Shari'a Scripts

A Historical Anthropology

Brinkley Messick

• Publisher: Columbia University Press
• Year: 2018
• Topic: History
• eBook ISBN:
  9780231541909
• Subtopic: Middle Eastern History
• Index: History

A case study in the textual architecture of the venerable legal and ethical tradition at the center of the Islamic experience, Shar??a Scripts is a work of historical anthropology focused on Yemen in the early twentieth century. There—while colonial regimes, late Ottoman reformers, and early nationalists wrought decisive changes to the legal status of the shar??a, significantly narrowing its sphere of relevance—the Zayd? school of jurisprudence, rooted in highland Yemen for a millennium, still held sway.

Brinkley Messick uses the richly varied writings of the Yemeni past to offer a uniquely comprehensive view of the shar??a as a localized and lived phenomenon. Shar??a Scripts reads a wide spectrum of sources in search of a new historical-anthropological perspective on Islamic textual relations. Messick analyzes the shar??a as a local system of texts, distinguishing between theoretical or doctrinal juridical texts (or the "library") and those produced by the shar??a courts and notarial writers (termed the "archive"). Attending to textual form, he closely examines representative books of madrasa instruction; formal opinion-giving by muftis and imams; the structure of court judgments; and the drafting of contracts. Messick's intensive readings of texts are supplemented by retrospective ethnography and oral history based on extensive field research. Further, the book ventures a major methodological contribution by confronting anthropology's longstanding reliance upon the observational and the colloquial. Presenting a new understanding of Islamic legal history, Shar??a Scripts is a groundbreaking examination of the interpretative range and historical insights offered by the anthropologist as reader.

PART I

Library

If I were asked to name the chief event of my life, I should say my father’s library. In fact, I sometimes think that I have never strayed outside that library.

—Jorge Luis Borges, The Aleph and Other Stories, 1933–1969

ONE

Books

The frontiers of a book are never clear-cut … it is caught up in a system of references to other books, other texts, other sentences: it is a node within a network.

—Michel Foucault, The Archaeology of Knowledge

As an essential feature of its mature historical existence the sharīʿa was articulated in a number of schools or traditions of interpretation known as madhhabs.1 The Zaydī jurists of highland Yemen represent one such school, a tradition among the traditions that together constituted Islamic law as a historical phenomenon.2 Each of these schools of reception was distinguished by its own intellectual genealogies and juridical literature. Consisting of important juristic ancestors and their works and also of their living descendants—including madrasa-based teachers and authors, muftīs and independent scholars—and informing the work of practicing court judges and notarial writers, a madhhab was a type of interpretive community. Internally, such communities were as much about argument as they were about agreement, their histories as marked by factionalism as by allegiance. Some contemporary Muslim jurists would explicitly throw off such school-based identities, but prior to the onset of colonial and national changes, to encounter the sharīʿa in local history was to encounter one or more such interpretive traditions.

In a living madhhab, much of the juristic interchange turned around a received corpus of texts. My main concern in this chapter is with the leading genres of the later Zaydī madhhab, the official juridical school of the period Islamic polity, and the interpretive community associated with basic works such as The Book of Flowers. But the library, as I term it, also was an arena of practice, of literary and doctrinal-theoretical acts. Beyond composition itself, which employed detailed sub-forms and distinctive modes of citation and quotation, these acts ranged from the multifaceted work of instruction to the reading and writing that took place in such supporting professions as the handwritten reproduction of books by copyists. Such an active world of literary jurisprudence implied the existence of an elaborated scholarly craft, and it depended on a variety of explicit and implicit techniques associated with studying, teaching, memorizing, commenting, debating, referencing, and many other types of text-related efforts. A growth point of a madhhab was the lesson circle of teacher and students, which was an interpretive community in microcosm.3

Madhhabs existed in larger interpretive worlds constituted by other such communities of interpretation. At various levels inside and outside their cosmopolitan juristic traditions scholars engaged in direct borrowing, cross-citation, polemics, and other forms of intellectual interchange. Rather than cross-referencing their intellectual counterparts in the other Shīʿī traditions, however, the Zaydī jurists built their most active juridical connections with the several Sunnī schools. To further locate their own doctrinal positions, Flowers-tradition authors routinely cited the jurists of these four madhhabs.

When, as in imamic Yemen, one school was associated with the polity as the official school of interpretation, inter-school relations could be hegemonic. As I have indicated, the representatives of two madhhabs were resident in Ibb. In addition to Zaydī jurists educated in Upper Yemen and posted to town judgeships and to other positions by the ruling imams, there were Shāfiʿī-trained scholars of the school indigenous to Lower Yemen, including individuals who actively adapted themselves to the textual world of imamic rule. At the end of this chapter I discuss the roles of texts and men in the localization of the Flowers tradition in Lower Yemen.

