is that reliance on the reaction to Sunni consensus as the only criterion on which to categorize trends within the Shiite legal tradition does not stand up to detailed scrutiny. For example, in his characterization of those who "conformed" to Sunni consensus, Stewart states that whilst they outwardly conformed to the Sunni legal system, they would "adhere inwardly and privately to Shiite doctrine" (p. 57). He then characterizes those who rejected Sunni consensus, as also performing "dissimulation as a practical, defensive measure when necessary, yet hold[ing] inwardly that the Sunnis were fundamentally misguided" (p. 58). Exactly how these two groups' reaction to Sunni legal thought and institutions differed is, then, unclear, since both groups considered the Sunnis as deviants, and both groups employed the same tactic of dissimulation to avoid persecution. As I explain below, the group who "adopted" Sunni consensus, according to Stewart, hold a similarly negative view of the utility of Sunni scholarship and consensus. Hence, I would argue, the three categories of Imami jurists put forward by Stewart are not distinguished by their attitude towards Sunni consensus. Their views are basically the same, though the manner in which they are expressed may differ.

Those who conform to consensus are analysed in chapter 3 by means of biographical materials relating to their academic careers. However this material is so patchy and inconclusive that Stewart is forced to resort to assumptions which support his theory that the Imamis were, primarily, drawn to the Sh.fi'i madhhab. Phrases such as "it must have been the case that", "it could be that" and the evidence "suggests that", together with qualifiers such

Islamic Law and Society 7,1 ? Brill, Leiden, 2000

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BOOK REVIEWS 103

as "presumably", "probably", "possibly" and "apparently" abound in these pages. This reader was left with the impression that though the link between Shiite scholars and Shafi'ism is an educated guess, it is, unfortunately, not proven that there was a link between the two traditions "as early as the tenth century" (a position which is asserted four times between pp. 102 and 109). Many of Stewart's assumptions may be correct, but the crucial point is that the texts he uses do not establish it with certainty. In order to confirm his theory, a thorough examination of legal texts in both traditions would be necessary, and instances of influence delineated. This would be a "formidable task" as Stewart himself accepts (p. 247). Though he lists the commentaries on Shafi'i texts by Shiite scholars, and describes the use of Shafi'i texts in the Shiite teaching curriculum, it is impossible to isolate a Shiite-Shafi'i tradition without knowing how the texts were evaluated and taught. Shiite scholars have often claimed that the Shafi'i tradition is closest to their own, but the extensive anecdotal evidence cited in these pages is, in my opinion, less than convincing. In his conclusion, Stewart states that an examination of the works of Shiite scholars is "bound to show" their debt to Shafi'i studies. He lists works which give "ample evidence" (p. 247) of this relationship, but what this evidence might be is, unfortunately, not explored.

Those who "adopted" Sunni consensus are analysed in chapter 4. It is argued that they "hoped to establish a Twelver Shiite legal madhhab on a par with the Sunni madhhabs". As evidence for this, Stewart describes the development of the theory of consensus in Shiite juristic works. However, a point insufficiently emphasized in these pages is that the Sunni madhhab system was, for the majority of writers within the classical tradition, based on an acceptance of ikhtildf. Arguably this did not prevent inter-school rivalry, or even, at times, violent dispute, but the acceptance of difference and the epistemological consequences of such an acceptance were essential to the intellectual coherence of the system. Put simply, the Sunnis agreed to differ amongst themselves, and on the agreement to differ there was ijmd'. The Imami scholars analyzed in this chapter were, in my opinion, not willing to enter this system in a "functionally" equivalent manner to the established participants. The use of phrases such as ijmd' al-umma in these texts do not indicate that these scholars considered Sunni juristic opinion authoritative or valid. The consensus of the community is only a proof if it includes the consensus of the Imami scholars; hence, effectively, it is the consensus of the Imami scholars which is a proof, and it is merely fortuitous that the Sunnis agree. It is possible that these writers presented their theories in this fashion to neutralise the Sunni accusation of heresy, but their view of the other madhhabs differed significantly from the other madhhabs' views of each other. The consensus of the Imami scholars was, in turn, only a proof if it included the Imam's opinion (as it must do, since the presumption is that the hidden Imam is one of the Imami scholarly elite). The practical difficulties, however, with proving a consensus to have taken place rendered this source less than effective in the determination of the law. Scholars may be dissimulating (and hence their opinion is unobtainable), and there may be "unknown mujtahids" (al-mujtahidtn al-majhulun) in the community. Neither

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BOOK REVIEWS BOOK REVIEWS

of these important elements of Imami consensus theory are discussed in this chapter. The result is, though, that this second group of theorists are as negative about the validity of Sunni juristic opinion as the first and third groups. Their presentation tactic and the target readership of their works may differ, but the underlying superiority of Shiite opinion (a point recognised by Stewart towards the end of the chapter) is found in all three groups.

