Pragmatism in Islamic law: Book Review

pragmatism-islamic-lawPragmatism in Islamic law: a social and intellectual history. By Ahmed Fekry Ibrahim. Syracuse: Syracuse University Press, 2015. With bibliographical references and index. $39.95 (hardcover). ISBN: 9780815633945.

This work is an in-depth study of what author Ahmed Fekry Ibrahim describes as “pragmatic eclecticism” in Sunni Islamic law and jurisprudence from the early pre-modern period up to the post-Arab spring, with a specific examination of the development of Islamic modernist and reformist discourses in Egypt. It complements and builds upon the author’s dissertation he completed for Georgetown University studying the pluralism of the Ottoman Sunni legal establishment and its influence on Egyptian courts in the 17th and 18th centuries.

Ibrahim locates pragmatic eclecticism in the pre-modern legal terms of tatabbuʿ al-rukhas (the process of selecting the least stringent juristic opinion), which he defines as simple pragmatic eclecticism, and talfiq (the process of combining two juristic opinions in the same legal transaction), which he defines as complex pragmatic eclecticism, although he notes some classical jurists arrived at pragmatic conclusions via other principles such as maslaha (public welfare). Pragmatism, in this sense, refers not to a complete philosophical worldview, or weltanschauung, but rather to approaches in specific cases.

Ibrahim challenges the assumption of some legal historians that the pragmatism underlying reformist discourses was simply a by-product of modernity. He tries to show that, in fact, such pragmatism had precedents in classical Islamic law, although he acknowledges that the apparently arbitrary reformist methodology consists of clear ruptures from the past and has created a significantly different and new legal dynamic. The strategy of reformists was more rooted in tradition than some historians give them credit for, but their substantive legal rulings discarded aspects of the epistemological and methodological structures of pre-modern classical law schools.

Ibrahim demonstrates the relevancy of this topic to current events with the anecdote of Abd al-Munʿim Abu al-Futuh, an Egyptian presidential candidate and former member of the Muslim Brotherhood, who unequivocally rejected the classical legal punishment for apostasy. His public rejection of a traditional law earned him the disdain of a Salafi preacher whose polemical sermon went viral on the internet. This story, with its concrete point of legal disagreement, gives us an idea of the tension liberals, reformists, and modernists have with cultural purists, traditionalists, and fundamentalists as it pertains to Islamic law, especially in post-Morsi Egypt.

The book is divided into four major sections. Part one discusses the institutional context that laid the foundation for pragmatic eclecticism and the early theological debates regarding the tension between the unitary divine nature and the reality of legal pluralism. Here the author discusses the competition of legal models epitomized by ijtihad (independent legal reasoning), which he describes as a common law model, and taqlid (legal conformity), which he describes as a codification episteme.

Part two analyzes the attitudes toward tatabbuʿ al-rukhas and talfiq in early pre-modern juristic discourse up to the 19th century, specifically before the attempt to modernize the Egyptian legal system. He notes that although a few modern historians have made reference to pragmatism prior to the 19th century using the relatively modern term takhayyur (selection), none had deeply studied the historical use of tatabbuʿ al-rukhas.

Part three presents the practical application of these two principles from the archival documents of Egyptian courts in the 17th and 18th centuries before the modernizing efforts of Mehmed Ali. The cases discussed concern issues of sale, contract, property ownership, marriage, and so on, demonstrating how and why pragmatism was put into actual practice.

Part four discusses what happened after the 18th century with the emergence of reformist and modernist discourses. Ibrahim shows that there was a sense of continuity between modern and pre-modern juristic discourse, while noting the areas in which the discourse broke from tradition. He also examines how the discourse of pragmatism was operationalized in the partial codification of Islamic law in modern Egypt. He ends with reflections upon the potential future for further codification of Islamic law in post-Arab Spring Egypt.

Overall, Ibrahim effectively confronts some of the generalized narratives about the inauthenticity of reformist and modernist discourses that are based upon pragmatic principles. This work is certainly a welcome contribution to the literature on Islamic law. An extensive and quality bibliography will point readers to further reading. This book is recommend for academic libraries and researchers interested in Islamic law and history, the Middle East, Ottoman history, Egypt, modernism, and the Arab Spring.

Justin Parrott
New York University in Abu Dhabi