By mixing conceptual clarification and semantic probes, we seek to underscore the problematic nature of characterizing law as a universal concept. We intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. First, we examine works dealing with “legal pluralism” and “legalism” to identify the reasons why the term “law,” its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a “legalistic way of thinking” about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with “Islamic law” and law in Muslim contexts to try to see what law can be at the margin but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar.

If one accepts that there is a remarkable continuity in the human propensity to formalize and categorize the world, it is necessary at the same time to note the no less obvious differences in the methods of conceiving and implementing this process of efficacious formalization, but also in the finalities associated with it. In this respect one could speak of legal revolutions just as one speaks of scientific revolutions. The idea of legal revolution suggests two things: one, substantial, is that there have been break points in how the world has been categorized in the legal sense; the other, of a more methodological nature, is that it would no doubt be useful to make good use, in the history of law, of what the philosophy and history of science and technology have continued to accumulate over several decades.

Concentrating on the concept of law and its “glocal” translations, this book advocates a praxeological sociohistorical jurisprudence. It seeks to bypass at least two dichotomies opposing, on the one hand, lawyers’ law in books and anthropologists’ law in action, and, on the other, positivist and realist sociolegal theories. From such a perspective, law is a concept whose historical and practical ontology can be studied through the positivization process that transformed it into a major social engineering tool. The book is a contribution to the praxeological sociohistorical study of positive law, in both its global and its local dimensions. It approaches the subject from the viewpoint of Muslim societies. In other words, it addresses the phenomenon of positive law from the perspective of societies in which Islamic norms had an all-pervading though diverse influence. It shows both how positive law “glocalized” in societies characterized as Muslim and how, by the same token, Islamic norms became positivized.

Legal transformations in Egypt reflected the impact, through circuitous channels, of both civil law and modern scientific ways of thinking. What Egypt was undergoing in the legal domain can best be characterized by what we call the “positivization” of law and science. This holds true for the sciences of the mind and, consequently, forensic psychiatry. The very science of psychiatry, and its corollary pathologies and the kinds of patient concerned, was invented in the nineteenth century, when the mind was transformed into an object of knowledge. Egypt participated in the movement that saw the invention of psychiatry and therefore created psychiatric hospitals, specialized personnel, specific vocabulary, and scientifically relevant categories into which people suffering from “mental illness” could be placed. This dynamic had an impact on law and justice. This chapter partly follows this transformation of the understanding of the mind through the words and concepts used by Egyptian courts, from the late nineteenth to the mid-twentieth century, to characterize mental states and to attach legal consequences to them.

Our aim is to develop a sociohistorical jurisprudence of “law properly so called,” which involves a threefold analysis: conceptual, historical, and praxeological. Following the ground broken by analytical philosopher Ludwig Wittgenstein, conceptual analysis requires the exposition of the grammar through which concepts acquire their meaning and are meaningfully used. In a manner inspired by philosopher of science Ian Hacking and historian Reinhart Koselleck, historical analysis focuses on the description of the birth, development, and use of concepts. Drawing on the work of sociologist Harold Garfinkel, praxeological analysis describes the practical methods used by people to make sense of their environment, to produce their local order, and to act accordingly. The three approaches converge in their insistence on adopting an endogenous/indigenous perspective toward social life and its production.

This chapter deals with the relationship of the particular to the general in the practice of law in three stages. It begins by examining the conception of the rule and its general and abstract character in the doctrine and theory of law. It then “re-specifies” the question from a praxeological viewpoint; that is to say it deals with it from the point of view of practitioners and users of law. Finally, it addresses the issue of Islam in French public and legal life, through the so-called “burkini affaire” and the resulting judgment of the Council of State (Conseil d’État), which gives us the opportunity to examine how the question of the general and particular dimensions of the legal rule applies in context, contingently, at three levels: that of “public opinion,” which is polarized around the question of the degree of particularism admissible in public life; that of the regulatory authority, which establishes a rule starting from a particular case; and that of the judging authority, which decides a particular case on the basis of general rules.

