(15685195 - Islamic Law and Society) On Orientalism, Self-Consciousness and History

Islamic Law
and
Society
Islamic Law and Society 18 (2011) 387-439 www.brill.nl/ils
On Orientalism, Self-Consciousness and

History*
Wael B. Hallaq
Abstract
In engaging with my work on the early formation of Islamic law, David Powers has
in effect reproduced a paradigmatic account that exemplifies the dearth of theory and
hermeneutical self-consciousness in the field of legal Orientalism. is article proffers,
first and foremost, a prolegomenon to some of the fundamental theoretical issues
with which this field has yet to reckon; and, secondarily, a response to the concrete
claims that Powers has made.
Keywords
orientalism, colonialism, history, progress, nature, ethics, Islamic law, sociology of
knowledge, paradigm
I. Introduction
In a review article purporting to “assess” my writings on the origins and
early formation of Islamic law, published in this Journal,1 David S.
Powers not only misrepresented the thrust of these writings—entirely
overlooking their theoretical moorings—but also leveled grave charges
in the course of attributing to me positions I have never adopted (and
Correspondence: Wael B. Hallaq, Dept. of Middle East, South Asian and African Studies,
Columbia University, MC 9628, 606 West 122nd Street, New York, NY 10027. E-mail:
wh2223@columbia.edu.
* I am grateful to Talal Asad, Brinkley Messick and Akeel Bilgrami for making insightful
comments on an earlier version of this article. Whatever faults remain are entirely mine.
1)
“Wael B. Hallaq on the Origins of Islamic Law: A Review Essay,” Islamic Law and Society,
17 (2010), 126-57; henceforth cited as “Review Essay.” For a list of my writings reviewed
by Powers, see p. 130 therein.
© Koninklijke Brill NV, Leiden, 2011 DOI: 10.1163/156851910X543183
Downloaded from Brill.com01/05/2019 10:17:33AM

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388 W.B. Hallaq / Islamic Law and Society 18 (2011) 387-439
which he does not document). This is not entirely surprising, because

there are, as I will show, reasons which compelled Powers to misinterpret
and receive my work as he did, reasons primarily related to the state of
the field of legal Orientalism. Here, I intend to reply to his charges and
to show his countless misrepresentations (and contradictions), while at
the same time seizing this opportunity to engage the field at large in
ways that I hope can promote a better understanding of the meaning
of what we do as scholars and historians.
It must first be noted that Powers’s “Review Essay” is not what it
claims to be. For while the title and the abstract clearly indicate that
the object of critique is my Origins and Evolution of Islamic Law,2
the bulk and real substance of his essay is about something else (as
accurately indicated by his choice of keywords).3 Powers, for instance,
dedicates no less than eighteen pages, out of a total of thirty-two, to
my article “The Quest for Origins or Doctrine?”4 an article concerned
entirely with critiquing the Orientalist paradigmatic construction of
an Islamic legal history, and therefore in no sense an attempt to write
history or lay down the methodological grounds for such a historical
narrative. By contrast, he allocates only seven pages to Origins, the book
one would have expected him to treat at relative length, especially in
light of his declared motives. Furthermore, excepting only a very few,
minor references to later parts of Origins—mainly relating to the ḥadīth
controversy—all his commentary on the book pertains to the first three
chapters, leaving untouched nearly five chapters and a relatively detailed
conclusion. He makes no comment on its treatment of the evolution
of legal reasoning, legal theory, early judicial developments, the legal
schools, or the relationship between jurists and rulers—all of which
constitute the greater part of the book’s subject matter.
2)
(Cambridge: Cambridge University Press, 2005); henceforth cited as Origins. On p. 129
of his “Review Essay,” Powers has my book published in 2004, but 2005 on the next page.
3)
e keywords are: “historiography, Islamic law, legal orientalism, P. Crone, W. Hallaq,
J. Schacht,” not, for instance, the more pertinent terms “Qurān,” “Sunna,” “ḥadīth,” “raʾy,”
“legal theory,” “proto-qāḍīs,” and “legal schools.”
4)
“e Quest for Origins or Doctrine? Islamic Legal Studies as Colonialist Discourse,”
UCLA Journal of Islamic and Near Eastern Law, 2 (2002-03), 1-32; henceforth cited as
“Quest.”

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W.B. Hallaq / Islamic Law and Society 18 (2011) 387-439 389
The conflation of the article with the book is such that one is treated
as an extension of the other, when in fact they have little in common.
Nowhere have I made the statement, which Powers ascribes to me, that
“Quest” is “the methodological prolegomena [sic] to The Origins and
Evolution of Islamic Law” (p. 135 of his “Review Essay”; without a cita-
tion). If “Quest” constitutes a methodological enquiry, then Powers’
understanding of the concept of methodology is unprecedented. So
why does Powers assign to “Quest” so much importance, above and
beyond that which Origins seems to have represented to him? The
answer is found on pp. 135-36 of the “Review Essay,” where Powers
first identifies “Quest” as a “challenge” to Orientalism and then pro-
poses to offer “a response to Hallaq’s challenge.” It is in this context
that we should understand Powers’s statement that “when Wael B. Hal-
laq speaks, historians of Islamic law listen” (129), a statement reflecting
not so much a recognition of Hallaq’s scholarly “contributions” as an
attempt to militate against the very act of “listening.” Rebuffing Hallaq’s
challenge to the paradigm of legal Orientalism thus appears to be the
real reason behind, and catalyst for, Powers’s foray. The inclusion of
Origins for review is a pretext and no more than a discursive embellish-
ment, as we shall see in due course.
Powers’s foray indirectly raises some of the crucial problematics with
which our field has yet to reckon. Having accurately stated my position
that legal Orientalism as a field of knowledge is embedded in Euro-
American power structures, Powers finds my approach different from
those of other scholars in that “whereas earlier scholars exposed the
biases of individual jurists who were directly involved in the colonial
project, Hallaq identifies and characterizes the ‘epistemological assump-
tions’ of an entire field of scholarship” (132). He then goes on to inflate
and distort my position by claiming that in my diagnosis of an Orien-
talist paradigm, I give “little importance” to the “specific arguments
advanced by individual scholars” (p. 133). This is augmented by yet
another claim: that I deny the “very possibility of disagreements” among
Orientalists “over methods and/or conclusions” (133), ignoring my
explicit recognition in “Quest” that Orientalism is “multifaceted and
quite diverse in both its methodological approaches and positive
findings” (2-3). These attributions are plainly wrong and unwarranted,
but they also exemplify a certain unawareness of how knowledge is
sociologically produced.

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In view of Powers’s misunderstanding—despite his being the careful

and serious scholar we know him to be—there is a great need in our
field to raise these issues as part of the larger problematic of hermeneu-
tical self-consciousness. This problematic becomes doubly important
because Powers (and not just Powers, it seems to me) clearly finds it
difficult to view Orientalism as constituting a paradigm that “has
shaped and constrained not only the questions that legal Orientalists
ask but also the answers that they give” (133), quoting me here accu-
rately though disapprovingly. I say “doubly important” because issues
of problem-identification—the scholarly question-framing-and-answer-
giving (what I later term “topical selection”)—lie at the heart of the
subject with which we are concerned.
Furthermore, Powers exemplifies a certain tendency in our field to
arrogate to scholarly work a high degree of autonomous rationality, a
tendency that largely, if not totally, overlooks the inescapable phenom-
enon of socially produced knowledge. I therefore propose to offer—in
section II—an enquiry into the thought-structure from which legal
Orientalism has emerged, trying to show how this structure was and
remains productive of particular paradigmatic features in legal scholar-
ship on Islam. In section III, I proceed to discuss these features, recon-
necting them to theoretical points raised in section II. Section IV
consists of my responses to Powers’s specific allegations, responses that
possess close epistemic links to the theoretical framework offered in
earlier sections. Thus, although the main thrust and bulk of this article
is not really about the narrower issues Powers has directly raised, the
reader is strongly advised to peruse the entirety of the article. The field
can no longer afford to dismiss such fundamental theoretical and her-
meneutical issues. However, those whose interest happens to be con-
fined to my replies to Powers on concrete historical matters may now
turn to section IV (and perhaps even III.iii).
II. e Social Production of Orientalism

In his celebrated Orientalism,5 Edward Said does not seek to unravel
the genealogy of Orientalism’s manufacture. Said takes it for granted
5)
Edward Said, Orientalism (New York: Vintage Books, 1994).

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that Orientalism exists, largely setting aside the problematic as to how

it is sociologically produced. Instead, he treats Orientalism as an aggre-
gate and holistic form, maintaining—against Foucault—that the writ-
ings of individual Orientalists exercise a “determining imprint” upon
the “discursive formation” of the discipline6 (this is important, and I
shall attempt to amplify the theme as I proceed). Said treats Oriental-
ism as itself being a performative phenomenon7 (although he himself does
not use this language), representing and, more importantly, (re-)con-
stituting the “Orient.” However, he does not speak of how Orientalism
is itself constituted by the discursive formations of Euro-America; how,
in other words, Orientalism within its own “native” culture was the
consequence of an internalized socialization as well as of an agglomerated
and totalizing processual act of performativity. Exploring these themes in
detail would entail writing a long book. My task here is limited to
merely sketching an outline of such a book, an outline that nonetheless
extensively draws on the sociology of knowledge and certain insights
from philosophy.
Max Scheler, the “greatest and most subtle of philosophers”8 during
the early decades of the twentieth century, was also one of the first major
thinkers to raise our consciousness of the interconnections between
society and ideas to a state of scientific art. In his extensive philosoph-
ical-sociological analyses, he has shown that each social group or social
unit possesses a particular kind of knowledge structure, and that each
social unit is bound up at any particular point of its historical nexus
6)
Ibid, 23.
7)
On performativity, see J. L. Austin, How to Do ings with Words (Cambridge: Cambridge
University Press, 1962); Judith Butler, Excitable Speech (New York: Routledge, 1997);
Vicki Kirby, Judith Butler: Live eory (London: Continuum, 2006), 86-107.
8)
On Heidegger’s and other philosophers’ esteem for Scheler, see H. Spiegelberg, Pheno-
menological Movement, 2 vols. (e Hague: Martinus Nijhoff, 1960), I, 228. See also J.R.
Staude, Max Scheler (New York: Free Press, 1967), vii; Philip Blosser, Scheler’s Critique of
Kant’s Ethics (Athens: Ohio University Press, 1995), xi; Charles Pressler and F. Dasilva,
Sociology and Interpretation: From Weber to Habermas (Albany: SUNY Press, 1996), 72.
e prominent sociologist W. Stark (e Sociology of Knowledge [London: Routledge &
Kegan Paul, 1960], 118) also said of Scheler’s theory that it is “the most satisfactory
approach to the basic problem of the sociology of knowledge that has yet been tried.” is
evaluation is maintained by the more recent sociologists of knowledge. See, e.g., E. Doyle
McCarthy, Knowledge as Culture: e New Sociology of Knowledge (London: Routledge,
1996), 65-66 and passim.

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with the forms of knowledge and value it holds at that given point.9
This is also to say that the social unit, the community (national or
otherwise), establishes for its individual members certain a priori, axi-
ological modes of thought—modes that engender norms and ways of
thinking that gain a common-denominator status in that social unit,
but to which some members tend to give certain modifications to their
individuated selves.10
Sociologists assign prime importance to processes of socialization11
because the socialized individual is “a reflected entity, reflecting atti-
tudes first taken by significant others toward it …, [others whose]
definition of his situation are posited for him as objective reality.”12
Socialization also entails the internalization of language, since “language
constitutes both the most important content and the most important
instrument of socialization.”13 The individual, like society at large,
becomes “an effect of language.”14
Leading sociologists and philosophers, including Scheler, Mannheim,
Dewey and George Herbert Mead, emphasized the pervasive presence
of the community in individual consciousness, where the social bond
is an essential part of the self.15 It is not only that the “I” is a member
of the “We,” but more importantly, that “the ‘We’ is a necessary mem-
ber of the ‘I’.”16 It is an axiom of sociological theory, wrote Scheler,
that all human knowledge “precedes levels of self-consciousness of one’s
self-value. There is no ‘I’ without ‘we.’ The ‘we’ is filled with contents
prior to the ‘I’.”17 Likewise, Mannheim emphasized ideas and thought-
structures as functions of social relations that exist within the group,
9)
Max Scheler, Problems of a Sociology of Knowledge, trans. M. Frings (London: Routledge,
1980), 67; Pressler and Dasilva, Sociology, 74-75.
10)
Scheler, Problems, 67, 70; Pressler and Dasilva, Sociology, 75; Staude, Max Scheler, 172;
Stark, Sociology, 142.
11)
On processes of socialization, see P. Berger and . Luckmann, Social Construction of
Reality: A Treatise in the Sociology of Knowledge (New York: Anchor Books, 1967).
12)
Ibid, 3-4, 131-32.
13)
Ibid, 133. More on language, see further below.
14)
Kirby, Judith Butler, 88.
15)
Gerard DeGré, e Social Compulsions of Ideas (New Brunswick: Transaction Books,
1985), 66-112.
16)
Staude, Max Scheler, 172; Scheler, Problems, 67.
17)
Scheler, Problems, 67. Emphasis is Scheler’s.

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excluding the possibility of any ideas arising independently of socially

shared meanings.18 Social reality not only generates meanings, but is
itself “a context of meaning”19 which precludes the possibility of an
autonomous production of ideas,20 a notion of autonomy that Kant is
said to have espoused.21 “It is senseless to pose questions such as whether
the mind is socially determined, as though the mind and society each
possess a substance of their own.”22 Thus, the profound implications
of the individual’s embeddedness in the community (defined here in
predominantly nationalist terms) is that the community’s ethos is prior
and therefore historically determinative23 of all socio-epistemic phe-
nomena. And if thought-structures are predetermined by intellectual
history, then these structures are also a priori predetermined by the
linguistic structures in which this history is enveloped, cast and framed.
Later sociologists, the legatees of the so-called linguistic turn, have
come to appreciate the role of language in the production and mainte-
nance of knowledge and, more importantly for us, in the processes of
socialization to which we have just alluded.24 For it is an integral part
of the transmission of tradition to maintain what Nietzsche called a
“legislated” language, a language that frames those concepts with which
society must live. Every word is colored by the substantive and contex-
tual thought-structure of the group and society in which it is “naturally”
used. We must seriously take Walter Benjamin’s argument that the
mental being—whose communication is the function of the language
18)
K. Mannheim, “e Sociology of Knowledge,” in N. Stehr and V. Meja, eds., Society
and Knowledge (New Brunswick: Transaction Publishers, 2005), 305-06; Pressler and
Dasilva, Sociology, 53.
19)
Leon Bailey, Critical eory and the Sociology of Knowledge (New York: Peter Lang, 1994),
45.
20)
Pressler and Dasilva, Sociology, 53.
21)
Stark, Sociology, 105-07. For a different interpretation of Kant, see Sankar Muthu,
Enlightenment against Empire (Princeton: Princeton University Press, 2003), 122-71.
22)
Pressler and Dasilva, Sociology, 58-59.
23)
Staude, Max Scheler, 165. Scheler, Problems, 72; K. W. Stikkers’s introduction to Scheler,
Problems, 26, and p. 23; DeGré, Social Compulsions, 66 ff. On Gadamer in this context,
see Pressler and Dasilva, Sociology, 108-09.
24)
For one influential example, see Berger and Luckmann, Social Construction, 34-46, and
passim.

