Thinking about Islamic legal traditions in multicultural contexts

ABSTRACT

Faced by the apparent difference between legal traditions, how should scholars and policy makers assess their compatibility or incompatibility? What criteria should be used to adjudge the commensurability, or even the elements of incongruity, between traditions that have developed in different cultural, social and economic circumstances? This article argues for a shift from the way that much of the scholarship on Islamic legal traditions in Western polities pursues these questions. First, scholars assess Islamic legal traditions by explicitly or implicitly assessing their compliance with a contingent Western rendition of the rule of law. Second, comparisons tend to focus on a Western legal theoretical priority of the ‘rule’ itself, whereby conceptualisations of law are parsed out using an analytical infrastructure particular to the contingent history of the nation state. Such approaches may usefully assess migrant traditions’ political compatibility with a benevolent or hegemonic Western legal regime. Indeed, they may be defended philosophically on the basis of ‘difference blind’ legal arrangements or some kind of minimal secular baseline of governance. However, these approaches are insufficient for addressing the prior question of commensurability. Based on ethnographic data from the Shia Muslim tradition of legal training, I offer a brief account of two ‘repertoires of justification’ standing askance from this anyhow contingent rendition of Western law. This account serves as a counterpoint to rule based approaches, demonstrating why commensurability should be assessed through an attentiveness to the alternative logics of other legal traditions.

KEYWORDS:

• Shia Islam
• Sharia
• Rule of law
• Legal pluralism
• Socio-legal methodology

1. Taqlīd and the deferral of the rule

When Rowan Williams, the former Archbishop of Canterbury, raised the idea of recognising Sharīʿa in the United Kingdom, he finished his remarks with a wistful confession. He reflected that his suggestions about possible legal accommodations for religious groups seemed to imply a ‘market’ element at once ‘uncomfortable’ and seemingly ‘unavoidable’.¹ That is, when we think about the co-existence of legal traditions, we can find ourselves falling back upon neoliberal models for imagining their interaction.² Seemingly good faith attempts to accommodate difference may nevertheless adopt strategies for managing that accommodation that themselves contingent, and not in themselves conceptually accommodating. Perhaps equally ‘unavoidable’ in these discussions is the state. Although the Archbishop’s own comments were made with a careful ambivalence, the state often brackets even the most rigorous calls for plurality. For ‘market’ logic is a response to plurality given the sovereignty of the modern state, the sine qua non of the law itself. This article is an attempt to avoid these assumptions. It moves away from the comparisons of rules that dominate many treatments of Islam in the West, and towards the earlier question of how we think about the commensurability of the Sharīʿa. It critically engages with the Archbishop’s confession, by exploring the kinds of questions we might instead ask when thinking about the encounter between legal traditions.

A different dynamic of plurality and law is suggested in the texts and practices of the Shia legal tradition. The Shia Muslim jurists begin their risāla, their enunciative summations of legal rulings, with a statement on taqlīd. Taqlīd is a doctrine and practice of deference, whereby for all matters of law that are not fundamental, the Muslim must ‘follow’ a senior qualified cleric. The fundamentals of religion (usūl), and those norms pertinent to daily life (eg the basics of contract for business persons), must be learned by one’s own effort.³ But as the Iranian Ayatollah, Vahid Khorasani explains, for all other matters ‘including those which are not self-evident nor amongst the necessities of the religion, and also in issues which necessitate deduction from primary sources’, one must ‘defer’ to a learned jurist.⁴ It is here, with this articulation of deference to himself, that the jurist begins the risāla. By publishing this text, the jurist outlines the essential laws of religion. But the risāla is also a speech act asserting the jurist’s capacity to express this outline and signalling his status as worthy to receive taqlīd. Other genres begin elsewhere. Khorasani, for example, introduces his more apologetic Principles of Faith epistemologically, with a person’s intuiting of creation and judgment as a ground for faith.⁵ Elsewhere, as in the schools of law that are the Islamic seminary in Qom, Iran, some early textbooks open with typologies of knowledge. By beginning with taqlīd, however, the key legal text of the risāla promulgates a rule that paradoxically refracts the centrality of the rule itself. It circulates legality around the person of the jurist.

Ayatollah Makarem Shirazi’s risāla offers a brief comment on taqlīd, analogising it with what ‘people do when they refer to informed and competent individuals in all of their affairs in which they have no competence’.⁶ A popular version of this apologetic, which I often heard during my fieldwork in Sydney and in Qom, explained that ‘if you are sick, you should see a doctor’. The logic seems eminently pragmatic, akin to seeking legal advice before a transfer of real property. But this parallel is only superficial. For taqlīd channels the substance of a legal rule. Taqlīd does not ask for an opinion about a rule that stands outside of, or external to, that opinion. Rather, taqlīd establishes that rules (for example, the permissibility of an interest-bearing mortgage) refract through the person of the cleric. This involves both a hierarchical and a personalist logic, a logic that orders the practice of taqlīd and informs the broader Shia tradition of law. It attributes to the everyday Muslim the status of muqallid, or someone who defers to the ‘most learned’. The latter status, by contrast, is afforded only to the most senior jurists (those who, inter alia, have authored a risāla), who are therefore marājiʿ al-taqlīd (Arabic plural. ‘sources of deference’). These men, attributed with superior knowledge and moral probity, are at the summit of a global hierarchy that is at once regulative, financial and pedagogical.⁷ Indeed, even the process by which the Muslim must discern his or her ‘object of deference’ is mediated by hierarchy. This decision should itself be made on the advice of other (although less) knowledgeable clerics.

To be sure, the positivist rendition of the Western tradition is also hierarchical. We might think of Kelsen’s Grundnorm, and how we might trace the law down a scaffold until the ultimate norm is located. But let me point to these two differences. The discursive/rational logic of positivist law contrasts with the Shia tradition, where the rule wraps around the person of the marjiʿ al-taqlīd (singular. ‘source of deference’). Later I will compare the substantive hierarchy of the latter with the formal and ‘bureaucratic’ hierarchy of the former.⁸ Furthermore, the Shia community recognises multiple extant jurists as the ‘most knowledgeable’. This gives the Shia legal tradition a structural pluralism, as rules are refracted around each of these figures. Yet this is not a pluralism assimilated to market logic. Neither is it subsumed within the singular sovereign state.⁹ Instead, it is a pluralism characterised by a logic of hierarchy mediated by the ‘consensus’ of the global Shia community. So the context of this article is the ‘clash’ of legal traditions emergent within these differences.¹⁰ In Williams’ terms, it is about ‘the presence of communities that, while no less “law-abiding” than the rest of the population, relate to something other than the [British] legal system alone’.¹¹ That is, this article examines the encounter between different modes of religious and legal life within the dominant political fact and analytical assumption of Western state sovereignty.

