Chapter 3
Disenchantment

Ottoman Texts

For the better part of the nineteenth century, the Ottoman Empire had been in the throes of an internal reform movement known as the tanzimat , a term derived from the word nizam , meaning "order." The reforms occurred in specific response to Russian expansionism and in a larger context of the growing military-technological and commercial-financial strength of the European powers. The Ottomans had felt continual critical pressure from Westerners, one of whose old refrains was "Bring forth your code; let us see it and make it known to our subjects."^[1]

In 1869 the Ottoman drafting committee charged with producing the first shari'a -derived civil law characterized the old corpus of jurisprudence they had begun to draw upon as "an ocean without shores."^[2] Represented in this instance by the standard manuals and commentaries of the official Hanafi school, shari'a jurisprudence had come to be viewed by Ottoman reformers as problematically vast, difficult of access, and generally inappropriate for the times. New understandings of the nature and role of the shari'a would be central to the emergence of new political orders across the Middle East. To the extent that it survived such transitions, the shari'a would be contained in a new type of authoritative textual form, the legislated code.

The key Tanzimat reform concerning the shari'a was the production of the shari'a-derived civil code, known as the Majalla . Drafting committee work began in 1869, and the full code was finally promulgated in 1876. Its innovative and contradictory character centered on the fact that it was "Islamic in content, but . . . European in form."^[3] Distilled in a new, eclectic manner from leading works of the Hanafi school, the

Majalla covered most of the mu'amalat (transactions) sections found in the old manuals. This material was equated by the drafters with the "civil law" of the "civilized nations."^[4] Included also was a section on judicial procedure, but neither marriage nor inheritance was dealt with. The code was intended for use in the recently created civil (nizami ) courts and for convenient consultation in the parallel shari'a court system. Although the new court structure was not introduced in Yemen, the Majalla was applied there in the provincial shari'a courts. It is remembered in Ibb that two local men received instruction in its provisions.

Among Ottoman reformers, many of whom were astute observers of European society, the shari'a was considered archaic and unsuited for modern purposes. If "order" was the leitmotif of the reforms advocated, the shari'a had come to represent precisely the opposite: "disorder." A fundamental criterion of Western law, one that suddenly appeared to be unsatisfied in the shari'a, was that it be "known." The newly perceived obscurity of the shari'a was such that the essential task of "finding" the law was considered cumbersome if not altogether impossible. "In works of fiqh , general principles are mixed in with specific questions," the Majalla committee complained.^[5] In addition, the "rules" the committee sought to tease out of the manuals "were scattered throughout the works of various jurists."^[6] Drafters of the Ottoman Commercial Code (1850), which was based on French law, stated flatly that the relevant sections in the shari'a "were not recorded and organized; consequently, they do not meet the needs of present conditions." The authors of the Majalla , which was constructed exclusively of shari'a materials, likewise described these original texts as extremely difficult to work with. Their metaphor, again, was a boundless "ocean" "on whose bottom one has to search, at the price of very great efforts, for the pearls which are hidden there. A person has to possess great experience as well as great learning in order to find in the sacred law the proper solutions for all questions which present themselves."^[7]

Painstakingly located in the texts of the oceanlike fiqh , the old "pearls" were fixed in the structural grid of numbered code articles, re-presented in an innovative abstract format that rendered the shari'a into something resembling the familiar form of "law." In the Majalla the Ottomans took the significant step of making a portion of the shari'a manageable and perusable. As the drafting committee wrote, "the need has . . . been felt for a long time for a work which dealt with transactions in general on the basis of the sacred law, containing only the least contested and least controversial opinions and composed in a manner

which would be sufficiently clear so that anyone could study it easily and act in conformity with it" (emphasis added).^[8]

Accessibility in codes required that they be built in an orderly and regular fashion, ideally of conceptual units that could stand alone, equivalent in their logical self-sufficiency and in their independence from any need of interpretive clarification. In selecting "only the least contested and least controversial opinions" from the fiqh manuals, the drafters took an important step toward silencing the open-ended argumentation of shari'a jurisprudence. Once central to a vital intellectual culture, openness was now considered a drawback. As against the purposely unfinished old textuality, the new works were closed by design. In addition, the exercise of interpretive ijtihad was specifically disallowed where an article provision already existed.^[9] For Muslim reformers elsewhere, ijtihad would be reconceived as an essential tool for the adapting of an invigorated shari'a to the changing necessities of the "modern world." The Egyptian Rashid Rida (d. 1935), for example, drew on the Yemeni jurist al-Shawkani, among others, in his efforts to reassert and define the continuing relevance and importance of interpretation.^[10] A new, "free ijtihad" would be a key instrument of early modernist movements.^[11] While the gate of this new ijtihad was being opened, that of the old was finally being shut. Codes such as the Majalla for the first time brought closure to the "open text" of shari'a jurisprudence.