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corresponding to it—is communicated in, not just through, language.25

Language is not only coercive: it also stands beyond and above the
subject’s agency. Strictly speaking, alienation from the conceptual grip
of language must start by questioning the truth-value of words and may
end in a totalistic abandonment of language altogether—silence.26
Thus far we have emphasized that knowledge is determined by soci-
ety and its specific structures, all of which are bound up with interre-
lated processes of socialization, history, and language. Like capital and
wealth, knowledge is distributed in the social order of meaning. Society
regulates such distribution through legal, political, educational, health
and other institutions, using methods that forbid “particular castes,
estates, or classes to acquire certain kinds of knowledge.”27 This distri-
bution of knowledge and its structural relationships with the allocation
and thus functioning of power has been elaborately expounded, though
in varying ways, by Marx, Nietzsche and, notably, Foucault, among
others. However, all three, and many like them, seem to have taken for
granted what Scheler did not.
An essential characteristic of the modern West, Scheler avers, is “its
obsession with gaining knowledge of control,”28 where science and
learning are given a new trajectory whose aim is to explain nature in a
detached way but which ultimately serves to channel their energies for
the “utilization and control” of nature and all that is in it.29 Modern
man, for Scheler, is overridden by an a priori will, an inherent “struggle
for knowledge” which “grows out of an innate drive impulse.”30 This
“innate drive”31 culminated in an all-inclusive “thought structure which
25)
Walter Benjamin, “On Language as Such and on the Language of Man,” in his Reflec-
tions, trans. E. Jephcott (New York: Schocken Books, 1978), 315-16.
26)
See Hallaq, Sharīʿa: eory, Practice, Transformations (Cambridge: Cambridge University
Press, 2009), 1-6; also, generally, P. Berger, “Identity as a Problem in the Sociology of
Knowledge,” in James Curtis and J. Petras, eds., Sociology of Knowledge (New York: Praeger
Publishers, 1970).
27)
Scheler, Problems, 70.
28)
e words of Kenneth Stikkers. See his introduction to Scheler, Problems, 28.
29)
Stark, Sociology, 33. See also Scheler, Problems, 129-30; Staude, Max Scheler, 197;
30)
31)
It is telling that Scheler’s theory of innate drive(s) “sets him apart from virtually all
modern European philosophers.” See M. Frings, e Mind of Max Scheler (Milwaukee:
Marquette University Press, 2001), 176, 244-47.

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has been the basis of all realistic thinking since the Renaissance,” one
that “sprung from an underlying, a priori will- and value-structure
centred upon the desire to dominate the material world.”32 This inher-
ing attribute of domination—having become “the decisive axiological
element,” a “systematic,” “not only occasional”33 phenomenon, and a
“central value attitude”—was the basis “from which the study of reality
was undertaken.” This, “in the fullness of time, was to lead to the
integral modern world-view”34 which, by subsumption, is the underly-
ing thought-structure of academic enterprise.35
Scheler’s theory, anticipating in this respect Foucault’s theories of
discipline and power,36 extended the modern western trait of control
and domination to the Self, which, together with nature, is “conceived
as being controllable and manipulable … through politics, education,
instruction, and organizations.”37 Domination thus was the paradig-
matic attitude not only toward “brute” and “inert” matter,38 but also
toward the Self, the human subject.39
As no form of modern knowledge can escape engagement with the
dynamics of power, there is near apodictic certainty in the proposition
that the modern writing of history is a form of domination, i.e.,
domination by the author who has the power—delegated to him by his
own society, its institutions and thought-structure—to depict history’s
Other, to represent, even constitute, and ultimately tame that Other as
32)
33)
Scheler, Problems, 118 (emphasis mine).
34)
Stark, Sociology, 115 (emphasis mine). See also Staude, Max Scheler, 198-99. Generally
on Spinoza’s critique of mainstream Enlightenment attitudes to nature, see M. Jacob,
Radical Enlightenment (Lafayette: Cornerstone Publishers, 2006), 19-24; Alan Gabbey,
“Spinoza’s Natural Science and Methodology,” in D. Garrett, ed. e Cambridge Companion
to Spinoza (Cambridge: Cambridge University Press, 1997), 180-82.
35)
Staude, Max Scheler, 191; Stark, Sociology, 19-21.
36)
Scheler’s theory is also of a wider compass than that of Foucault, who admittedly did
not claim to speak about the non-European world. See Hallaq, Sharīʿa, 8.
37)
Scheler, Problems, 119 (his emphasis), 78.
38)
On “brute” and “inert” matter, see further below.
39)
On this theme in the context of decimating the Amerindian populations, see R.
Drinnon, Facing West (New York: Schocken Books, 1990), xxvii and passim. On natural
resources and slavery, see Marc Ferro, Colonization: A Global History (London: Routledge,
1997), 125-27.

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his epistemic and ontological subject.40 With sufficient “scholarly atten-

tion,” “rigorous research” and “analytical acumen”—all of which are an
integral part of social knowledge and thought-structure—history’s sub-
ject, indeed history itself, is eventually rendered accessible, knowable,
known, and, most crucially, “under control.”
Modern forms of history are thus inevitably and entirely the creation
of the modern project, evincing all the forms of domination that it has
shown for the past two or three centuries. Like Vico, who held history
to be man-made, Dilthey asserted that the “first condition of possibil-
ity of a science of history is that I myself am an historical being, that
the man who is studying history is the man who is making history.”41
And so in the process of “studying” history, the Euro-American homo
modernus, being a homo historicus, created history and cast it in his
own image. The European (re)invention of history—so integral to an
epistemic formation and thought-structure42—was moreover unique
because this conception of history was, among other things, anchored
in a potent progressivist outlook.
Made to encompass all human experience, history was endowed
with a new structure by the Enlightenment. Whereas in many cultures
history is structured eschatologically, providing a narrative of moral
instruction, the Enlightenment structure is determined by the univer-
salist postulate that the experiences of the countless societies and cul-
tures of the past represent a collective phenomenon (indeed a monolith)
driven by a certain intent (or Spirit or Geist) and directed to a particu-
lar purpose, namely, progressive improvement. This improvement is
couched in the interrelated and integrated terms of material advance,
scientific knowledge, “moral comportment,” civilized (but pronouncedly
40)
On the author in the machinery of social power, see section IV(v), below.
41)
Cited in Pressler and Dasilva, Sociology, 120. See also G. G. Iggers, “Historicism: e
History and Meaning of the Term,” Journal of the History of Ideas, 56, 1 (1995), 130.
42)
Scheler argued, against Comte, that a positivist, progressivist theory of history “expressed
the prevailing attitude of the modern European bourgeoisie which was oriented to knowl-
edge of control and domination rather than to religious and metaphysical knowledge”
(which Comte thought of as less developed than science, and therefore preparatory to
“superior,” “scientific” modern western culture. Scheler further argued that religious, meta-
physical and scientific knowledge are not stages indicative of progress, as Comte argued,
but altogether necessary modes of human cognition that are not structured historically in
stages. Staude, Max Scheler, 167-69; Scheler, Problems, 44, 80, 165-66.

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racist) values, technical and political development, maturity (in both

the Kantian and Comtean senses)43 and, as Walter Benjamin noted,
“the infinite perfectibility of mankind.”44
The theory of progress, “dogmatic” and lacking adherence to reality,45
is founded on the assumption that time has a homogeneous teleologi-
cal structure, that this structure is inevitable, and that therefore the
earliest phases of history were preparatory for the later phases, which
themselves in turn were merely the means to reach the intended sum-
mit of real human progress: western modernity. Besides its devastating
effects,46 this theory took it for granted that all history outside western
modernity is less developed and, in Hegelian and Comtean terms, less
“mature.” The logical conclusion of this line of thinking is that no
culture or “civilization” outside and prior to modern Europe possessed
the same validity, competence, and moral and intellectual development.
For Voltaire,47 Condorcet,48 Hegel,49 and Comte50—among numerous
others—all human history was little more than preparation for the rise
of modern Europe.51 Whatever non-western civilizations had possessed
of value, culturally or otherwise, was consumed in the process of prepar-
ing for a higher goal, outside and beyond themselves. The only way for
them to escape their fate as fodder for the historical onslaught was, and
43)
August Comte, August Comte on Positivism: e Essential Writings, ed. G. Lenzer (New
Brunswick: Transaction Publishers, 1998), 34-42. See also Paolo Rossi, “Bacon’s Idea of
Science,” in Markku Peltonen, ed., e Cambridge Companion to Bacon (Cambridge: Cam-
bridge University Press, 1996), 39.
44)
Walter Benjamin, “eses on the Philosophy of History,” in his Illuminations, ed. H.
Arendt (New York: Schocken Books, 1968), 260.
45)
Ibid.
46)
eodor Adorno, History and Freedom, ed. R. Tiedemann (Malden: Polity Press, 2006),
3-9, 138-41; Brian O’Connor, “Philosophy of History,” in Deborah Cook, ed., eodor
Adorno: Key Concepts (Stocksfield: Acumen, 2008), 181.
47)
48)
Keith M. Baker, “On Condorcet’s ‘Sketch’,” Daedalus (Summer 2004): 56-64.
49)
O’Conner, “Philosophy of History,” 181. On the British notions of progress within the
context of colonialism, see Ferro, Colonization, 20-23.
50)
See next note.
51)
Marquis de Condorcet, Sketch for a Historical Picture of the Progress of the Human Mind
(London: Weidenfeld and Nicolson, 1955), 8-13 and passim; see also Stark, Sociology, 133,
for Meinecke’s evaluation of Voltaire on this point; Comte, August Comte, 33-34, 496-97;
Staude, Max Scheler, 167-68.

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remains, to join “true,” “mature” civilization. As we will see, the effects

of this theory on Orientalism are of first order.
Pervasive as it is, this idea shapes not only history but also the very
structures of modern language, a language that in turn not only reflects
the Weltanschauung of domination but also constitutes and conveys dom-
ination itself. There is perhaps no idea or doctrine as powerful in the
modern mind as this theory. It has been declared “a law of historical
development, a philosophy of history … a political philosophy,”52 hav-
ing stood for over two centuries as the language of the new gods.53
The supremacist implications underlying the Enlightenment theory
of progress are integrally connected to another supremacist feature of
the modern West’s thought-structure and thus modus operandi; namely,
its staunch universalist bent (evident in popular narratives, political and
human rights discourse, culture-talk, etc.). If this thought-structure is
“obsessed,” as Scheler and others54 noted, with the domination of both
nature and man (and with the “internal” domination that produces
what Foucault diagnosed as the docile subject), then the universalist
tendency represents the extension of the Subject’s sway over the Object.
There can be no domination without the Other, and the epistemic
distance between the Self and the Other, which by necessity must
include the Other, is an integral part of the universalist outlook. If, in
the modern thought-structure, knowledge is power, and power is per
force extensionist, then knowledge is implicated in universalist exten-
sionism, that is to say, in violence. This is precisely what is entailed in
Nietzsche’s and Foucault’s writings about the complicity of knowledge
in violence: “Knowledge can only be a violation of the things to be
known.”55
52)
See John Stanley’s introduction to George Sorel’s e Illusions of Progress (Berkeley:
University of California Press, 1969), xiii; see also Robert Nisbet, History of the Idea of
Progress (New York: Basic Books, 1980), 4, 7; J. B. Bury, e Idea of Progress (Westport,
Conn.: Greenwood Press, 1982), xi.
53)
Zygmunt Bauman, Intimations of Postmodernity (London: Routledge, 1992), xiv; C.
Hayes, Historical Evolution of Modern Nationalism (New York: Russell & Russell, 1968),
13-14.
54)
Bauman, Intimations, xiv.
55)
M. Foucault, “Truth and Juridical Forms,” in M. Foucault, Power: Essential Works of
Foucault, 1954-1984, ed. J. Faubion, trans. R. Hurley et al. (New York: e New Press,
1973), 9; further on this, see section IV (v), below, and Hallaq, Sharīʿa, 6-13.

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Before concluding this section, something should be said of the

profound disjunction between this thought-structure of domination,
on the one hand, and morality and values, on the other. The disjunction
was effected early on in the Enlightenment, when the so-called mechan-
ical philosophers, such as Boyle and Newton, began to emerge. These
philosophers, whose doctrine came to constitute a largely undisputed
paradigm of the Enlightenment, argued that matter is “brute,” “inert,”
and even “stupid.”56 In this doctrine, all spiritual agencies in the anima
mundi were banished from the universe, rendering matter spiritually
meaningless, but still relevant in an anthropocentric, materialistic sense.
If matter exists in a “brute” and “inert” form, then the only reason for
its existence must be that of its subservience to man. Robert Boyle, a
leading mechanical philosopher, represented his movement well when
he elaborated the view “that man was created to possess and to rule over
nature.”57 Thus, if nature is “brute” and “inert,” then one can deal with
it without any moral restraint, which is precisely what has happened
since the early nineteenth century, if not long before. But since, as I
have argued, the universalist-extensionist propensity is structurally tied
to a domination-based thought-structure, the view of “brute” matter
was also the basis on which modern colonialism was conducted and
justified.58
This is not all, however. The more important point in the iso-
lation of matter as “brute” and “inert” is the resultant crucial phenom-
enon of separating fact from value, which is yet another major and
essential factor in the modern project (a factor that, as Charles Taylor
once observed, “outrageously fix[es] the rules of discourse in the inter-
ests of one outlook, forcing rival views into incoherence”).59 If matter,
in itself, is devoid of value, then we can treat it as an object. We can
study it, and subject it to the entire range of our analytical apparatus,
56)
A. Bilgrami, “Gandhi, Newton, and the Enlightenment,” in I. A. Karawan, et al., eds.,
Values and Violence (New York: Springer, 2008), 15-29.
57)
Jacob, Radical Enlightenment, 6, as well as pp. xi, 3-4, 64-67 and passim.
58)
For the European encounter with the Indian conflation of value and matter, see the
insightful analysis of Bernard Cohn, Colonialism and its Forms of Knowledge, 18-19. See
also J. Hart, Empires and Colonies (Cambridge: Polity, 2008), 44-47, 79-82, 211-14.
59)
Taylor, “Justice After Virtue,” in J. Horton and S. Mendus, eds., After MacIntyre
(Cambridge: Polity Press, 1994), 20.

