Friday, January 8, 2010

"It has been said that the only essential function with which no legal system can dispense is the preservation of order.

Indeed, the relationship between "law" and "order" seems so intimate that the two terms flow together almost naturally, as if driven by some cosmic attraction. While a legal system's ability to quell disputes and eradicate crime will depend, in part at least, on the power of implementation wielded by the state, its ability to maintain order in the sense of sustained legal discourse will depend on the degree to which its sources, rules, and ethos inspire a sense of awe and transcendence, the feeling that its authority is so absolute and its subject matter so rich and expansive that no single generation could hope to contain or exhaust it. This sense of awe and transcendence becomes the ground of a certain 'juristic attitude' that takes legal thinking beyond the purely practical. Law comes to include elements that are at once aesthetic, performative, historic, and even 'mystical.'

Anyone familiar with Islamic legal literature will recognize this description of orderly legal discourse. Muslim jurists speak with a simultaneous sense of commitment to the present, past, and future. They speak in a voice that is at once defiant and humble, individualistic and corporate, final and provisional, pragmatic and theoretical, indeed, exclusivist and catholic. All of this is underwritten, moreover, by a mutual recognition of an agreed-upon set of 'rules of engagement,' the so-called "usul al-fiqh," whose function is not merely to assist jurists in extracting meaning from the sources or precedents but also to referee the inevitable tendency to read meaning into these. In Islamic law, scripture and precedent, on the one hand, and socio-cultural and historical reality, on the other, negotiate a symbiotic rather than a mutually antagonistic, zero-sum relationship."

-from Dr. Sherman Abdal-Hakim Jackson's introduction to Islamic Jurisprudence According to the Four Sunni Schools (Al-Fiqh 'Ala al-Madhahib al-Araba'ah) Volume I Acts of Worship by 'Abd Al-Rahman al-Jaziri. Translated from the Arabic by Nancy Roberts. Fons Vitae. 2009. pg. xxx.

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