Book Reviews

259

doi:10.1093/jaarel/lft106
Advance Access publication January 16, 2014

David Howes
Concordia University

Shara: Theory, Practice, Transformations. By Wael B. Hallaq. Cambridge

University Press, 2009. 613 pages. $57.96.
For some three decades, Professor Wael Hallaq has been a singularly powerful voice in the field of Islamic law, making seminal contributions thereto and
establishing himself as a leading Western academic on the subject. Given the
length of the present book, one might expect it to constitute litte more than a
detailed summary of the vast knowledge that has accrued to Hallaq over the
years. While in many ways it is precisely that, this book is significantly more.
Beyond its diachronic descriptive analysis, it is a running critique of the field of
Islamic legal studies overall, alongside a critical appraisal of the dislocations
visited upon Islamic law by Western modernity, most particularly the grafted
primacy and ostensibly unassailable authority of the modern state.
The book follows a familiar historical framework, beginning with the Prophetic
era and moving through the development of Islamic law as a formal discipline,
including the canonization of recognized sources, the emergence of interpretive
authorities (mujtahids), communities (madhhabs), and methodologies (usl al-fiqh)
along with the establishment of educational and legal institutions and functionaries
(madrasahs, courts, qd s, muftis, etc.), all of which contribute to the negotiation,
preservation, and transmission of classical legal doctrine, i.e., fiqh, the primary
norm-wielding interlocutor with which Muslims would remain in conversation
down to modern times. All of this is situated in the symbiotically evolving context
of a socio-political, economic, cultural, and intellectual history that contributes as
much to the substance as it does to the application of Islamic law.

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either good (i.e., pleasing) or bad (i.e., displeasing). The former are auspicious
and the latter inauspicious. It is also true that the erotics of smell have been
elaborated to an extraordinary degree in India. But what then to make of the
incredibly complex mathematical formulae that informed certain exercises in
perfumery which, as McHugh himself suggests, may have been a source of intellectual delight for the educated connoisseur (109)? And what to make of the
fact that every act of smelling is an act of breathing? Breathing is at the root of
mindfulness in many of the contemplative traditions of India. Breathing is the
sense of reflection in India, occupying much the same mental space as vision
does in the West. Perhaps the cognitive/affective dichotomy is not so productive
with regard to smelling and needs to be dissolved in the same way McHugh
questions and dissolves the dichotomy between text and matter in this booka
book that will long stand out for bringing the text back in after the embodied
turn in the history of religion, and doing so with the utmost erudition and
nuance, like a fine perfume.

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Hallaq is incisive and painstakingly detailed, and the expanse of his coverage
is nothing short of breathtaking. To this is added a steady stream of corrective
insights, many of which, duly considered, could bring useful adjustments to
various aspects of our understanding of Islamic law. Throughout, Hallaq sustains
a highly critical tone, which amplifies (if not occasionally exaggerates) his insights
and criticisms. All of this confers upon the book a palpable cast of authority,
leaving the reader with the sense of having plowed through a magisterially definitive statement on Islamic law.
As Hallaq proceeds, however, in erecting his corrective monument, it becomes
difficult to ignore the sounds of its foundations cracking under the unevenly distributed weight of his standards of judgment. Among Hallaqs foundational premises is that Islamic law in the Western academy is more a function of projection,
power, and superimposition than it is of either the legal genius of Muslim jurists
themselves or an objective reading of their juridical reality. As he put it, Europe
invented the knowledge that is Islamic law (6). While this would seem to imply
that Hallaq himself will avoid such unwarranted license, at key junctures, and on
seminal issues, he appears either to recycle the very narrative he presumably wants
to dislodge or to engage in descriptive, interpretive, or analytical forays that are
equally inventive.
Early on, for example, Hallaq traces the development of Islamic law coming
out of the Prophetic era. Given his foundational thesis, one would have expected
this to include an alternative to the tendency to write off Medina as a if not the
birthplace of Islamic law, proceeding to Iraq as the true cradle of the Islamic
legal tradition. The latter, of course, is the view enshrined as far back as Joseph
Schacht and others. In Hallaqs rendition, however, not only does he follow this
line, he summarily ignores entire studies, such as Yasin Duttons The Origins of
Islamic Law (1999) or Robert Brunschvigs seminal, Polmiques mdivales
autor du rite de Mlik (1950), works that challenge, complicate, or possibly
nuance the accepted view. Obviously, the inventive enterprise of the West
entailed its share of selective suppression, marginalization, and amplification. It
is difficult in many instances to see how Hallaq succeeds in transcending these
same tendencies.
A similar problem accompanies the charge of Western superimposition.
Here, for example, Hallaq rehearses the familiar theme of the conflict in early
Islamic law between reason and revelation, which ultimately gave way to what
he terms the great rationalist-traditionalist synthesis (55). This conflict itself is
said to have revolved around the question of the role of human reason in interpreting divine texts (57). Ultimately, according to Hallaq, Traditionalism defeats
Rationalism and forces an acknowledgement that human reason could not stand
on its own as a central, much less exclusive, method of interpretation but had rather
to operate solely, in the final analysis, in the service of revelation (57). Yet the
Mihna, which, according to Hallaq, led to Rationalisms defeat, was not about law
but about theology, and the assumption that the law schools could be neatly classified according to the relative authority they accorded human reason seems hardly
tenable. Ray, after all, was one thing in Medina, quite another in Iraq. Meanwhile,