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without it making any moral demands on us.60 More importantly, how-

ever, and as some social scientists have argued, the separation which
denudes intellectual/scientific enquiry of value “is ethically untenable,”
for it “disengages the observer from the social responsibility that should
accompany his accounts, and it results in the status quo being presented
as somehow natural and real, rather than as constructed and partisan.”61
This ethical dimension, indeed moral accountability, can hardly be
overemphasized.
III. Orientalism as a Paradigm
(i) Introduction
Like all the academic disciplines that Euro-America has produced in
the past two centuries, legal Orientalism grew out from within, and
was thoroughly nurtured by, the thought-structure of domination we
have been describing. It sprang out of a domination-based universalist
theory of progress, and was nourished by both colonialism and epis-
temic violence. How could Orientalism be otherwise construed, when
the entanglements of earlier leading scholars (some of whom are deemed
founders of the field) with the colonialist project were so evident and
pronounced, entanglements documented in part by Powers himself?62
In his “Review Essay,” Powers seems to dismiss the very possibility
that there exists a shared cultural, intellectual and discursive tradition
within Orientalism, arrogating to reason an autonomy that defies any
serious relationship between the “I” and the “We,” between scholarship
and the thought-structure within which scholarship is conducted.
Whelmed with a thick conception of the Baconian Fallacy,63 he seems
60)
Bilgrami, “Gandhi, Newton,” 25 and passim.
61)
Pressler and Dasilva, Sociology, 102-03 (emphasis mine).
62)
See his article “Orientalism, Colonialism and Legal History: e Attack on Muslim
Family Endowments in Algeria and India,” Comparative Studies in Society and History, 31,
3 (July 1989), 535-71. On Schacht, see n. 70, below.
63)
D. Fischer, Historians’ Fallacies (New York: Harper, 1970), 4-5: “e Baconian fallacy
consists in the idea that a historian can operate without the aid of preconceived questions,
hypotheses, ideas, assumptions, theories, paradigms, postulates, prejudices, presumptions,
or general presuppositions of any kind.”

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to believe in the objectivity of scholars, predicating the truth-value of

their scholarly “findings” on how much and what kind of historical
evidence they can recover and put to use. “Historical scholarship,” he
states, “develops slowly. As new evidence is discovered and old evidence
is re-examined, earlier assessments of the past may be modified” (157).
So the issue is just evidence and its accessibility, not its interpretation.
The scholar, in Powers’s representation, is a static epistemic phenom-
enon, a timeless knowing subject who is unaffected by any existential
reality that might color his or her “objectivity.” He appears to reject the
long-standing sociological thesis that the scholar’s cultural attitudes,
biases and prejudices affecting her work “arise out of the collective
purposes of the group which underlie the thought of the individual.”64
Thus, if, for Powers, scholars are intellectually autonomous subjects,
equipped with “rigorously scientific” tools of analysis, then they cannot
be characterized as particular members of a group, as sharing an axio-
logical framework, or as belonging to a paradigm, except, of course, for
the “scholarly western method” that unifies them (a method which is
not, he also seems to assume, a socially determined product).
As Kuhn and others have shown, no science or branch of academic
knowledge can exist without a paradigm. The overall effect of Scheler’s
philosophical sociology is similar: “given certain ideas, ideas of a certain
nature, religious, philosophical or scientific, it follows that, if they are
to flourish, they must create for themselves appropriate forms of life in
which they can so to speak feel themselves at home.”65 This, it must be
said, is not only applicable to the modern West, with its Orientalism,
but to other cultures as well, including pre-modern Islam (although it
must be stressed that different paradigms have different functions and
purposes).
If Orientalism is a branch of knowledge, which it is, then it must
be possessed of a paradigm. For to argue that there is no Orientalist
paradigm is tantamount to denying: (1) the existence of a particular
group of scholars studying things Islamic, an expertise that has concep-
tually recognizable and fairly well-defined boundaries; (2) that these
scholars work at, and are employed by, socially and politically grounded
64)
Mannheim, “Sociology of Knowledge,” 305-06.
65)

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institutions generally known as academia; (3) that these institutions are

entirely or in good part dependent on financial support from both the
governmental and business sectors; (4) that the funding agencies, espe-
cially public ones, have regulations and policies with which the univer-
sities must comply if they wish to receive financial support; (5) that
these policies reflect the establishment’s political views about what is
or is not “important,” what research subject is “relevant,” and therefore
worthy of subsidy,66 and what counts or does not count as “diversity
of education”; (6) that governments launch, through direct and active
involvement of “national” universities, “exchanges” and other programs
with “foreign,” “developing” countries with a view to “training” their
students, professors and others in disciplines that are likely to inculcate
a “moderate” view of their own religion (so that they “shun extremism”)
and promote “positive understanding” of the “West”; (7) that universi-
ties are subject to internal and external regulations relating to hiring,
promotions and tenure, and that grant awards from the private and
public sectors (given only to “certain national citizens”) not only are
deemed relevant for tenure and promotion considerations but also play
a role in directing research into particular subjects and themes (hence
the proliferation of research on gender, human rights and the like); (8)
that scholars read and teach, among other things, particular, self-refer-
ential texts in the field, many of which are deemed indispensable for
educating and graduating students in the subject; (9) that these works
are “the tools of the trade,” the “scriptures”67 of the field, and have
therefore been accorded the status of a canon; and (10) that critics of
the foundational assumptions and world-view of the field are seen as a
threat that must be warded off, refuted, and even censured (Powers’s
foray being an excellent case in point).
If these phenomena cannot, as I think, be denied, then we are on
our way to identifying a shared conception of Orientalism’s mandate
and what it is about. These goals and self-identifications are integral to
a formed identity that is constituted not only by its declarative functions
and modes of operation, but also by a system of self-justification, a
66)
On this issue within the context of the sociology of knowledge, see Norbert Elias,
“Knowledge and Power: An Interview by Peter Ludes,” in Stehr and Meja, Society and
Knowledge, 206.
67)
Knorr-Cetina, “Fabrication of Facts,” 188.

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conceptual structure that seeks to legitimate and validate that identity.

I say “system” and “structure” because there must be fairly coherent
notions of ontology, epistemology and teleology in every field in order for
it to function, and to therefore qualify, as a field. Conversely, the absence
of such shared meanings and a system of validation will ab initio pre-
clude the very possibility of such a field. This is what I call a paradigm.
Every paradigm must possess an episteme that cannot exist in a state
of contradiction, irrespective of the (conflicting) dynamics of power within
it. Thus, it must be stressed that the conception of a paradigm outlined
here is not essentialist, for it fully acknowledges—as we will see later—
a fluid notion of power, and therefore of a paradigm itself.
If it is true that every “field” must be possessed of a paradigm, then
legal Orientalism is no exception. The question then is: What is the
nature of paradigmatic legal Orientalism? In providing an answer to
this question, I shall proceed from the general to the particular.
(ii) e ought-Structure Underlying Legal Orientalism

By virtue of the theory espousing the social determination of knowl-
edge, legal Orientalism—like all branches of academic knowledge—is
necessarily embedded in, and a manifestation of, western Weltanschau-
ung, the thought-structure of modern Euro-America. As it stood in the
second half of the nineteenth century—the most virulent colonialist
period during which Europe expanded and consolidated its military
and cultural grip over much of the world’s regions and populations—
legal Orientalism, largely unconscious of its structural association with
the colonial project, was an expression of what Scheler called “a pro-
pensity” to dominate and control, yet a propensity whose tool was the
weapon of knowledge: to know is to represent; to represent is to use
language; to use language is to channel an array of conceptual, cultural,
historical and therefore a necessarily self-centered (= Eurocentric) dis-
cursive repertoire that enunciates, again necessarily, the Other through
the Self. To enunciate the Other under these conditions is, in effect, to
reconstitute it. If Gadamer, like Nietzsche and Foucault, is right that
prejudice is an integral part of understanding,68 then legal Orientalism’s
68)
Pressler and Dasilva, Sociology, 155. In fact, Nietzsche went further, making the brilliant
statement that “Every word is a prejudice.” See his Human, All Too Human (Cambridge:
Cambridge University Press, 1996), 323.

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knowledge and enunciations have engaged in domination as a perfor-

mative agency,69 this being abundantly evident in theory and practice.
As to theory, I have appropriated enough outline from the sociology of
knowledge to show how Orientalism could not have stood outside of
the boundaries of modern European episteme and, obviously, structures
of knowledge; in terms of practice, I need not dwell on the rich careers
of scholars who placed themselves and their own legal expertise directly,
and indirectly, in the service of the colonial project (e.g., Sir William
Jones, Snouck Hurgronje, Marcel Morand, Schacht70 and countless
others), some of whom were later regarded as “fathers” of the field of
legal Orientalism. True, the colonial project was one mainly about
markets and capital, but law was the means to install a particular regime
of “order” necessary for the project to succeed.71 “Law and order” is not
merely an emblem of the modern project, but also the sum total of its
rational consistency, value-detached bureaucracy, docile subjectivity,
colonialism, and, most significantly, the manufacture of knowledge that
is useful for subordination and control. There is no law without a
machinery of knowledge, and there is no order without law. Law and
the knowledge system that produces it do not merely “regulate” society
69)
See n. 7, above, for sources on performativity.
70)
It might come as a surprise to some that Schacht was implicated in “colonialist research,”
but given the nature of his writings on “Islamic law” and his “African trips,” this is hardly
an overstatement. On his involvements in colonialist projects, see Wakin (an admirer of
Schacht), “Remembering Schacht, 1902-1969,” Harvard Legal Studies Program, Occasional
Publications, 4 (January 2003), 7-8: “Schacht undertook a research trip to Northern Nigeria
in 1950, the most important Muslim territory in the British West African colonies, under
the auspices of the Colonial Office. He made several more extended research trips to Africa,
especially East Africa, from 1953 to 1964. In 1952, he was invited to be a visiting professor
at the University of Algiers’ Faculty of Law, still a French institution, and the next year was
awarded an honorary LL.D. degree from that university” (added emphasis). One wonders:
if Schacht had urged a more positive view of Muslims and their “law,” or had even adopted
the ethical position of (at least) non-cooperation with European colonialist ventures, would
he have been the recipient of generous and prestigious awards from none other than the
two most virulent colonial offices then in existence. On the British Colonial Office, see D.
Swinfen, Imperial Control and Colonial Legislation (Oxford: Clarendon, 1970); on the two
Offices’ involvement in promoting colonialism and “Imperial construction” in Britain’s
and France’s systems of education, see . August, Selling of the Empire (Westport: Green-
wood Press, 1985), 107-23.
71)
See, for example, Cohn, Colonialism; Hallaq, Sharīʿa, Part III; R. Williams, e American
Indian in Western Legal ought (New York: Oxford University Press, 1990).

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and its institutions: they profoundly transform the Self, re-engineering

the deepest recesses of its consciousness. Legal Orientalism, both at
home and in the colonies, was an active partner in the creation of “law
and order.”
Now, Powers seems to assume that there are “good Orientalists” and
“bad, colonial Orientalists,”72 and that my fault is confusing them. He
does not seem to have developed an appreciation for the issue as one
having little to do with individual rectitude or moral defect, but rather
one of structural relations between the body of knowledge that a field,
as a collectivity, produces and the power structures developed in the
state and society in which the field produces, and exercises, its knowl-
edge. More concretely, and as W. Stark has noted, the prior evaluations
with which the historian works, and therefore his inherited pre-judg-
ments and assumptions, “are the value-facts at the basis of the contem-
porary social set-up which encloses him and which has shaped his mind,”
for “the structure of the mind always accommodates itself to the struc-
ture of the society in which it has to function.”73 For Gadamer, under-
standing, though always prejudiced,74 is less a subjective act than the
function of “placing of oneself within a process of tradition, in which
past and present are constantly fused.”75 Accordingly, Orientalism, a
powerful paradigm and an essential ingredient in Euro-America’s
discursive formation, participated not only in reinforcing Europe’s
thought-structure about the “Orient” but also in effecting, through
“objective” scholarship, inhumane acts of preposterous proportions,
and not only in the colonies. One passing example should suffice.76
As Sheldon Pollock has convincingly shown,77 it was the work of the
72)
As clearly indicated in his statement that the “biases” [note: just “biases,” not complicity
in a structurally and violently transformative venture] are limited to “individual jurists who
were [note the past tense] directly involved in the colonial project.” See “Review Essay,”
132.
73)
Stark, Sociology, 107-08.
74)
Pressler and Dasilva, Sociology, 155.
75)
Hans-Georg Gadamer, Truth and Method (New York: Seabury Press, 1975), 258
(emphasis mine). He goes on to write: “is is what must be expressed in hermeneutical
theory, that is far too dominated by the idea of a process, a method.”
76)
More recent examples can be multiplied at will, the American experience in Iraq being
one.
77)
Sheldon Pollock, “Deep Orientalism: Notes on Sanskrit and Power Beyond the Raj,”

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seemingly innocuous Orientalist philologists in Germany (seen as a

“minor” colonialist country) that contributed to the construction and
elaboration of an “Aryan” identity which in turn constituted the basis
for Nazi racial laws and policies leading to the Holocaust and extermi-
nation of millions, Jews and non-Jews. This partly Orientalism-based
Nazism also led to devastating conquests, a World War, and a plan to
colonize the world, which, had it succeeded, would have represented a
“progress” in the very human kind, yielding a “superior” racial outcome.
Conceived in the womb of colonialism, and in the midst of a fertile
period of the colonialist project, legal Orientalism could not have been
any other’s child; it was nurtured in this project’s thought-structure and
engaged institutionally and culturally (both directly and indirectly) in
the propagation of this project, standing, as it did, in a structured dia-
lectical relationship with it. It wrote about the “Orient”—indeed it
wrote the “Orient”—from within Europe, namely, from a geographi-
cally, politically, linguistically, culturally, historically, conceptually, epis-
temically, ontologically, teleologically, theologically, metaphysically, and
morally distant place, removed from whatever “real Orient” there was.
Every one of these perspectives necessarily created a prejudice, and in
their totality produced—through economic, political, and institutional
violence—not only new forms of governmentality and society in the
Islamic world, but also a “modern Islam” that is the direct result of this
prejudice.78
Furthermore, had Orientalism not been in possession of a paradigm,
it would have had no place as a discipline in Euro-American academia.
By “place,” I do not mean just a physical, administrative and curricular
positioning, but a paradigmatically and structurally supportive function
in the wider complex of academic disciplines. If Orientalism has for
long pretended to be denuded of a particular paradigm, it is because
it blended well with other academic paradigms such as history, eco-
nomics, literature, philosophy, non-Islamic Orientalist philologies,
in Carol Breckenridge and P. van der Veer, eds., Orientalism and the Postcolonial Predicament
(Philadelphia: University of Pennsylvania Press, 1993), 76-133, especially at 87-96.
78)
On the colonialist destruction of Islamic institutions during the last two centuries, see
Part III of my Sharīʿa, esp. pp. 371-442. On the problematic question of agency, see pp.
377-78, although much more can be said of it. See also my “What is Sharīʿa?” in Yearbook
of Islamic and Middle Eastern Law, 2005-2006, XII (Leiden: Brill, 2007), 151-80.