The idea that this new digest of laws would also be accessible to "anyone" was quite revolutionary, and it directly threatened the exclusive role of the shari'a jurists, specifically the institutional hierarchies of the Ottoman 'ulama', as qualified interpreters. An underlying intention in framing the Majalla was to write it "in language comprehensible to every man,"^[12] rather than in the esoteric jargon or the highly condensed manual style of the earlier generations. Unlike the basic fiqh works, most of which were in Arabic, the new code was originally written in official Ottoman Turkish. A further aspect of the new accessibility was an explicit policy to disseminate the codified laws through official publication, translation, and distribution. Subversive of the positions of the shari'a jurists and of their entire system of formation in the old system of jurisprudence-centered instruction, this new attitude toward the legal text also foreshadowed the Western notion of the responsibility to the law of the ordinary individual, the citizen.

The positions of the jurists were further undermined by the fact that the Majalla was finally promulgated by the Ottoman sultan. The shari'a had theretofore been a "jurist's law," which had been developed

and had retained its vitality through exercises of interpretive ijtihad, through commentary and opinion giving. Although the Ottoman Empire had lengthy experience with supplementary administrative law (qanun ), an essential feature of the shari'a was that it provided no legislative authority to a head of state. Now, however, the production of an entire corpus of shari'a law was taken out of the hands of the jurists and allocated to a new breed of public officials constituted as a drafting committee, with their work to be passed before the sultan for approval and promulgation.

It was general principles and theoretical constructs that the Majalla was intended but ultimately failed to provide. Whatever its shortcomings, it was this movement in the direction of abstraction, so characteristic of the constituted form of bourgeois law (Pashukanis 1978:120–21), that the Majalla initiated with respect to the shari'a. Abstraction and generalization—the creation of order out of newly perceived "disorder"—would be enduring hallmarks of the transformation of the shari'a into law. In shari'a manuals, for example, key concepts such as "property" were embedded in the chapters, where they figured, not as highlighted terms, but rather as implicit assumptions. In the innovative form given the Majalla , by contrast, such concepts were identified and separated out for definition. It has been said that the shari'a was essentially atheoretical, that it lacked the clear statements of general principles that had become requisite in international legal discourse. Despite the paradigmatic position of the contract of sale in relation to other bilateral contracts in the mu'amalat sections, for example, it has been repeatedly remarked that in the shari'a there was no "theory of contract."^[13] The Majalla as a whole opened with a section explicating a "series of fundamental principles," and before each chapter was placed an "introduction containing definitions of all legal terms pertaining to the subject matter of the chapter."^[14]

The new authority of codified texts would rest not only on abstraction and generalization, but also on the development of related conceptions of the state and of individuals as responsible legal subjects. An important model was provided by the French Civil Code of 1804. As Weber explains (1978:865), this was the first code to be "completely free from the intrusion of, and intermixture with, nonjuristic elements and all didactic, as well as merely ethical admonitions; casuistry, too, is completely absent." The new type of code "possesses, or at least gives the impression of possessing, an extraordinary measure of lucidity as well as a precise intelligibility in its provisions." These and other char-

acteristics of the French Civil Code were "expressions of a particular kind of rationalism," a "particular method of framing abstract legal propositions," which would be imitated not only elsewhere in Europe but in nation-states born across the Middle East. With the exception of what was to become Turkey, where the shari'a as a whole was summarily abolished in 1926 to be replaced by Swiss law, Western models would be synthesized in various ways with newly formalized shari'a materials.^[15] It was with the Majalla that this reworking on the shari'a side of the equation began.

The immediately perceived shortcomings of the Majalla were several, all resulting from its inclusion of unreconstructed shari'a contents. Critics pressed for more rational codification: its general principles were deemed too few and insufficiently general, and the casuistic approach of the manuals had not been eliminated. It was also considered deficient in its character as a code, since "it was not a complete and exclusive statement of the law as it existed at the time of codification, but rather a nonexclusive digest of existing rules of Islamic law."^[16] It was, in short, more of a modernized manual than a fully realized code. Despite explicit recognitions of the contemporary forces of economic change by its drafters,^[17] the political economy of the Majalla was also not modern enough. Like the shari'a, it seemed not to accept the crucial Western legal notion of "freedom of contract";^[18] there was a retention of moral principles rather than a guarantee of free rein for economic action.