Bringing the work of John Bowen and others into an Australian context, I argue that this encounter between legal traditions needs to be examined as a problem of the rule of law itself. Rather than explicitly or implicitly working from a baseline of what is anyway a partial account of West legal traditions, and rather than comparing the substance of rules, one needs to ask about different traditions of the rule of law.¹² To demonstrate this, the second section of this article presents two ‘repertoires of justification’¹³ – conceptual and practical repertoires that sit behind the apparent rules and content of law – drawn from ethnographic work in the Shia Muslim community.¹⁴ That is, to substantiate my argument that the rule wraps around the person of the marjiʿ, I describe two meta-juridical arrangements in the Shia community related firstly, to hierarchy, and secondly, to the entwinement of knowledge and practice.¹⁵ The third section then critically appraises the literature on Sharīʿa law in Australia. I show how contingent models of the Western rule of law and the analytical elision of rules with law in this literature limit its capacity to assess commensurability. To be sure, these approaches have their place in assessing political compatibility. For ethical and analytical reasons, however, the deeper issue of the encounter between different ‘repertoires’ needs to precede (at least logically) assessments of political or normative alignment. That is, existing scholarly strategies require a more thoroughgoing contextualisation within a broader problematic of the law.

Addressing the literature on Sharīʿa in Australia in particular, I argue for more rigorous deployment of socio-legal methods to catch sight of these ‘repertoires’. Such are the challenges of research on Sharīʿa in the West that it must be interrogated as a ‘lived practice’.¹⁶ I follow Dupret and Berger’s calls for attention to ‘what law does in practice, and how it does it’.¹⁷ More developed socio-legal methods are needed to interrogate Islam’s ‘repertoires of justification’, or with Hallaq, its heterogeneous modes of ‘governance’.¹⁸ Berger suggests that ‘[although] the theories and methodologies of such an approach are well developed, they have hardly been applied to Sharia, and even less so to Sharia in the West’.¹⁹ I apply this critique to the Australian literature, while also showing that a careful reading of the literature nevertheless generates important insights into the encounter between legal traditions. My intention is to showcase the obtuse angles between and within traditions of law; their moments of resonance and discordance. It is consistent with a broader scholarship considering alternative traditions of public solidarity or civility.²⁰ It attempts to think beyond secular humanist social and legal theory through dialogue with other traditions.²¹

Talal Asad observes that to better understand the ‘peoples “entering” (or “resisting”) modernity’ one must understand the West itself ‘as something more than a threadbare ideology’.²² There is manifold complexity within Western traditions of law. This complexity is showcased in this article within contrast between positivist and socio-legal accounts. The baseline image of the rule of law adopted by the literature that I describe in the third section is a necessary shorthand, but just so an insufficient caricature, of law in the West. For the socio-legal approach employed by this article is itself part of the West’s history of legal thought. The shorthand distinction between ‘law in the books’ and ‘law in action’ narrates this complexity, albeit also reductively.²³ Yet this complexity should not blind us to the dominance of state law and its modernist assumptions, which the history of Islam demonstrates with especial pertinence. As I will discuss, the modern Islamic law has been rendered through the conceptual apparatus of codified models of law. By this, Islamic legal traditions have been forever changed. Moreover, it is the positivist law and its assumptions that are taught in Western law schools, both explicitly as jurisprudence and as the premise of substantive legal content. This is the implicit comparator to my treatment of early legal training in the Shia law schools of Qom in the next section.

This article does not do justice to the scale of the methodological challenge at hand. I do not, for example, mitigate the Australian literature’s lack of sustained critical engagement with the historical Islamic law. What I do offer is a thick description of two repertoires from the transnational Shia community. Although the Shia are systematically underdiscussed especially in an Australian context, in one sense there is nothing special about this article’s focus on the Shia tradition, for my key arguments are methodological and conceptual. Yet the relatively formalised nature of clerical networks in the Shia tradition – their financial, legal and political ‘bandwidth’ – make them an ideal showcase of difference. Focusing on the Shia tradition of legal communication and training also serves as an instructive contrast to the existing literature’s tendency to coalesce around the norms of the dominant Sunni schools. For this I draw particularly on five months ethnographic work in the Islamic seminary in Qom, Iran, a primary site for the training of Shia Muslim jurists, which operates (albeit implicitly) as a contrast to Western legal training. My broader research, which involved more than two years of fieldwork in Sydney, Australia, here serves mostly as background. My ethnography showcases alternative legal repertoires and the kind of socio-legal methods required for accessing these repertoires. The structure of this article also showcases heterogeneity between and within legal traditions. The two substantive sections do not properly correspond but are, as it were, jurisdictionally non-aligned. The second section offers a focused account of legal pedagogy and reasoning from the Iranian seminary and from the Twelver Shia tradition of Islam, while the third section addresses a secondary literature concerning Islamic law in Australia focused on rules, and which usually takes its queues from the majority Sunni traditions. The second section’s empirical description of hierarchy and practice also contrasts with my analytical critique of the literature in the third. These differences should divert us from the temptation to compare legal traditions in terms of their rules and within the terms of state sovereignty. They direct our attention towards the broader infrastructures that constitute the legality of these civilisations.

2. Participatory logic in Islamic law

The practice of deference to the marjiʿ is not exceptional. It fits within the broader structure of the Shia legal tradition. Here I describe two repertoires – a hierarchical logic, and the importance of practice – at variance from partial renditions of law within the Western bureaucratic state, yet which are also implicated within the latter. To be clear, this does not purport to be a comprehensive account of the Shia legal tradition (nor comparatively, of law in the West). Rather, my purpose is to highlight friction. To help with this I draw on a perhaps unlikely source: Foucault’s 1981-1982 College de France lectures on Greek and Roman practices of the self.²⁴ The lectures unfold the shifting relationship between ‘caring for the self’ and ‘knowing oneself’. Crudely put, Foucault examines the historical dynamics of bodily technique in relation to knowledge. He traces traditions where bodily and ethical disciplines tend to encompass knowledge, because access to truth involves the transformation of the self, indeed of one’s very being. Foucault explicitly juxtaposes this to the Cartesian model of accessing ‘truth’ via the cognitive route or knowledge alone.²⁵ This mode of access to truth corresponds to modernist assumptions about the law, moreover, where the latter is understood in terms of persons as the juridical subject of rights²⁶ and in relation to a person’s obedience to abstract rules.²⁷ This rule-based orientation to state law is not a complete account of the Western legal tradition. As the third section of this article demonstrates, however, these terms do remain dominant ways of thinking about law. Indeed, as I mentioned above, Western colonialism’s profound impact upon the history of the Islamic law demonstrates the hegemony of state law and related conceptions of legal rules.²⁸ What I am concerned to demonstrate in this section is that looking to different relations of practice and knowledge sheds critical light on the question of the Shia tradition’s commensurability, notwithstanding the historical impact of state law.

