Table Of ContentTHE JUSTICE OF ISLAM
THE JUSTICE OF ISLAM
Comparative Perspectives on
Islamic Law and Society
LAWRENCE ROSEN
OXFORD
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Introduction
One out of every five people in the world is a Muslim. To some degree each of them
is emotionally, morally, or administratively attached to Islamic law. The sacred law,
the shari'a, is, of course, meant as an overarching guide to everyday conduct, a way
that will lead the believer to the benefits accorded by Allah, an idea bound up even
in the earliest meaning of the Arabic term as 'a path leading to a source of water.'
Islamic law summarizes the ethos of the faith, the standards of specific conduct, and
the practical implications of its own promise.
But Islamic law is also a living system of everyday adjudication. Indeed, its qual
ities as a moral code, a field of abstract theological investigation, and a process of
addressing the relationships and conflicts that may arise among the faithful are not
fully separable. However much the different faces of the shari'a may, at times, take
on institutional distinctiveness or doctrinal individuality, common features run
through all of its manifestations-and through the societies and cultures of which
they are a part. It is these common threads-repeated, interwoven, reinforcing-that
will, in a similar fashion, describe and link each of the chapters in this book.
To many Westerners the image ofislamic law is often that of the enforcement arm
of a strict system of acceptable behavior, the remnant of a once encompassing system
of regulation whose scope has been reduced to the domain of the familial by nations
bent on modernization through adoption of foreign codes, or the theological
musings of scholars whose doctrines bear little relation to law as a system of actual
adjudication. To some extent each of these conclusions is understandable:
Fundamentalists have tried to use the sacred law as a vehicle for asserting both
authenticity and control; Western codes have significantly displaced precursor laws
in the commercial, penal, and civil domains of many Arab states, the influence on
family matters remaining widely variant; and the doctors of Islamic law have a long
history of separating the chair from the bench (and both from the throne), giving
great care to issues that might never arise in practice or emphasizing the literary
form, rather than the practical import, of their readings of sacred texts. But as with
many such views of highly developed systems of theology and law, projections from
the West, coupled with the sociology of Western knowledge itself, have sometimes
obscured deeper connections and more ramified implications.
Islamic law, in all its manifestations, is intimately entwined with other portions
of Islamic culture and society. Such a position is, of course, virtually a given for an
anthropologist, for it is at the heart of our enterprise to assert that the different
domains of a people's life always have some bearing on one another, and that a signif
icant portion of the force that a cultural system has in convincing its adherents of its
truth lies precisely in its being replicated in so many domains that its precepts and
directions appear both immanent and natural. From this perspective, one is, there
fore, necessarily led to explore connections across the lines some disciplines have
x Introduction
reified. Thus, in the study of Islamic law it is central to our present concerns to
consider how law is connected to various social practices, how cultural assumptions
suffuse the law and give it legitimacy, how attachments that may not seem obvious
reveal themselves when any feature is followed to its next set of entanglements. In
doing so, three themes begin to emerge: that Islamic law is not simply a matter of
substantive rules or moral musings, but part of a cultural process that becomes more
evident the more we seek its reverberations in related domains; that only by taking a
comparative approach can we see what sort of process this is and how its distinctively
Islamic aspects are given expression; and that as we traverse a series of substantive
issues the sheer vitality of law as a contributor to this cultural process furnishes us
with an excellent entree to the wider understanding of Islamic cultures past and
present.
These themes will continue to cross-cut each of the separate topics of the
present work thus forming the fundamental framework of which each is intended
as a specific exemplification. The chapters in Part 1 explore the social and cultural
logic of Islamic law, first by seeing how judicial discretion-that 'qadi justice'
made famous to the West by colonizers and comparativists-actually partakes of
standards found in the larger domains of culture and legal reasoning. Indeed, the
reasoning style is one in which cases are explored for the consequences that the
actions of the litigants may have for the larger society. As each litigant is seen as a
socially constructed person the system as a whole displays the characteristic
features of a common law system of legal reasoning-one in which a moving
system of classifying concepts (in this case of 'persons' rather than 'facts') becomes
the focus of judicial attention. When one looks at Islamic law in this fashion one
is, moreover, moved to rethink the whole taxonomy of legal systems and to recon
ceptualize the criteria on which such a classificatory scheme may be composed.
Islamic law thus becomes the basis, as well as the subject, for reconsidering the
whole comparative law project. Similarly, Islamic law approaches to responsibility
and compensation for injury demonstrate not only the emphasis on the situated
person, so crucial to an understanding of cultural orientations in the Arab world
generally, but how a style of legal reasoning connects everyday cultural assump
tions through their legal articulation.
The law, however conceived, is no more restricted to courts than it is to docu
ments, and the chapters in Part 2 move us in and out of the courts, tracing implica
tions of courtroom and courtyard on one another. Here we see that 'custom' for the
contemporary Muslim-and probably throughout Islamic history-is not some
thing completely separated from law. To the contrary, so long as fundamental
Quranic precepts are not violated, local practice is seen as itself Islamic, an orienta
tion that is vital to the emphasis in Islamic law on the local articulation of the accept
able. By reviewing changes in the docket and courtroom practice of a single
Moroccan court over the past thirty years one can, moreover, see precisely how social
standards precipitating courtroom battles have altered and how the courts have
changed as the surrounding society has changed. Then, by looking in detail at an
Introduction XI
alternative court set up by the Moroccan government, where no specific body oflaw
is operative and cases are meant to be handled quickly according to local standards,
the features that connect the regular courts to society are highlighted by the new
courts' failure to satisfy popular ideas about appropriate legal process. Indeed, how
people structure their trust in one another becomes the issue of the final chapter in
this section, precisely because the regularization of obligation has a profound effect
on the peaceful relationships or potential litigation that may move in and out of the
courts for years to come.