Colonial Shari'a

They mingled up religious, civil and merely moral ordinances, without any regard to differences in their essential character; and this is consistent with all we know of early thought from other sources, the severence of law from morality, and of religion from law, belonging very distinctly to the later stages of mental progress.
Sir Henry Maine  (1861)

In colonial-period reappraisals of the status of the shari'a by scholars, officials, and some Muslim reformers, the particular "rationalism" of the West, including an understanding of the nature of law and its appropriate textual forms, was elevated to the standard for comparison. One aspect of this thought, exemplified by the quotation from Maine, was an evolutionism and a teleology that identified the discursive separations particular to bourgeois societies of the era as the logical end points of normal legal development. Another involved reciprocal

negative estimations—as primitive, backward, or traditional—of non-Western discursive formations that did not exhibit such features. As the shari'a was reconceived as a foil for "modern" law, ideas concerning the superiority of Western forms legitimated a variety of colonial-period and early nationalist policies. The same positivism that contributed so fundamentally to the creation of modern Western codes led to significant misunderstandings when serving as the lens for students of "Islamic law."

This type of colonial-period thought was supplemented, however, by a more plural register in which the local importance and regional variations of the shari'a were recognized. While the simple antonymic, point-by-point opposition between the shari'a and Western law was a perspective characteristic of mainstream Orientalist fare designed primarily for home consumption, it coexisted with a specialist literature in which scholars debated scientific issues and addressed the practical problems of colonial administration. While the former was generalizing and essentializing, concerned with "common denominator" Muslims and broad civilizational comparisons that reinforced the uniqueness and the cultural hegemony of the West, the latter was more apt to be contextually sensitive and pragmatic about differences and similarities.

Late in the colonial period, the British chief magistrate in Aden (Yemen) began an article on Islamic family law with a reference to al-Nawawi's Minhaj : "A legal handbook, without modification over seven centuries, still regulates much of the domestic life of the people of Aden" (Knox-Mawer 1956:511). Among the colonial-era conceptions that contributed to decentering and bracketing the discursive authority of the shari'a was that it was "immutable." This was in contrast to Western law, which, it was assumed, "responds . . . to the ever changing patterns of social and economic life."^[19] The thesis of doctrinal immutability also spawned related understandings, chief among them that the underlying system of instruction was "inflexible."^[20] The attribution of an ossified character to Islamic law fit general Western conceptions of non-Western societies as either dormant (simple societies) or stagnant (traditional civilizations) until the enlivening moment of Western contact or colonization. As a consequence, patterns of discursive vitality different from those known in the West would remain unacknowledged.

Following, in part, from the immutability thesis was the conclusion that the shari'a was largely irrelevant. Law that did not adapt to changing societal circumstances must be increasingly out of touch. In addition, there was an attitude exemplified by Maine's opinion of

Hindu law, which he considered an "ideal picture of that which, in the view of the Brahmins, ought to be the law."^[21] This he contrasted with Roman law, ancestor of the continental systems, which he described as "an enunciation in words of the existing customs of the Roman people." Classification as a "jurists' law" further suggested that the shari'a was largely hypothetical rather than reality oriented, emphasizing, as Weber put it (1978:789), the "uninhibited intellectualism of scholars" rather than the dictates of practice. With manual texts open before them, Western observers could put societies to the test: the lack of fit between rules and practices would be judged as deficiences, either in the legal texts or in the societies in question.

In a double-edged comment, C. Snouck Hurgronje (1857–1936) wrote that Muslims "exhibited an indifference to the sacred law in all its fullness quite equal to the reverence with which they regard it in theory" (1957:290).^[22] "Indifference" points to nonapplication and noncompliance. Joseph Schacht (1964: 199, 209) would later argue that the "perpetual problem" of Islamic law was the "contrast between theory and practice." Hurgronje's qualifier, "in all its fullness," reveals the yardstick of a textual purist, for whom doctrine and reality are, or ought to be, perfectly matched. In a similar formulation, J.N.D. Anderson (1959:20) states that the shari'a was "never applied in its purity and entirety throughout every sphere of life" (emphasis added). Seizing exclusively upon the inevitable gaps between texts and practices, observers drew general conclusions about the social importance of the shari'a. Little attention has been given, by contrast, to the obeyed dimensions of the shari'a, or to the extent to which its categories and concerns have influenced behaviors.

The second part of Hurgronje's statement speaks of "reverence . . . in theory." Although the sentiment might appear futile, especially in the case of a purely ideal law, the comment does identify a potent authority adhering in the shari'a. Hurgronje elsewhere remarked upon the puzzling "zeal which thousands of scholars show in studying a law of which only some isolated chapters have retained practical importance" (1957 [1898]:266). Had a context-specific measure of relevance been applied, indications of "reverence" and "zeal" might have been more comprehensible. Had the degree of "practical importance" of the shari'a been considered historically variable, the colonial context in which Hurgronje wrote might have become a relevant issue. Then the question would be this: Is the described combination of nonobservance and reverence characteristic of Muslim societies in all times and places or

should it instead be understood in terms of the dislocations and attachments common to situations of colonial domination? Was a problematic specific to the colonial period being read as the timeless nature of the shari'a in Muslim societies?

