Review of “Function of Orality in Islamic Law and practices; Verbalizing Meaning”, Edwin Mellen Press, 2006, 388 pages, $129.95 (Hardcover).

Adis Duderija, Centre for Muslim States and Societies, University of W.Australia

      The question of the origins and development of early Islamic law, especially during the first two Islamic centuries, has for a long time been contested territory. Based on the scholarship produced so far, we can broadly identify two approaches to the issue: the Traditional/Classical and the ‘Schachtian’. Broadly speaking the traditional account of the origins and development of early Islamic law maintains that the Qur’an and Sunnah/hadith texts have, from the time of the Prophet, uninterruptedly been used as important sources of Islamic law. This account has been challenged by the ‘Schachtian’ school of thought, which contended that neither the Qur’anic nor the hadith-based (or hadith-based Sunnah to be more precise) texts contributed to the development of early Islamic law in any significant way, nor were they its main sources/origins. In particular, the existence and the use of the hadith-based Sunnah and its authenticity, (and in the case of J. Wanborough this would extend to the Qur’an as well) have been targeted by these scholars. As a result of this challenge the modern Muslim and non-Muslim scholarship of the 20th century in particular, based on various methodologies that were embodied by the works of Sezgin, Abbot, Azami, Juynboll and Motzki, preoccupied itself with proving the opposite. This has given rise to methodological disputes and the irreconcilable differences of the two camps’ methodological assumptions, especially in relation to the question of historicity of the isnad. This matter remains unresolved to this very day. One thing both of these approaches have in common is a methodological assumption of the centrality of the written word/texts in the origins and the development of early Islamic law.
Prof. Souaiaia’s book under review is a radical departure from both of the above-mentioned approaches as it shifts this discussion from the written to the oral and highlights the centrality that orality played (and still plays) in the origins and the development of Islamic law during the first three Islamic centuries. In this context the central thesis of the study is that “Islamic law does not fully reflect the literal intent of the Qur’an and the Sunnah, but that disentanglement from these origins can only be explained by the mode of transmission of knowledge during the first two to three Islamic centuries and even beyond. During that period, that mode of transfer of information was exclusively oral.”(p.176)
      In the first part of the book, Prof. Souaiaia supports his central thesis by providing the reader with a number of sound and compelling arguments which demonstrate the orally-based nature of the Arabic/Semitic script, the cultural preference of Semitic languages for orally-based religious authority and the oral transmission of religious tradition, the notion that legal traditions are inherently rooted in humanity’s collective religious consciousness, the essentially oral nature of the Qur’anic and hadith  discourse, the orally-based concept of wahy , and the nature of  the origins and development of the earliest Islamic sciences, the tafsir (that later on alongside kalam played a major role in the development of Islamic law and legal theory) and kalam.
      Drawing upon the centrality of the oral discourse in Islam, Prof. Souaiaia’s analysis of Qur’anic inheritance verses leads him to a conclusion that the very nature of  Islamic law can be characterized as being an accretive, ascriptive and socially constructed discourse embedded in the larger oral-based framework mentioned above. The ascriptive nature of Islamic Law has been noted by another leading scholar of Islamic Law, Prof. Sherman Jackson. In his discussion of the concept of taqlid and its function in Islamic jurisprudence Prof. Jackson argues that the principle of taqlid is not so much related to the notion of being unable to affect novel interpretations, as it is commonly held, but rather as a means of validating jurist’s legal interpretation retrojectively by searching to back the interpretation with an established source of authority (usually identified with power). This legal mechanism’s primary purpose is to ensure that the legal opinion of a jurist is able to gain wide acceptance by embedding it into the ‘sacred past’. Prof. Jackson refers to this principle and feature of Islamic law/jurisprudence as legal scaffolding (a term borrowed from legal historian Alan Watson). This view is in perfect concordance with Prof. Souaiaia’s description of “Islamic law in general as consist[ing] of ascribing and confining meaning with accretive precedents and general principles” (p.169). This ascriptive nature of Islamic law, based on an accumulation of legal precedents resulting in restriction of novel interpretations to the point of  little or no independent legal innovation and an accumulation of commentaries, is employed by the author of the book under review to reclaim the validity of the notion that the phenomenon of ‘the closure of doors of ijtihad’. The concept of  the closing of the doors of ijtihad   had held sway for a long time before it was recently challenged by Prof. Hallaq.  