Those who "rejected consensus" are analysed in chapter 5. Stewart associates this trend with the Akhbari school. This chapter contains a useful analysis of Astarabadi's al-Fawa'id al-Madaniyah, recognizing that there was an authority theory in Akhbarism (albeit of the traditionalists rather than the jurists). However, there are problems here also. The term "akhbdri" was not consistently used by either Imami or non-Imami authors before the seventeenth century. This fact is surely evidence that the Akhbaris were not "a recognized group" before Astarabadi's work as Stewart claims; the ubiquity of the term after Astarabadi, and the clear and relatively consistent definition given to it indicates that they did not constitute a recognized group. "Akhbari" was merely one of a number of descriptive adjectives (rather than being a name) used to describe the more conservative trend of traditionalism within Shiite theology and law. Stewart also assesses whether the Akhbari version of the history of Shiite law is "accurate". Such an assessment is, in my opinion, less than useful. If, as he states, it would "make no sense" to express an opinion on whether Akhbari Shiism was more authentic than the other trends analyzed in this work (p. 207), then surely it also makes no sense to declare Akhbari accounts of the history of Shiite intellectual development as "wrong" (p. 207). Assessing the merits or otherwise of such views seems out of place in a work which claims to be an intellectual history.

In conclusion, then, my main problem with Stewart's analysis is that the criterion he has selected to categorise Shiite legal history is too blunt an instrument with which to accurately distinguish the many trends within Imami juristic thought. Though the techniques in presentation did vary, attitudes towards Sunni consensus were too similar within the tradition to make them a useful tool of analysis.

Robert Gleave University of Bristol

JOHANSEN, Baber. Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. Studies in Islamic Law and Society, 7. Leiden: E.J. Brill, 1999. Pp. xiv + 521. ISBN 90 04 10603 0. NLG 246; $144.50.

Professor Baber Johansen does not need to be introduced as one of the leading contemporary experts on the history of Islamic law, in particular of the Hanafi school. The present volume contains a collection of his articles in English, French, and German previously published in various journals and collected volumes. The focus is broadly, as indicated by the title, on the flexi- bility and adaptability of Islamic law to changing circumstances despite its roots in an immutable revelation. The articles are grouped under the following nine headings: "The City and its norms," "Legal norms and social practices,"

of these important elements of Imami consensus theory are discussed in this chapter. The result is, though, that this second group of theorists are as negative about the validity of Sunni juristic opinion as the first and third groups. Their presentation tactic and the target readership of their works may differ, but the underlying superiority of Shiite opinion (a point recognised by Stewart towards the end of the chapter) is found in all three groups.

Those who "rejected consensus" are analysed in chapter 5. Stewart associates this trend with the Akhbari school. This chapter contains a useful analysis of Astarabadi's al-Fawa'id al-Madaniyah, recognizing that there was an authority theory in Akhbarism (albeit of the traditionalists rather than the jurists). However, there are problems here also. The term "akhbdri" was not consistently used by either Imami or non-Imami authors before the seventeenth century. This fact is surely evidence that the Akhbaris were not "a recognized group" before Astarabadi's work as Stewart claims; the ubiquity of the term after Astarabadi, and the clear and relatively consistent definition given to it indicates that they did not constitute a recognized group. "Akhbari" was merely one of a number of descriptive adjectives (rather than being a name) used to describe the more conservative trend of traditionalism within Shiite theology and law. Stewart also assesses whether the Akhbari version of the history of Shiite law is "accurate". Such an assessment is, in my opinion, less than useful. If, as he states, it would "make no sense" to express an opinion on whether Akhbari Shiism was more authentic than the other trends analyzed in this work (p. 207), then surely it also makes no sense to declare Akhbari accounts of the history of Shiite intellectual development as "wrong" (p. 207). Assessing the merits or otherwise of such views seems out of place in a work which claims to be an intellectual history.

In conclusion, then, my main problem with Stewart's analysis is that the criterion he has selected to categorise Shiite legal history is too blunt an instrument with which to accurately distinguish the many trends within Imami juristic thought. Though the techniques in presentation did vary, attitudes towards Sunni consensus were too similar within the tradition to make them a useful tool of analysis.

Robert Gleave University of Bristol

JOHANSEN, Baber. Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. Studies in Islamic Law and Society, 7. Leiden: E.J. Brill, 1999. Pp. xiv + 521. ISBN 90 04 10603 0. NLG 246; $144.50.

Professor Baber Johansen does not need to be introduced as one of the leading contemporary experts on the history of Islamic law, in particular of the Hanafi school. The present volume contains a collection of his articles in English, French, and German previously published in various journals and collected volumes. The focus is broadly, as indicated by the title, on the flexi- bility and adaptability of Islamic law to changing circumstances despite its roots in an immutable revelation. The articles are grouped under the following nine headings: "The City and its norms," "Legal norms and social practices,"

104 104

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Article Contentsp. [102]p. 103p. 104

Issue Table of ContentsIslamic Law and Society, Vol. 7, No. 1 (2000), pp. i-vi+1-118Volume Information [pp. iii-vi]Front Matter [pp. i-iv]Matrimonial Gifts in Early Islamic Egypt [pp. 1-36]Schools of Law and Historical Context: Re-Examining the Formation of the anbal Madhhab [pp. 37-64]Ottoman Tapu Title Deeds in the Eighteenth and Nineteenth Centuries: Origin, Typology and Diplomatics [pp. 65-101]Book ReviewsReview: untitled [pp. 102-104]Review: untitled [pp. 104-109]Review: untitled [pp. 110-117]