Lessons in Islamic Jurisprudence: Review of Roy Mottahedeh's most recent book

December 6, 2006

Originally printed in Iranian Studies, volume 38, number 3, September 2005, Reviews

Lessons in Islamic Jurisprudence, Muhammad Baqir as-Sadr, trans. And introd. Roy Parviz Mottahedeh, Oxford: Oneworld, 2003, ISBN 1-85168-324-0, pp. 200, index. (Paperback edition, 2005)

Lessons in Islamic JurisprudenceLessons in Islamic Jurisprudence far outstrips in importance the run-of-the-mill translation in Islamic studies. In a remark that could apply to many published works in the field, Mottahedeh reports that he had produced an initial translation that was in an important way inadequate: “I immediately prepared a translation which I considered accurate but which was almost entirely unintelligible to the intelligent lay reader.” As he explains, this was in large part because of the lack of suitable received terms to express the technical terminology of Islamic jurisprudence in English, a quite complex and vexing problem (pp. viii – ix). Drawing on extensive reading in Western and Islamic jurisprudence, Mottahedeh revised his translation thoroughly, arriving at many new and more satisfying English renditions of Islamic legal and hermeneutic terms. The result is not merely a more readable translation of this particular textbook of Islamic jurisprudence but also a major advance in our understanding of the terminology of Islamic legal theory.

Lessons in Islamic Jurisprudence is the translation of the opening volume of Durus fi ‘ilm al-usul by Muhammad Baqir al-Sadr (1935 – 1980), a prominent member of the scholarly al-Sadr family. This family, which has roots in Lebanon, has produced dozens of influential scholars over the last two centuries, primarily in Iraq, but in Iran and Lebanon as well. Muhammad Baqir al-Sadr grew up in Kazimiyyah, the large Twelver suburb of Baghdad, and then relocated to Najaf, where he studied and taught for most of his short life. Acclaimed for developing key concepts of Islamic economics in his studies Our Economics and The Interest-Free Bank and equally renowned for his work Our Philosophy, he was a brilliant and prolific author. He authored a number of more traditional texts on Islamic jurisprudence and legal questions, and was thought by many to be on his way to leadership of the institution of learning at Najaf, as marja’ al-taqlid, or top legal authority. He was executed by the regime of Saddam Hussein in 1980, along with his activist sister,
Bint al-Huda, for speaking out against Iraqi government policies. The work translated here belongs to an important genre in the Islamic sciences that dates back to the third/ninth century and early on became a standard part of Sunni and Shi‘ite legal curricula: manuals of jurisprudence, or usul al-fiqh. This particular work, a textbook itself, seems intended to provide a clear and accessible introduction to al-Kifayah fi al-usul, by Muhammad Kazim al-Khurasani (d. 1329/1911), which gained recognition as a standard text of jurisprudence in the Twelver curriculum in the course of the twentieth century.

The informative introduction briefly explains the nature and history of Islamic law and jurisprudence and then presents the life of the author. The original work consists of four parts: 1. Characterization of Jurisprudence; 2. Substantiating Arguments; 3. Procedural Principles; 4. The Conflict of Arguments. The translation proper is followed by a compact explanatory summary of the points made in the work as a whole (pp. 145 – 72). The innovative part of al-Sadr’s work, particularly in comparison with well-known medieval works on Islamic jurisprudence, is the clear explanation and delineation of the purport of procedural principles, a topic that has been developed extensively in Twelver jurisprudence in the course of the nineteenth and twentieth centuries. These are rules to which the interpreter resorts when specific proof-texts, to be interpreted according to rules discussed under the rubric of substantiating arguments, cannot be located. They include such things as the principle of “precaution” (ihtiyat), according to which one should take into account what God may possibly have commanded concerning a particular issue in the absence of specific knowledge of His commands concerning it, and therefore avoid legal gray areas. Precaution, however, may be inverted to the secondary principle of “the priority of exemption” (asalat albara’a), which is applied in cases where substantial doubt exists, either about a ruling or the subject of a ruling. In addition, the Lessons includes a thoughtful discussion of ijtihad that clears up confusions that have arisen in Islamic law in general because of the various semantic usages of the term (e.g., the interpretive effort on the part of the jurisprudent as opposed to a particular method of legal interpretation). Al-Sadr also gives a good historical synopsis of the use of the term within the Twelver tradition; he explains how Twelver jurists came to accept ijtihad by the thirteenth century despite its early association with arbitrary personal opinion and illegitimate interpretive method (pp. 46 – 53). An English glossary of technical terms and an index of Arabic terms round out the volume.

Roy MottahedehAs stated above, Mottahedeh’s key contribution is in his rendition of technical terminology. The general practice of Islamicists has been to translate Islamic legal and hermeneutic terms either by providing literal equivalents or by producing tortuous explanatory paraphrases. While such renditions may allow specialists to grasp the original behind translated terms, they usually fail to enhance the transparency or explanatory power of the text as it stands in English, and they often reveal an inadequate understanding of the scope of the technical term’s meaning. They also obscure the possible parallels and contrasts to be drawn between Islamic jurisprudence and Western legal or other hermeneutical systems. Mottahedeh has clearly thought long and hard about how to translate Islamic legal and hermeneutic terms into functional equivalents, and in most cases he has come up with innovative solutions that are more succinct, elegant, and intelligent than what one sees in other translations. The term mukallaf, for example, is often rendered as “legally responsible Muslim believer” or the like; Mottahedeh’s compact “legal agent” is a vast improvement. He translates zahir as “prima facie” rather than the usual, and less precise, “apparent meaning” or “extrinsic meaning.” Similarly, his translation of mujmal, “indeterminate,” is preferable to the common “unspecified” or “ambiguous.” One could cite many more, similar examples. The explanatory glossary and index of Arabic terms bring this accomplishment to the fore and render the translation extremely useful for the investigation of Islamic jurisprudence in general.

Mottahedeh’s translation itself is excellent overall, and very few criticisms can be made. In the glossary, there are a number of typographical errors in the transliteration, particularly in rendering ‘(hamzah) as’ (’ayn), but also ‘aqı for a few others. The term fiqh is rendered “legal understanding” in a number of passages (pp. 36 – 44). This is of course drawing on the original, etymological meaning of the word fiqh, “understanding,” something which Islamic texts emphasize from time to time. In most cases, however, this connection is lost, and fiqh simply means “law.” Mottahedeh is well aware of this meaning, but I would argue that “law” should be used throughout in the translation. These are minor quibbles. We may add this work to Bernard Weiss’ The Search for God’s Law (Utah, 1992), his The Spirit of Islamic Law (Athens, Georgia, 1998), and Wael Hallaq’s A History of Islamic Legal Theories (Cambridge, 1997) as a major step toward making Islamic legal theory accessible to an audience outside a small group of specialists. It is an extremely valuable resource for scholars of Islamic studies and other fields in that it describes Islamic jurisprudence in accessible language that makes the connections between that tradition and Saussurian linguistics, speech-act theory, philosophy, and hermeneutics more transparent. The volume also deserves special recognition as the first translation of a manual of Shi’ite jurisprudence. It nevertheless remains something of an orphan, as the author puts it (p. viii), and needs to be followed by similar translation efforts.

See also: eCMES: Reviews