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intellectual history and, no less, with the history of science. In other

words, it was, and still is, not doing what the other paradigms have
not done. With minor exceptions—which most forcefully prove the
rule79—all academic disciplines have directly or indirectly engaged in
the domination of nature and man, i.e., in the destruction of the envi-
ronment and the internal and external control of subjectivities, not only
creating the disciplined, constrained, docile, and (to extend Weber)
“crippled” modern subject, but also colonizing non-Europeans (and
even some Europeans) and subjecting them through knowledge to vio-
lent transitions.80
If Powers and others like him think that their representation of pre-
modern Islamic legal cultures (as “reasoned,” “rational,” “realistic,” and
“pragmatic”) is the result of individuated scholarly effort denuded of
a socially-determined paradigm, then they ought to reconsider their
position. That it is an individual scholarly effort is too obvious, and
that it is generally—but by no means always—done “with the best of
intentions to know” is likewise unquestionable. But to translate these
“efforts” and “intentions” into idealist and idealized forms of autono-
mous knowledge, divorced from their surrounds, is to proceed with
confounding intellectual innocence. It must be asserted then that while
the greatest majority of scholars may entertain the noblest of intentions
when they embark on the study of Islamic and other non-Occidental
cultures, their intentions and, at times, their admirable work and eru-
dition have little to do with how the aggregate literary production, as
a cultural collectivity, percolates into a paradigm that ultimately par-
takes in domination and endless forms of violence. For we must insist
79)
I am referring here to select post-modern critiques, but by no means all of them, as well
as to earth movements and the like.
80)
For an insightful critique of post-modern theory, see P. Kahn and O. Lourenço,
“Reinstating Modernity in Social Science Research—or—e Status of Bullwinkle in a
Postmodern Era,” Human Development, 42 (1999), 92-108. On Weber, see H. Gerth and
C. W. Mills, From Max Weber: Essays in Sociology (New York: Oxford University Press,
1958), 73, and 63-66. Modernity, Weber argued, confused technical training with free
intellectual enquiry, systemically and systematically developing mechanisms and techniques
geared toward control and domination, thereby producing a class of technical and “intel-
lectual” experts whose talents are usefully put to the service of the bureaucratic and
capitalistic machinery, instead of nurturing truly free personal enquiry. is phenomenon,
he argued, heralded “the decline of the cultivated man as a well rounded personality in
favor of the technical expert, who, from the human point of view, is crippled” (73).

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that—as Scheler cogently argued—intentions, like love, sympathy, res-

sentiment, and other socio-psychological phenomena are states of the
“mind” and “heart” that are socially conditioned and thus sociologically
constructed categories.81 This is precisely why it was important to
emphasize earlier that such sentiments and the linguistic repertoire we
use to express them are socially grounded and are thus unique to their
social context. Therefore, ontologically, there can be no intention outside
the epistemic and the value/thought-structure of the scholar’s society. “The
study of Culture is culture … our culture: it operates through our forms,
creates in our terms, borrows our words and concepts for its meanings,
and re-creates us through our efforts.”82
Thus, while legal Orientalism’s existent paradigm has now largely
abandoned explicit colonialist claims over the “Orient,” it cannot be
said to have shed its earlier paradigmatic structure, and this not-
withstanding the “improvements” that have been made recently, by
Johansen, Gerber, Motzki, Powers, and others. For it to abandon its
long-standing paradigm, legal Orientalism must face its own genealogy
and cultural and epistemic involvements in the colonial project. More
importantly, it must become conscious of itself and ask serious ques-
tions about method and truth, about its epistemic positioning versus
its subject, and about its general resilience to theory. Most importantly,
however, for legal Orientalism (and much of Orientalism at large) to
free itself from its long-standing paradigm, it must become conscious
of its structural ties to the thought-structure of totalistic domination.
The implications of interrogating this latter form are as profound as
they are illuminating, for to do so is to free oneself of the practical
effects of the Enlightenment’s assumptions (however “well-intentioned”
they may have been); to resist any implied meaning of domination; to
change the quality of individual and individuated intentions; to sensi-
tize one’s intentions to the problems of separating fact from value; and
to look to history and nature as non-progressivist, value-laden entities,
from which one can learn to live the morally good life. More on this
in the final section, below.
81)
82)
McCarthy, Knowledge as Culture, 57.

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(iii) e Topical Selection of Knowledge

Hermeneutically and theoretically unconscious of itself, legal Oriental-
ism has, from its inception until now, wrongly taken for granted that
there is an ontological fixity to Islamic legal history; that this history
has factually and structurally occurred, in time and place, in the way
that western academia has come to “reconstruct” it. The narrative this
history has produced is seen as “scholarly” and “scientific,” apodictically
flowing from “scholarly” and “scientific” methods of enquiry. The
traditional Islamic conception of “Sharīʿa’s history” is automatically
dismissed by legal Orientalism as “religious” and “unscientific,” and
therefore unable to withstand critical examination by the western schol-
arly method. This dualistic conception—of the Islamic and of its own
narrative—is integral to legal Orientalism’s paradigm. One index of this
conception is the ratification of a select body of writings, what Knorr-
Cetina has aptly called the “scriptures” of the trade. These works, all
Euro-American, are given monopoly over the whole question of “ori-
gins” (indeed, over all of Sharīʿa’s history), entirely leaving out the con-
tributions of Muslim scholars writing in the Muslim world. For to grant
any legitimacy to these latter works is to risk subverting the paradigm’s
narrative, which, as we saw, constructs history as a structured narrative
of power.
Arguably, Orientalism’s construction of an “Islamic legal history” is
only one contingent narrative out of any number of potential others,
a narrative that is in fact unique to it. As we shall see, other narratives
are quite conceivable under a non-Orientalist paradigm.
Again, invoking Scheler is useful here. He argued that there is no
reality outside the mind (this, in itself, is by no means a unique philo-
sophical position). Extra-mental reality simply exists, having absolutely
nothing other than an ontological value; it consists of what is potentially
knowable, which is to say that no part of it can be known outside the
mind. Yet, what the mind knows is only a small part of what is “out
there,” this latter advisedly used here because what is “out there” is just
that, having not—so far—entered the category of what we call “facts,”
“evidence,” or “data.” What is “out there” are potentially knowable but
not actually known entities, since there cannot be “facts” without them
being known. They may be anything our mind intends to do with them.

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These infinite, yet-unknown ontological potentialities are called by

Scheler ens reale, in contrast to what is actually known, the ens inten-
tionale; namely, facts and cognitive materials on which the mind has
been intent on focusing, so to speak, and which it has thus come to
grasp.83 If knowing extra-mental reality is a function of the mind, and
if the mind is integral to the formation of the Self, then what we know
is part of us, part of the knower, and has no epistemic pretentions over
the extra-mental world except insofar as it knows certain things about
what it is possible to know in that world. And if, as we saw earlier,84
our mind is formed by socialization processes into which enter his-
torical, linguistic, and other tacit elements of knowledge, then our
construction of extra-mental reality—in our case “historical reality”—
is the product of who we are, how we see the world, what is relevant to
us as social beings, and within which cognitive constraints we define
our world.
Central to this thesis is the principle that a complex set of social and
historical factors (explored in section II, above) determine the “special
selection of the modes of thinking.”85 In fact, this selection lies at the
core of the phenomenon of socially determined knowledge, since, for
Scheler, the validity or invalidity of knowledge cannot and must not
pertain to the modes themselves,86 but to the fact of being selected,
among countless possible others. Whether one agrees or disagrees with
Scheler on this distinction (Karl Mannheim and Emile Durkheim, for
instance, did not),87 the particular selection of knowledge-forms is an
uncontroversial matter of profound sociological and cognitive impor-
tance, its denial a futile exercise. As Stark asks, quoting Geiger, “How
is it … that the research worker, [the scholar], turns to some one defi-
nite problem among the thousands possible to him …? It must some-
how have stimulated his interest to a higher degree than other questions.
The choice of problem is at least partially dependent on extra-theoret-
ical considerations,”88 which Stark, following Scheler, identifies as being
83)
Stark, Sociology, 108-12.
84)
See section II, above.
85)
Staude, Max Scheler, 197; Scheler, Problems, 26, 72-73, 119, 165.
86)
DeGré, Social Compulsions, 50-51.
87)
Curtis and Petras, Sociology, 16-17.
88)

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such social and historical factors that—as we shall see—give form and
substance to an a priori will. Even in science, universally acknowledged
as more “exact” and “scientific” than the humanities and the social sci-
ences, it is “the scientists’ knowledge of what is a problem and what
counts as a solution, educated guesses about where to look and what
to ignore, and highly selective, expectation-based tinkering with the
material that guides them toward an ‘innovative’ result.”89
History is no different, though less “scientific.” As the French phi-
losopher Raymond-Claude-Ferdinand Aron observed, drawing on Max
Weber—and by implication agreeing fully with Scheler’s philosophy
on this point—historians approach history with a prior value-concep-
tion which dictates what is or is not relevant or “of interest” to them.
“We preserve from the past that which interests us. Historical selection
is guided by questions which the present asks of the past. Selection …
is a certain way of construing facts, of choosing concepts, arranging
complexes and putting events and periods into perspective.”90 Put dif-
ferently, and as Edmundo O’Gorman aptly noted in a similar context,
“true history” reflects our own historical ontology, since “things and
events in themselves are nothing; their being depends upon the mean-
ing that is ceded to them by the frame of reference of that image of
reality that prevails in that moment.”91
This “special selection,” which I shall from here on call “topical selec-
tion,” is therefore among the most constitutive and significant phenom-
ena of socially determined knowledge, from which it follows that it is
indispensable to any analysis of knowledge paradigms.
Based on the discussions in section II, above, it is my contention
here that topical selection is determined by the effects of thought-
structure; that, conversely, a thought-structure of domination prede-
termines topical selection which will in turn yield a particular type
of knowledge that will, in one form or another, feed back into the
89)
Knorr-Cetina, “Fabrication of Facts,” 187-88.
90)
R. Aron, “Relativism in History,” in H. Meyerhoff, ed., e Philosophy of History in Our
Time: An Anthology (New York: Doubleday Anchor, 1959), 157-58 (my emphasis).
91)
Cited in Mark urner, “e Founding Abyss of Colonial History: Or ‘e Origin and
Principle of the Name of Peru’,” History and eory, 48 (Feb. 2009), 46, from Edmundo
O’Gorman’s work La invención de América (Mexico: Fondo de Cultura Económica, 1995),
57.

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thought-structures of domination (irrespective of what intention the

individual scholar may or may not have). An outstanding example is
the selection of the category of “race” in seventeenth- and eighteenth-
century Europe, a category that served to legitimize and facilitate
oppression, slavery, and decimation of mass populations, and one that
permeated the fabric of European thought-structure.92 The category of
race and racism migrated (as in part it continues to do) vertically and
horizontally, weaving itself into epistemic formations and high phi-
losophy, thereby effecting the reality on the ground, mostly in the non-
West. The topical selection by an Arthur Gobineau or a Francis Galton
stood in a dialectical relationship with the larger European social,
political, and military life, all of which were abstracted into the
thought-structure, and vice versa. It is precisely because of this sort of
reciprocity that I, following the sociologists of knowledge, describe the
matter in terms of a dialectic between the “I” and the “We.” Thus, my
argument is that topical selection is directly and structurally entwined
with the construction of the legal Orientalist paradigm, past and pres-
ent. Topical selection, I argue, has been at the core of building and
maintaining the legal Orientalist paradigm. In fact, it defines all inter-
nal, substantive aspects of this paradigm.93
It is not difficult, I think, to admit that the study of Islam and its
“law” on its own terms could conceivably yield a drastically different
narrative from that offered to us now by Orientalism and its legal
branch. One case in point is the first century of Islamic experience, cast
by the Orientalist paradigm into highly selective themes and categories
that in fact reflect the intellectual and cultural concerns of Euro-Amer-
ican scholars themselves, rather than what was important to first cen-
tury Muslims. The first Islamic century is in effect problematized in
92)
See L. Lieberman, “e Debate over Race,” in Curtis and Petras, Sociology of Knowledge,
569-85, especially at 573 ff. On the conceptual/linguistic pervasiveness of racist categories
in European thought-structure, see G. Mosse, Toward the Final Solution (New York: Howard
Fertig, 1978); R. Horsman, Race and Manifest Destiny (Cambridge, Mass.: Harvard Uni-
versity Press, 1981); H. Arendt, e Origins of Totalitarianism (San Diego: Harcourt, 1976),
158 and passim.
93)
e external, formal aspects are not directly influenced by topical selection but rather
by institutional and political structures that envelop Orientalism in Euro-America. ese
have in part been indicated in the list given in section III (i), above.