Part 3 takes the focus back and forth across time as well as space. One of the bene
fits of studying contemporary Islamic courts is that one can look back at the docu
mentary evidence for earlier times and try to fill in some of the blanks by careful
interpolation rather than mere projection or speculation. The ways in which
Muslims articulate their sense of justice and injustice over time is especially impor
tant here. The argument is put forth that justice in Islamic cultures does not mean
equality but equivalence, and that it is precisely in formulating equivalencies that the
larger cultural context is revealed. Although many scholars have argued that Islamic
law was only formed a century or more after the Prophet's death, it can be suggested
that in fact the Prophet did have a well-developed jurisprudential theory-what I call
a sociological jurisprudence-fully informed by a vision of what human interaction
was like and what criteria should be applied to address its consequences. These
features show themselves as well when we look at the specific instance of tolerance
for various forms of speech. There we can see that within Islamic cultures the key axis
is not that of liberty or constraint, but the relation of the private to the public, an
emphasis that, once again, recalls the importance of seeing how law and culture
mutually assist one another in the conceptualization of what people and social rela
tionships are really like. To see, finally, how the courts of the United States, faced
with a religion at once familiar and distant, are testing and being modified by the
cases involving Muslims that are increasingly appearing before them is to see how
two cultures' assumptions interact and how each can form a test case for the analyst
of some of the most central features of a cultural system.
The study of Islamic law is intrinsically comparative. Spanning numerous
centuries and cultures, the shape and alteration of Islamic law is, whatever its shared
theological underpinnings, remarkably variant. Most of the research on which this
book is based has been conducted over several decades in Morocco, with additional
work in Tunisia and Malaysia. No single place or time can stand for all instances, but
it will form a not insignificant part of the thesis of this book that, using both field
work and documentary sources, one can indeed speak of themes and variations in
Islamic law, gaining in one's understanding of the particular from one's understand
ing of the range of variation of the similar. The more we understand this practical
variation the more we are challenged to explore the reciprocal relation of a univer
salizing law and its local manifestations. And the more Islamic law is drawn upon for
comparative studies-in anthropology, law, and Oriental scholarship-the more we
learn to see aspects of the particular that may have escaped notice and to apply this
XU Introduction
most fascinating of instances to our broader understanding of the nature of legal and
cultural forms.
I have built up numerous debts over the years to those who have encouraged and
supported my research. The Moroccan Ministry of Justice and the judges, adminis
trators, and office staff of the many courts in which I have worked have been most
generous in their permissions and their assistance. So, too, as regards various govern
ment ministries and research institutes: The Fulbright Program in Morocco, CERES
in Tunisia, and MACEE in Malaysia. Conversations over the years with Taoufik
Agoumy, Mustafa Benyakhlef, Yaghnik Driss, Abdellah Hammoudi, and
Muhammad Zwitun have greatly enriched my understanding of North African law
and culture. As an adjunct professor of law at Columbia Law School, and a visiting
professor at the law schools of the University of Pennsylvania, Northwestern, and
Georgetown Universities, I have had the benefit of students and colleagues whose
knowledge of Western law has added immeasurably to my comparative project. I
have received helpful comments over the years from lecture audiences at the
European University Institute (Florence), the Center for Advanced Study in the
Behavioral Sciences (Palo Alto), the French and Dutch Research Institutes in Cairo,
and the Universities of Michigan, Birmingham, Cardiff, and the Aegean. I also bene
fited greatly from the audiences who discussed portions of several chapters during
my tenure as a Phi Beta Kappa Visiting Lecturer. I am grateful for generous support
at various stages of my work from Princeton University, the National Science
Foundation, the Fulbright Program, and the John D. and Catherine T. MacArthur
Foundation, as well as to the Masters and Fellows of Wolfson College, Oxford, and
Corpus Christi College, Cambridge, where various portions of the manuscript were
written. My colleagues Clifford Geertz, Hildred Geertz, and Avram Udovitch, along
with Baber Johansen and David Powers, continue to enhance my understanding of
Morocco and Islamic law, and I am delighted to remain so much in their debt. Much
as I should like to blame others for any shortcomings in this book, I cannot very well
write about responsibility and intention, much less custom and justice, without
accepting all such culpability as my own.
Several of the chapters have been significantly revised since their appearance in
earlier publications, and are reprinted here by agreement with the initial publishers.
Portions of Chapter 1 were published in Rosen (1980-1); Chapter 2 in Rosen
(1989b); Chapter 3 in Rosen (1996) and Rosen (1998); Chapter 4 in Rosen (1989c);
Chapter 5 in Rosen (1995d); Chapter 6 in Rosen (1997); Chapter 9 in Rosen
(1995c) and Rosen (1995b); and Chapter 12 in Rosen (2000). Many of the argu
ments are intimately connected to my interpretation of Moroccan society and law, as
developed in Rosen (1984) and Rosen (1989), to which readers may wish to turn for
both broader and more particular development of issues raised in these chapters.
Finally, it should be noted that Arabic spellings, with allowance for Moroccan
dialect where appropriate, broadly follow the system used by Hans Wehr in A
Dictionary ofM odern Written Arabic, with some significant modifications: swill be