Another new conception, as significant as it was seemingly simple and unobjectionable, was the labeling of the shari'a as a "religious" or "sacred" law.^[23] The counterpoint was "secular" law, and two types of circumstance were modeled: the historical superseding of the traditional (religious) by the modern (secular) and the coexistence of the specialized communitarian (religious) with the generalized public (secular). Designation as a "religious" law relocated the shari'a in a Western-conceived past and future. As a newly specialized and restricted domain of the religious began to be imagined, attempts were made to refashion and reposition parts of the shari'a as its template.

Shari'a materials came to be understood as divisible in a manner that went far beyond the old categories of the 'ibadat (ritual obligations) and mu'amalat (transactions). Thus the Majalla report opened by narrowing its focus to the "temporal" (amr al-dunya ) content of the jurisprudence. In 1926 Dr. 'Abd al-Razzaq al-Sanhuri, the Egyptian jurist who would become the leading drafter of civil codes for new Arab states, wrote that the "point of departure" for this activity must be "a separation of the religious from the temporal portion of Islamic law."^[24] While Western scholars acknowledged the comprehensiveness of the shari'a (e.g., as "the whole duty of mankind," as "the totality of Allah's commands that regulate the life of every Muslim in all its aspects," etc.),^[25] in practice they restricted coverage to its "legal" aspects. Since the shari'a includes "an enormous amount of material that we in the West would not regard as law at all,"^[26] an editing approach was adopted to separate out the "law" from the shari'a. In the influential introduction by Schacht, the systematic sections concern only "those subjects-matters which are legal in the narrow meaning of the term."^[27]

A further conception was that, its ritual sections aside, the shari'a had an identifiable "core" or "heart,"^[28] located in family, marriage, and inheritance law, in what the French referred to as statut personnel . The main support for this view was that these matters were comparatively fully dealt with in the Quran itself. It has been argued that the spheres of ritual and family law were characterized by a uniquely close fit of shari'a theory and practice and that they alone were relatively immune from Western legal "penetrability."^[29] A corollary held that the shari'a was purely ideal, deficient or silent in virtually all other key

areas of modern legal-legislative life, especially in criminal, constitutional, and commercial law. This legitimated the suppression of large areas of the shari'a while opening new spaces for secular "law," for the "imposition" (Burman and Harrel-Bond 1979) or, more passively put, the "reception" of Western-inspired legal forms. Criminal law was an early focus of Western indignation and intervention. The Dutch, for example, found it necessary to issue a new penal code for their Indian Archipelago colonies, because, as the translator of al-Nawawi and Abu Shuja' put it, it was "clear that no civilized nation can push its respect for indigenous institutions to the extent of sanctioning the application of barbarian punishments, long practiced by virtually all oriental peoples" (Van Den Berg 1882:v; cf. Foucault 1977). Governmental forms were similarly suppressed or incorporated in a variety of colony, protectorate, and mandate formulas while property regimes and commercial regulations were adapted or replaced to fit the requirements of colonial economies.

An implicit contrast was made with the "heart" of Western law, located in forms associated with the market. Prominent in the fiqh, however, are such legal constructs as individually disposable property, a contract of alienation, complex notions of money and capital, and partible inheritance. With particular reference to the commercial sphere, where the shari'a was previously considered a dead letter, Udovitch (1970) has demonstrated the extent to which manual doctrine deeply informed and was informed by practice in premodern times. Descriptions of the shari'a as being viable only with respect to its ritual and statut personnel sections diverted attention from the existence of deeper and broader family resemblances to Western law.^[30]

In the more pragmatic register, colonial administrators in Algeria, to give one specific illustration, recognized that milk , the key shari'a category of individually held property, was both extremely important in the local land regime and very similar to the Western notion of private property. With the different agenda of land appropriation in mind, it was written: "Private property existed and was perpetuated in Algeria on the same basis as among us: it is acquired, transmitted, and held and is recognized by long possession, Moslem testimonials, and regular titles; the laws protect it and the courts assist it."^[31]

A last colonial-era conception concerns the mode of thought in shari'a texts. Three-quarters of a century prior to the already cited remarks of the Ottoman drafting committees, British officials in India discovered in Hanafi manuals "a system copious without precision,

indecisive as a criterion (because each author differed from or contradicted another), and too voluminous for the attainment of ordinary study."^[32] For Anderson, a twentieth-century scholar, the old jurisprudence was simply a "hotchpotch."^[33] Unlike modern forms of rationality that emphasized abstract analytical thought, shari'a texts exhibited a concrete or, in Weber's terms, "substantive" rationality. In contrast to the Western drive toward the elaboration of concepts and laws, principles in shari'a manuals tended to be developed indirectly, through particular examples. The result, according to Schacht (1964:205), was a "literary form" in which "the underlying rule is implied by the juxtaposition of parallel and particularly of contrasting cases." Given the theoretical and political exigencies of both code drafting and Orientalist scholarship, such discursive differences would not be neutrally assessed.

