Videos of kick-off roundtable webinar and comments

Event description from the programme:

The panelists will have a short introduction, this will be followed by a moderated conversation. Towards the end we open for questions from participants via the Q&A function. A zoom link for registration can be found on the right side here.

As we could not arrange a proper international conference due to the Covid situation, we decided to make two groups of smaller online activities, the first being video-interviews/conversations, the second is this online roundtable webinar in two parts.

“Canonization” and “Codification” are two terms that both allude to processes of selection and validation. As analytical concepts, they draw our attention to human agency and historical context and they are useful in juxtaposition with each other, or with other, related concepts.

Islamic legal studies they are, however, also used for rather different phenomena. “Codification” has to a large extent been used to describe the modernization of Islamic law, including the increasing dominance of the state and a move away from open ended, pre-modern fiqh.  “Canonization” has more recently started being used as a lens to understand how certain texts, scholars and institutions become ascribed with authority over time, often by a "community". This body of theory surrounding “canonization” is largely associated with the study of Christianity but is now increasingly used also in studies on Islam as way to critically talk about authority, not only analytically, but also normatively.

This kick-off event will be about seeking to clarify and disentangle the different functions and uses of these terms in our field and to critically discuss their usefulness, constructive additions and alternatives.

A comment by Maribel Fierro, senior researcher at the Spanish National Research Council (CSIC), Madrid, on the webinar panel on codification:

In our field, the term codification comes with a baggage. Two of the presentations bring the negative meaning such baggage entails to the fore. In the case of the legal codes in the modern nation-states where Islam prevails, they sometimes have led to pernicious consequences for women (D. Serrano), and - more dramatically - they implied the destruction of a legal tradition and its institutions for all that their advocates claimed the opposite (S. Ayoub). G. Burak suggests, however, that the claim made by those who supported such codes - that these could in fact be embedded within the Islamic tradition - should not be easily dismissed as mere rhetoric. The precedent of the Ottoman case would also show that the trend towards legal codification could coexist with more traditional ways of dealing with the law. The Mamluk initiative of institutionalizing a plural judicature representing the different legal schools favoured the rise of the mukhtaṣar genre (the 'pre-codes' mentioned by E. Hovden) with its emphasis on the majority position within a given school. To my knowledge, how such majority positions were formed and accepted as such (which entails a process of canonization and also of codification) is an under-studied topic and one that should be paid attention to within the project CanCode. 

When I have dealt with the issue of pre-modern codification in Islamic lands, I have explored a very specific example, that of codes issued by rulers who claimed the authority to be entitled to do so. The cases I analyzed (Ibn al-Muqaffaʽ's proposal to al-Manṣūr, the Fatimid 'code' and the Almohads' attempt at formulating one) share the following features: a high claim to spiritual and political authority on the part of the ruler/leader (or on the part of his advisor); scholars who are (or need to be) directly dependent on a ruler/leader with high authority, absence of fatāwā compilations and an initial step before codification, consisting in bringing together the existing divergent opinions. The first two features are usually associated with Shiʽism, but the Almohads were not Shiʽis nor was al-Manṣūr. The fact that in these last cases no code emerged could be understood in the sense that Sunnism is inimical to codification. But in my view this conclusion implies an essentialization of Sunnism that obscures its history. In the same way that the finality of prophethood is considered a defining feature of Islam but part of its history has been how to understand it and how to accommodate certain interpretations that some saw as a challenge to it but were cherished by others, different trends regarding the possibComility, necessity and rejection of legal codification can be detected in the history of Islamic law and are an integral part of it. 

By Maribel Fierro:

(2014) “Codifying the law: the case of the Medieval Islamic West”, in John Hudson and Ana Rodríguez (eds.), Diverging paths? The shapes of power and institutions in Medieval Christendom and Islam, Leiden: Brill, 2014, pp. 98-118. 

(2020) “Compiling fatawa in the Islamic West (third/ninth-ninth/fifteenth centuries)”, Jerusalem Studies in Arabic and Islam 50 (2020), 43-100.

A response to the codification webinar panel by Professor Mohammad Fadel, University of Toronto, Faculty of Law.