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terms of “origins,” largely made up of questions about borrowings and

debts from preceding traditions that are taken to be genealogically
“European,” yet another invented category. The focus here has long
been on issues of identity, on the extent to which Islam and its Prophet
duplicated, or appropriated from, these traditions. Whether these issues
of identity were cast in terms of “popular Umayyad administrative prac-
tices” or “provincial Roman law,” the approach is structurally one and
the same: i.e., modes of cultural appropriation resembling, if not iden-
tical with, the modern wholesale “transplantation” of European and
American law into the Muslim world.
Of course, interrogating the pre-Islamic sources of the Sharīʿa is a
legitimate scholarly project, as long as the interrogation is subordinated
to a wider framework of enquiry, one that is not confined to issues of
identity in terms of appropriation (which has for long plagued other
sub-fields, especially Islamic philosophy). This alternative framework
conceivably can cast an extensive net of scholarly interrogation relating
to the languages and sensibilities of that epoch, searching for internal
and subjectivity-based processes of identity-formation instead of the
externalist but simplistic notions of “debts” and “borrowings”—throw-
backs from an earlier colonialist period. It does not take much imagina-
tion to foresee a scholarly narrative that is structurally woven in terms
of the ethical, as opposed to Eurocentric notions of “legal” formation
of early Islam, viewing this new dīn as both continuous and discon-
tinuous with its predecessors, and emphasizing the moral drives and
tensions that first-century Muslims lived and experienced.
Nor has this proposed approach to ethics and moral theory ever been
applied to the founding text of Islam, the Qurʾān. When it was taken
seriously (the “father” of the field, Joseph Schacht, certainly relegated
it to a marginal position), it was studied for its ritual and dietary laws,
as well as in terms of how it was “forgotten,” “misunderstood,” or “dis-
torted” by the new Muslims.94 The more sophisticated scholars saw in
its chronologically later parts the embryo of “legal development,” but
they missed its most central phenomenon, the moral impulse, alto-
gether.95 None of these scholars thought of seeing it as the first “text”
94)
Powers refers to some writings on these issues in his “Review Essay,” 143-46.
95)
On this scholarship and the role of the Qurʾān in the formation of Sharīʿa between 610

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of Sharīʿa, much less as the first and founding deontological and norma-
tive structure of moral/legal meaning that contained in it the full first
step of so-called “Islamic law.”
Nor, still, did the ḥadīth fare any better. Subjected to various unjus-
tified assumptions, the field of legal ḥadīth emerged as an exercise in
the study of “Muslim mendacity,” which was made the benchmark for
determining the beginnings of “Muhammadan jurisprudence.” Predi-
cating the “origins” of the Sharīʿa on ḥadīth-authentication remains
integral to legal Orientalism’s narrative, one that is so entrenched that
Powers even misunderstood what I have to say about it in my Origins,
falsely equating my findings with those of Schacht. There (pp. 199-
200), I state:
us, if the sunan had begun to acquire religious significance as early as the
reign of ‘Umar I (if not that of Abū Bakr or even during the later career of
the Prophet himself ), then the origins of Islamic law—as a religious system—
cannot be rigidly defined as exclusively limited to its direct (and formal)
association with the Prophet…. We must therefore be wary of the fallacy
(dominating much of modern scholarship) that law began to be Islamic only
when the Prophetic authority, as formally exemplified by ḥadīth, came into
being…. To search for the “origins” of Islamic law in the long process of
ḥadīth evolution—as some prominent scholars have done—is therefore to
miss the point altogether. In the present work, the pre-ḥadīth forms of Islam
(including sunan, ʿilm and raʾy) are as valid as those that emerged later. And
it is precisely this conception that made it incumbent to exclude from our
survey any extended discussion about dating the appearance of Prophetic
ḥadīth as a yardstick by which to date the rise of Islamic legal norms. Rather,
the rise of ḥadīth is seen here as an index of the evolution of a particular form
of authority (namely, Prophetic), not as the emergence of an unprecedented
Islamic content of the law.”96
Had the approach been to the question of constructing and maintain-

ing authority through ḥadīth, which was in line with the Qurʾānic moral
narrative,97 the study of ḥadīth would have meaningfully restricted itself
to documenting an authority-seeking process. Instead, legal Orientalism
and 632 CE, see my “Groundwork of the Moral Law: A New Look at the Qurʾān and the
Genesis of Sharīʿa,” Islamic Law and Society, 16, 3-4 (2009), 239-79.
96)
Italics in the original. See also section IV, below.
97)
As discussed in my “Groundwork of the Moral Law.”

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singled out the ḥadīth for particular scrutiny, allowing itself to be dis-
tracted from what was relevant for, and what was at the core of, first
century developments. The massive intellectual energy that legal Ori-
entalism poured into ḥadīth study was largely useless for uncovering
what has been termed the “origins of Muhammadan jurisprudence.” It
told us a great deal about very little. Yet, the narrative had its own
teleology.
Orientalism’s topical selection forced the Islamic “legal” tradition
into a particular mold, isolating Qurʾānic morality from “law” as a
consequence of predetermining the question of “origins.” Had the
Qurʾān been evaluated for what it was meant to be (as a moral blue-
print and a substrate on which “law” rested, and from which “law” was
derivative), then the question of “origins” would have acquired an
entirely different framework and, therefore, meaning. It would have
itself emerged as the matrix that defined the boundaries of “origins”;
which is to say, that if a productive search for origins had to be under-
taken, the Qurʾān (however its chapters and verses might be dated)98
would be the indispensible bridge allowing the pre- and post-Islamic
socio-conceptual landscapes to be compared and contrasted in moral
terms. But the current conception of what “origins” means, and must
mean, has ineluctably prejudiced Orientalism’s view of not only the
Qurʾān itself but also the ḥadīth and the entire history of the first cen-
tury as well. The Qurʾān (and ḥadīth as an organic growth of sunan,
raʾy and their conceptual interconnections) had to be marginalized for
the entirety of the first century—despite being the distinguishing hall-
mark of the new dīn—in order to arrive at the conclusion that “Islamic
law” is the result of “foreign” borrowings.
The defense and maintenance of the Orientalist legal narrative on
“origins” entailed the selection and preservation of certain “scriptures,”
the texts sustaining the narrative. These texts in effect constitute the
preset parameters determining which cognate narratives are allowed to
join. Any texts that threaten the paradigm are marginalized, silence
being the most effective tool. Take, for instance, the commendable,
prolific, and erudite oeuvre of Toshihiko Izutsu, first published in the
98)
Powers criticizes my approach to the issue of dating the Qurʾānic material (“Review
Essay,” 151). I have addressed this problem in my “Groundwork of the Moral Law,” 246-
47, n. 32, which he has read and, instead of challenging it on scholarly grounds, ignored.

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1960s.99 His writings highlighted, in no ambiguous terms, the moral

structure of the Qurʾān and the relationships between and among
morality, belief, social justice and human conduct. In dealing with the
role of the Qurʾān as a legal source, legal Orientalist scholarship greeted
Izutsu’s work with silence, thereby refusing it entry into the paradig-
matic narrative. Instead, it clung to a picture—and to “scriptures”—that
saw “law,” in the Austinian sense, as the measure against which the
Qurʾān should be judged, and concluded that it came into play as a
source of Sharīʿa only at the end of the first century.100 Had Izutsu’s
work been taken seriously, sanctioning it as a “scripture” of the trade
and extending its arguments, the moral imperative would have begun
to be recognized much earlier and “Islamic legal history” would have
been constructed differently. Silencing Izutsu’s work, most obviously,
was not intentional, but this is precisely my point. Legal Orientalism’s
paradigm does not always consciously intend or not intend to include
or exclude. It just ontologically functions in this manner, more often
unconsciously, because it is thus constituted by its own programmatic
cultural presuppositions (in this case about the separation between
“law” and “morality”) as well as by the imperatives of the thought-
structure that sustains it.
Orientalism’s narrative of the first century is merely one piece of the
puzzle, albeit an important one. When legal Orientalism moves to the
post-formative middle period, its interest declines, generating far less
scholarly output than it has on the early and modern periods.101 In
“Quest,” I argued that this unevenness may appear disconnected from
other “findings” in the field but it in fact represents part of a coherent
narrative; these findings, I wrote in “Quest,” “may appear, even to the
expert, to be multifarious and substantively unrelated; but this essay
argues that they are ideologically interconnected, constituting in effect
a highly integrated doctrine” (3).
Accordingly, a few years ago, I characterized the middle period of
Islamic law as a “virtual terra incognita.” Powers, having recorded this
99)
To mention only one of his works, i.e., Ethico-Religious Concepts in the Qurʾān (Montreal:
McGill University Press, 1966).
100)
On this issue, see my “Groundwork of the Moral Law.”
101)
e middle period is generally seen as extending between ca. 850 (or ca. 950 in
revisionist scholarship) and ca. 1800, making its span at least eight centuries.

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declaration with indignation, lists the names of scholars who worked

on this period; and notwithstanding what he characterizes as advances
in our knowledge about this period, he himself arrives at the conclusion
that “we may not be on terra firma” (142-43). So what makes, for Pow-
ers, the middle period more than just a terra incognita? His answer is
provided in his main text and in five footnotes (141-42, nn. 22-26),
where he lists less than two dozen articles and some seven books (of
extremely varied quality), which are supposed to shed meaningful light
on at least eight centuries’ worth of “legal” history from Muslim Spain
and Morocco to Iran and Transoxiana, and from Yemen to Anatolia.
Equally important is that Powers did not argue, much less demon-
strate, that the middle period (eight centuries) received proportionately
equal or nearly equal scholarly coverage relative to the formative period
(three and a half centuries) and to the modern one (some two centuries).
Nowhere in the “Review Essay” or in his other writings does he char-
acterize scholarship on the formative and modern periods as being less
than terra firma. If we consider the extraordinary temporal and geo-
graphical span of the middle period, then, my assessment of the schol-
arship on this period and Powers’s own admissions are, in the final
analysis, the necessary and sufficient condition for the validity of my
argument in “Quest.”
Powers insists that my position on scholarly production regarding
the middle period amounts to misrepresentation. Obviously, having
myself published two lengthy monographs and numerous articles on
the middle period before I declared it a terra incognita, I could not have
possibly meant it to be a “black hole,” as Powers understood me to say
(140). In fact, I do acknowledge in “Quest” that “there has been very
little serious work” on this period (3). Powers’s standards of terra firma
apparently are qualitatively and quantitatively different from mine. Be
that as it may, he and I will continue to disagree as to what counts as a
serious body of scholarship on a particular issue or period. But I fail to
see how my evaluation of scholarship on this period can be character-
ized as “misrepresentation of western scholarship,” as Powers alleges
(143).102 This charge is striking, and ironic, since Powers himself, as
102)
Powers also claims that I misrepresented P. Crone’s article “Two Legal Problems Bearing
on the Early History of the Qurʾān,” Jerusalem Studies in Arabic and Islam, 18 (1994), 1-37,
which I included in an edited collection under the title e Formation of Islamic Law

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co-author of important, relatively lengthy introductions to two standard

edited collections on muftīs and judges, largely skips the middle period.
In both, he and his distinguished co-authors move from the “formative
period” to the “modern period” with alacrity, conspicuously leaving the
middle period out.103 This is neither surprising nor untypical. When
the “Islamic legal tradition” is sketched, it is not uncommon to skip
the middle period altogether.104
My argument therefore remains that Orientalism’s topical selection
has privileged the formative and modern periods, characterizing the
middle period as generally or merely a continuum, whereas productive
“change,” “dynamism,” and “adaptation” (three modernist favorites)
characterized the formative and modern periods—those two temporal
locations where Europe, with its Greco-Roman-Judaic heritage, could
instruct Islam and lend it a hand, i.e., civilize it. Thus the narrative
about the middle period, whenever it commands attention, is imbued
(Aldershot: Ashgate, 2004), 77-113. I fail to see where the misrepresentation lies. As the
editor of the volume, I did after all include her article for all to read, when I was under no
obligation whatsoever to do so, and when existing articles by other qualified scholars could
have served the purpose equally well. e article, being an integral part of my edited volume,
can speak for itself. If I interpreted the article in a way of which Powers disapproves, it can
hardly constitute a misrepresentation.
103)
See Islamic Legal Interpretation: Muftis and their Fatwas, in M. Khalid Masud, Brinkley
Messick and David Powers, eds. (Cambridge, Mass.: Harvard University Press, 1996), at
p. 4 (“e Formative Period”) and p. 8 (“Institutional Manifestations”) where Powers et
al. discuss sources for the study of fatwā in the middle period, and acknowledge (p. 9) that
the history of the fatwā, one of the most central institutions and practices of Islam, “has
yet to be written.” On p. 11, they add that “[l]ittle has been written about the activities of
muftīs in the central Islamic lands in the period between the eighth and the twelfth centuries,
although numerous sources exist to fill in this gap” (my emphasis). Likewise, in Dispensing
Justice in Islam (Leiden: Brill, 2006), Powers and his co-editors divide history into the first
phase of “Prophecy and Revelation” (p. 6), moving on to the “‘Abbāsid period (750-1250)”
and then directly to the “Modern Period,” leaving out well over five centuries’ worth of
judicial practice, whose importance to any legal system need not be emphasized. It is
profoundly important to realize that these two volumes represent what the field regards as
the state of the art, and bring together the work of established scholars in it.
104)
See, for example, D. Pearl and W. Menski, Muslim Family Law (London: Sweet &
Maxwell, 1998), 3-28, where the authors cover no more than the first three centuries,
although they inexplicably state, at p. 19, that they “discussed” the “crystallization of the
classical system” up to “the thirteenth century”! ereafter, they immediately move on to
survey the modern period. Similarly, see H. Liebesny, Law of the Near and Middle East
(Albany: SUNY Press, 1975), 12-46.

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with notions of impractical and empty idealism, at best, and bouts of

stagnation, at worst. While stagnation is now a gradually disappearing
narrative, the middle period’s idealism is cast in terms of law’s profound,
almost exclusive, preoccupation with theology or “intellectual play.”105
The overall weight of the paradigm’s narrative—dialectically producing
and produced by the reception of the works of Schacht, Calder106 and
countless others—remains therefore one of the mission civilisatrice:
Islam experiences the Comtean civilizational dynamism only when it
is instructed by the West or its cultural “ancestors.”
The force of the narrative about the formative and modern periods—
as reflections of historical processes in which the West instructs Islam
in the ways of civilization—can be no clearer than in the writings of
the late Jeanette Wakin, an expert on Islamic law, and one time a student
of Schacht after he had made his mark on the Orientalist field at large.
In praise of his scholarship, she writes that “Schacht’s research showed
that the [Muslim] modernists found themselves in the same situation
as that which prevailed after the beginning of the second century of the
hijra (7th century AD), when the early specialists imposed what they
thought of as Islamic standards on current law and society to create
Islamic law. The modern efforts can thus be put into historical per-
spective.”107 Later on, she adds that the “fear among modern Muslim
scholars is that the great edifice of the religious law, and thus Islam
itself, will collapse if it is shown to have been the product of human minds.
Schacht’s findings can, of course, conceivably be put at the service of a
liberalizing movement, but this has not yet been attempted.”108
Note here Wakin’s language referring to early Muslim jurists, who
“imposed what they thought of as Islamic standards” which in fact were
not, because Schacht, following a host of Orientalists before him, held
105)
See, for example, the writings of Norman Calder, especially his Islamic Jurisprudence
in the Classical Era, ed. Colin Imber (Cambridge: Cambridge University Press, 2010); also
my review of Bernard Weiss, e Search for God’s Law (Salt Lake City, University of Utah
Press, 1992), in International Journal of Middle East Studies, 26, 1 (1994), 152-54.
106)
See previous note.
107)
Wakin, “Remembering Joseph Schacht,” 17 (added emphasis). For Schacht’s article,
which Wakin is accurately representing here, see “Problems of Modern Islamic Legislation,”
Studia Islamica, 12 (1960), 99-129.
108)
Ibid, 31 (emphasis added).