Summarizing the distinctive features of Islamic legal thought Schacht (1964:5), following Weber, focuses on the "casuistical method," "which is closely connected with the structure of its legal concepts, and both are the outcome of an analogical, as opposed to an analytical, way of thinking." Maine (1972 [1861]:11) wrote that "analogy, the most valuable of instruments in the maturity of jurisprudence, is the most dangerous of snares in its infancy." Analogy was especially "dangerous" in league with casuistry. As Weber noted, the elimination of casuistry was a positive accomplishment of the French Civil Code. For Westerners, this method of "case" reasoning, in which general moral or ethical principles are adapted to particular circumstances by means of analogic extension, had become a despised mode of thought.^[34] In the shari'a, high-level constructs, such as the all-inclusive evaluative scale known as the "five qualifications" (obligatory, recommended, indifferent, reprehensible, forbidden), developed not so much through the analytic refinement of concepts as through the casuistic specification of applicable phenomena.^[35]

Through a feedback pattern such conceptions about the shari'a circulated among indigenous elites and early nationalists. European-model schools existed across the region by the late nineteenth century, Middle Easterners were traveling and studying in Europe, and Western scholarship on Muslim society was available in translation.^[36] In addition to the already cited views of the Majalla committee and Dr. Sanhuri in Egypt, a particularly dramatic example of the interregional circulation of such ideas is the resounding criticism of the shari'a issued by the modernizing framers of the Turkish Civil Code of 1926. The

shari'a, represented at this juncture by the Majalla , had just been abolished and was being replaced by an adaptation of the Swiss code. These postmortem remarks focused on the link of the Majalla (shari'a) with "religion" and with what was understood as a "primitive" evolutionary-developmental stage of society. The memorandum attached to the new code explained that, of the 1,851 articles contained in the Majalla , "barely 300 articles satisfy modern needs."

The rest is nothing but a mass of legal rules which are so primitive that they have no relationship to the needs of our country and are inapplicable. The principles of the Majalla are based on religion, whereas human life undergoes fundamental changes every day, even every minute. . . . States whose law is based on religion become incapable after a short time to satisfy the needs of the country and the nation, because religions express immutable rules. Life, however, marches on and requires rapid changes. As life changes constantly, the religious laws become nothing but empty words without meaning and formalities without value. Immutability is a dogmatic necessity for religion. . . .

The laws inspired by religion fetter the nations in which they are applied to the primitive periods when these laws were first born and they constitute insuperable barriers to progress. . . .

The modern state is distinguished from primitive societies by the fact that there are codified rules applicable to the relationships within the community. During the period of semicivilization, in a nomadic society, the laws are not codified. . . .

It was important therefore that justice in the Turkish Republic emerged from this chaos, this confusion, and the primitive state and adapted itself to the needs of the revolution and of modern civilization through the urgent adoption of a new civil code. This is why the Turkish Civil Code has borrowed the Swiss Civil Code. . . .

There are no essential differences among the needs of the nations which belong to the family of modern civilized societies. The constant economic and social relations have actually made one family out of civilized humanity.^[37]

Instructive at the outset, the Turkish case is uniquely extreme in its final resolution concerning the shari'a.^[38] Representing a full acceptance of the Western ethos of modernization and an associated desire for world-system assimilation, the memorandum expresses an uncompromising rejection of the shari'a (in the guise of the Majalla ), which has become a stigmatizing symbol of backwardness.

Where Muslim populations were under direct Western rule, local

versions of the shari'a changed in several characteristic directions. Protracted colonial articulations of the shari'a with Western law resulted in the emergence of wholly new legal syntheses. In Algeria and Tunisia, colonial French jurists worked out fusions of elements of the shari'a with aspects of the Roman-law-influenced continental legal tradition, while in British India, a composite of the shari'a and English law known as Anglo-Muhammadan law appeared. Another type of change, especially in shorter or partial colonial situations, concerned the relation of shari'a to local custom. From the point of view of the colonizers, custom had to be either standardized or abolished altogether in favor of a unified legal system. Although the shari'a was considered disorderly relative to Western law, when compared with "custom" it appeared orderly. As a consequence, the interests of colonizers and local elites in seeking to suppress custom and extend the sphere of shari'a application frequently coincided.