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Mlik produced al-Muwatta , which was far more about tradition than it was even
about hadith, while also recognizing sadd al-dhari, takhss al-mm and numerous other rational devices via which to override, supplement, or modify explicit
revelatory injunctions. Was Mlik a rationalist or a traditionalist; and was his
approach really the result of some communally recognized Great Synthesis?
More to the point, the very notion of a conflict between reason and revelation appears to be predicated upon an understanding of reason (and revelation)
that is itself the product of the European Enlightenment. This reason is superior,
disinterested, autonomous, and universal; it is singular (all intelligent persons
recognize its substance, authority, and dictates) inherently progressive and the
antidote to tradition. Tradition, meanwhile (like revelation), is fixed, subjective
and wedded to authority; it is of a piece with the mental energies undergirding
the primitive taboo and the nonreflexive, fideistic fidelity to scripture characteristic of the religious age. On this understanding, revelation, especially at the hands
of traditionalists, is self-articulating, opposed, and impervious to the progressive
light of reason. And it is this understanding that sustains the notion of an inherent conflict between reason and revelation. For this understanding suppresses
any recognition of the standoff being between two (or more) opposing traditions
of reason, which would be apparent were we allowed to see that not one but both
sides necessarily process their data, either directly or through the agency of some
teleology or tradition, both of which themselves stand ultimately in need of
being processed.
I find little evidence of this Enlightenment understanding of reason or revelation or tradition in early Islam. I do not see Traditionalist jurists (however
defined) portraying themselves as the enemies of reason per se; and, pace Hallaq,
Rationalist Asharite jurists did not hold human intellect to be largely incapable
of any determination of the rationale behind Gods revelation (502); indeed,
even the rgime of reason embraced by the early Mutazilites ultimately saw itself
as functioning in the service (and defense) of revelation. In sum, it seems to be
only Hallaqs subscription to the Enlightenment narrative that sustains the view
of early Muslim jurists holding reason and revelation in mutual conflict. And it
is this understanding that underwrites the myth of a Great Synthesis. That
Hallaq should proceed in this manner seems odd, given his invocation of
Friedrich Nietzsche and Michel Foucault, both of whom made careers of exposing Enlightenment reason as essentially history, which, as such, could not rightfully claim to be fundamentally different from other histories, including those
that constitute tradition.
At times, Hallaq appears overly bent on vindicating Islamic law by showing
how inextricably grounded it is in reason. While this is understandable, given
the popular Western presumption of fideistic irrationality as the Islamic norm, it
runs the risk of robbing Peter to pay Paul, by holding up Enlightenment reason
as the norm and then superimposing its primacy and specific concretion onto
Islam. Of course, reason (aql) appears as a major theme throughout the Qurn.
I doubt, however, it is the same as what Ren Descartes or Immanuel Kant had
in mind. Otherwise, the Qurns case against the Unbelievers would essentially

