- The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition by Behnam Sadeghi
In The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition Behnam Sadeghi offers readers an intriguing way of thinking about Islamic law. In this clearly written book Sadeghi proposes a general model for understanding how Islamic jurists have reasoned. Essentially, he analyzes why some laws persist and some laws change. To do so, he considers the writings of thirty Hanafi jurists on questions of women and communal prayer from the eighth to the eighteenth century. Sadeghi’s use of jurists’ arguments about women and prayer also makes the book compelling reading for anyone interested in women, gender, and Islam.
In the preface Sadeghi provides not only a clear introduction to the book’s scope and argument but a useful skimming guide for readers interested in different aspects of his research. In chapter 1 Sadeghi builds his general model of legal reasoning and decision making, which can be applied to “any legal or exegetical tradition that involves the interpretation of a binding foundational text” (11). He proposes that three types of law influence judicial reasoning: canon law (his term for foundational texts like the Quran and hadith), received law (precedent and earlier juristic analysis), and local norms and values. He refers to the latter two types to as “canon-blind law.” Sadeghi argues that jurists historically have not derived the law from the canon but rather have used reason to justify existing law through reference to the canon. He contends in the preface that “what is thought to be the outcome of jurisprudence, namely the laws, are actually the starting point for the jurist. The end product, on the other hand, is an interpretation that reconciles the law with the textual ‘sources.’ … The role of the methods of interpretation, therefore, is not to generate laws, but rather to reconcile them with the textual sources” (xii). Thus jurists have typically sought to preserve existing law rather than develop new law. Throughout the book Sadeghi [End Page 230] refers to this as a tendency toward “legal inertia.” He believes that laws change only when existing laws become deplorable or abhorrent in light of existing norms.
Chapter 2 gives a general introduction to the Hanafi legal tradition, and in chapters 3, 4, and 5 Sadeghi draws on illustrative case studies. The chapters consider Hanafi jurists’ reasoning on the validity of prayers when women are adjacent to men in prayer, when women lead other women in prayer, and when women pray communally with men. Together the chapters support Sadeghi’s thesis that legal reasoning has tended to justify existing laws rather than derive new laws. For example, chapter 3 focuses on the Hanafi “adjacency law.” According to Hanafi scholars, adjacency invalidates only the man’s prayer. By examining the reasoning of several jurists from the first/seventh to the ninth/fifteenth centuries, Sadeghi shows that while the adjacency law was maintained, the reasoning supporting it changed (65). This demonstrates, he claims, that the laws themselves are stable, while the meanings behind them are subject to modification (65). He concludes that jurists generally began their reasoning with the canon-blind law, not with the canon. Through legal inertia, the adjacency law persisted “even though the concerns that had originally given rise to it had long disappeared and even though some of the consequences of the law turned out to be inconvenient” (74).
In chapter 6 Sadeghi discusses the historical development of Hanafi legal reasoning and looks particularly at the articulation of Hanafi law with the emergence of emphasis on the hadith. In sum, he argues that Hanafi law proved “impervious to the apparent import of the Hadith” and that “jurists interpreted the canon in light of canon-blind law rather than derive the law from the canon” (135). In chapter 7 Sadeghi considers the laws in light of social values concerning women and gender and, importantly, cautions against...