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the firm position that what early Muslims thought of as Islamic law or
Islamic “standards” was not really Islamic at all, but rather Hellenic,
Roman and/or Jewish—which just happens to be the cultural lineage
that Europe boasts for itself. The word “imposed,” furthermore, is
intended to convey a certain coercively tortuous process marking the
alien nature of these “standards” to the new Muslims, the Bedouins of
the desert. Modern Muslims, again encountering the European—but
this time in the flesh—find themselves “in the same situation,” namely,
having to “impose” on themselves what is foreign to them; hence their
undeniable “fear.” (Note also the total absence of the middle period in
Wakin’s narrative.) If only modern Muslim scholars could just under-
stand that Islamic law did not really begin with, and was not really
formed of, genuinely Islamic, revealed religion, but in fact was “the
product of human minds,” then they could lay their “fear” to rest. And
on attaining this (level of ) understanding, which Schacht placed for
them on a platter, they would be but a short step away from embarking
on a “liberalizing movement.” Alas, Wakin tells us, “this has not yet
been attempted,” the modern Muslims are still struggling on the Com-
tean ladder of history. They have proven to be unequal to their ancestors
who were quicker learners. Whereas the early Muslims needed only one
century to complete the assimilation of ideas and institutions imparted
to them by Europe’s cultural ancestors, the Muslims of today have failed
to assimilate Europe’s teachings on law and polity even after being
exposed to them for over two centuries.
Wakin’s narrative accurately depicts the structure of the Orientalist
paradigm, though in a crude and an unusually honest fashion. Thus,
the assumptions of the paradigm are crystal clear, having undergone no
change. For should legal Orientalism one day awaken to the realization
that the middle period was a monumental legal accomplishment, a
period of vibrancy in which Islam built one of the most sophisticated
legal/moral systems in world history, then the paradigm as we know it
would fall into disarray. The realization would not only disturb the
narrative as Wakin cast it, but it would raise the following problem-
infested and thoroughly unsettling question of scholarship and ethical-
historical accountability: If during the eight centuries of the middle
period the Sharīʿa was an independently developing, flourishing and
sophisticated legal/moral system that served Muslim societies around

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the world so well, then why did colonialism destroy it? Any meaningful
answer would have to involve a historical, sociological, intellectual,
political, and cultural self-examination, which would in turn, and nec-
essarily, render the entire mass of “findings” of legal Orientalism—and
therefore its paradigm—untenable. Is Orientalism ready for such a
process of alienation? Would this be a rhetorical question?
IV. Legal Orientalism and Origins

Enough, I think, has been said to explain why Powers, here an active
paradigmatic proponent, found it necessary to challenge my contribu-
tions to the study of origins and early Islamic legal history. Yet, this
challenge, devoid of any substantive thrust,109 will become more under-
standable if we look at it in detail. To this we now turn.
(i) Hallaq and Schacht: Comparison and Comparative Misrepresentation

In the third, longest and final sentence of his abstract (p. 126), Powers
declares that a comparison between my “vision” of formative legal devel-
opment and that of Schacht “suggests that the differences between the
two scholars are minor.” Let us examine this claim closely.
In an effort to prove this allegation, and to show similarities between
Schacht’s work and mine, Powers needed to bring my position closer
to that of Schacht, an exercise that led him to engage in severe dis-
tortions and oversimplification of my ideas and language, as well as,
to some extent, even of those of Schacht. “According to Schacht,”
Powers claims (156), “Muhammad ‘borrowed’ legal institutions from
Near Eastern law.” In fact, Schacht did not see the matter in these
terms, his position having been more nuanced, although highly prob-
lematic. In his Introduction, Schacht makes his position clear: Muham-
mad’s “authority was not legal but for the believers, religious and, for
the lukewarm, political.”110 Thus, Muhammad could not have been
109)
To be sure, Powers is not alone in approaching my work with such negativity. For
example, R. Gleave, a specialist in Shī‘ite legal theory, has often adopted this gratuitous
negativity toward my writings without advancing a single substantive argument against my
documentation or analysis.
110)
An Introduction to Islamic Law (Oxford: Clarendon, 1964), 11.

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interested in Near Eastern legal institutions since “his authority” as a

Prophet was “not legal.” A few lines later, Schacht further says: “His
aim as a Prophet was not to create a new system of law,” having “resigned
himself to applying religious and ethical principles to legal institutions
as he found them.” So Schacht did not say, as Powers alleges, that the
Prophet “borrowed” legal institutions; he merely applied to them some
ethical and religious principles, after having “resigned” himself to some-
thing, which, I infer, is his inability to work out a new “legal system.”
This is deemed a Prophetic “failure,” because when the Prophet’s suc-
cessors came into contact with the Iraqi “legal system” (assumed to bear
cultural superiority) they found what they were lacking and therefore
appropriated it, accomplishing what the Prophet—who presumably
had no clue of what was happening in Iraq—could not.
Schacht’s problematic here lies in his inability to see, as a proper child
of the secularizing Enlightenment, how a new ethical principle, or
principles, might change the content, function, structure, and general
nature of an institution (think, for example, of how weaving into mod-
ern capitalism a moral thread would inevitably change its nature in
dramatic ways, metamorphosing it into something very different). This
is precisely where Schacht and the rest of the Orientalists went wrong,
having divorced, in their minds, morality from law—as Euro-American
academia on the whole has also done, separating morality also from
economics, science, and much else.
Powers correctly states Schacht’s position as being that the “origins”
of Islamic law are “to be found in Iraq” (156). Then he immediately
proceeds to say: “according to Hallaq, the pre-Islamic Arabs ‘absorbed’
Iraqi and other Near Eastern legal institutions that were later incorpo-
rated into Islamic law, whereas the true origins of Islamic law are to be
found in the Hijaz.” This is a mischaracterization, for which Powers
provides no documentation from my work. In a forced attempt to bring
my position as close to that of Schacht as possible, Powers, resorting to
the device of linguistic subliminal injection, singles out “Iraq” as being
a location of “origins” in my account, and then insinuates a contradic-
tion by immediately adding the Hejaz as the source of “the true origins
of Islamic law.” Had this indeed been my argument, Powers would have
been in a position to dissect and capitalize on every detail of a glaring
contradiction. But since, in my account, Iraq patently has no special

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status over any other Near Eastern region, and since for Schacht there
is no “Islamic law” without Iraq, one wonders why Powers cast his
language in this fashion.
Furthermore, Powers’s language waxes history, on my behalf, teleo-
logically. It makes the pre-Islamic Arabs, through historical proces-
ses of subordination, “absorb” what Powers seemingly considers, like
Schacht, to be foreign Near Eastern institutions, only for the purpose
of incorporating these institutions into Islamic law. This is absurd. In
my Origins, which assigns Iraq no extraordinary role, I speak of the
pre-Islamic peninsular Arabs as having been “very much products of
the same culture that dominated what was to become their subject ter-
ritories” (26). On p. 28, and summarizing the thrust of my first chap-
ter, I further say that “this chapter has showed that these Arabs were,
demographically, religiously and commercially (and, we may add, polit-
ically and militarily) an integral part of the larger Near East and its
culture.” This is to say that Near Eastern culture was as much integral
to the pre-Islamic Arabs as they were integral to it. Iraq, in my account,
is not an exterior cultural space, to which the pre-Islamic Arabs came
as camel jockeys. Iraq was a part, and an extension, of a wider cultural
space through which the Arabs, northern and southern, lived and
moved. And this in no way is Schacht’s position or language. He, like
the paradigm that produced him, and which he reproduced, spoke in
the language of borrowing, and made Iraq (and, generally, the North)
a separate, superior cultural unit from which Islamic law was appropri-
ated.
Powers also misrepresents my position on the Qurʾān. He states that
I disagree with Schacht’s thesis that “the first Muslims paid only per-
functory attention to the Qurʾānic legislation” and yet assigns to me
the position that the “Qurʾān played only a limited role in Muslim
society until the third quarter of the first century” (152). No page cita-
tion is provided, no direct quotation cited from my work. As in the
case of Iraq, here too Powers attempts to score two points with one
stroke: making my position a rough duplicate of Schacht’s, and, while
at it, to insinuate a contradiction. As we shall see toward the end of this
section, Powers cannot have it both ways.
In fact, Powers chooses to ignore my clear language about the place
of the Qurʾān during the first years and decades of Islam. In Origins,

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p. 55, I unequivocally state: “Islamic law as Qurʾānic law existed from

the very beginning of Islam, during the Prophet’s lifetime and after his
death.” On p. 21, I wrote that Sūras revealed in the middle Medinan
period “mark the beginning of substantive legislation … above and
beyond matters of ritual, such as prayer and pilgrimage.” This substan-
tive legislation, I furthermore wrote, constituted a “distinct body of law
exclusive to the Umma,” asserting “the independence and uniqueness
of the new religion” (p. 22) and pointing “clearly toward the elaboration
of a basic legal structure” (p. 24). I also wrote that Qurʾānic law “marked
the beginning of a new process whereby all events befalling the nascent
Muslim community henceforth were to be adjudicated according to
God’s law, whose agent was none other than the Prophet” (p. 24; empha-
sis added). The tenor of my position in Origins was insisted upon even
further in a recent article which Powers had read and published in his
own Journal some time before his “Review Essay” appeared in print.
But he obviously turned a blind eye to it and to what I have repeatedly
said in the Origins.
Be that as it may, it is crystal clear that Schacht’s position on the
all-important issue of the Qurʾān’s role as a legal source is drastically
different from mine. He pushes the date for the Qurʾān’s legal relevance
to about 100 H., I date it, in the Origins, to the middle Medinan period
(ca. 5 H.) and, in the more revisionist “Groundwork of the Moral law,”
to the Qurʾānic phase of the Prophet’s life, i.e., from the start.
As for the Prophetic and post-Prophetic eras, Powers glossed over
the contents and significance of what I have called “sunan,” ignoring
their conceptual ties to Prophetic Sunna, ḥadīth, customary law and
“caliphal law.” His portrayal and misrepresentation of these concepts
in my work is crude, surprising even in these circumstances. Schacht’s
position on the sunan /Sunna/ḥadīth complex could not be further from
mine. But Powers reduces my detailed and nuanced discussion of sunan
to an excessively rudimentary definition: the “established continuous
practice that had become a model to follow” (153), leaving the reader
with the false impression that the sunan were a simplistic, discrete ele-
ment, devoid of conceptual connections to raʾy and ʿilm, two other
significant ways of dealing with “law.” On p. 46 of my Origins, I state
that sunan were “ethically binding” and that the “earlier Prophets, as
well as Muhammad, represented a prime source of sunan.” On p. 49,

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I also state: “That the Prophet was associated with a sunna very soon
after, if not upon, his death cannot be doubted.” On p. 53, I move on
to discuss the relationship between sunan and discretionary opinion
(raʾy), saying that “[f ]rom the beginning, raʾy stood as the technical and
terminological counterpart of ʿilm, which referred to matters whose
settlement could be based on established norms that one could invoke
from the past,” i.e., sunan (emphasis added). On the same page, I also
state that raʾy and sunan “cannot in fact be separated” (emphasis added).
On page 54, I make conceptual connections between raʾy and ʿilm,
saying that “raʾy was at times dependent on ʿilm … knowledge of the
authoritative past,” i.e., sunan. Schacht, on the other hand, did not
accord the sunan and ʿilm any religious content, whereas in my account
they are integral to the religious-moral-legal sphere.
Powers, yet again, insinuates a contradiction in my position about
the roles played by sunan and raʾy (153), suggesting to me that he does
not understand the interconnections and overlaps between these two
concepts. He says for instance that “[on] p. 70, Hallaq states that for
much of the first century AH, it was the sunan of Companions and
Successors that was ‘central’…. On p. 75, however, Hallaq says that it
was discretionary opinion [raʾy] that ‘dominated throughout the early
period and until the middle of the second/eighth century.” For one
thing, on p. 70, the word “central” makes no appearance whatsoever;
indeed, it puzzles me why Powers placed the word between quotation
marks. For another, I explicitly state that the “sunan of the Companions
and the caliphs—which formed the basis of legal practice in the garrison
towns and provinces—were thought to reflect first-hand knowledge of
what the Prophet said or did…. [T]heir sunan therefore represented …
a rich guide to legal conduct.” Here Powers compounds misrepresenta-
tion with lack of care in reading my book. On p. 75, I do say “[r]aʾy
continued to dominate” (not flat “dominated,” as Powers quotes me).
While “continued to dominate” may not be the most felicitous lan-
guage, in the larger context of my analysis in Origins, and in view of
the inextricable conceptual connections between sunan and raʾy, the
language, as it stands, does not have necessarily to mean exclusive dom-
ination. Had Powers cared to pay attention to the conceptual links I
made between sunan and raʾy throughout pp. 46-54 of the book, and
had he contextualized my statement that he quotes from p. 75, he would