2.1. Plural hierarchies

Some features of classical Islamic governance (that is, of Islamic legal traditions before Western colonialism) described by Hallaq, including the centrality of educational institutions to the generation and dispersion of law, are not consigned to history.²⁹ The most senior clerical figures, including the marājiʿ, are also the Islamic seminary’s senior teaching fellows. And even where a figure like Ayatollah Khamenei is occupied with running the Iranian state apparatus, lectures are given at his office in Qom by his representatives within a hierarchical network of patronage. In this context, the risāla is a textual genre paralleling the senior clerics’ own status. It is the material summit of the seminary, indexing the clerics’ personal superiority, and its publication marks out the reach of the law. The risāla is supported by a range of subsidiary genres, like the short guides to specific Sharīʿa topics like trading, tithing, or inter-religious relations. Pamphlets in these areas, written under the authority of different marājiʿ, are available in Qom’s many bookshops adjacent to the seminary. Across the ocean in Sydney’s Shia Islamic Centres, the texts that line their bookshelves also come from the publishing houses of Qom, and from Iraq and Lebanon. The personal organisations of the senior clerics, and their funding structures, also run in parallel to the seminary. Teams of lower-level clerics, themselves seminarians, are employed to administer the global industry of dispensing fatwas (personal legal advices) on behalf of the senior clerics. What I am describing then is a thoroughgoing hierarchy with anthropological, material and practical characteristics. This is a Sharīʿa repertoire that exceeds the logic of the state, already suggesting why schematic comparisons of rules are insufficient.

Individual seminarians locate themselves within this hierarchy. Abbas, an Australian citizen of Afghani background, was in the early years of his seminary training during my 2018 fieldwork in Qom. He had previously studied philosophy at an Australian university, so I asked him about the seminary’s distinct features. His response was not entirely fair, comparing the best aspects of the seminary to the worst of the modern university. He also neglected to mention the Islamic Republic’s own efforts to align the former with the latter. ‘Critical thinking’ was how he described the goal and method of the seminary. Exemplifying this was the bahth-i khārij (‘open studies’), the highest level of study in the seminary. He said this had ‘no peer in the Western system, because of its critical thinking. The people at this level, those who have reached ijtihad [the capacity of independent legal reasoning], are not just ṣāhib-e naẓar [masters of thinking] in fiqh [jurisprudence] but in thinking itself’. But the ‘purpose’ of this knowledge, he continued, was ‘to perfect your character’. He affirmed that the ‘high point’ and ‘culmination of all of this is the Imam’. That is, being axiomatically virtuous and knowledgeable, the Twelve Imams of the Shia tradition stand as the seminarian’s primary exemplars. The seminary directs its students not towards an abstract critical thinking, but to an excellence perfected in the historical and mythological figures of the Imams. To further illustrate the seminary’s excellence, Abbas then told me stories about Ayatollah Khomeini, the deceased marjiʿ and first Supreme Leader of the Islamic Republic. Abbas saw Khomeini (although at a lower ‘level’ of excellence than the Imam) as uniting the jurisprudential and political nous, the telos of the modern seminary. In this way Abbas located himself within the seminary’s formation of intellectually and morally excellent persons.

Like the multiple marājiʿ at any given time simultaneously recognised by the global community, the seminary also features a pluralism. Abbas envisioned an expansive Islamic law proactively worked out into every field of life. He was compelled by Khomeini’s maximalist version of the Islamic Republic. This is why he had chosen to study at the Imam Khomeini Institute, which offered a more ambitious curriculum than traditional seminaries. Not all my interlocutors in Qom held this view, even those broadly sympathetic to Khomeini’s project. Ali Kazim (also an Australian) attended a seminary with a narrower ‘fiqh and usūl’ (‘jurisprudence and principles’) curriculum. In fact, both of these institutions fall under the control of the broader state-run Al-Mustafa International University (‘MIU’). Yet Ali Kazim’s seminary had a more controlled ambition for its students. Ali Kazim still articulated the seminarian’s experience in terms of a rich pedagogical and material hierarchy. He told me that the ‘levels of the text parallels the levels of the person, mirrors the level of persons’. In the ‘low level’ texts, in the first years of seminary, students just had to ‘learn issues’ and did so without the capacity of ‘deduction’ (ghair istidlali). They would, in the ‘medium levels’, gain this capacity. The seminarians at the summit or bahth-i khārij level dealt with the most complex of texts with the capacity of ‘complete deduction’ (tamam-i istidlali). At this stage the seminarian might be capable of his own legal judgements, and so not need to perform taqlīd. But this deductive capability had to be matched by a parallel moral purification. If not, he would not in fact have gained knowledge at all. His knowledge would be naqis or ‘deficient’.

The difference between Abbas and Ali Kazim’s seminaries expresses a broader tension. On the one hand, Islamic education has been shaped by the ideology and intervention of the Islamic Revolution.³⁰ The historically unique form of governance that is the state has subjected the Sharīʿa to codification and judicialisation.³¹ Notwithstanding claims to legal continuity, the Islamic Republic is a profoundly modern phenomena, arguably carrying more of the state’s genetic code than that of the Shia tradition.³² This is the context in which the Islamic Republic now directly intervenes in the Qom seminary, and thus interposes itself with the tradition’s law-generating processes. All foreign seminarians are required to attend MIU, although at the time of my fieldwork Iranians were still permitted to attend more or less independent seminaries. On the other hand, the state’s co-option of the seminary is not complete. Despite the state’s interposition within the Sharīʿa economy, the legal claims and infrastructures of alternative marājiʿ persist, particularly in the seminaries of Iraq. Even within Qom, the state paradoxically borrows legitimacy from the ‘independent’ seminary.³³ Moreover, the two sides of this tension impinge on each other. The state’s infiltration of clerical training shapes the emergence and recognition of the marāji. At the same time, older traditions constrain the terms of the state’s legitimacy.³⁴

The seminary is therefore shaped by a complex impingement of different legal repertoires. Yet one can still distinguish the operation of non-state logics. For Ali Kazim, there is a necessary parallel between persons and texts, again tracing a hierarchical structure:

Early books [in the seminary] are more like instruction manuals – introductory type books … Sometimes, like with the law, it is necessary to just lay down the law. Without this information there is no ability or appropriateness to question or critique. One would not have a right to critique without this foundation. You have to prove yourself first … 

More advanced books are deep in scope. They require intense study. You need to spend time with the text. The subject matter is not light. You need to spend time with it.

