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Author(s): Robert Gleave

Review by: Robert Gleave
Source: Islamic Law and Society, Vol. 7, No. 1 (2000), pp. 102-104
Published by: BRILL
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Accessed: 13-07-2015 03:14 UTC

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STEWART,Devin J. Islamic Legal Orthodoxy:TwelverShiite Responses to
the Sunni Legal System. Salt Lake City: University of Utah Press, 1998.
Pp.280. ISBN 0-87480-551-1. $40.00.
The basic premise of this work is that "Sunni jurisprudence and legal
institutions"are a "crucialbackdropfor the formation of Shiite legal theory
and institutions" (p. 23). Devin Stewart's hypothesis is that the various
strands of Twelver Shiite legal thought are best understood as different
reactions to Sunni (orthodox) legal thought. These reactions, according to
Stewart, can be initially categorized into conformance to, adoption of and
rejectionof the Sunni legal consensus. After an introductorychapter and a
competent survey of the early developmentof the Sunni schools of law and
legal theory, Stewartdevotes three chaptersto each of these responses. In the
penultimate chapter there is a useful, albeit perfunctory,comparison of the
Sunni and Shiite legal academies. The book ends with a conclusion in which
Stewart argues that the Twelvers created "a madhhab that is essentially
functionallyequivalentto the Sunni madhhabs(p. 280)", almost urging that it
be recognized as such by Sunnis. The book as a whole is meticulously and
thoroughlyreferencedand will undoubtedlyserve as a touchstone for future
scholarship in the area. It made this reviewer think hard about why he
considersStewart's approachinappropriate.
My major criticism is that reliance on the reaction to Sunni consensus as
the only criterionon which to categorizetrendswithin the Shiite legal tradition
does not standup to detailed scrutiny.For example, in his characterizationof
those who "conformed"to Sunni consensus, Stewart states that whilst they
outwardlyconformedto the Sunni legal system, they would "adhereinwardly
and privately to Shiite doctrine" (p. 57). He then characterizes those who
rejected Sunni consensus, as also performing"dissimulationas a practical,
defensive measure when necessary, yet hold[ing] inwardly that the Sunnis
were fundamentally misguided" (p. 58). Exactly how these two groups'
reactionto Sunni legal thoughtand institutionsdifferedis, then, unclear,since
both groups consideredthe Sunnis as deviants, and both groupsemployed the
same tactic of dissimulation to avoid persecution. As I explain below, the
groupwho "adopted"Sunni consensus, accordingto Stewart,hold a similarly
negative view of the utility of Sunni scholarship and consensus. Hence, I
would argue, the three categories of Imamijurists put forwardby Stewartare
not distinguishedby their attitudetowards Sunni consensus. Their views are
basically the same, thoughthe mannerin which they are expressedmay differ.
Those who conform to consensus are analysed in chapter 3 by means of
biographical materials relating to their academic careers. However this
material is so patchy and inconclusive that Stewart is forced to resort to
assumptionswhich supporthis theorythat the Imamis were, primarily,drawn
to the'i madhhab.Phrases such as "it must have been the case that","it
could be that"and the evidence "suggests that",togetherwith qualifierssuch
? Brill, Leiden,2000


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as "presumably","probably","possibly" and "apparently"abound in these