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not have rushed to judge the matter as he did, and would not have
represented my work in such black-and-white terms.
Another of Powers’s serious misrepresentations is his claim (153)
that, in my account, the Sunna of the Prophet is “[n]otably absent from
this picture,” which I take to be the first century. He also egregiously
distorts my position on this matter by attributing to me the following
conception: “Like the Qurʾānic legislation … the available Prophetic
sunan did not yet have any legal force” during the first decades of Islam.
In terms of my position on the Qurʾān, the reader will recall that,
only a few paragraphs earlier, I show how Powers’s characterization of
it is untenable, based on the Origins itself, but also on my recent article
“Groundwork.” As for the Sunna, I have made no such statement,
which Powers in a sense confirms by failing to provide page citation
from my work. On p. 43 of Origins, moreover, I say that “by the time
of his death” the Prophet Muhammad “was the most important living
figure the Arabs knew.” On p. 47, I further say: “It would be difficult
to argue that Muhammad, the most influential person in the nascent
Muslim community, was not regarded as a source of normative practice.
In fact, the Quran itself explicitly and repeatedly enjoins believers to
obey the Prophet and to emulate his actions” (emphasis added). Having
cited in full three Qurʾānic verses to this effect, and referred to several
others in a footnote (p. 48, n. 61), I conclude the paragraph by saying:
“In establishing his modus operandi as exemplary, the Prophet could
hardly have received better support than that given to him by the society
in which he lived and by the Deity that he was sent to serve” (emphasis
added). Thereafter, I continue to examine historical evidence, showing
instances of the use of Prophetic Sunna during the very early years of
Islam (pp. 47-48). And taking the power and status of the Qurʾān from
the beginning as a premise (a point to which I shall return later), I
explicitly state, on p. 49, that the “vitally important issues raised in the
Quran represent a portrait of concrete Prophetic Sunna. It would be
inconceivable that all of these issues, many of which we enumerated in
chapter 1, should have been confined to the Quran alone.” If by “legal
force” Powers means state-like enforcement, then he is engaging in
anachronism. If he means “normative enforcement,” another matter
altogether, the earlier citation from p. 47 proves him wrong. But Pow-
ers is proven wrong also by virtue of my statement in the conclusion,

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which he seems to have missed or ignored (pp. 201-202): “The emerg-

ing Prophetic authority was to claim … the sunan: whatever pre-Islamic
values the Quran and the Prophet did not shun became part of these
recognized sunan …. And since the practices of the first (and, for that
matter, the second) generation were deemed to fall within the recog-
nized sunan, they were in turn attributed to the Prophet and thus rep-
resented a part of the model Prophetic conduct, to be emulated and
followed” (emphasis added). “Attributed,” however, is not here intended
to invoke “mendacity” or “fabrication,” but rather a process of autho-
rization. Immediately thereafter, I continue to write (202): “This, in
short, is the process through which Muḥammad acquired Prophetic
authority, a process that began in the Quran itself (which enjoined
believers to take their Prophet as a model) and continued to gain sup-
port by the operation of the time-honored sunan māḍiya that Prophetic
authority gradually came to shape and define.”
Powers goes on, through an act of egregious misrepresentation, to
insinuate another contradiction in my position on the Sunna and sunan.
On p. 154, he attributes to me the following position, referring to p.
69 of Origins: “By the year 100 AH, the sunna of the Prophet had taken
its place ‘as the queen of all sunan’—although on the same page Hallaq
states that two decades later, ca. 120 AH, the authority of Prophetic
sunna was merely ‘on the rise.’” Note, first, that the word “merely” is
not part of my language; rather, it is Powers’s attempt to inflate the
meaning of my sentence so that a contradiction can be created. Second,
Powers inexplicably chose to drop the rest of the first sentence: “Pro-
phetic Sunna had emerged as the queen of all sunan, though not of the
legal sources on the whole” (emphasis added). From the second sentence,
he also decided to drop an important qualification: “Prophetic author-
ity was on the rise, and growing at a steady pace as a distinct type of
sunan” (emphasis added). Thus, read in whole—as they should be—
these two sentences speak to two different contexts. The first places the
Sunna within the context of “legal sources on the whole” whereas the
second speaks of Sunna “as a distinct type of sunan.”
Read properly, therefore, the Origins, as an inter-textuality, offers a
narrative in which the Sunna of the Prophet emerged organically from
sunan, ʿilm, and raʾy. This is another way of saying that the ḥadīth and
the proto-ḥadīth substrate were Islamic from the beginning, however

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the conception of “Islamic” was constantly evolving, and whatever the

fabrications that were taking place (which, for my concerns, are relevant
only insofar as they represent a register of authority-construction, a
far-cry from what Schacht made of them. Note also that Powers has
not expended the necessary effort to understand my position on fabri-
cation, reducing it to mere acceptance on my part of “western” scholarly
findings [see p. 154 of his “Review Essay,” and compare with the para-
graph quoted at n. 97, above]). On pp. 199-200 of Origins, I conclude
by stating clearly that “the origins of Islamic law—as a religious sys-
tem—cannot be rigidly defined as exclusively limited to its direct (and
formal) association with the Prophet…. Prophetic authority was sub-
stantively intermeshed with the authority of other sunan, including
those of the Companions, which contributed much to the early forma-
tion of the law.” Therefore, there is an unbridgeable gap between my
position on the ḥadīth and that of Schacht. I trace it as evolving from
the life of the Prophet, whereas Schacht delays its appearance to about
100 H., at which time back-projection to the Prophet was beginning
to be a standard for ḥadīth-creation, presumably ex nihilo. If we were
to stop the comparison between Schacht’s work and mine at this point,
enough has been said (about the Qurʾān and the Sunna as the most
central of all sources) to show that my findings are greatly at variance
with those of Schacht.
In sum, and this is important to note, Schacht held the well-known
view that Islamic law did not exist in the first century. I tenaciously
cling to the view that “Islamic law” was a moral-legal system (if these
terms are ever appropriate) and as such started from the Qurʾānic
Meccan period. Therefore, it is entirely fallacious to say, as Powers has
alleged, that “[m]uch of what Hallaq says about the first two centuries
of Islamic legal history is recognizable as Schachtian doctrine, albeit
with qualifications.” While I agree that there is such a thing as “Schach-
tian doctrine” (my point in “Quest”), I disagree that anything in my
account, of the formative or of any later period, is Schachtian in char-
acter. An analytical examination of my scholarship and that of Schacht
will have to yield the conclusion that these two are systematically
different, reflecting two different mind-sets, two unrelated Weltan-
schauungen, and two disparate sets of methodological and theoretical
frameworks. We need not dwell on the matter here, but it should be

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clear to any educated reader in the field that my writings have either
profoundly challenged or squarely (and fairly) refuted Schacht’s theses
on numerous issues, some of the most important being: (1) “borrow-
ings” and “origins” (see above); (2) the “legal” developments during the
first century, including the historical placement of the Qurʾān and
Sunna (see above); (3) the evolution, internal doctrinal structure, and
nature of the legal schools from the second to the fourth centuries AH;
(4) the early evolution of uṣūl al-fiqh and Shāfi‘ī’s place in it; (5) the
nature of the formative period and its duration, which marks a new
way of viewing developments during the century after Shāfi‘ī’s death
in 204/820; (6) the “gate of ijtihād” as a hallmark of legal rigidity
throughout pre-modern Islamic legal history; (7) the relationship
between fiqh and uṣūl al-fiqh, on the one hand, and social and jural
practices throughout the middle period, on the other; (8) the roles of
fatwās and author-jurists in legal change and the structural dynamics
of this change; and (9) the nature of so-called modern legal reform, a
central area of scholarship in which I can scarcely approve of any thesis
Schacht had adopted.
(ii) On Being an Anti-Orientalist and a Schachtian, at Once

As stated earlier, Powers insists on the position that “[m]uch of what
Hallaq says about the first two centuries of Islamic legal history is rec-
ognizable as Schachtian doctrine, albeit with some qualifications” (156).
He also writes: “In his attempt to expose, debunk, and transcend legal
Orientalist doctrine, [Hallaq] has fallen into the trap of creating a
counter-doctrine which, for convenience, may be called anti-Oriental-
ism.” (143; repeating the charge on p. 146.)
Now, these assertions give rise to serious objections. If I am an anti-
Orientalist, then it makes no sense to insist that my scholarship on an
important and expansive area of Sharīʿa is by and large identical to that
of Schacht, the arch-Orientalist, who is described by Powers himself as
“the father of Islamic law” (127). So perhaps I am a sloganeering anti-
Orientalist, adopting Orientalist findings and attacking Orientalism
simultaneously. But for me to be a merely sloganeering anti-Orientalist
entails the total denial of my work over three decades, work that has
thoroughly and, in many cases, systematically critiqued, and provided
an alternative to, Orientalist findings (Powers himself, with some

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reluctance and reservation, acknowledges much of this in his “Review

Essay,” 126-29). So either I am an anti-Orientalist who systematically
revised Schacht, or an Orientalist by virtue of adopting Schacht’s find-
ings, but I cannot be both at once. Which is it? Powers seems to be in
a bind.
Furthermore, if Powers is right in his charge that my scholarship (1)
involves “misrepresentation”; (2) indulges in “historical generalizations
that are inaccurate and unreliable;” (3) is “inconsistent”; (4) is based
on “ideological biases” and (5) “derives important conclusions” through
“chains of inferences rather than historical evidence” (143, 148), then
another significant problem ensues: How does it make sense that with
all these profoundly disturbing deficiencies I still managed to reach
findings so similar, almost identical, to those of Schacht? Either the
scholarship of Schacht, the founding “father” of legal Orientalism, and
therefore Orientalist scholarship itself, is (hopelessly?) deficient like
mine, or my scholarship is as sound (and as honorable?) as that of
Schacht. It cannot be both. Again, which is it? Contradictions in Pow-
ers’s “Review Essay” are not in short supply.
(iii) e Scope and Mandate of Origins

Powers criticizes my Origins for its “failure to explain how … legal
doctrine was created,” saying that this “is the most disappointing aspect
of a book devoted to the origins and evolution of Islamic law” (155).
This statement readily leads to the following query: If this omission is
“the most disappointing aspect of the book,” then the other shortcom-
ings Powers has alleged against it must not be as disappointing. If that
presumed “failure” is justified, then the other shortcomings, assuming
they are true shortcomings, cannot be so serious after all.
Powers, who must understand how the publishing business works
(and it is a business), knows well that the Origins is part of a book series
published by Cambridge University Press and intended—as the descrip-
tion states in every volume of the series111—“to provide an analytic over-
view” of the subject. The description also states that “Contributing
authors … have been asked to interpret the complexities of the subject
for those entering the field for the first time” (my emphasis). The limit
111)
Next to the title page.

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for each volume was set at 85,000 words (some 200 pages), which the
Origins (totaling 234 pages) exceeded by at least several thousands.
Powers has been fully aware of the nature of this series (which I edit)
because he was involved in it for some time, in fact, for no less than
three years.
What Powers is asking Origins to accomplish is an utter impossibil-
ity within the parameters set by Cambridge University Press. For to do
as he suggests would amount to writing several thick volumes that
would inevitably be technical in nature and highly specialized. The
study of substantive law, with its highly specialized and technical detail,
has no place in an introductory volume of this sort. It would then be
fair to ask: Could anyone write a book of this size on the “origins and
formative period,” intended for non-specialists and providing “an ana-
lytic overview,” and still achieve what Powers thinks I failed to accom-
plish?
(iv) Recognition of Earlier Scholarship: Yet Another Case of

Misrepresentation
On p. 149 of his “Review Essay,” Powers writes: “Origins and Evolution
opens with a blanket dismissal of modern Western scholarship on the
origins of Islamic law. Hallaq draws attention to ‘at least three works’
on Islamic law published in the past half century that include the word
‘Origins’ in their titles, referring to monographs by Schacht, Motzki,
and Dutton, respectively (p. 1, note 2). None of these works, Hallaq
says, ‘offers a history of Islamic law during the first three or four cen-
turies of its life’ (p. 1). All three suffer from a narrow focus (p. 2) and,
with respect to the issue of ‘beginnings,’ they are based on ‘unproven
assumptions” (p. 3).112
Nowhere in the book do I say anything that can be reasonably inter-
preted as “a blanket dismissal of modern Western scholarship” on the
formative period. All I said was that no book “offers a history of
Islamic law during the first three or four centuries of its life,” which is
a sound and irrefutable statement. There was no single work before
Origins dedicated to and covering, at once, the fairly extensive history
of sunan/Sunna/raʾy/ʿilm/ijtihād; the judiciary and its sub-institutions
112)
Emphasis added.

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and functions; legal sources, reasoning and legal theory; the schools and
their evolution; and the relationship between the jurists and the rulers.
As important, there has not been a single work that offers “an overview”
of this history. The Origins, I believe, is the only work on this period
that has attempted such a wide compass while not confining itself to
writing the history of an entire, pervasive system through the narrow
parameters of ḥadīth (Schacht, Motzki) or of select legal concepts (Dut-
ton), as important and illuminating as some of these works may be.
Powers is right that I do acknowledge “at least three works” by
Schacht, Motzki and Dutton, but I also say that these works, “however
meritorious some of them may be [,] endeavor to study the formative
period through a rather narrow lens” (p. 2; emphasis added). This is
hardly a “blanket dismissal.” But to make my work appear entirely
dismissive of other scholars’ writings, Powers decided, in what is now
a familiar practice, to omit my recognition of some of these works as
“meritorious.” Furthermore, if I mentioned just three works, and a
couple of lines later said “some of them,” it cannot be the case that I
am dismissing more than one, i.e., Schacht’s work. As for Motzki’s work,
I have expressed admiration for it in the very writings that Powers
himself reviewed in his “Review Essay.”113 Likewise, I never criticized
Dutton’s work for what it set out to do, or for anything else.
But the misrepresentation does not stop here. Note that in Powers’s
passage quoted at the head of this section, he amalgamates statements
from pages 1, 2 and 3 of Origins, squeezing them mercilessly, and
without any context, into three lines. On p. 3 of the book, I was in no
way speaking of works or any writings by anyone. The context from
which Powers wrongfully quotes me is one related to the “determination
of ” the beginning of the “formative period,” which, I wrote, is “[f ]ar
more complex than plotting the end-period.” Following immediately
upon these words, I added: “It is no exaggeration to say that of all the
major questions in Islamic legal history, the issues involved in studying
these beginnings have proved most challenging. The problems associ-
ated with ‘beginnings’ have for long stemmed more from unproven
assumptions than from any real historical evidence” (emphasis added).
113)
Before publishing his article, Powers also read what I have to say about the merits of
Motzki’s work. See my “Groundwork of the Moral Law,” 243: “Harald Motzki, one of the
most serious and respected ḥadīth scholars in the West.…”

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It is patently clear then that this language of mine is referring to a

specific problem, namely, what is seen in Orientalism as “borrowings.”
On p. 3, I in no way made reference to any of the three works on the
formative period, works I had cited two pages earlier. Powers’s wrong-
ful transference of “unproven assumptions” to the three works, and his
massive distortion of my language and positions, do not inspire trust
in his manner of representing others. It is ironic that he turns around
and charges me of misrepresenting “western scholarship” (143, and
passim), when he has wronged my own work in so many ways. It is
Powers’s treatment of my work that is replete with misrepresentation,
not what I said of western scholarship. More importantly, as we saw
earlier, such misrepresentations have a functional relevance insofar as
protecting a paradigm by attempting to smear its critics.
(v) On Being Inconsistent

Powers also claims that I was inconsistent (146-148) when making two
statements in a lecture I delivered to some two hundred California
lawyers and judges in March, 2003, a year and a half after the massively
consequential events of 9/11.114 In the published text of that “Lecture”,
I do indeed say that “[r]ecent scholarship in the United States, Canada
and Germany has shown the impressive extent to which Islamic law
was a working system” throughout Muslim lands (“‘Muslim rage’,”
1710). On the next page, I also say, admittedly with some rhetorical
exaggeration, that there has been “a near total revolution in Islamic legal
studies, especially during the last two decades” and that legal scholarship
has found that there “was no dislocation between Islamic law and the
society that it served.” The inconsistency, in Powers’s opinion, is occa-
sioned by my earlier insistence in “Quest” that in the Orientalist para-
digmatic narrative the middle period has been severely neglected.
First, I make no apology for the rhetorical exaggeration in a lecture
addressed to a non-specialist audience generally hostile to Islam and its
“medievalist law” (as one district judge in the audience explicitly told
me, and which several others insinuated). A point needed to be made,
and within that specific context, that is how I made it.
114)
Published as “‘Muslim Rage’ and Islamic Law,” Hastings Law Journal, 54, 6 (August
2003), 1705-19; henceforth cited as “Lecture.”