      Moreover, Prof. Souaiaia’s discussion of what he terms ijtihadic principles (such as ijtihad, ‘ijma, istiqra, istihsan, qiyas, istihsab) as having been developed as tools for retrospective justification of legal opinions espoused by early authorities which either were not explicitly rooted in the Qur’an and Sunnah or even contradicted them rather then as means for engendering novel interpretations, is in accordance with Prof. Jackson’s discussion of taqlid mentioned above.   Unlike Prof. Jackson, however, Prof. Souaiaia frames these ijtihadic principles as extensions of the overall principle of function of orality in the religious traditions mentioned above.
      The concept of orality permits Prof. Souaiaia also to explain the ‘discrepancy’ between Qur’anic legal proofs and the Islamic legal rules and practices on the basis of ascriptive-accretive nature of Islamic law that is socially constructed. In my review of Prof. Souaiaia’s other study I have proposed another explanation that in many ways is in agreement with that of Prof. Souaiaia, although it diverges in some. Additionally, the concept of orality does not only render the impasse regarding the status and the authenticity of hadith and its isnad-based system mentioned above irrelevant, but it also successfully explains the related discussion on the ‘swelling of hadith literature ’ that was used by Schachtian school of thought to argue for the their largely, inherently-forged nature on the basis of combining and sharing oral sources of knowledge as a function of time (p.171).
      Another original argument found in the study that based on the centrality of orality and the acceretive-ascriptive nature of Islamic law is Prof. Souaiaia’s assertion that one cannot meaningfully discourse about “the origins of Islamic Law”. Instead he argues for an understanding based on a principle of the “center of gravity of Islamic Law” with a contribution of a number of actors and forces accredited with varying ‘weights’ whose center  is “somewhere in the time of the Rashid caliphs” (p.348).
The book under review consists of a number of other original and important conclusions and findings pertaining to dissent and plurality in the Islamic religious discourse and the juristic principle of naskh that, due to space concerns, will not be addressed here.
      My criticism of this thought- provoking and at times ground-breaking study will center on some of its more peripheral claims, because the main thesis of the centrality of orality in the origins and the development of Islamic law stands on, in the reviewer’s mind, very solid ground. This is partially so because my own study of the evolution of the nature and scope of the Sunnah during the formative period of Islamic thought confirms Prof. Souaiaia’s overall thesis. Therein I found that the nature and the scope of the Sunnah (which was, conceptually, an organic link in a symbiotic relationship with the concept of the Qur’an as an oral discourse, not as a text) was conceptualized and perpetuated, apart from some aspects of its ‘amal dimension that were perpetuated in actu (I term this Sunnah ‘amaliyyah), epistemologically and methodologically entirely independent of  its written documentation (i.e. what erroneously later came to be conflated with ahadith literature).
      In the section on the concept of wahy as a proof of the orally-based nature of Islamic religious discourse Prof. Souaiaia subscribes to the view of conceptual conflation of Sunnah and hadith by maintaining that hadith-qudsi is a form of a wahy. The reviewer would like to underscore the necessity of insisting and maintaining an epistemological, ontological and methodological divorce of the concepts of Sunnah and hadith in Islamic sciences, a distinction that was made during the formative period of Islamic thought. The failure of doing so has significant implications in the way Islamic sciences, and it particualr usul-ul-fiqh, operates such as, as I have shown elsewhere, in relation to the status of women and the relationship between Muslims and non-Muslims. This conceptual differentiation would also further strengthen Prof. Souaiaia’s main thesis. 
      Like his other work, “The Function of Orality” is a highly original and at times ground-breaking study based on Prof. Souaiaia’s vast erudition and penetrating intellect, and it is replete with important findings and conclusions. As such I hope that it gets the large readership it deserves. If it does I am sure that it will initiate a paradigm shift in which early Islamic thought and, in particular, Islamic law and legal theory will be approached and studied. I recommend it highly for all those interested in Islamic Law and early and contemporary Islamic thought.

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