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come down to a matter of I.Q. But the Qurn repeatedly implicates any number
of prerational-cum-affective determinants, from haw (undisciplined passion) to
kibr (arrogance) to ghaflah (heedlessness) to plain old contrarian disposition
(That is because they simply abhor what God has revealed . . . [Qurn 47:9]).
In other words, even persons of the most acute intelligence and rationality could
misapprehend or even be misled by scripture. In such light, it seems odd and
misleading to anchor the integrity of Islamic law so singularly in reason.
Other inventive tendencies emerge in Hallaqs treatmentor lack thereof
of the postformative transition from usl al-fiqh to al-qawid al-fiqhyah, a
major development that in some ways marks the beginning of Islamic law as a
formal, full-blown legal tradition. The chapter on legal theory (72124) is largely
(and alarmingly) self-referential, and there is no effective substantive treatment
of qawid at all. This is a shocking omission. And it is difficult to imagine what
Hallaq could have had in mind by this.
Invention also creeps into Hallaqs descriptive treatment of positive law,
where a particular view upheld by some jurists is alluded to as the view of Islamic
law overall or explicitly presented as that of the great majority of jurists, with
little attention to the qualitative distinctions jurists themselves recognize between
various entries in law manuals. Thus, to take one example, in his treatment of
khul (bargained marital dissolution) Hallaq writes, the great majority of jurists
hold the view that the amount involved in khul, even when the wife is at fault,
should not exceed the amount of her dower (285). This is the opinion given by
al-Ayn in al-Binyah Sharh al-Hidyah (one of Hallaqs three sources). As the
first entry in his treatment, it is fair to assume that al-Ayn is relating here the
going opinion of his school. But al-Ayn cites several other views within the
H anaf school that go against this position, even stating explicitly that Mlik, alShfi, and a slew of early authorities allow the wifes forfeiture of any amount.
In fact, in the Shfi source, Hallaq references (al-H isns Kifyat al-Akhyr)
there is no mention of any limits on the amount a wife can pay. By what license,
then, can Hallaq justify the claim that the great majority of jurists limit the
amount that can be paid?
In many ways, the most impressive part of the book is its treatment of the
plight of Islamic law in modern times, especially some of the challenges posed by
the modern state. Yet, this is also one of the books most problematic sections.
Again, Hallaq is incisive and often brilliant in both the scope and depth of his
coverage. But he also imposes unwarranted limitations on modern Islamic law
based on an essentialist reading of the sharah tradition. Most modern Muslim
jurists would agree with Hallaq that the classical tradition is a normative point
of departure. But Hallaq goes well beyond this to the point of holding modern
jurists to classical conclusions as the definitive statement of the outer limits of
Islamic law. On this assumption, modern jurists who go against classical doctrine
are cast as essentially violating sharah (under the coercive force of modernity)
and all their legal jargon and citation of sources and methods is essentially dismissed as little more than juristic pantomiming that masks Islamic laws failure
as a modern enterprise.