A seminarian’s capacity must match the level of the text. They must also employ an appropriate level of practice honouring to the text, namely certain pedagogical and even spiritual techniques of reading. The text’s status also matches that of its author, for better or for worse.

Out of respect for [the author’s] level, their work ought to be respected. The book ought to be given its right. If you are able, you can reject, critique, but according to your level. If one is sufficiently knowledgeable.

The excellence of a person is inflected in and by materiality. Hassan, a seminarian from the United Kingdom, described this to me in reference to the twelth-century scholar and mystic, Ibn Arabi. A text authored by the latter is ‘mahi al-dīn’ (‘great in religion’). ‘It is pure. The author’s own spirituality enters the book’. And for the reverse reason, other books might be avoided entirely. ‘Some talabih therefore say do not read certain books, because they have doubts. The person is linked to the ʿilm [knowledge]’.

Abbas also arranged books in a hierarchy. He said: ‘Here, editions are not revised. Students are invited to come and find the fault in the book … there is a genre, mowjiz nevisi, which is particularly short and concise. You cannot remove a letter … ’. This gave Abbas a further contrast with the Western university: university textbooks are ‘money scamming. They change editions. But like Iranian cars, nothing real changes in the [seminary] editions between 1988 and 2010’. Somewhat tempering this claim, however, he admitted that texts are replaced: ‘Once a better book appears, they swap it’. Here Abbas’s reasoning resembled the economy of the university textbook. He described a ‘better’ text in these terms: ‘up to date, new content, new accessibility’. Yet Abbas retained a sense of the excellence of the text; of its sheer material authority expressed in its embodiment of truth. He told me the story of a scholar who had worked his way through an astronomy text. The scholar then went to his master to complain about his lack of progress. ‘I tried to use the methods in the book to find the phase of the moon. I was not able’.³⁵ His master simply responded that his student would have to read the whole book all over again.

Foucault traces governance as one key variable in the histories of the knowledge and care of the self. Questions of governance helped to determine, for example, whether the care of the self was a generalised imperative, or whether it was set apart for the few, as in the Platonic vision.³⁶ One’s capacity to govern others also turned, in different ways, on the quality of one’s self care.³⁷ These questions aid us in interpreting the substantive hierarchy of the Shia tradition. In these terms, it is the special conjunction of knowledge and practice that makes the marjiʿ al-taqlīd. The logic of this hierarchy is not formal. It is institutional, anthropological, practical and material. This is why Abbas and Ali Kazim’s education involved a training, a transformation of the self, of their very being. Cognitive mastery of a rule was not enough. Practice was necessary to complete their knowledge.³⁸ They were being transformed, within patterns of master-discipline relationships, and by their handling of texts. So this is a substantive hierarchical order modulated by a vision of governance by those with ethical and cognitive excellence. Yet we can discern differences. Abbas had joined a seminary ideologically committed to Islamising every aspect of life through the medium of the state. Evoking the Platonic ruler, Abbas explicitly connected the superior cleric’s knowledge and formation to his unique capacity to govern. But this also splices an older structure of clerical authority onto a new and potent host: the modern state and its totalising logic and apparatus. Ali Kazim’s narrower curriculum trained clerics in a more specialised skillset. The transformation of the self through pedagogical practices was also key. It just connected less expansively to the direct governance model of the colonial state.

2.2. Knowledge practices

Agha Nasradin’s class of new seminarians were from all over the world: Ghana, Pakistan, India, Indonesia, Kyrgyzstan, Australia. Perhaps, after many decades some of these men might be counted amongst the most senior Shia jurists. But in 2018, Agha Nasradin’s job was to teach them Persian. He began with basic vocabulary. ‘Tekrār!’ (Persian. ‘Repeat!’), he impelled us. We repeated his words to learn the pronunciation and vocabulary. Later he gave us small sentences to scaffold our learning. The ‘magas’ (‘fly’), he described as ‘very unclean’. ‘Sang’ (‘stone’), was described as useful for stoning Satan.³⁹ For ‘zikr’ (‘remembrance’ or ‘worship’), he pointed to a picture of a woman at prayer. Agha Nasradin was simultaneously setting a standard for practice. On learning the vocabulary for different animal species, he would check our compliance with dietary rules. Sometimes he just gave the rule: ‘qūrbāghe’ (‘frog’) we repeated. He affirmed that its consumption was impermissible. Sometimes he offered a comparison. ‘Dulfin’ was impermissible, he said, but the Sunnis do eat it. And he interrogated our consumption practices at home. ‘Temsāḥ’ (‘crocodile’) the group repeated. Approaching a student he would ask: ‘Have you eaten it? Have you?’ (‘Khordīd? Khordīd?’).

Agha Nasradin’s repetitional ‘tekrār’ formed knowledge and established a boundary of practice. But why was practice so closely bound up with knowledge? Part of Agha Nasradin’s style turned on his own ideological mix of Islamo-Iranian nationalism. He was an attentive man, often caring for his students through a blend of nativist Iranian herbal medicine and Islamic tradition. And he would shift from grammar into more political territory by opining, for example, on Iran’s role in the Syrian conflict. Such complex logics (and illogics), involving spiritual, political and other narratives in often unstable emulsion, are part of the Qom seminary notwithstanding the regime’s formal control. And yet this winding up of practice and knowledge is also explicable within the meta-juridical logic of the Shia tradition. We can understand the conjunction of knowledge and the ‘care of the self’ as a second ‘repertoire of justification’. As I will show, this juxtaposes particularly acutely with the literature’s rule centric assumptions described in the next section.

