The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition by Behnam Sadeghi (review)

It bears repeating that the highest court of appeal in the world’s only Superpower claims to base its decisions on the interpretation of an eighteenth century legal document. In an age of decidedly suspicious hermeneutics, we are entitled to ask if there isn’t more going on here; are Supreme Court Justices really interested in recovering the authorial intentions of a group of long dead, elite white males? One might not expect it, but Behnam Sadeghi’s formidable study of the logic of ‘law making in Islam’ is an intervention in this debate, among many others. His monograph pulls the rug out from assertions of Islamic exceptionalism (Islamophobic or puritan); Sadeghi is not the first to point out instructive parallels between Islamic legal and American constitutional reasoning, but he fleshes out the implications most intelligently. His is a persuasive account of the dynamics of legal change, specifically of the Hanafi school – and more narrowly with regard to aspects of women’s prayer – but these are mere case studies demonstrating a set of much more ambitious claims about the relationship of (Islamic) law to social reality, the interpretation of (legal) texts and the mechanics of juristic reasoning.

The author starts by disregarding the notion that classical usul al-fiqh is generative of post-classical Islamic law. The former represents a post hoc justification of the latter, which was far more indebted to the precedent of the school than to the interpretation of the scriptural canon. As well as the canon, jurists depended on non-canonical sources to reach legal conclusions: these are divided by the author into such influences as legal precedent (i.e. school doctrine) and ‘precedent-blind, canon-blind law’, which comprises the other factors. The reader is provided with useful diagrams and definitions of technical terms throughout; Sadeghi’s argument is presented with exceptional clarity and proceeds somewhat like a logical treatise, without sacrificing elegance or even humour (the jurists’ shifting accounts of the alleged behaviour of male perverts is particularly entertaining!). The central claim is that in the case of post-classical Hanafi law, the ‘received law’ usually mirrored jurists’ legal conclusions (an observation he expects to be more or less true of the other madhahib), which is to say that the law’s fundamental characteristic was inertia. Towards the end of the book this insight is extended to other legal systems. Where post-classical jurists dissent from their school doctrine an ‘interpretive gap’ is opened up, which might be explained with reference to the influence of the canon or the precedent-blind, canon-blind law. Sadeghi’s book is particularly valuable for the considerations it offers those working at the interface of Islamic legal and social history. The relationship between the two is complex and multifaceted; the mukhtasarat and the mabsutat are not always transparent guides to social reality, and the historian must exercise her caution in inferring the one from the other.

The most important means by which Sadeghi demonstrates the autonomy of post-classical law from the dictates of its legal theory is by pointing to the instability of jurists’ reasoning. Even in contexts where actual legal outcomes remained highly stable, jurists were able to offer competing – and even contradictory – justifications for them, all the while professing their faithful adherence to the canon. While the canon (itself fluid) informed the ijtihadat of the formative figures of the Hanafi school, its radical expansion in the post-formative period following the triumph of the ideology of the hadith-folk (c. third century) confronted post-classical Hanafi jurists with a problem. How were they to warrant their continued adherence to school doctrine in the event of a clear contradiction with canonical evidence (e.g. an ‘authentic’ hadith)? The solution was to adopt an almost maximally hermeneutically flexible approach to the interpretation of the canon; in short...