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For example, Hallaq repeatedly decries the fact that modern Muslim jurists
(or states) recognize this or that legal feature that was unknown to pre-modern
Islamic jurists (488) or more broadly, unknown to Shara (485). The implication here is that divergence from the concrete substance of premodern doctrine
is a violation of sharah and presumably an unwarranted capitulation to
the forces of modernity. Thus, Rashd Rid and Abd al-Wahhab Khallf,
for example, in relying on maslah ah, are depicted as playing footloose and
fancy-free by essentially asserting that where maslah ah is not served, these rules
do not apply (510). Of course, both Rid and Khallf might be wrong or misguided in their specific concretions of this precept. But in principle, it is difficult
to see how their manner of proceeding differs in kind from that of Ibn Taymya
and Ibn Qayyim al-Jawzyah (e.g., in al-Siysah al-Sharyah or al-T uruq alH ukmyah) or the premodern H anafs in reversing course on bay al-waf, or the
sixteenth century (tenth to eleventh century AH) Mlik Badr al-Dn al-Qarf in
opposing his school to allow divorced women to retain child-custody after re-marriage, or, going back farther, Umar Is doubling the punishment for wine-drinking
or suspending the punishment for theft, or even the refusal by the Prophet himself
to allow Al to enter a polygynous marriage while wedded to Fatimah. Are
modern jurists to be condemned simply for being modern and responding to
modern reality in ways that produce rulings that differ substantively from those of
their premodern forebears, even if they do so on the basis of the same sources,
methods, and precedents enshrined and followed by the latter? By what license
can Hallaq portray their actions as unwarranted innovations, capitulations, or misrepresentations, while they themselvesthe modern Muslim jurists!clearly do
not recognize the restrictions he seeks to impose?
Related to this is Hallaqs highly selectiveif not exclusionarypolicy
toward various participants in modern sharah-production and debate. Major
classically trained jurists, e.g., Ysuf al-Qaradw, Abd Allah Bin Bayyah, Taq
Usmn, Al Gomah, T h Jbir al-Alwn, the late Abd al-Aziz Bin Bz, as
well as many non-establishment figures, e.g., the Gamah Islmyh, are summarily omitted from Hallaqs account. Similarly, none of the majmi fiqhyah
(academies of Islamic law) appear to play any role in his analysis. While these
groups and individuals may not always proffer renderings that satisfy the tastes,
aspirations, or expectations of many, there can be little doubt about their impact
on the present and future of Islamic law. As for the question of their relative
authority as pronouncers on Islamic law, this is ultimately determined by the
market of sharah-consumers, not by the Westernor Easternacademy. In
such light, there seems to be little reason for ignoring these players other than
the degree to which they violate a particular academic vision of Islamic law. And,
on such an omission, it hardly seems consistent to hold the West to be alone in
inventing the knowledge that is Islamic law.
Again, there is much useful information in this book, not to mention its
share of brilliant insights and useful critiques. I am afraid, however, that some of
the authors preconceived obsessions, along with his apparent hastiness to
sustain them, lead not only to the kind of lapses and distortions discussed above

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but to a more general slanting of Islamic law toward a particular preconceived

standard of normativeness. This mars some of the books credibility. In such
light, while I would definitely recommend this book to students and scholars of
Islamic law, I would do so with the frank admonition that they proceed with
caution.
doi:10.1093/jaarel/lft105
Advance Access publication January 16, 2014

Sherman A. Jackson
University of Southern California

Failure and Nerve in the Academic Study of Religion is a collection of essays

organized around a reprint of Donald Wiebes 1984 article, The Failure of
Nerve in the Academic Study of Religion. It is, as indicated by the subtitle, a
kind of Festschrift. In my opinion, a good kind of. Why? Because Wiebes
1984 programmatic article is programmatic also for the essays following it.
Whether editors and contributors have been trained by Wiebe, by students of
Wiebe, or not: they all feel at home with and are capable of that kind of critical
thinking about religion, or, maybe more important, about the study of religion,
that characterizes the oeuvre of Wiebe. Even if not their main task, they also
signal that they are equally capable of applying critical thinking also to Wiebes
thinking. They may be former students of Wiebe, and they may admire his work,
but they are neither devotees nor copycats.
What is more, the book actually does what the editors say that it does,
namely documents, refines, and examines (vii) the study of religion in ways
variously framed by Wiebes article and more than thirty years of rigorous,
uncompromising, stubborn, important, and influential critique of those kinds of
studies of religion(s), in general and in particular, that suffer from a failure of
nerve. A phrase Wiebe (see note 1, p. 7) borrowed from Gilbert Murray, in
order to characterize a study of religion that has compromised itself, left behind
its Enlightenment principles and roots, and, in the words of Murray (with reference to stages in Greek religion and thinking), lost its confidence in human
effort and trust in the enlightened mind.
A study of religion within which, according to Wiebe (and quite a few others,
fortunately), scientific endeavors have been and still are, ex- or implicitly, much
too often so intimately linked to extra-scientific, not rarely religious, agendas that
the scholar-scientist cannot be distinguished from the scholar-devotee. A
study of religion that might have emancipated itself from what Wiebe (8) termed
Capital C Confessional Theology but not from what he termed small c confessional theology. A notion, by the way, contextualized, discussed, and refined in
an exemplary manner in Johannes C. Wolfarts contribution, Revisiting the

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Failure and Nerve in the Academic Study of Religion. Essays in Honor

of Donald Wiebe. Edited by William Arnal, Willi Braun, and Russell
T. McCutcheon. Equinox, 2012. 243 pages. $99.95.