In highland Yemen, in the absence of colonial rule, imams and town-based scholars had long felt an imperative to spread the shari'a system (instruction, courts, and the state itself) to remote "tribal" districts where ignorance of Islam and pagan custom (taghut ) were thought to prevail (cf. Dresch 1989). In precolonial Morocco, application of the shari'a had been confined mainly to the large towns and their immediate hinterlands while custom held sway in the countryside. After the establishment of the French Protectorate in 1912, the sphere of shari'a court jurisdiction expanded dramatically as the colonial state took control of rural districts (cf. Messick 1989:42). In the circa 1900 British Protectorate over the Fulani Sultanate of Northern Nigeria, where the shari'a was already predominant, colonial officials promoted a still purer application. According to Schacht, administrators there were "inclined to prefer a formal and explicit doctrine, such as is provided by Islamic law, to changeable and badly defined customs."^[39] In the Yemeni sultanates known collectively as the Aden Protectorate, the British were instrumental in the institutionalization of formal shari'a courts and in the consequent decline of customary law. "Shari'a law appears in South Arabia largely as the tool of the centralized government, whether indigenous or foreign," Anderson writes (1970 [1955]:11). For the "Protecting Power," he continues, "there is . . . a natural tendency to champion the shari'a, for it is 'tidier' than the vagaries of local custom from the administrative point of view and provides better political propaganda." Promotion of the shari'a en-

abled the British to "pose as in some degree the champion of Islam, in partial imitation of the Governments of the Yemen and of Saudi Arabia" (1970:12n).

Translation

British judges in Aden and elsewhere consulted al-Nawawi in E. C. Howard's 1914 English translation of Van Den Berg's earlier rendering in French. Translation, an extremely important part of the general Orientalist project, also had its more pragmatic dimensions. Van Den Berg states in a preface to one of his translations:

From year to year European control over Moslem populations is extending, so that it is unnecessary to insist on the importance of rendering the two works that form the basis of the legal literature of the School of Shafi'i accessible, not only to a small number of Arabic scholars, but also to magistrates and political agents.^[40]

Translations produced under the auspices of colonial administrations were informed by reigning philological methods and understandings about the nature of texts. An initial task was to sift and select among extant manuscripts to identify, or reconstruct, a sound original text. A recognized contribution of many such translations was to publish and, in a new sense, to create an authoritative Arabic text. Together with the possible variant readings, the additions, omissions, and alternative formulations found in other manuscripts would be relegated to footnotes.^[41] However enigmatic or convoluted the original texts appeared to Westerners in argument and style, in translation they could be made to reveal bodies of discrete and objective meanings. Despite the apparent cacophony of its texts, the shari'a could be shown to be "saying something." The resultant raw materials of positive knowledge contributed to the construction of more general notions about the essential nature of Muslim civilization.

In successive translations of the Minhaj and of Abu Shuja"s Mukhtasar there was a sense of an advancing positive science. Early and partial translations of Abu Shuja"s manual into Latin and Malay were described by Bousquet, a twentieth-century scholar and translator, as "absolutely barbaric," and the 1859 French translation by Keyzer [Keijzer] was deemed "of very little value."^[42] In 1894 Van Den Berg, who had earlier translated al-Nawawi, published his French rendering of the Abu Shuja' text, embedded in the al-Ghazzi commentary. Looking back at his predecessor's effort, Van Den Berg notes, "It must not be forgotten that in the thirty-five years which have passed since the

publication of the book by Keyzer, science has not stayed stationary and that I have had available to me more powerful means of interpretation than he."^[43]

Although, in the estimation of Bousquet, Van Den Berg's effort represented considerable "progress" over that of Keyzer, there remained weaknesses to be rectified. The translation was still of "insufficient rigor." Like Keyzer before him, Van Den Berg had responded to the extreme concision of the text with a "tendency for paraphrase." Bousquet, by contrast, would "proceed systematically in the reverse direction," placing "in parentheses the words and the ideas indispensable for completing the Arabic phrase so as to render it intelligible in French." Bousquet found loose and variable translations of terminology in the earlier translators particularly unsatisfactory. Keyzer's work reminded him of that by Perron of Khalil (the principal Maliki manual), "where the same technical term is rendered by diverse expressions in French," while in the translation of al-Nawawi Van Den Berg had been "satisfied with a vagueness that was the most absolute, the most inexact, and the most exasperating concerning the translation of terms for legal categories." In his own translation, Bousquet adopted a "rigorous terminology," which, he explained, involved "systematically rendering technical expressions by a single term."^[44]

As Van Den Berg saw it, his problems in translating al-Nawawi had begun with the "succinct" expression of the original: "Anyone who has studied the Arabic text of a book of jurisprudence and particularly one of the concise style of Minhaj al-Talibin will understand the difficulty of explicating all the subtleties, all the double meanings and all the ellipses." A further problem was understood to concern the Arabic language itself: "The construction of phrases in the Semitic languages," he wrote, "is poorly suited for philosophical reasoning," and, as a consequence, the translation of a work such as the Minhaj "presents more difficulties than the translation of a code written in a European language." In addition to its crude linguistic ethnocentrism, this is a view that seems to have forgotten the crucial historical role played by Arabic translations and other treatises in preserving and elaborating upon the Greek philosophy so cherished in Western intellectual culture (see Peters 1968).