In the eighteenth and nineteenth centuries, leading Muslim intellectuals began to advocate for significant sharīʿa reform, which involved challenges to existing madhhabs. Prominent among these figures was Muhammad ʿAli al-Shawkānī (d. 1834) of Yemen.4 Shawkānī critically addressed an authoritative madhhab text, in his case the Flowers, which he had memorized as a youth. Elsewhere in the second half of the nineteenth century, in dialogue with colonial modernity, a legal nahḍa would closely parallel the better-known “renaissance” in Arabic literature. One eventual result was a pragmatic eclecticism that involved new crossings and borrowings between the several old schools of sharīʿa interpretation. By the turn of the twentieth century, Muhammad ʿAbduh and Muhammad Rashīd Riḍā, based in Cairo, were carrying out a program of systematic rethinking and publication. A few decades later, also in Egypt, ʿAbd al-Razzāq al-Sanhūrī would draft widely influential new codified laws that were sharīʿa-derived but western-influenced. Yemen stood largely apart from these developments, but less dramatic changes were under way there as well.

From the vantage point of the period library in the highlands it is possible to reflect on both the past and the future of the sharīʿa book. Classical forms of text building persisted into the twentieth century, and these represent a major interest of this chapter. Notable among them were established institutions of textual commentary as well as the diverse minor mechanisms of quotation and citation. I also examine some literary structures associated with the generalizing, or fulān (“so-and-so”), language characteristic of the library. In fiqh books this name-less discourse mainly appears in the guise of numerous role-terms (e.g., witness, contractor, agent, heir, murderer, etc.), whereas in archival texts such terms acquired substantive implications through associations with named persons.

All such old forms must be examined through or in conjunction with a number of important discursive developments. Literary jurisprudence remained vibrant in this era, but it was enacted on the verge of a regional modernity. Tentative steps toward the adoption of new forms of the sharīʿa text registered more dramatically in the law book than in the less well-known genres I treat in later chapters. In connection with the period law book—specifically in reading The Gilded Crown, the four-volume commentary on the Flowers published in the 1930s and 1940s—we may also study the advent of print technology and a newly emergent type of authorship. These and other discursive initiatives may be thought of as preparing the fiqh corpus for the exigencies of the modern code.

Late in the last century, during the years of my research residence, the principal fate of the fiqh was to be selectively appropriated and reframed as the numbered articles of nation-state law.5 Other types of new writings also appeared, and these, too, stand in instructive contrast to the old-style sharīʿa law book. Muhammad Yahya al-Muṭahhar wrote a two-volume comparative work devoted to the sharīʿa-derived law of “personal status,” itself a distinctly modern legal category.6 An imamic-era judge born in Upper Yemen and trained in Zaydī jurisprudence, al-Muṭahhar moved to Lower Yemen in the 1950s in the service of Imam Ahmad and took up residence in the capital at the time, Taʿizz. When I met him in the 1990s, al-Muṭahhar represented that city in the National Consultative Assembly. His former colleague, the Muftī of the Republic and historian Ahmad Zabāra, who had served in imamic Taʿizz as the presiding justice of the Sharīʿa Panel (al-hayʾa al-sharʿiyya), the highest-level appellate group, described al-Muṭahhar’s new book as “modern in style” and “the first of its type by a Yemeni scholar.”7 Another new author of late twentieth century, the Zaydī scholar Muhammad al-Ghurbānī, relocated to Ibb in the 1950s, and, as I noted at the outset, introduced me to selected chapters of the Book of Flowers. In later years, al-Ghurbānī wrote a monograph in the collateral science of ḥadīth, the traditions of the Prophet. Written for university and secondary school students, his book chapters conclude with the modern textbook device of review questions.8

Al-Muṭahhar and al-Ghurbānī separately characterized their new books to me in the same terms. The main innovative feature, both authors explained, was that they intended their works to be read on one’s own, “without a teacher”—that is, through a form of direct knowledge acquisition in private, presumably silent, readings. What does such a remark indicate about the nature of the prior textual world in which both men had been formed? What earlier conceptions of knowledge and institutions of instruction served as the foils for the anticipated utilizations of their new-style writings? What was the discursive role of the lesson-circle teacher in the creation and transmission of the authoritative texts of the past? What kinds of law books were the old works of fiqh, and, by extension, what sort of law did they embody...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Map of Upper and Lower Yemen
• Introduction
• Part I. Library
• Part II. Archive
• Postscript
• Notes
• Manuscripts and Archival Materials
• Bibliography
• Index