Seminars, Conferences, Addresses 575 Seminan, Conferences, Addresses Islamic Law and Religion 7 - 8 Rabi' al A.khir 1414 / 24 - 25 September 1993 Yale University, New Haven, Connecticut Although the seminar's presentations were not centered around a single issue in Islamic law, two common purposes were apparent: to ex­ plore the nature of change in Islamic law and to understand the relation­ ship between religious authority and the practice of the law. It is useful to begin with the presentation of Abbas Amanat (Yale University) on the history of modem Shi'i law, since he was the only speaker who held to the characterii.ation of Islamic law (at least in mod­ em Iran) as removed from practical life, concerned with insignificant de­ tails of ritual, and heir to a textual tradition reduced to commentaries on commentaries. Amanat decried the fact that the Iranian ulema missed the opportunity in the nineteenth century to refonn significantly the legal sys­ tem. He argued that the success achieved by the religious scholars in in­ stigating the tobacco boycott of 1891 should have mobilized them to call for significant institutional changes in Iranian law. Yet with the end of the boycott, the scholars returned to the same old business of speculating on questions irrelevant to the needs of a changing society. Amanat admitted in the question and answer period that the ulema were restricted by political circumstances; indeed they may not have sur­ vived to seize control of the government in our times if they had pressed for reform too quickly. lbis is an issue that has not been explored suf­ ficiently in the history of Islamic law: when jurists had no direct coercive power over governments, how did they use their moral authority to effect change? No doubt there were always individuals who had few scruples about endorsing whatever the ruling elite desired, yet there were others who pressed for change when they calculated that such pressure could be effective. Close biographical studies of individual scholars in their social and legal milieux can help answer such questions. 576 The American Journal of Islamic Social Sciences 10:4 Medieval theories legitimizing the legal authority of Muslim rulers, no matter how they assumed power, have been seen as a rationalization or a necessary accommodation to a bad situation. While this theory is best known in its elaboration by a1 Miiwardi and other Sunni theorists, Said Amir Arjomand (University of Chicago) noted that Sharif a1 Mur- ta& held this view in the Buyid period. But later, when Ja'fari jurists were excluded from political power, they were also k d from the theore- tical necessity of sanctioning de facto rulers. At this point, the theory of the "hidden imam" became very handy in a new scheme to sanction the authority of Shi'i jurists. While Sunni public officials, including judges, were theoretically deputies of the caliph-hence the legitimacy of the former depended upon the legitimacy of the latter-Shi'i jurists claimed to be deputized by the hidden imam himself. Thus it was the jurists, not the rulers, who, for example, were authorized to oversee the marriage of young women who had no guardian. In this way, Shi'i political theology allowed the transference of increasingly more authority to the ulema. In direct contrast to these trends in Shi'i theory, jurists in the Otto- man Empire were coming under tighter government control. Cornell Flei- scher (University of Chicago) discussed the reign of Sulaymiin "al- Qiinm-" (1520-66) when the institutionalization of law took a decisive step. What resulted, said Fleischer, was a transference of sacrality from individuals and texts to institutions. In this system, justice came to be de- fined as the right of elites to security of status and position. While he did not discuss this issue further, his presentation suggests that the reason for the muftis' conservatism about new technologies had less to do with their being anti-Western than with their sympathies for fellow state employees who were worried about employment security. Frank Vogel's (Harvard University) observations about Saudi court- tooms made it clear that there are benefits to procedural practices that allow a fair degree of judicial discretion. He described the great skill with which judges allowed parties to work out their problems in the courtroom and gently directed them toward reconciliation. In most cases, witnesses did not have to be called and cases did not have to be tried; rather, the judges used the pretrial to allow the parties to argue freely with each other until they resolved their dispute. In this characterization, the Saudi civil court functions in the first instance as a place for mediation and re- conciliation. One of the factors that makes the judges strive to encourage a reconciliation is their pious fear of making a wrong judgment and the risk