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BABER JOHANSEN, Contingency in a Sacred Law: Legal andEthical Norms in the Muslim Fiqh, Studies in Islamic Law and Society (Leiden, Boston,Cologne: E. J. Brill, 1999). Pp. 535.

Published online by Cambridge University Press:  28 April 2003

Abstract

Baber Johansen is perhaps the most original scholar currently working in the field of classicalIslamic—predominantly Hanafi—law. It is useful therefore to have fifteen of hisarticles, not all of which were easily accessible, collected in a single volume, together with a newIntroduction. The themes that emerge in the Introduction serve to highlight some of the leitmotifsthat occur in the articles that follow. In it, he sketches the development of fiqh as adiscrete branch of Islamic learning and outlines some of the characteristic Western approaches toits study. The theme of fiqh as a development independent of theology and formalethical literature is one that occurs in several of the articles that follow. In “Diesündige gesunde Amme,” Johansen discusses in detail how the systematicreasoning of the jurists and the principle of judging according to only external appearances oftenled to a sharp distinction between religious ethics and legal rulings. This distinction is also thesubject of “Le jugement comme preuve: preuve juridique et verité religieusedans le droit islamique hanéfite.” Here, he shows how in Hanafi law onlywhat is externally apparent is acceptable as evidence, and how legal proof depends on a formalprocedure that recognizes a fixed hierarchy in the different forms of testimony. A consequence ofthis procedural formalism was that judgments could be unjust but nevertheless valid in law. Theinjustices that this distinction between legal and ethical norms could on occasion produce wassomething that the fuqaha¯ acknowledged. However, although a judgment couldnot be reversed, the aggrieved party could bring a new case with new evidence if a court'sdecision appeared unjust.

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Type
Book Review
Copyright
© 2001 Cambridge University Press

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