Van Den Berg mobilized a variety of techniques to tame this unruly text and render it cognizable: in addition to a standard table of contents, a conventional subject index, and an apparatus of clarifying footnotes, he provides a glossary index of key Arabic terms and full

cross-references, via special footnotes and summary tables, to the relevant articles of the several French codes (Civil, General Procedure, Criminal Procedure, Penal). In addition to these ordering devices, when a series of points occurs in the Arabic, it is set off in the French text in a numbered outline format. In the margins throughout the translation there are topic headings in small print as guides to the subject matter. In a manner parallel to the efforts of Ottoman and later code drafters, Van Den Berg endeavored to make his work of translation accessible, orderly, and relevant to international legal concerns.

Republican Texts

In 1975, a commission of shari'a jurists, composed of men who had trained either on the Shafi'i manuals of al-Nawawi and Abu Shuja' or on the Al-Azhar text of the Zaidi school, was created to participate in the drafting work connected with taqnin , the legislative restatement of shari'a materials in the Yemen Arab Republic.^[45] Under Ministry of Justice auspices, this activity was defined as the "legislation of Islamic shari'a principles in the form (shakl ) of modern codified laws appropriate to the spirit of the age and its requirements."^[46] The republic had known no impositions or receptions of Western code law, and its legislative efforts were being initiated in a postcolonial era of questionings of Western values and reassertions of indigenous ones. The Muslim world climate was one of emergent fundamentalist movements and efforts to reintroduce the shari'a. As a guiding principle, the 1970 Permanent Constitution identified the shari'a as "the source of all laws" (Art. 3).^[47]

Two varieties of legislation have been produced, one of which is explicitly shari'a based. The initial fruits of the jurist commission's work appeared in the fourth volume of republican legislation, covering laws enacted from 1976 through the first six months of 1977. In his introduction, the Director of the Legal Office observed that it "comprises legislation of tolerant Islamic shari'a principles, a harbinger of learned efforts in which our honored scholars ('ulama' ) can take just pride."^[48] What the volume contains, however, is mainly legislation produced by "government economists and commercial experts" together with administrative regulations divided according to their ministries of origin. In each of the shari'a-based laws, credit is given to the scholarly commission for a draft version presented to the Ministry of Justice. The commission's efforts have been associated with the expected substantive area of statut personnel —inheritance, legacies, gifts, endowments, and

marriage^[49] —and also with such major pieces of general legislation as the Code of Procedure (1976) and the Civil Code (1979).^[50]

This last has a double title, "Civil Code" (al-qanun al-madani ) and "Shari'a Transactions" (al-mu'amalat al-shar'iyya ), invoking both the Western model of civil legislation and the fiqh model of the mu'amalat . Like the Ottoman Majalla (and unlike the Civil Code of the Turkish Republic), this legislation is explicitly shari'a-derived. The first article refers to the law as "taken from (ma'khudh min ) Islamic shari'a principles." The old notion of the asl , "source," is reemployed here, as it is in the Constitution, to identify the new position of the shari'a. Whereas shari'a jurisprudence once drew on "sources," it now has become the "source" drawn upon. In the old tree metaphor, shari'a principles have become the "roots" and legislated laws are the new furu' , the "branches." The method involved, however, is not that of the usul al-fiqh , but rather procedures standard to legislative enactment, as adapted to the Yemeni setting.

The new source-authority of the old jurisprudence is both particular and general. Fiqh is the derivational source for the specific rules contained in the legislation and also the background or reference source for matters not explicitly covered or requiring interpretation. In addition to the "taken from" language, the derivational authority is expressed in Article 13: "Regarding the transactions, their types and particulars, the source is what the shari'a has established." Background authority is stated in Article 1: "If a specific text (nass ) is not found in this law it is possible to proceed by means of reference to the principles of the Islamic shari'a from which this law is taken." Article 20 specifies that "the authoritative reference for the explication (tafsir ) of the texts (nusus ) of shari'a legislation and their application is Islamic jurisprudence (fiqh )." As it carefully specifies the influential role of the shari'a as both source and surround, the newly established hierarchy of legal principle nevertheless places "this legislative enactment (hadha al-qanun )," the newly derived "law" itself, in the foreground. Writing in English, the director of the Legal Office restates Article 1 to identify the four "sources of Yemeni law" (sources—now in the Western sense). These are law (legislation), principles of shari'a, custom (not contradictory to the shari'a), and principles of justice (in agreement with the shari'a).^[51]

