Norman Calder, introducing Islamic law in one of his papers for Syed Hussein Nasr’s History of Islamic Philosophy, narrates a story of an anxious wealthy man trying to find a suitable wife for his son being fearful that he might divorce her and squander his wealth. He came to Abu Hanifah with his query.
“I could buy him a slave girl and provide him thus with the household but he might free her and so again squander my wealth. What shall I do?” “Take him to the slave-market,” said Abu Hanifah, “and when a particular girl catches his eye, buy her for yourself, and then marry her to him. If, then, he divorces her, she returns to your ownership; and if he frees her…well, he can’t, for she is yours.”
Calder rightly points out – after narrating this incident from Dhahabi – that no conclusion should be drawn from this story about the ‘marriage practices and family problems of ninth century Khurasan’ as this is basically a showcase for exploration of concepts. Concepts like acquisition and transfer of rights and legitimate sexual intercourse.
I remember arguing previously that corpus of classical legal tradition may principally be experienced as a tradition of literature in order to be able to appreciate the beautifully interlaced multiple traditions of education, thought, creativity and a desire for achieving some kind of social control. So does Norman Calder, when he asserts that without compromising its theological character, the genre of classical fiqh may be experienced primarily as a mechanism of self definition of classical Muslim scholarship. However, what Calder most certainly alludes to and I completely fail to acknowledge in my ramblings is the inadvertent and indirect denial of rational character of Islamic law.
For what else can be logically deduced from this argument except that traditional Islamic law does not in general cater for the needs of a real society but was only a means to explore the revealed word of God. Just for the sake and love of it.
I now come to believe that even in the presence of cunning contrivances, legal fictions and humor in the traditional books of law, one has to concede to the fact that Muslim jurists displayed an unflagging resolve of not compromising rational coherence of their arguments. Ignoring the historical authenticity and funny part of such incidents, one sees that Abu Hanifah takes a rational approach to the question posed to him; so does Malik when he replies to the Iraqi who after having sexual intercourse with a chicken wanted to eat it’s egg; so does the Egyptian scholar Ezzat Attiya who gave the famous ruling regarding adult men getting breastfed from female colleagues at work; and so does Sheikh Faraz Rabbani who remarkably considers every possibility while satisfying a questioner who is finding it difficult to differentiate between backbiting and literally biting his brother’s back.
It is obvious that juristic motivations in above mentioned examples are complexly interwoven. One can endlessly speculate but cannot tell with conviction whether traditional jurists do have an eye on social reality all the times or not. It is difficult because even though some of the egg-loving-weirdos do have sex with chickens, they seldom confuse backbiting with biting on someone’s back.
These casuistic extravagances usually marrying with rhetoric and endless citation of sources lead to a legal construct which is always pregnant with multiple and sometimes opposite rulings. To a modern mind, this construct, even though it theoretically conforms to the revealed norm, not only seems vulgarly fictitious but also disconnected from the ethical and moral normative base.
What then is the right way to proceed in order to synthesize the traditional Islamic law with ongoing social change? In my opinion, it is by asking right question about legal theory and social change. Not one, two, or few; rather, scores of them.
No amount of going-back-to-the-sources, ruling-by-what-Allah-has-revealed and how-to-pray-in-outer-space-manuals would achieve it for us. Unless we somehow deconstruct the fairly modern adaptability/immutability duality of Islamic law, we would not be able to move forward towards a workable corpus of Islamic law that fits meaningfully in the contemporary political realities. If somebody wants a single most comprehensive starting point, Shatibi asked most of these question in fourteenth century Spain.