Class often finished early so that we could attend lectures in the main prayer hall, usually marking an auspicious day connected to a birth or death anniversary of an Imam. These were described simply as akhlāq (‘ethics’) lectures, again highlighting the necessary connection between the Imams and everyday practice.⁴⁰ On one occasion, towards the end of a lecture on the Twelfth Imam, I was on the steps outside of the hall’s double doors, sitting amongst the slippers of the seminarians already crowding the space. Nearby a small group of Chinese students were talking loudly over their smartphone screens. From next to me a disapproving young Iraqi man caught their attention, signalled towards his ears. ‘Gūsh kon!’ (‘listen!’), he hissed at them. After a brief and tense exchange, the Iraqi man stood up to leave. He left them with this simple rhetorical question: ‘Are you talabih?’ This question, of whether they were indeed ‘seminarians’, was sharp and pertinent because being a talabih is necessarily a certain formation as a person, not simply a cognitive task. Being a seminarian involves the transformation of the self whereby, to adopt Foucault’s terms, the person ‘finds a mode of being’.⁴¹ For even a low-level seminarian to have this status – or in Weberian terms, to have this vocation – entails a special synchronicity of knowledge and ethical practice. Again recalling the marjiʿ, the seminarian is expected to pray obligatory and recommended prayers, to study hard, to carefully steward his scholarship funds with a mildly ascetic lifestyle, and even to adopt a certain bodily comportment.

I asked Agha Nasradin whether even at this early stage of the seminary those of us who attended his class were proper ‘talabih’. He affirmed that indeed we were, for a seminarian was someone who learned Islamic knowledge (‘talabih yaʿni kisi kih dar hozi ʿilmi-i ʿolumi islami mi-khanad’). He thus defined Persian as an Islamic knowledge. But as I have discussed, Agha Nasradin was not just transmitting knowledge like some kind of data. We were being trained in the cleric’s comportment.⁴² In response to a classmate arriving a little dishevelled, apparently having only just woken up, Agha Nasradin reminded us that ‘class is worship’, and that we should prepare for it as such. ‘Sometimes wużū [ritual cleanliness] is wājib [obligatory]. At other times it is mustaḥab [recommended]’. Therefore, he said we should do wużū ‘before class, because it is worship. It is a big blessing, an opportunity for blessings in life [barakat dar zindigi mi shih]’.

Rules and practices converge in the seminary’s pedagogies. Storytelling techniques allow for complex interactions with knowledge understood as more than a conglomeration of data. In the earliest textbooks from the seminary (and in the community programs in Sydney’s Islamic Centres), much of the formal teaching (inter alia about ‘legal’ issues like fasting) occurs through the medium of storytelling. Stories are described as delivering ʾusūl (‘principles’). Indeed, one of my interlocutors explicitly defined them to his own students as ‘analytical stories’. One of our Qom textbooks put it like this, stories are ‘like a mirror in which we see the lives of our forebears’, promising to be ‘very beneficial’. Their form resists reduction to pure cognition, because their ‘lessons’ are so manifold. The same textbook put it like this: ‘in every historical event there are hundreds of lessons and councils’ (‘dar har ḥādithih-yi tārīkhī, sad-ha pand u andarz wujūd dārad’). This sheer plenitude requires the seminarian to have these stories close to hand, showing why they are trained in the art of storytelling.⁴³ To be sure, stories being the common literary form of the Quran and the Sunna are the ‘sources’ of law.⁴⁴ This does not exhaust their legal role. They are the infrastructure of teaching and reasoning, and the capacity to recount indexes a clerics’ excellence.

The seminary also relies on another pedagogical technique, the mubāhatha (Arabic. ‘discussion’). Some madrasas formally integrate mubāhatha in their curriculum. Others allow their students to self-organise. On any given day, small mubāhatha groups disperse throughout the massive central shrine complex in Qom. They sit cross legged in groups hunched over the text, closely reading together, and role playing master-disciple relations. Recalling the texts existential quality, Ali Kazim suggested that mubāhatha allows the seminarian to ‘spend time’ with the text and to ‘give [the book] its right’. The seminarian thus achieves a new relationship with the material, described by Ali Kazim as an ‘uns’ (‘intimacy’). These practices indicate knowledge’s encumbrance by practices, because true knowledge involves the transformation of the self. They suggest, moreover, a different relationship between knowledge and practice. In contrast to the assumption of the literature I describe in the next section, the rules contained in these texts are not accessed as abstractions. Their practice does not involve compliance with a rule, as in Foucault’s rendition of the modern legal paradigm.

Knowledge and practice entwine within hierarchy’s order. That is, the seminarian’s vocation directs him toward ends defined by hierarchy. Our teacher explained how the different elements of class prepared us for the cleric’s role. For example, essay writing had two purposes. The oral presentation of our essays in class taught us to master the sermon (‘manṭūr-ish khutbi ast’). As a corollary to this, we were also taught to begin speeches with the appropriate benediction. But we also practiced writing for its own sake, because ‘midad-i ʿulamaʾ afzal min dimaʾ al-shuhada’ (‘the pen of the jurist is more beneficial than the blood of the martyr’). As we progressed in class, Agha Nasradin began engaging his class in more sophisticated ways. He began exegeting sayings from the Imams hurriedly scrawled on the whiteboard in Arabic and translated Persian . And we began contextualising vocabularies in terms of their ‘manṭūr’ or ‘purpose’. Such words show the order of the hierarchy. Just as nouns were defined as being ‘barayi’ (‘for’) something, so more complex behaviours were ‘for’ some purpose. For example, upon our classmate struggling to read fluently, Agha Nasradin asserted that he was ‘reading like Kitab-i Aval [our introductory textbook]. Every book we read, we have to go up … Get better … ’ To prove his point, he asked rhetorically: ‘What is a ladder for?’ (‘nardiban barayi chi?’). Our ‘hadaf’ or ‘purpose’ in the seminary, Ali Kazim said, was ‘purification’. Applying knowledge ‘was purifying in itself’. But ‘knowledge not applied is nāqiṣ [deficient] knowledge, because it has not achieved its natīje [result]’.