Such legislative texts have cleared a new legal space, a privileged enclosure of fixed and orderly rules. Simultaneously, they have relocated the old jurisprudence as an authoritative but distanced backdrop. As in codes enacted elsewhere, the open argument that once

characterized the fiqh is curtailed here: according to Article 2, change by legislative amendment is envisioned, but interpretive modification by individual "scholars of religion and carriers of the shari'a" ('ulama' al-din wa hamalat al-shari'a ) is restricted. In its new status as a source, shari'a jurisprudence is ideally treated by drafters as a "whole corpus," in an attempt to hold divisive madhhab concerns at bay.^[52] In accord with the "spirit of the age," there is no explicit critique of the shari'a as too vast, disorderly, or inadequate, but many of the issues explicitly motivating earlier legislators elsewhere are implicit assumptions here as well. The new space of law is also explicitly theoretical in construction: the section heading concerning "the contract in general," for example, further identifies itself as being concerned with the "theory of contract" (nazariyyat al-'aqd ).^[53]

In addressing persons as either natural or legal (i'tibari ), the code moves away from the pronounced individual basis of the fiqh to a more complex recognition of abstract entities ranging from the state and cities to official organizations, commercial companies, cooperatives, and corporations.^[54] This integration into the legal requirements of the world market system is reinforced by numerous specific laws developed by the Ministry of the Economy, ranging from the new Commercial Code (1976)^[55] to specific legislation concerning such matters as trademarks.^[56] These laws have been buttressed by the creation of commercial courts in the three largest cities.^[57] Representing the first official alternative to the formerly exclusive shari'a court jurisdiction, the commercial courts are the beginning of a civil court system.

Every piece of legislation opens with the phrase "After perusal of the Permanent Constitution."^[58] As a "constitution," dustur in Arabic, this new foundational text partakes of a worldwide and also a specifically Arab-world formula for the authoritative creation of a nation-state polity. Chapter 1 begins, "Yemen is an Arab Islamic state." The preceding Preamble opens, "We the Yemenis are an Arab and Muslim people." The document as a whole is headed by five short passages from the Quran. The first of these, "We set thee on a clear road . . ." (45:18), refers to a shari'a (in contrast to the shari'a), invoking the word's general meaning as a "way," "path," or "road." The second (45:20) refers to the original authoritative text, the Quran itself: "This is a clear indication for mankind, and a guidance and a mercy for a folk whose faith is sure." Taking a position developed earlier by some reformers and many fundamentalists and by Yemeni nationalists, religion is conceived of as a dynamic force. In striking contrast to rejections of religion as an

immutable block to progressive change, exemplified by the quoted Turkish view from the 1920s, according to the Yemeni Constitution, "Islam, with its instructions, magnanimity, and breadth, is synonymous with development, marches with the times, and does not stand as an obstacle in the path of progress in life."^[59]

Three additional opening Quranic verses (3:159, 42:38, 27:32)^[60] invoke the idea of consultation, which figures centrally in the conception of the Yemeni state, viz., Article 1: "It is a consultative, parliamentary republic." As was, and is, true among Muslim reformers generally, shura (consultation) "represents an indigenous principle of representative or constitutional government in Islam."^[61] The legislative body of the Y.A.R. was known as the majlis al-shura , Consultative Assembly.^[62] Beyond the theoretical design of the state, however, consultation also characterizes the events of a formative moment in Yemeni history, one equivalent in national significance to the deliberations of the Founding Fathers over the Constitution of the United States. The Permanent Constitution was promulgated on December 28, 1970, but before this date an interval occurred during which a draft version was submitted to "all sectors" of the populace for consideration. This is described in the Preamble:

Three months have elapsed since the publication of the draft constitution on the evening of September 26, 1970, and since then meetings of the various sectors have been held in the capital, towns, and villages in which the constitution was openly debated and opinions and views exchanged about it. The Republican Council has received letters and telegrams on the constitution, has held meetings with Shari'a scholars, the Ulama, Shaykhs, wise and cultured men; it has listened to their views and entered into useful debates with them.

This national discussion, the Preamble concludes, "explicitly proves the Nation's determination to follow the democratic, consultative path by both word and action." A novel sort of popular authority is thus provided for the nation's constitutive document.

This new discourse of nation and people grafts shari'a constructs upon Western legislative and constitutional forms. The singular authorship of the old fiqh texts is replaced by the plural legislative voice; the authoritative manual opinion, by the authoritative code article. Where opinions entered a contentious arena of ongoing argument, the legislated text becomes effective as law from its "date of publication" in the Official Gazette. In Yemen, it has appeared possible, as the Preamble to the Constitution says, to "preserve . . . character, customs,

and heritage" while adapting to the standards of the community of "interlocked" nations. In the absence of a colonial rupture with the past, change has seemed to involve critiques of the old regime and systematic installations of new institutions made possible by the Revolution.