pages. This readerwas left with the impressionthat though the link between
Shiite scholars and Shafi'ism is an educated guess, it is, unfortunately,not
proven thattherewas a link between the two traditions"as early as the tenth
century"(a position which is assertedfour times between pp. 102 and 109).
Many of Stewart's assumptionsmay be correct, but the crucial point is that
the texts he uses do not establish it with certainty. In order to confirm his
theory, a thorough examination of legal texts in both traditions would be
necessary,and instancesof influence delineated.This would be a "formidable
task" as Stewarthimself accepts (p. 247). Though he lists the commentaries
on Shafi'i texts by Shiite scholars,and describesthe use of Shafi'i texts in the
Shiite teachingcurriculum,it is impossible to isolate a Shiite-Shafi'itradition
without knowing how the texts were evaluated and taught. Shiite scholars
have often claimed that the Shafi'i traditionis closest to their own, but the
extensive anecdotalevidence cited in these pages is, in my opinion, less than
convincing.In his conclusion, Stewartstates that an examinationof the works
of Shiite scholars is "bound to show" their debt to Shafi'i studies. He lists
workswhich give "ampleevidence"(p. 247) of this relationship,but what this
evidencemightbe is, unfortunately,not explored.
Those who "adopted"Sunni consensus are analysed in chapter 4. It is
arguedthatthey "hopedto establisha Twelver Shiite legal madhhabon a par
with the Sunni madhhabs". As evidence for this, Stewart describes the
developmentof the theory of consensus in Shiite juristic works. However, a
point insufficiently emphasized in these pages is that the Sunni madhhab
system was, for the majorityof writerswithin the classical tradition,based on
an acceptanceof ikhtildf.Arguablythis did not preventinter-schoolrivalry,or
even, at times, violent dispute, but the acceptance of difference and the
epistemological consequences of such an acceptance were essential to the
intellectualcoherenceof the system. Put simply, the Sunnis agreed to differ
amongst themselves, and on the agreement to differ there was ijmd'. The
Imami scholars analyzed in this chapterwere, in my opinion, not willing to
enter this system in a "functionally"equivalent manner to the established
participants.The use of phrases such as ijmd' al-ummain these texts do not
indicate that these scholarsconsideredSunnijuristic opinion authoritativeor
valid. The consensus of the community is only a proof if it includes the
consensus of the Imami scholars;hence, effectively, it is the consensus of the
Imami scholars which is a proof, and it is merely fortuitousthat the Sunnis
agree. It is possible thatthese writerspresentedtheirtheoriesin this fashion to
neutralise the Sunni accusation of heresy, but their view of the other
madhhabsdiffered significantly from the other madhhabs' views of each
other. The consensus of the Imami scholars was, in turn, only a proof if it
includedthe Imam's opinion (as it must do, since the presumptionis that the
hidden Imam is one of the Imami scholarly elite). The practical difficulties,
however, with proving a consensus to have taken place renderedthis source
less than effective in the determination of the law. Scholars may be
dissimulating (and hence their opinion is unobtainable), and there may be
"unknownmujtahids"(al-mujtahidtnal-majhulun)in the community.Neither

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of these importantelements of Imami consensus theory are discussed in this

chapter. The result is, though, that this second group of theorists are as
negative about the validity of Sunni juristic opinion as the first and third
groups.Theirpresentationtactic and the targetreadershipof theirworks may
differ, but the underlyingsuperiorityof Shiite opinion (a point recognised by
Stewarttowardsthe end of the chapter)is found in all threegroups.
Those who "rejected consensus" are analysed in chapter 5. Stewart
associates this trendwith the Akhbarischool. This chaptercontains a useful
analysis of Astarabadi'sal-Fawa'id al-Madaniyah,recognizingthattherewas
an authoritytheory in Akhbarism(albeit of the traditionalistsratherthan the
jurists). However, there are problemshere also. The term"akhbdri"was not
consistently used by either Imami or non-Imami authors before the
seventeenthcentury.This fact is surelyevidence thatthe Akhbariswere not "a
recognized group"before Astarabadi'swork as Stewart claims; the ubiquity
of the term after Astarabadi,and the clear and relatively consistentdefinition
given to it indicatesthatthey did not constitutea recognizedgroup."Akhbari"
was merely one of a number of descriptive adjectives (ratherthan being a
name) used to describe the more conservative trendof traditionalismwithin
Shiite theology and law. Stewartalso assesses whetherthe Akhbariversion of
the history of Shiite law is "accurate".Such an assessment is, in my opinion,
less than useful. If, as he states, it would "make no sense" to express an
opinion on whetherAkhbariShiism was more authenticthan the other trends
analyzed in this work (p. 207), then surely it also makes no sense to declare
Akhbariaccountsof the historyof Shiite intellectualdevelopmentas "wrong"
(p. 207). Assessing the merits or otherwise of such views seems out of place
in a work which claims to be an intellectualhistory.
In conclusion, then, my main problemwith Stewart's analysis is that the
criterionhe has selected to categorise Shiite legal history is too blunt an
instrumentwith which to accuratelydistinguishthe many trendswithin Imami
juristic thought. Though the techniques in presentation did vary, attitudes
towardsSunni consensuswere too similarwithin the traditionto make them a
useful tool of analysis.
Universityof Bristol
JOHANSEN,Baber. Contingencyin a Sacred Law: Legal and Ethical Norms
in the MuslimFiqh. Studies in Islamic Law and Society, 7. Leiden: E.J. Brill,
1999. Pp. xiv + 521. ISBN 90 04 10603 0. NLG 246; $144.50.
Professor Baber Johansen does not need to be introduced as one of the
leading contemporaryexperts on the history of Islamic law, in particularof
the Hanafi school. The presentvolume contains a collection of his articles in
English, French, and German previously published in various journals and
collectedvolumes.The focus is broadly,as indicatedby the title, on the flexibility and adaptabilityof Islamic law to changing circumstancesdespite its
roots in an immutablerevelation.The articlesare groupedunderthe following
nine headings:"The City and its norms,""Legal normsand social practices,"

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