3. Approaches to commensurability in the literature on Islamic law in Australia

To support my argument that the rule wraps around the person of the marjiʿ, I have described hierarchy and the entwinement of knowledge and practice as ‘repertoires’ underlying the Shia legal tradition. I return now to the scholarship on Sharīʿa in Australia. I describe a field that improperly limits itself to a comparative schematic of first, the rule of law, and second, a law of rules. In other words, I argue that this literature too quickly adopts a contingent (and indeed, partial) rendition of the Western rule of law as a baseline, without situating this enquiry within the deeper theoretical concerns emergent out of an encounter between different traditions of law. Although of course this is far from the literature's intention, Islamic traditions analysed in these terms can appear as deficient parodies. I show how the compatibility of legal traditions is reduced to a comparison of rules. This sterilises the institutional vibrancy of Islam, obscuring the rich textures of its law. Furthermore, this approach artificially narrows the West’s own traditions of law by ignoring, for example, the distinction between ‘law in the books’ and ‘law in action’.

3.1. The rule of law

The Sharīʿa in Australia is threatened by a twin deficiency; an autocratic and arbitrary authority that corresponds to a lack of oversight and transparency. In one study of the Sharīʿa in online forums used by Australian Muslims, the authors aim to analyse the discursive and performative aspects of ‘power and authority’.⁴⁵ Yet rather than exploring how online patterns of knowledge might work out different strategies of power, the study in fact relies on a simpler juridical model juxtaposing arbitrary authority and individual freedom. In some forums, clerics’ unilateral authority is ‘autocratic’ and subject to ‘little accountability’.⁴⁶ This contrasts to the innovative communicative quality and ‘flexibility’ of some other forums.⁴⁷ This autocratic risk complements the Sharīʿa’s broader lack of transparency in Australia, which features a ‘lack of oversight’.⁴⁸ Black and Sadiq describe the de facto autonomy of the Sharīʿa in Australia as ‘matched by the absence of protections such as due process, legal representation, appellate procedures, and decision-makers who are accountable and transparent in outcomes and process’.⁴⁹ One should note the peculiar aesthetic quality to these analyses of the Sharīʿa. ‘Oversight’ and ‘transparency’ are visual metaphors. Associating the law with the light, they locate the Sharīʿa in a darkened space and hidden from view; ‘behind closed doors’,⁵⁰ and ‘in the shadow of the law’.⁵¹

I recognise that such metaphors are not deployed uncritically. Possamai, Dagistanli and Voyce, for example, argue that the Sharīʿa has been driven underground by Islamophobia and the broader context of Australian political culture.⁵² Possamai, Dagistanli and Voyce also note that the Sharīʿa’s capacity to deliver ‘equitable’ outcomes is not at issue, for a legal system might do so without prioritising transparency. Rather, they identify transparency is desirable to manage the requirements of a broader multicultural politics.⁵³ This is an example of analysis that, working with something like a Habermasian sensibility, quite appropriately interrogates the political implications of the Sharīʿa. Here an ideal transparency is disrupted by the cleric’s role as ‘arbiter’,⁵⁴ and by the West’s own political culture of exclusion, because the rule of law is associated with an unmediated flow of information between the law’s subjects. Notwithstanding the role of these analyses and points of critique in legitimate multicultural debate, they do tend to lose sight of the more basic encounter between Sharīʿa and Western legal traditions. One misses Sharīʿa traditions’ autochthonous dynamics of transparency.⁵⁵ Indeed, ‘independent’ clerical authority (whether or not it is ‘behind closed doors’) can be described as a core feature of the classical Sharīʿa.⁵⁶ In other words, one needs to approach the Sharīʿa in such a way as to understand the tradition’s own modes of autonomy. One needs to ask about the nature and value of transparency within Islamic traditions themselves.

The Sharīʿa can also come across as insufficiently uniform or predictable.⁵⁷ Black and Hosen provide a sophisticated reading of the fatwa as a ‘navigational aid’.⁵⁸ Yet they strive to mitigate the risk of ‘forum shopping’, a complaint often raised in response to proposals for Sharīʿa jurisdictions in the West.⁵⁹ To alleviate this risk, the authors propose that ‘collective ijtihad [legal reasoning] be performed by Islamic organisations’.⁶⁰ The implication is that an authorised community process would offer an appropriate balance of plurality within uniformity. Black and Hosen describe the proposal in neoliberal terms but without the Archbishop’s wistfulness. They envisage the ‘Muslim consumer’ operating in a ‘marketplace [of] ifta providers’.⁶¹ One can see here the importance of transparency within Islamic traditions: it is the lubricant allowing for a synchronicity between market choice and state authority. For other commentators, it is the encounter between the Sharīʿa and Western institutions that generates the problematic pluralism. For Turner and others, Sharīʿa tribunals can undermine ‘legal centralism’, unravelling the singular law and centralised bureaucracy of the Western state.⁶² The solidarity of the state is said to rely on these cultural and legal infrastructures.⁶³ To be sure, these are important issues whose discussion is necessary for broader assessments of multiculturalism, although one should not forget the extent to which other features of globalisation, including legal norms associated with capitalism, might have already problematised the notion of ‘legal centralism’. But recalling the plural quality of the Shia tradition, here we have shifted from understanding the Sharīʿa towards interrogating its political expediency against a Western baseline narrowly conceived. The methodological challenge is to avoid eliding our understanding of Sharīʿa practice with our assessments of political suitability.

3.2. The law of rules

Working out the compatibility of the Sharīʿa in the West can be a bit like cutting a new set of keys. One arranges the raw material of the Sharīʿa rules against the model Western arrangement. From here the Sharīʿa can be ground down where it protrudes too far. At other times, a little ‘tweaking’ of Western law may be required.⁶⁴ In the Australian literature, such schematics of compatibility are presented in short form, in longer chapter-length treatments, and in discrete treatments of different legal subject matter.⁶⁵ Jamila Hussain, for example, covers war and peace, women, marriage, family, divorce, inheritance, criminal law, medicine, evidence, commercial law, and banking and finance in a series of chapters in her expansive treatment of Islam in Australia.⁶⁶ These comparisons then facilitate overall assessments about the accommodation of Islamic law. Possamai, Dagistanli and Voyce explore compatibility between the Sharīʿa and Western law ‘in the areas of … ’ marriage and dowries, divorce, child custody, inheritance and finance.⁶⁷ Black and Sadiq suggest targeted ‘piecemeal’ changes to Australian law, such as the removal of double stamp duty.⁶⁸ In a nice summary of the compatibility of family law rules they suggest: ‘It happens quietly. Australian family law is, by and large, relatively accommodating. This enables Muslims to comply with both Sharia and Australian law or to prioritise one over the other. There are however some points of friction and contention’.⁶⁹ Berger offers a more complex table with an additional vector showing how alignment between traditions is more often an issue of cultural rather than strictly ‘legal’ difference.⁷⁰ Farrar and Krayem, similarly, add a layer of sophistication by critically reflecting on compatibility not only in terms of legal subject matters but as a function of different conceptualisations of ‘accommodation’ in Common Law traditions.⁷¹

Black and Sadiq’s aforementioned piece works well to dispel myths about the Sharīʿa as some kind of essentially reprehensible totalising edifice, to point instead to pragmatic options for piecemeal accommodation, and thus to the ‘new legal ordering possibilities’ emergent therein.⁷² The rule-centric analyses involved in this and similar approaches might be critiqued from a legal pluralist perspective,⁷³ or for their focus on Sunni schools of law. In this I article, however, I explore their methodological limitations, while also showing how notwithstanding these limitations they do throw up certain highly suggestive lines of inquiry about how we ought to approach Islamic law in the West.