In this chapter, we are interested in the mechanisms through which some customs are “incorporated” into legal systems. In order to make our demonstration, we start by clearing up some of the conceptual confusion surrounding the use of terms related to the notion of custom, by exploring some of the jurisprudential literature that addresses the distinctions among custom, customary law, and the customary sources of law. Turning to the Islamic world and normativity, we also conduct a very broad review of studies addressing the question of ‘urf. Taking the specific case of Morocco, we then concentrate on the colonial period, colonial interest in customary law, and the rejection of such law in the nationalist discourse and in the first decades following independence. Finally, again in Morocco, we focus on the specific case of al-kadd wa’l-si‘âya, which offers a striking example of the transformation of a local custom into a positive legal provision. In conclusion, we suggest some analytical caution regarding the concept of legal hybridity in order to better ascertain the historically contingent character of positive law.

In this chapter we describe the methods judges use to fill what is often called “the silences of the law,” that is, gaps in legislation, in the domain of family law in three countries: Morocco, Egypt, and Indonesia. More specifically, we explore the role and place of uncodified fiqh in contemporary legislation and adjudication in the field of personal status law. We proceed in four steps. First, we address the institutional and legal transformations affecting law, especially family law, in Morocco, Egypt, and Indonesia, focusing on what may be termed a legal revolution that made it possible to speak of law in terms of codes and to classify fiqh as a subsidiary source when legislation is silent. Second, we turn to the specific domain of family law, briefly discussing statute law, case law, and legal practice in each of the three countries. Third, on the basis of marriage authentication cases (ithbât al-zawâj, ithbât al-nikâh), we examine how, practically speaking, judges seek a solution in the body of fiqh. Finally, we develop an argument about the nature of judicial work in the management of “references to Islam” within the framework of positive, codified, and standardized law.

Legal praxeology is the perspective that claims to consider the law through the practices that take the same law as their point of reference. It occupies the space that exists between formalism and sociologism. Legal praxeology is the approach that takes law seriously in all its formal and sociological depth. This means that it considers absurd the pretention of dealing with law while ignoring what its practitioners take as essential to their activities, that is, the rules; but it finds it equally indispensable to deal with these rules and the activities that refer to them through their modes of accomplishment. Legal praxeology does not aspire to theorizing, if the latter is understood as the search for abstract generalization in which to subsume the infinite variety of cases. Particular cases are studied ethnographically in order to elicit the mechanisms that are specific to how they unfold, including what is linked to the law as followed by both its professional and lay practitioners. Legal praxeology’s descriptive attention is concerned with the methods proper to the people concerned. One could speak of an interest in “legal ethnomethods.”

We want to describe how judges play by, and with, legal rules. It appears that, on the one hand, even in cases in which the legal basis is thin or absent, judges seek rules on which to base their decisions. In that sense, judges are positivist legal practitioners who need legal rules to perform their professional duties. On the other hand, however, moral considerations seem to deeply influence the same judges’ legal cognition. We aim to show how this unfolds in the concrete settings of four countries – Indonesia, Lebanon, Egypt, and Senegal – in cases relating to male homosexuality. First, we outline the legal and judicial frameworks of the four countries being studied. Second, we concentrate on cases in these countries related to homosexuality. On the basis of these court cases, third, we analyze the reference to rules as the core of the life of law, although in a qualified manner. Finally, we draw together the main lines of the debate regarding rules, their indeterminacy and their interpretation, stressing the usefulness of a praxeological treatment centered on reasoning, justification, and decision-making practices to better understand the ways in which law lives through rules.

Three periods of constitutionalism can be identified: long-nineteenth-century reformist constitutionalism; independence-consolidating constitutionalism; and post-1990s liberalizing constitutionalism. All three periods correspond to dynamics that unfolded all over the world, but they also manifest specific characteristics that cannot be explained without paying close attention to events in, and the peculiarities of, Moroccan political, social, and economic life. Moroccan constitutionalism can thus be properly described in terms of a combination of global determinism and local contingencies. To make such a description, we mainly concentrate on the ways in which the drafters identify the different powers, their separation, and their balance. Only in this framework of constitutional checks and balances can we eventually address the place of Islam in these different texts. Indeed, it is our contention that the issue of Islam in constitutions cannot be dissociated from the general concept and organization of the state, from close attention to the state’s constitutive powers and their position in relation to each other or from the degree of religious legitimacy of the head of state.