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Genealogy of the text: Textual Authority
The idea to appear when I read the genealogy of the text in Messick’s book is about the nature of authority that the texts of Islamic jurisprudence have, where it comes from and how it comes about. It should be noted that in Islamic law authority is, as Hallaq says, at once religious and moral. What is more interesting to me, however, is the fact that the authority is mostly epistemic in nature (Hallaq, Authority, Continuity and Change in Islamic Law, p. ix).
The authority of Islamic jurisprudence, then, entails not only the value that is binding for those who adhere or abide by it but also the way of thinking and the way of getting the knowledge which involves let say the Qur’anic paradigm. This is why, as a result, the authoritative Shari’a texts (Islamic jurisprudence) in any part of the Muslim world has to do with the process of transfer of knowledge, the specific teacher-to-student connection, the link of madzhab development, ijtihad and taqlid and so fort. That is to say that the relationships between writing and authority and its changing throughout Islamic history has always been highly complex and it involved any other fields of life.
It has to be admitted, however, that this epistemic authority of Islamic jurisprudence gives intellectual characteristic more and superior rather than its political nature. I think, this is a part of the reasons why there is no even one of Islamic empire that successfully legislated Islamic law. Otherwise, there have always been pluralistic and dynamic ideas came from pious private individual, which is really characterize Islamic jurisprudence. It is an “Open text” –to borrow Messick’s terminology—that guides Islamic jurisprudence relatively independent vis a vis the state or political and vested interests. (Compare with Sami Zubaida, Law and Power in the Islamic World, p. ch.1)
What should be interesting from Messick’s elaboration is the way those texts gained their authority. The recitation process seems to assure that the orality is more important that the writing. The fact that orality is a central feature in the development of Islamic jurisprudence shows its close relationship with the chain of transmission as occurred in hadits that by which its authority could be maintained. Or, it suggests that there will be any psychological reduction at least in the texts.
Between Pen and Sword
Nevertheless, the most intriguing feature Islamic jurisprudence in its historical context was/is the use and abuse of it in the political areas. Islamic jurisprudence is often used as merely to legitimate a sort of political interest. This is actually the one that created sort of conflict and tension in Islamic jurisprudence, between what so call rules together with their apparatus and the pious individual jurist. Islamic jurisprudence, then, has to choose between idealism and pragmatism (N.J. Coulson). Moreover, Islamic jurisprudence applied by way of coercion, not only through the mechanism of state or official means but also by the use of madzhab authority. Obviously, it was this process that made Islamic jurisprudence slow but sure is going to decrees. Shari’a, which is claimed as divine guidance is eventually reduced and applied according to the need of temporarily pragmatic consideration.
Nevertheless, precisely it is the social and historical phenomena that have attracted most many anthropologists. It is really interesting to see, for instance, where was/is exactly the place of Shari’a in the political discourse and what was/is happening in it; and how did Islamic jurisprudence deal with social and legal dynamism in the classical and modern era as well. What do all those phenomena mean in terms of cultural and comparative studies?
I guess this is what was/is happening in the highland of Yaman as B. Messick is pointing out in the second chapter. The application of Islamic jurisprudence is used for legitimating the power of those who were in power, no matter who they are, Zaidi as well as Shafiite. What I am curious to know most is the question of public participation in shaping the legal formation of shari’a. If Islamic jurisprudence has epistemic authority and at the same time it is not immune to the political interest any longer, the question is then, is it possible to accommodate the public interest and public participation in establishing Islamic jurisprudence that is pertinently in line with divine conduct? Doesn’t it really mean “deprivatization” –to borrow the term from Aharon Layish-- of Islamic jurisprudence that could lead to the liberalization process of it?