In 1978, Bryan Turner defined Orientalism as ‘an epistemology which is essentialist, empiricist and historicist’.⁷⁴ Suppose that we provisionally take these as critical tests for the literature, and that we further recall the visual metaphors used to describe the Sharīʿa. Does not this imagery suggest a residue of historicist thinking about the Sharīʿa? Does not the critique of Sharīʿa opaqueness evoke Weber’s Kadi-justice, of an arbitrary less-than-rational law?⁷⁵ And does not a focus on ‘rules’ suggest an underlying legalistic empiricism? These criticisms would I think be uncharitable. Following Turner and others, I have agreed that the literature’s interest in rule compatibility and transparency have an important role in thinking through political solidarity in multicultural polities. Perhaps, with Edward Said’s more famous approach to Orientalism then, we might instead assess their involvement in broader regimes of colonial knowledge?⁷⁶ Following Hallaq, however, I suggest a different test and heuristic.⁷⁷ The literature, I suggest, hesitates to engage with the legal theoretical or ‘epistemic’ issues raised by Islamic legal traditions.⁷⁸ A focus on rules is not sufficiently contextualised within the broader literature by an encounter with Islam’s own points of difference with secular humanism, or indeed with the tensions internal to the Western tradition of law itself. In other words, this test suggests not that we label a set of literature as ‘Orientalist’ but more pragmatically that the literature needs to better situate itself. Without this, it will not properly participate in a ‘heuristic moral retrieval of the Others’ traditions and histories’, a retrieval that Islamic traditions perform vis-à-vis Western law.⁷⁹ Without this, the literature tends to ‘refuse’⁸⁰ the conceptual and ethical demands of reckoning with the meta-juridical principles of Islamic legal traditions.

Berger observes a mismatch between the scholarly focus on abstract Sharīʿa definitions and what Muslims actually do in multicultural contexts.⁸¹ In fact, this parallels the same mismatch vis-à-vis the Western legal tradition. Voyce works to show the colonial history of inheritance law in Australia, but the denouement of his analysis remains the friction between inheritance rules.⁸² Put otherwise, a deontological focus on the content of rules ignores ‘law in action’. I see a deeper problem in the literature’s adoption of dualisms like rule and ideal, public and private, law and piety. In 1986, Asad famously critiqued the idea of Islam as a ‘blueprint’.⁸³ Yet blueprint logic still surfaces in the literature.⁸⁴ The blueprint articulates dualities held to animate the Sharīʿa, between theory and practice, abstract ‘law’ and ‘lived experience’.⁸⁵ Here the Sharīʿa is alternatively a legal edifice and an ‘internalised, moral and ethical convictions’.⁸⁶ Turner and Arslan name the latter, what they call ‘Sharīʿa consciousness’, as the preferred model for Sharīʿa in pluralistic polities.⁸⁷ In Saeed’s account, the law and piety contrast appears as a claim about the historical Sharīʿa in Australia. In brief, Saeed argues that amongst early Afghan cameleers and other groups the Sharīʿa was individualistic, private, and deferential to state law. He describes earlier Muslim approaches to law like this:

 … they saw [it] as something to be managed and handled by individuals in the community … a view of shari’a that was highly personal and subject to the existing laws enforced in the country … This emphasis on the “personal” aspects of shari’a began to change somewhat toward the later part of the twentieth century … ⁸⁸

This may be accurate. However, such a claim would need to be much more carefully established with an array of empirical material, particularly given its uncanny alignment with a liberal anthropology and secular politics. My broad point is this: the public private contrast animating these analyses is part of the contingent history of secularity in the West. It is an inappropriate starting point for thinking about encounters with alternative legal traditions, like those that are shaped by the entwinements of knowledge and practice I described above.

I conclude this section by zooming in on a set of qualitative studies of Sharīʿa in Australia⁸⁹ as a way of echoing Berger’s call for a greater methodological sophistication.⁹⁰ Possamai, Dagistanli, Voyce, Turner and Cheng state the purpose of the studies in phenomenological terms. Their research amongst what they call ‘Sharia professionals’ aimed to see ‘how they understand’ and ‘how they live’, and how the Sharīʿa is ‘conceptualized and experienced’.⁹¹ They targeted ‘the banal, everyday realities of Sharia practices’.⁹² The 2016 publication was based on interviews gathering the ‘opinions’ of fifty-seven ‘Sharia professionals’ in Sydney, while the 2017 and 2019 publications drew on a further fifty interviews in New York and Sydney. Yet it seems to me that these methods are not quite sufficient to their stated purpose, for even an effusive ‘opinion’ is only a partial insight into how a legal tradition is ‘conceptualized’ and ‘experienced’. The studies themselves raise two additional issues. First, they received low response rates from an already over-researched Muslim community.⁹³ Second, they note the problem of media training, and claim to have received ‘better results’ from lower profile respondents.⁹⁴ Yet these issues are not reducible to the quantum of data available. For a refusal, or a strategic participation in an interview, is itself a Sharīʿa ‘experience’ in the West. Indeed, Berger considers the mere mention of the word Sharīʿa so politically encumbered that he dismisses the empirical value of European surveys on this matter. By contrast, the authors in this study appear to take the interviews at face value, for it hard to discern the interpretive process undertaken. To be sure, these results are informative as I will discuss momentarily. But getting at the ‘everyday’ quality of Sharīʿa would require further methods like ethnography, or discourse and material analyses of Sharīʿa records, to catch sight of what Muslim’s actually do.

