Defining Casuistry in Islamic Law (original) (raw)

A summary of this paper was presented at MESA 2007. From the introduction: The terms “casuistry” and “casuistic” have been employed by a number of modern, Western scholars of Islam (including Ignaz Goldziher, Joseph Schacht, Noel Coulson, Yaʿakov Meron, and Baber Johansen) to describe various features, essential processes, and overall trends in Islamic law. It is only Johansen, however, who has treated casuistry in Islamic law as a topic worthy of singular inquiry. Cognizant of a conspicuously negative slant in previous ascriptions of casuistry to Islamic legal method, Johansen takes a different tack, contending that “Muslim jurists often engaged in casuistry in an effort to answer practical problems that evolve from [a] process of social differentiation.” In supporting this claim, he relies upon a uniquely refined definition of casuistry, a European Catholic paradigm of the evolution of casuistic method, and an illustrative series of ostensibly casuistic Islamic legal phenomena. It is the intent of the present study to continue the debate regarding the role of casuistry in Islamic law, and to do so from an entirely new set of considerations. In fact, these new considerations indicate clearly that the very use of the term to explain phenomena in pre-modern sharīʿa is at best inappropriate and at worst misleading, and ought to be scrapped entirely. Instead, an ‘indigenous’ lens for analyzing Islamic legal phenomena will be uncovered and re-introduced. Such a lens is molded from established traditions of reasoning and dialectic permeating the Islamic sciences, not least the juridical. It is therefore hoped that the case for replacing discussions of “casuistry” in Islamic law with discussions of juridical reasoning and dialectic shall be convincingly made in the proposed sections of this investigation. In Part I, the terms “casuistry” and “casuistic” will be exposed as polysemous –far from singular of interpretation –, and a surprising number of significantly nuanced senses of casuistry will be illustrated (first as they occur in various modern reference works, and second as employed by modern, Western scholars of Islam). The application of such discrete senses of casuistry to various phenomena by different scholars will then be analyzed, at which point the problems generated through lack of uniform application will become self-evident. Next, the suitability of applying “casuistry” and “casuistic” – in any sense whatsoever – to Islamicate legal phenomena will be questioned; especially in light of the genesis and evolution of these terms in processes of European Catholicism. The following questions – never before addressed, to my knowledge, by scholars attributing casuistry to Islamic law – will be raised: If in fact so critical an element of pre-modern sharīʿa, where might we locate the internal discourse surrounding casuistry? What did pre-modern, Muslim jurists call casuistry? How is it articulated in Arabic? Or, if in fact never articulated at all, why did the crucial role played by casuistry await the probing of modern, Western scholars for discovery? By the end of this section, it is hoped that “casuistry” will be proven at best an unpromising lens through which to study Islamic legal phenomena. Part II, therefore, will attempt to provide an alternative to casuistry as a category of analysis, and will do so by uncovering precisely which phenomena Western scholars have been treating with the ungainly term “casuistic”; that is to say, so-called “casuistic” phenomena will be excavated from their ambiguous treatment and re-introduced in the Arabic technical terms largely unmentioned by Western scholars in previous discussions. Consequently, it will become most apparent that “casuistic” phenomena are in fact all related to varying (and internally well-formulated) processes and products of archetypal Islamic juridical reasoning (such as may be subsumed under the rubric of qiyās) and dialectic (jadal). Furthermore, we will be reminded that both Catholic European scholasticism (wherein casuistry-as-method has its origins) and Islamic traditions of manṭiq, jadal, munāẓara, and ādāb al-baḥth share a common and foundational influence in the Aristotelian corpus. Perhaps this common and formative factor lies (in part) behind the temptation to apply a demonstrably alien conception of “casuistry” to Islamicate phenomena; divergent development from a common systemization may retain such vestiges of similarity as encourage this sort of match-making and misperceived universality. We will be reminded, moreover, that Aristotelian systems can in no way be seen as ‘foreign’ to Islam, nor even to the Near East before Islam. The arts of demonstration, dialectic, and rhetoric were as much prominent features of the Near Eastern intellectual landscape before the arrival of Islam as they were throughout the development of its many sciences, and it is within the well-articulated discourses of the dialectical tradition in particular that such Islamic phenomena as have heretofore been described as “casuistic” might better and more meaningfully be understood. A brief overview of the dialectical tradition in pre-modern sharīʿa (as brought to light by Larry Miller and Wael Hallaq) will, it is hoped, firmly demonstrate to the reader its pervasive and foundational role. A re-examination of so-called “casuistic” features through this lens of Islamic reasoning and dialectic, as may be expected, provides a far more harmonious assessment than peering through the lens of Catholic European casuistry (or merely applying the unqualified label of “casuistic”). Beyond this, however, attention must, and will, be drawn to the very spirit of the dialectical enterprise, whether stated by Aristotle in his Topics or echoed in Arabic treatises on jadal, munāẓara, and ādāb al-baḥth across the whole breadth of Islamic intellectual history. Stated in one Arabic formulation, this is al-maʿūna ʿalā al-naẓar (‘assistance in speculation’). The true spirit of dialectic is one of a cooperative truth-seeking enterprise, not a mere contest for determining the better disputationist. It is the intent of the disputants which determines, in part, whether a disputation is dialectical and in the service of truth, or sophistical and in the service merely of contention. This theoretical spirit of cooperation stands in direct opposition to casuistry in its most negative sense – a synonym of ‘sophistry’ –; and, regrettably, it is in this sense the majority of Western scholars employ the term in describing Islamic law. Supported by recent research in the areas of legal practice, juridical dialectic, and Islamic morality as a whole, it will be argued that attitudes of piety and morality keenly permeated the environment of juridical debate. Certainly, juridical dialectic may have been at least as pure a truth-seeking enterprise as certain scholars have assumed it to be a sophistical one lacking all integrity. At the very least, the classically (and persistently) advocated ‘true spirit’ of dialectic must first be proven absent before accusations of a sophistical casuistry may be levelled. In concluding this study a few more questions regarding the practice of applying “casuistry” to pre-modern sharīʿa will be raised. Unfortunately, no matter how well-intended such projects may have been, a critical gap of understanding must necessarily proceed from this convention of imposing alien categories. “Casuistry,” in fact, stands in a long list of what can only be seen as imposed categories, including, as has been suggested elsewhere, the term ‘law’ itself. Such problematic approaches must continue to vex the modern, Western student of pre-modern sharīʿa whose goal is to understand sharīʿa as its formulators and practitioners understood it. A major aim of this study, therefore, is to promote a preliminary immersion in Islamic traditions of logic and dialectic as a partial corrective to this continuing history of misinterpretation, represented – as it most assuredly is – by “casuistry” in Islamic law.