Thank you for your invitation to comment on this stimulating panel. The three speakers each raised important issues: (1) what does codification, as a term of art, mean?; (2) whether the developments in Islamic law in the later middle ages and the early modern period is called “codification” or “canonization,” scholarship seems to have settled on a kind of equilibrium position regarding these developments, so what is left to be done?; and, (3) should post-Ottoman developments in codification, such as the various Sanhūrī codes in the Arab word, be taken seriously as continuities with the pre-Ottoman tradition, or should they be viewed as the end of that tradition and the start of a new one?

1. The Meaning of Codification

It is not surprising that scholars of Islamic legal history should disagree about the proper use of the term “codification”: historians don’t generally have an agreed-upon definition of the concept, and they tend to use to describe a wide variety of legal forms that would not qualify technically as “codification” the modern sense.[1] The modern use of the term codification derives from the Enlightenment and expresses the hope to promulgate authoritatively and systematically all the laws of a jurisdiction in one collection. This conception of a code was adopted largely by the continental legal systems of Europe and is therefore associated primarily with the civil law system. The idea of the code in the civil law system differs from a compilation of law – even if the compilation is, from an empirical perspective, comprehensive and authoritative – by its systematicity, meaning, an Enlightenment code not only strives to be comprehensive and authoritative, it also strives to express the rational structure of the law so that the legal rules are presented as part of a rational, systematic unity, rather than merely a body of discrete and disconnected commands, prohibitions, and other rules. Accordingly, a state that authoritatively promulgates written law and publishes them in a single or multiple volumes has not necessary codified its law from this perspective. Legal historians, however, tend to use the term “codification” and “code” in a less specific fashion to refer to any written, authoritative collection of the laws, even if the collection does not purport to be comprehensive or if the contents of the collection are ad hoc.

One of the principal justifications for codification during the Enlightenment was its connection with both progress – codification giving an opportunity for the ruler to reform harmful customary laws – and freedom – codification ostensibly was an effective means to inform the citizens of their rights and obligations so that they could better order their affairs in accordance with the law in comparison to the indefiniteness and contradictory customary rules then prevailing on the continent. For these reasons, the 18^th century English utilitarian and reformer Jeremy Bentham advocated replacing the common law with a codified version of English law, but the project did not find substantial support in the UK. That doesn’t mean that there weren’t attempts at codification in the common law world, but those that tended to succeed were not as ambitious as codification in the civil law world. The most successful American code, the Model Penal Code (“MPC”), shows us the limitation of codification in the US: it was developed by legal scholars as model legislation, and was only adopted by a handful of US states in whole. Nevertheless, the structure and the logic of the MPC has had an immense influence on criminal law in the US. (The Field Code of the 19^th century also enjoyed an immense amount of success in reforming civil procedure.) Some states codified, or attempted to codified, the common law, but in so doing, the courts and the legal community viewed their codifications not as authoritative and exclusive statements of the law, but rather as declarative of the common law, with the result that courts continued to apply the codes’ various provisions in the fashion of common law judges, with the power to make law in novel cases and using precedent to generate fine distinctions in similar cases. Finally, American lawyers, through the work of the American Legal Institute, has prepared a series of “restatements” of various substantive topics within the common law with the aim to distill the general principles of the common law from individual cases. The various restatements present general doctrinal propositions and then citations in support of those propositions from relevant decisions of the court. These restatements carry no formal authority since they are not promulgated by the state, but they carry great persuasive authority and courts regularly cite to them to justify their decisions.

From this perspective it is clear that efforts of Muslim jurists in the post-classical period are more akin to the various “compilation” efforts that have taken place in the Anglo-Saxon world than in the civil law jurisdictions of the civil law. The various mukhtaṣrāt such as that of Khalīl are like “restatements” insofar as they attempt to distill the law from the body of opinions given in the past, but they do not intend to strip judges and muftis of the authority to continue developing and refining the law. At the same time, they have the intent and effect of pruning the tradition by identifying, all things being equal, what the ordinarily applicable rule (what American lawyers would call “the black letter law”[2]) is. Crucially, they are directed to legal officials (not the lay Muslim) and therefore are clearly intended to regulate public practice. And to that extent, they can’t be simply dismissed as theoretical exercises but are instead an example of what one might call professional self-regulation in the shadow of the state.

