Emerita Professor of Anthropology, London School of Economics and Political Science
If one wishes to move away from the terrifying dyad of modern sovereignty (the people and the law-state), what resources are there in Islamic jurisprudence for another imagination of political life? The question is not banal for without it one constantly measures and moulds ‘Islamic law’ against the triumphant measure of the modern state – a disastrous criterion for humanity. Thus, in this paper, I shall examine sympathetically the more classical dyad of custom and fiqh text. That dyad, one hastens to add, subsumes a triad wherein custom is both the custom of society/ies and the custom of government, each productive of norms to be judged within an Islamic juridical textual tradition.
In the paper, I shall begin with my own initiation into such a conceptual world in North Yemen some forty years ago. But then in a more (or less) disciplined manner, I shall characterize and contrast the treatment of these issues in two texts by arguably the two most distinguished juridical thinkers of the 18-19th and 20-21st centuries respectively: Nashr al-`arf fi-bina’ ba`d al-ahkam `ala ‘l-`urf of the Hanafi Muhammad Amin Ibn `Abidin (d. 1836) and al-Ijtihad bain asr al-madi wa-afaq al-mustaqbal of the Shi`i marja Muhammad Hussain Fadlallah (d. 2010). In abstract terms (and in the spirit of Arendt in On Revolution) this conceptual construction of the sources of law is inherently no more constraining of revolutionary law-making than is the dyad, the people and the law-state, at the heart of constructions of modern sovereignty.
Martha Mundy taught anthropology at Yarmouk University, the American University of Beirut, and the London School of Economics and held visiting teaching appointments at UCLA and Lyon 2 Lumière University. At Yarmouk University she helped to found the Institute of Archaeology and Anthropology and to publish work produced in the Institute. At LSE she developed teaching in legal anthropology and published with colleagues edited collections: with Tobias Kelly, Law and Anthropology (2002) and with R. Alain Pottage, Law, Anthropology, and the Constitution of the Social: Making Persons and Things (2004). Her major publications are Domestic Government (1995) and, with Richard Saumarez Smith, Governing Property, Making the Modern State: Law, administration and production in Ottoman Syria (2007). Mundy is presently professor emerita of anthropology at the London School of Economics and research associate with the Interfaculty Graduate Environmental Sciences Program at the American University of Beirut