The last item on my summer reading list was Knut S. Vikør’s Between God and the Sultan, a survey of Islamic law. It provided a less partisan counterpoint to Hallaq’s work, which had been my primary source of information previously (aside from the segments on Shari’a in Hodgson). Some very general points that I found particularly interesting or salient:
- Classical Shari’a was never a standard code of law that can simply be applied — instead, it was an attempt to discern the ultimately unformulable perfect divine law that only God knows. Hence the practice of law grows directly out of the radical monotheism of Islam, which denies any commensurability between God and humanity.
- In classical Shari’a, law was independent of the state in a way we can’t really imagine today. While the sultan or other ruler was required to administer some punishments, the practice of Shari’a law was monopolized by a self-selecting group of scholars.
- At the same time, Shari’a was never the “only” form of law — the sultan and police often ran their own courts, which were much more flexible and practical in certain instances (because the burden of proof for securing a criminal conviction in Shari’a is extremely high, so that even obviously guilty individuals may wind up going free).
- Classical Shari’a only arose centuries after the rise of Islam, as a practical solution to political conflicts at that time (namely, a trans-national Islamic community divided into smaller political units). Law was practiced differently in Islam before that, and presumably it would also be legitimate to practice law differently after that (as is in fact the case in virtually all Islamic countries).
- Classical Shari’a was never any one thing — even in its most established form, it stabilized into four different schools of law, within each of which there was still room for debate.
- The social conditions that produced classical Shari’a have been irrevocably altered. No modern state — even Iran — is likely to concede its monopoly on law to a group of self-selecting scholars. (The one arguable exception is Saudi Arabia, which was never colonized and hence maintains some level of continuity with pre-modern Shari’a practices.)
- In contemporary parlance, “Shari’a” has more often served as a rallying cry than as a concrete proposal, and attempts at literalism have ironically enshrined some of the most severe punishments as “Shari’a” when they were actually little used and significantly ameliorated in classical Shari’a.
- The emphasis on the “worst” provisions of “Shari’a” often has more to do with an attempt to differentiate Islam from the West than with any substantive commitment to (or even knowledge of) Shari’a law as it was actually practiced in pre-modern times.
tl;dr: The system of classical Shari’a law is fascinating, but it would be impossible to restore it in the modern world. People who claim to be doing so are not in fact doing so.
An und für sich 
I hope I am not overdoing it with the comments, but this reminded me of Mourad’s fascinating discussion of Shari’a in the NLR: http://newleftreview.org/II/86/suleiman-mourad-riddles-of-the-book
“Part of the reason why there is so much chaos in the Muslim world today is because most people don’t know what Shari‘a is. For there is no one Islamic Shari‘a—each school of law defined its own, and you were a Muslim according to the Shari‘a of this school.”
It would not have occurred to me that you were overdoing it. Thanks for the link.
Vikør’s book is one of those that has sat on my shelf for a few years, but has not yet been read. If the above points are his arguments, I would argue that there are major problems with points 2 and 4.
Point 2 seems too intent on legitimising the modern (and modernising) state of affairs, basing itself on the malleability and flexibility of fiqh, without paying enough attention to the theological commitments underpin it. In short, not all differences and not all transformations are alike, and some are not merely a matter of quantity and magnitude but of quality and nature.
As for point 4, the argument that Saudi Arabia (or, for that matter, Afghanistan–the other ‘uncolonised’ country) was ‘not colonised’ throws into relief the question of the nature and impact of colonialism. Both countries came under heavy British colonial influence, and, in the case of Saudi Arabia, the country itself came into being as a result of British colonialism. I would argue that any continuity present in Saudi Arabia is not dissimilar to the continuity present in other countries in the region, even if it takes a somewhat different appearance. On the one hand, misapplication and widespread judicial corruption aside, it is true that the reach of the Shari’a (or its semblance) extends beyond the normal postcolonial domain of family law, including into that of some aspects of criminal law. On the other hand, religious scholars and jurists are hardly self-selecting, but rather appointed by the king, and are far from being the only ones involved in promulgating the country’s laws; rather the constitution is that of an absolute monarchy, and separate court systems exist for sectors such as finance and the press.
It’s true that Vikør doesn’t pay enough attention to the theological background of the Shari’a, but I think I’m representing him as more pro-modern than he really is. His view is that the modern break has happened and is unlikely to be reversed, but it’s not at all clear whether he sees that as a beneficial development. And in general, I probably over-emphasize the “self-selecting” aspect throughout, because rulers appointed jurists (at various levels) throughout Islamic history.
Many of the bullet points would be apt descriptors of Halakhah, or Jewish law, as not quite constituting a system of “rule.” The major obvious difference would be that the Jews never exercised sovereign power up until the 1948, and even there the scale in terms of demographics and geography is tiny in comparison. I’m particularly interested in the tension between the ulemma and the caliphate as suggested above.
…Or rather, so-called Jewish law has perhaps much more of a virtual character than Islamic law.
I think the parallels are very strong as well. A comparative study could potentially be fascinating.
I would build the entire comparison around scale, form and content.