At the end of the day, however, as the Muslim scholars used to say, “There should be no fighting over technical terms (lā mushāḥḥa fī’l-iṣṭilāḥ),” as long as the scholar is clear in how he or she is using a term.
 

2. Where Should Scholarship Go From Here?

To the extent we agree that treating works like Mukhtaṣar Khalīl as a restatement is reasonable, there remains a lot of work in (1) establishing the genealogy of the rules included in the work, and (2) testing the extent to which legal officials adhered to its rules in their quotidian decisions. The first half of this task is relatively doable today in light of the scores of early works of fiqh that have been published over the last 20 years. It may be a tedious task to describe the historical genesis of a rule, but we certainly have the resources to do so. The second task – testing the effectiveness of a text in regulating legal practice – is probably a more difficult challenge, at least prior to the Ottoman era, when court decisions were regularly preserved. Nevertheless, we can do more systematic studies of the extensive body of fatāwā and nawāzilliterature, particularly in the Islamic Maghrib, to determine the extent to which legal officials treated authoritative doctrinal works as binding on them.
 

3. What Should We Make of “Islamic” Claims of Modern Civil Codes?

In view of the preceding discussion, it is difficult to argue that something like the Sanhūrī Civil Code in Egypt or elsewhere in the Arab world can be viewed as evolutions of late medieval/early modern compilations/restatements. Indeed, one is even tempted to describe the Majalla more as a common law type of code – whose intent was to clarify and simplify the unwritten law rather than replace it – than a civil law-inflected code with a claim to comprehensiveness. As Professor Ayyub also noted, when looking at the place of modern codes, it is not sufficient to consider its form and content; one also must look at the sociology of the legal system and more particularly, the sociology of the legal class. Professor Ayyub noted in his comments the important, indeed, radical institutional and sociological changes to the Egyptian legal system that arose through the process of codification that Sanhuri endorsed and led. These institutional and sociological changes do not entail, however, the conclusion that nothing is left of Islamic law unless one believes that Islamic law can function only if a certain kind of institutional structure is present. In this context, it may be useful to introduce Jose Casanova’s subtle understand of the different kinds of secularization that are in play in the modern world. According to Casanova, the only form of secularization that is truly universal and thus indelibly a part of modernity, is institutional differentiation. By contrast, secularization in the sense of the decline of religious belief, is particular to Europe. It is therefore not sufficient to say that Sanhuri pursued the secularization of Egyptian law to reach a judgment on its continuity with Islamic law. Rather, to the extent that the Egyptian code helps separate law – as a scientific discipline regulating social relations and the relations of individuals within that society – from religious beliefs and practices directly connected with matters of salvation, the Sanhuri Code is secularizing only in the sense of institutional differentiation. But to a certain extent, such a division was already found in late medieval/early modern Muslim jurisprudence which distinguished between al-ʿibādāt – with their requirement of an intention to draw near to God (al-niyya bi’l-taqarrub) – and social interaction which dispenses with the requirement of a subjective disposition. It follows from this that the latter portion of Islamic law is indifferent to the religious identity of the persons it is regulating, and in that sense, is universal in the same way “state secular” law is universal. Finally, it should be pointed out that unification of the judiciary by dissolving the religious courts (al-maḥākim al-milliyya), including the Muslim courts, in some ways restores the status quo ante of earliest Islamic state when there weren’t separate judiciaries for each religious group – there was only the Islamic law judge. Ultimately, judging whether modern codifications can represent a new chapter in Islamic legal history, or represents the end of Islamic legal history and the start of national legal histories, will turn on future developments that have not yet been fully worked out.

[1] For an overview of codification in human history, see Gerhard Thür et al., “Codes and Codification,” in The Oxford International Encyclopedia of Legal History (Oxford University Press, 2009), http://www.oxfordreference.com/view/10.1093/acref/9780195134056.001.0001....

[2] In a restatement, the convention is that that rule is set out in black, boldface, while the supporting case law and commentary is in a small and lighter font.