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Second, exaggeration or not, I fail to see how the statements Powers

quotes from “Lecture” are inconsistent with what I have said in my
other writings. In “Quest,” the article in which I critique Orientalism,
I have singled out the names of a few scholars who have done remark-
able work on the Sharīʿa, most notable among them is the German
scholar, Baber Johansen, whose findings on legal change resemble mine.
As I have argued in sections I and II above, and as I made clear in
“Quest” (2-3), an important distinction must be drawn between Ori-
entalism as a paradigm, which is a subset of Scheler’s theory on the
“thought-structure of domination,” and the work of individual schol-
ars.115 What a scholar says in his work or entire oeuvre may or may not
be the same once it evolves into, or is appropriated by, paradigms or by
some socially determined thought-structure (see also below). As George
Sorel aptly argued, once the ideas of an individual author are formed,
they “establish links with other current ideas and thereby become part
of the predominant doctrine of a given period. This period will find
in that doctrine certain meanings and interpretations that may be quite
different from the initial intention of the author.”116 Thus, a given
thought-structure appropriates the average doctrine for its needs and
sustainability.
When I made these statements in my “Lecture” about advances in
scholarship, I was thinking of Baber Johansen’s important work on legal
change as well as of mine, and to some extent the writings of emerging
young scholars. It is to these and similar works that I referred as “Islamic
legal studies” (using “studies” advisedly), not to the Orientalist para-
digm or Orientalism as a doctrine, this latter being my target in “Quest.”
It is obvious that I could in no way have been speaking about Oriental-
ism as a doctrinal substrate of the thought-structure I have discussed
above. That indeed would have been not only inconstant, but a flagrant
contradiction. I was in fact being perfectly consistent with my statement
in “Quest,” namely, that “paradigmatic Orientalism is a doctrine pos-
sessed of a largely constant nature, having little to do with the particulars
of diverse, positive scholarship” (3; added emphasis). Note here that I do
acknowledge the existence of “diverse, positive scholarship,” and this
comports fully with my language in “Lecture.” Furthermore, note that
115)
See sections I and III (ii), above.
116)
See Stanley’s introduction to Sorel’s Illusions, xxix.

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the qualified nature of the expression “largely constant nature” (empha-

sis added) was intended to make allowance for some variation, but not
significant enough to change the structures of the Orientalist paradigm,
which wholly rests on, and locates itself within, the thought-structure
of domination. To claim that I have been inconsistent when I made
these remarks, as Powers insists, is to misunderstand the finer conceptual
and theoretical distinctions I made about the relationships between the
thought-structure of domination and the Orientalist paradigm, on the
one hand, and the work of individual scholars, on the other. Of these
distinctions, we now need to say more, especially in light of Powers’s
question: “Who are the scholars who stormed the barricades and led
the charge against the ancient regime? How did they manage to extricate
themselves from the tentacles of paradigmatic legal Orientalism? Hallaq
does not say” (148).
No serious thinker, I believe, can deny the intricate relationship
between modern knowledge and power. Power, reflecting in part knowl-
edge paradigms, is non-linear, since it takes into account and embraces
all discourses that are produced by power’s own subjects, the very site
of its unfolding effects as well as its temporal and cerebral manifesta-
tions.117 As Foucault argued, we “must make allowance for the complex
and unstable processes whereby discourse can be both an instrument
and an effect of power, but also a hindrance, a stumbling block, a point
of resistance and a starting point for an opposing strategy.”118 It is in
power’s nature to be not only self-contradictory but also productive of
internally opposing and resisting elements, represented in discourses that
both expose and obscure its schemes, that both augment and simulta-
neously undermine its ambitions. This is why Foucault insisted that
discourses of power, oppositional in their trajectories, are inextricable
and inseparable, for they are “tactical elements or blocks operating in
a field of force relations; there can exist different and even contradictory
discourses within the same strategy; they can, on the contrary, circulate
without changing their form from one strategy to another, opposing
strategy.”119
117)
Hallaq, Sharīʿa, 7.
118)
M. Foucault, History of Sexuality, I, trans. Robert Hurley (London: Pantheon Books,
1978), 101.
119)
Ibid, 101-02.

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This is to say, in other words, that while maintaining a “global”

trajectory within its sphere, power is productive of diverse discourses
that operate within it as a “field of force relations,” and with which it
inevitably stands in a relationship. Dialogue and an utter lack of dia-
logue between and among these opposing discourses constitute, in each
case, a relationship, at times of active (epistemic) violence, and at oth-
ers, a silent one. In all cases, however, active and tacit violence is integral
to knowledge and constitutes its driving force.120
From this, it should be clear that an unrefined picture of “storming
the barricades” must be abandoned in favor of a more nuanced and
sophisticated understanding of how power, knowledge, paradigms, and
discourses work. As Norbert Elias cautioned, power is not an “object
which can be put in a pocket… [a] piece of soap in the bathroom of a
sahib which his Indian servant believed to be the magical source of
White man’s power.”121 The acknowledgment on my part of scholarly
contributions to the middle period (and specifically to legal change)
has little to do with my critique, in “Quest,” of the Orientalist para-
digm, a paradigm that has not internalized these contributions. The
fundamental and seminal work of a few scholars on a certain subject
may represent for me a significant contribution, but to say this does
not amount to the claim that this contribution has effected a change
in the existent paradigm. Thus, to prove me inconsistent, Powers must
show that the new scholarship on the middle period has dislodged
the paradigmatic narrative I have been describing here and in “Quest.”
He can no more show this than he can defend the view that it was
Spinozism, not Kantianism and Boyleanism, which emerged as the
spirit and Weltanschauung of the Enlightenment. To account for new
scholarship on the middle period is one thing; to argue that, because
such an account was made, the Orientalist paradigm has changed, is
another matter altogether. Powers confuses the two, because his concept
of power is so rudimentary and lacking in complexity that he leapt at
what he thought to be an inconsistency in my writings, not realizing
that he had in fact stepped into quicksand. Refined concepts, herme-
neutical self-consciousness and facing the truths of power and violence,
120)
Foucault, “Truth and Juridical Forms,” 9.
121)
Norbert Elias, “Knowledge and Power,” 203.

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of domination and entanglements in it, are not just essential require-

ments for conducting any serious scholarly work; they are organically
tied to what it means to engage in ethical scholarly conduct.
V. Concluding Remarks
There is much in this essay that alludes to my “political views and
cultural attitudes,” which Powers evoked (139). Let me conclude with
further, albeit brief, remarks on these “attitudes.”
By the end of the nineteenth century, and beginning with the fif-
teenth, Europe came to colonize and dominate the greatest majority of
the world’s populations and regions. It wiped out massive Amerindian
populations, and violated the integrity and organicity of most societies’
institutions, ways of life, and psychologies—all for the sake of sheer
control and the expansion of capital and economy.122 Today, the United
States, with the continuing support of Europe, has taken over essentially
the same role, occupying entire countries, promoting settlement-colo-
nialist ventures, and supporting dictatorships that Europe had helped
to create in the first place. All this was augmented by Euro-American
commissioned genocides, holocausts (including Hiroshima and Naga-
saki), two World wars, and, among much else, devastating world pov-
erty and destructive exploitation of the natural habitat. These are not
matters just of politics and militarism, but also fundamentally consti-
tute a knowledge-grounded reality, a hermeneutical and epistemologi-
cal phenomenon of the first order, and are, by no means less, the business
of moral philosophy and ethical theory.
All academicians in Euro-America, from scientists to scholars in the
humanities, are embedded within the institutional, social, historical,
psychological and linguistic structures that produced this phenome-
non, whether they agree with it or not. Be that as it may, there is little
122)
e literature on these subjects is plentiful, notable works being: Arendt, Origins of
Totalitarianism; Hart, Empires and Colonies; A. Price, e Western Invasions of the Pacific
and its Continents (Westport: Greenwood Press, 1980); R. Bergland, e National Uncanny
(Hanover: University Press of New England, 2000); E. Beasley, Empire as the Triumph of
eory (London: Routledge, 2005). is latter book in effect argues against the materialist
Hobson/Lenin thesis, and is much more in line with the Schelerian theory as discussed
here.

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awareness of how this embeddedness has played out in the thought-

structure of domination, over both nature and our fellow human beings.
To be born into these institutions and to be brought up in them is the
fault of no one. The initial socialization processes are inescapable, for
anyone. But to continue to be unconscious of one’s role as a scholar
and, hopefully, as a thinking and reflecting human being within these
structures is unjustifiable, both from the scholarly and ethical perspec-
tives.
As Collingwood once said, “historical thinking is an original and
fundamental activity of the human mind.”123 I endorse this character-
ization, but think that not all forms of “historical thinking,” not all
“histories,” are either sustainable or justifiable. Some are ethically unsus-
tainable. As I have argued in this essay, Euro-American historical (and
other) knowledges, both popular and academic, are an integral part of
a thought-structure that led to the domination and transformation
of nature which had been denuded of all value, a world-view that in
turn led to significant damage to our natural habitat and fellow animal
species. This is utterly immoral, as any reasonable human being must
acknowledge. Structurally, and by systemic and epistemological extension,
this thought-structure also led to violent forms of domination over
fellow humans, forms that are institutional, cultural, economic, and
deeply psychological. This, I can only hope, may be recognized as
immoral by all human beings.
If this form of historical thinking is morally unsustainable (not to
mention repugnant), and if the “human mind” must engage in his-
torical thinking, then what sort of alternative historical thinking is
required? The space I am allowed here does not permit me to propose
in full an alternative way of contemplating history (which would require
a full-length, independent publication), and so a very brief comment
must suffice.
If I am granted the proposition that scholars should lead, as schol-
ars, an ethical life (and I doubt that many would disagree), then the
proposition must encompass a discursive ethical involvement in their
social order, research, publication, and teaching. Their work, in its
totality, must be conscious of itself, its place and its implications in the
123)
R. G. Collingwood, “e Historical Imagination,” in Meyerhoff, Philosophy, 83.

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“strategies” of power. It must consciously exert the utmost intellectual

effort to foresee these implications, and must work toward subverting
them. It must resist domination (at least) as a knowledge system, which
means it must at a minimum be aware of any possible complicity with
a modernist theory of progress, and of subordinating the image of the
Other to one’s own narrative or to one’s own larger cultural space. It
must pay close attention to the insidious dangers implicit in separating
fact from value, whether in its considerations of nature or of its repre-
sentation of the Other’s history and present. If it is true that human
beings are predisposed to history, then history must be written for one’s
own society and must remain within that society. It must not be allowed
to transcend to the Other. To write history in order to judge the Other,
or worse, to instruct or dominate the Other, is to consciously engage
in a thought-structure that raises fundamental ethical objections. If we
write history and write it for ourselves, a perfectly valid and ethical
engagement, then it is to learn something from it. There are no other
ethically justifiable reasons for contemplating history.
All this, of course, entails the proposition that the study of Islamic
legal (etc.) history—if it must be undertaken—has for us no purpose
other than instructing us in forms of ethically sustainable living. Many
will surely discountenance this idea for its audacity, claiming, further-
more, that a pure “lust for knowledge” is the true driving force behind
western academia, this lust being a sort of Hegelian Geist,124 a Kantian
autonomous reason, “a purely noble quest to know.” This utter absence
of self-consciousness is not surprising, for it is precisely integral to the
conditioning and legitimating apparatus required for the thought-struc-
ture of domination to survive—indeed, to flourish. If that thought-
structure did not exist, I would not be writing, and the ingenuous
theory of “lust for knowledge” would not subsist in the first place.
124)
e same Geist, incidentally, that Hegel thought had wiped out the Amerindians from
the face of Americas’ earth. See his Lectures on the Philosophy of World History, Introduction:
Reason in History, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1975),
163. I owe this reference to Nauman Naqvi.

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Islamic Law

On Orientalism, Self-Consciousness and

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which he does not document). This is not entirely surprising, because

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In view of Powers’s misunderstanding—despite his being the careful

II. e Social Production of Orientalism

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that Orientalism exists, largely setting aside the problematic as to how

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excluding the possibility of any ideas arising independently of socially

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corresponding to it—is communicated in, not just through, language.25

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his epistemic and ontological subject.40 With sufficient “scholarly atten-

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racist) values, technical and political development, maturity (in both

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remains, to join “true,” “mature” civilization. As we will see, the effects

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Before concluding this section, something should be said of the

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without it making any moral demands on us.60 More importantly, how-

III. Orientalism as a Paradigm

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to believe in the objectivity of scholars, predicating the truth-value of

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institutions generally known as academia; (3) that these institutions are

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conceptual structure that seeks to legitimate and validate that identity.

(ii) e ought-Structure Underlying Legal Orientalism

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knowledge and enunciations have engaged in domination as a perfor-

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and its institutions: they profoundly transform the Self, re-engineering

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seemingly innocuous Orientalist philologists in Germany (seen as a

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intellectual history and, no less, with the history of science. In other

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that—as Scheler cogently argued—intentions, like love, sympathy, res-

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(iii) e Topical Selection of Knowledge

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These infinite, yet-unknown ontological potentialities are called by

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thought-structures of domination (irrespective of what intention the

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terms of “origins,” largely made up of questions about borrowings and

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Had the approach been to the question of constructing and maintain-

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1960s.99 His writings highlighted, in no ambiguous terms, the moral

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declaration with indignation, lists the names of scholars who worked

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co-author of important, relatively lengthy introductions to two standard

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