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.

Abstract

Baber Johansen is perhaps the most original scholar currently working in the field of classical Islamic—predominantly Hanafi—law. It is useful therefore to have fifteen of his articles, not all of which were easily accessible, collected in a single volume, together with a new Introduction. The themes that emerge in the Introduction serve to highlight some of the leitmotifs that occur in the articles that follow. In it, he sketches the development of fiqh as a discrete branch of Islamic learning and outlines some of the characteristic Western approaches to its study. The theme of fiqh as a development independent of theology and formal ethical literature is one that occurs in several of the articles that follow. In “Die sündige gesunde Amme,” Johansen discusses in detail how the systematic reasoning of the jurists and the principle of judging according to only external appearances often led to a sharp distinction between religious ethics and legal rulings. This distinction is also the subject of “Le jugement comme preuve: preuve juridique et verité religieuse dans le droit islamique hanéfite.” Here, he shows how in Hanafi law only what is externally apparent is acceptable as evidence, and how legal proof depends on a formal procedure that recognizes a fixed hierarchy in the different forms of testimony. A consequence of this procedural formalism was that judgments could be unjust but nevertheless valid in law. The injustices that this distinction between legal and ethical norms could on occasion produce was something that the fuqaha¯ acknowledged. However, although a judgment could not be reversed, the aggrieved party could bring a new case with new evidence if a court's decision appeared unjust.