Recently, I interviewed Joseph Lowry, formerly a practicing attorney and now translator of al-Shāfi‘ī’s The Epistle on Legal Theory (the Risālah), part of the growing Library of Arabic Literature. Lowry talked about translating “sharia” for a contemporary audience:
ArabLit: How do you think your new translation of al-Shāfi‘ī’s Epistle, a ninth-century text, fits into a twenty-first century debate on the place of “sharia” law in US courts?
Joseph Lowry: For a variety of reasons, Islamic law is something that has wandered into the popular consciousness. It’s something many people seem to have heard of, and about which people have various ideas. Most of them, not surprisingly, are inaccurate. But some of these mistaken impressions of Islamic law are impressions that are understandable based on the world we live in.
So maybe what I should say is this: There’s a long tradition of highly technical and also intellectually very interesting legal thought in Islamic intellectual culture and in Islamic religious writing. Generally speaking, that tradition, for somebody who is trained in the law, would look very familiar: the ways in which Muslim jurists in the pre-modern period conceptualize problems, the ways in which they conceptualize and devise solutions to those problems, the ways in which they think about the world, and about classic legal problems like intent or contract formation, or criminal liability. These are all things that are all just very familiar to anybody with legal training.
I think generally when we hear [about Islamic law] in public life, we tend to hear about things like severe punishments for certain crimes, or the legal disabilities of women, or the legal disabilities of religious minorities under religious rule. So actually those things are also there, to some extent, but they are things that are really a fairly minor, indeed a statistically very insignificant part of the Islamic legal tradition.
[Another aspect] that might also be of interest or surprising to people today is the fact that the overwhelming character of Islamic criminal jurisprudence—that is, the doctrinal positions that jurists stake out in regards to criminal law—is exculpatory, which means that the overwhelming tendency is to try to find ways not to convict people.
I think that in the world in which we live, given the ways in which people tend to talk about Islamic law in public, they would be surprised at what a sort of unexceptional and normal legal system it is from the point of view of somebody with training in the law. And they would also be surprised, I think, at the intellectual sophistication and delicacy of Islamic legal theory.
AL: If you were going to give a talk about this book to lawyers, what would you emphasize to them?
JL: What do lawyers do when we read case law? If you’re a junior associate in a big law firm, as I once was, and you’re told to go research an issue, you go dig up a bunch of cases and you read them. There are various ways of finding out which cases are relevant to the particular issue you’re looking for.
So when you read these cases, inevitably, they are not all the same. And in fact some of them might look squarely contradictory. Your job then is to write a memorandum in which you explain what the field is of this particular legal issue as it’s expressed in the jurisprudence and judicial decisions. And the kinds of things you might do are explain why two cases differ. You might say, “Well, this judge’s decision looks like it’s different from this other judge’s decision, but really when you consider this factor and that factor, actually they have the same idea about what the law is. And there were some circumstances which caused this judge to decide the case differently, or interpret the statute differently as it applied to these facts.”
So you go through and look for things that help you group cases into groups of similar decisions and groups of dissimilar decisions. And that process of deciding what things are similar and what things are dissimilar, and what things look—and this is crucial—what things look dissimilar, but are in fact similar, is very much like what al-Shāfi‘ī does in the Risālah. There, he goes through and he looks at these passages in the Qur’an and looks at these pronouncements from the Prophet, and he says sometimes, “Well, yes, these look different but actually if you take into account this factor and that factor and the particular facts of the situation that Muhammad was addressing, or that was being addressed by the Qur’an, you’ll see that actually the underlying rule was the same.”
Or he might sometimes admit that there’s a difference and say, “Well, there’s a difference between these two rules, and they are really different, because one was revealed at one point in time, and another was revealed at another point in time, and the one that was revealed later superseded the one that was revealed before.” So that process of lining up expressions of legal rules into groups—that’s pretty much the task that Shāfi‘ī was undertaking. And that’s just basic interpretation of case law. It’s a way of reasoning that anybody who went to law school will immediately recognize as familiar.
AL: What else would you say to a general audience interested in “sharia” law?
JL: One of the ways that people become aware of Islamic law in the modern world is through the things that Muslims say in regard to the desirability of having Islamic government. I think when people talk in those terms in Islamic societies today, we need to remember that Islamic law becomes a political symbol. Since those pro-Islamic law discourses are implicitly and sometimes explicitly directed against what are perceived as the anti-Islamic policies of Western governments, including the United States, that one has to remember that the invocation of Islamic law’s rules—of criminal law, or rules affecting women—often get emphasized in the modern world in ways that are shrill and politically driven and that do not necessarily reflect the general prevalent trends of Islamic law in the pre-modern world. So in that regard, although they are politically understandable, they are ahistorical, for instance the imposition of severe criminal penalties in the context of calls for Islamic governance or an Islamic state.
I alluded to this earlier when I talked about the fact that Islamic criminal jurisprudence is mostly about exceptions, and it’s actually very hard to get convicted of most crimes under Islamic law. But the modern political invocations of Islamic law, coming as they do in the context of difficult relations with the West in some Muslim countries, give a particular emphasis to these aspects of Islamic law as culturally distinctive, and probably emphasize them more than they would’ve been emphasized by an author like Shāfi‘ī.
AL: Has the Islamic legal tradition resisted translation much like Arabic poetry?
On the one hand, one doesn’t always have time to produce translations. Then it’s a relatively small field of people working in Islamic law. So the capacity of the field to produce translations is not that great. Then, the translations that do get produced—and I think this is true elsewhere in Islamic studies—tend to be translations by specialists for specialists, and this often leads to them being written in a kind of code that allows specialist readers to re-imagine the underlying Arabic, which is not, I think, probably the best way to translate. When you translate specialized literature, you do confront this problem of technical terminology that you do have to render in a way that’s consistent and productive, because otherwise you take a text that’s systematic and turn it into something that’s flabby and disorganized.
There are some sort of natural barriers in the constellation of the field of Islamic studies to getting more translations out there, which are really aimed at an educated readership that are not necessarily specialist readers.
Read more over at the Library of Arabic Literature blog, where this interview first appeared.