of harming their own souls. Bernd Radtke (Utrecht University) talked about the position of the nineteenth-century "neo-Sufis" h a d a1 Tijiini, a1 Baji 'Umar, and A b a d ibn Idris, on the question of ijtihad. Radtke argued that these Sufis never opposed the validity of the Shari'ah, what they rejected were Seminars, Conferences, Addresses 577 the claims to authority made by the mujtahids. At a time when taqlid was demanded and ijtihad was mtricted to a few select individuals only, the Sufis reacted by declaring taqlid to be a sin and ijtihad to be of limited or no validity. Ibn I&-s, in his Risu’iZ uZ Radd ‘uhi AhZ al Ra’y (unpub- lished manuscript) said that fuhm (intuitive understanding based on tuqwa must be used instead of ijtihad to determine the will of God in a matter that had not been made explicit in the Qur’an and the Sunnah. Bernard Weiss (Univesity of Utah) discussed the usage of the terms isti&-’ and taqlid in the theoretical treatise of Sayf a1 Din a1 ‘ h i & . Ac- cording to al ‘ h i & , it is the duty of a mujtahid to seek his own solu- tions to a problem-to quote the opinion of another scholar is taqlid, and it is reprehensible when it involves mujtuhids who ate peers. We might note that while his condemnation of taqlid is shared by most modem Muslims, this judgment may be preliminary, for it is clear that the term “taqlid” did not signify one practice that was uniform throughout the Is- lamic world. At the same time, some practices that appear to be taqlid- based could have involved a great deal of independent judgment and resulted in new legal interpretations. This was suggested by the presentation by David Powers (Cornell University) on the fatwa collection of the fifteenth-century Miliki jurist a1 Wansh-si. Powers traced the genealogy of a fatwa elicited from a1 Wmsharisi by a judge who had to rule on a case of tuwZij. This jurist included a transcription of the judge’s request with his own responding fatwa in the collection. On the surface, a1 Wansharisi’s fatwa appears to involve elements of taqlid: he cites no proof from Qur’an or hadith, but bases his argument on the opinions of two major medieval jurists and other legal cases. Nevertheless, he exercises his judgment in deciding which precedents apply to the case he is considering and which prece- dents are sound, for he cites alternative points of view within his school, only to eject them. The proofs from Qur’an and sunnah, while not made explicit, are implied, for al Wanshafisi, at least, is aware of the textual basis for the precedents he cites. Another intensting issue is the way in which a1 Wansharisi trans- formed the specific aspects of the case into a generalized description and stripped from his reply any details that were not necessary for under- standing the legal issues at hand. This shows that fatwas are generalized responses to specific legal cases, and it is therefore hasty to conclude that just because they ate couched in general terms they have no basis in spe- cific historical situations. This point was argued strongly by Wael Hallaq (McGill Univemity) who has closely analyzed medievalfurzi‘ (particular instances of case law) texts. Hallaq showed how these texts retained an organic connection with contemporary life by their inclusion of fatwas. This was most commonly 578 The American Journal of Islamic Social Sciences 104 done by submitting “primary fatwas“, which were detailed and specific, to a process of tajriii (abstmction) and tukha (condensing). The result was a “secondary fatwa” that could be used in a legal text for reference end instruction. Commentaries (shurEb) and marginal notes (buw&ho were used to add cases that had become relevant to contemporary life. At the same time, jimi‘ texts were reedited to exclude issues that had be- come irrelevant. M a y a1 Din a1 Ramli applied this selective process when he chose to publish only those fatwas of his father that were not in- cluded in other contemporary works and were relevant to his time. The overwhelming preference given in these works to later opinions shows that taqlid was not so much a slavish imitation of previous solutions but a requirement for consistency within a legal school. Hallaq concluded that the g e m of commentaries and marginal notes are evidence of growth and change in Islamic substantive law. We might further suggest that the frustration of a modem reader with the dense nature of these works results from a lack of appreciation for the function funZ‘ texts served in society. These works were not intended to be self- sufficient textbooks, but rather aids in instruction and sources of tef- erence. While cryptic to the modem teader, the contemporary user of these works, being immersed in this genre, would have had much less difficulty with them. Ingrid Mattson Near Eastem Languages and Civilizations University of Chicago Chicago, Illinois