Instructive perplexities emerge from these results. Alongside the community’s reticence to participate, these confirm the need for broader approaches to Sharīʿa ‘experience’. Consider ‘incompatibility’, a notion central to the research discussed here. Large proportions of their samples said that Sharīʿa and Western law were not ‘incompatible’ (90 per cent in 2016), or ‘did not see any tensions’ (82 per cent in 2017 and 2019).⁹⁵ Quite appropriately, it seems that this question was not asked directly. But even should a Herculean interviewer approach their task with a maximal sensitivity, consider the implications of a respondent admitting an ‘incompatibility’ or even ‘tension’. Would this not signal an existential gap between one’s tradition and the broader society? Does it not admit, crudely put, that ‘my tradition does not belong here’? Anecdotally, my own interlocutors are very hesitant to discuss Sharīʿa directly, let alone to proactively raise its incompatibility. The researchers also assessed ‘compatibility’ with specific legal subject matters. For example, 15 per cent of Sydney respondents assessed the Sharīʿa and Australian law on child custody as compatible, but 78 per cent did not provide a response at all.⁹⁶ Is it surprising that a respondent would avoid attesting child custody arrangements ‘incompatible’ with those of the coercive state? Finally, consider these interesting variations in the data: 25 per cent of respondents thought that ‘the experiences of Muslims with regard to Sharīʿa’ were ‘fine as it is’. This left 75 per cent who did not consider it ‘fine as it is’. Many of these suggested improvements, such as options for alternative dispute resolution (21 per cent) or an outright parallel legal system (21 per cent).⁹⁷

How do we hold these results together: a denial of general incompatibility alongside a reticence and ambivalence about specific legal subject matters and specific suggestions of institutional change? I suggest the following interpretation. The question of ‘compatibility’ must be approached with higher degree of methodological sophistication because it touches on an encounter between traditions that occurs at different and shifting levels: both ‘in the books’ and ‘in action’, as well as at existential, institutional, subjective and strategic levels. ‘Tension’ elicits differing responses depending on its scope. This shows why research ought to be directed at these spaces of difference, not merely at the ‘rules’. To be sure, these studies offer crucial insights into questions of Islam’s place in Australia, into pluralism within the Muslim community, and about the political vulnerability of the latter communities.⁹⁸ Yet these studies’ indicative questions tend to reify the Sharīʿa, occluding the different levels at which heterogeneities might emerge. They asked, for example: ‘Have you ever had to deal with Shari’a with regards to law in Australia?’, ‘Do you invest money? If yes, is it Shari’a compliant?’, and further, ‘Do you think there are big differences between the Australian legal system and the Shari’a one?’⁹⁹ These questions have their place in an empirical sociology. But they make the positivist edifice of Western law the baseline against which Sharīʿa is assessed, tending to occlude law in action. Instead, the Sharīʿa should be understood as a process and complex system of governance.¹⁰⁰ Without this, we risk missing the anthropological aspects, the technologies, the hermeneutics, the processes – in short, the alternative repertoires – that constitute the dynamic forms of Islamic legal tradition. Just so, we have missed the corresponding complexity of Western law.

4. The challenge, if not the danger, of Islamic law

The literature on Islamic law in Australia can be understood as a response to alarmist aspects of Australia’s public discourse on Islam. This is why Possamai and others contest public hysteria about the Sharīʿa by highlighting the ‘banality’ of its everyday operation,¹⁰¹ why Saeed wants to show its innocuous presence in Australian history,¹⁰² and why Islamic banking is proffered as a successful litmus test of the Sharīʿa’s reasonableness. If the Sharīʿa metonymically represents all that is violent and dangerous about Islam, then presenting its ordinariness neutralises unreasonable public fear.¹⁰³ The literature brings moderation into the debate. Focusing on rules allows for a pragmatic discussion of a modus operandi role for Sharīʿa in a multicultural Australia. Parsing out the Sharīʿa into its public and private aspects achieves a similar result by filtering the Islamic tradition through a liberal secularist sieve. It makes conceptual room for Islamic traditions to operate without being a ‘threat’ to Western law.¹⁰⁴ As Dagistanli and other put express it, the overall objective is to counter the stereotype of Islam as threat. Here the primary target of critique is approaches that represent Muslims as other, where Islam is ‘constructed as representing a deep and challenging diversity’.¹⁰⁵

While I understand these motivations, the unintended consequence of this aesthetic strategy is to foreclose inquiry into how Sharīʿa traditions challenge secular humanist assumptions about the law.¹⁰⁶ I have not been concerned in this article with whether Islamic legal traditions are ‘in fact’ compatible with Western legal structures. My intention has been to show, by calling attention to some of the deeper structures of one particular Islamic legal tradition, the conceptual level at which this compatibility ought to be assessed, and to point to some of the methods necessary for this assessment. For the cost of foreclosing Islam’s conceptual challenge lies heavily upon law in the West. It entrenches the law of the modern state as predominant, and its contingent conceptual structures as peremptory. Like colonial structures’ refusal to properly treat with the counter-sovereign claims of Indigenous communities, this forecloses the kind of rich dialogue necessary for a just multicultural politics. For how will the limits of modern law be treated without a willingness to engage in a thoroughgoing legal theoretical reflexivity? Or to express the point without the subjective reflex so characteristic of late modernity, how else will we think about the law not as cultural harmonics supressed into the private but as ‘difficulty’, as a ‘complete interpretation’ and ‘restitutive criticism’?¹⁰⁷ Without this, how will the absolutist legal state, with its instrumentalisation of both nature and persons, be called into question?

Acknowledgements

This research was supported by an Australian Government Research Training Program Scholarship, and was written up during a postdoctoral research fellowship at the Centre for Law and Social Justice at the University of Newcastle, Australia.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Samuel D. Blanch

Samuel D. Blanch is a lecturer in the Faculty of Social Sciences at the Universitas Islam Internasional Indonesia. He was previously a Postdoctoral Fellow in the Centre for Law and Social Justice at the University of Newcastle, Australia.

Notes

1 Williams (2008), p 274.

2 Vincent Lloyd has powerfully argued that the Archbishop’s own argument is actually a more radical and delicate ‘politics of the middle’ that relativises both the state and the neoliberal subject. See Lloyd (2009), and further Rose (1996).

3 Khorasani (2010), p 15.

4 Khorasani (2010), p 15.

5 Khorasani (2013).

6 Shirazi (n.d.), at rule 2.

7 For an account of the transnational role of the marājiʿ, see Corboz (2015).

8 Weber (2013), pp 196ff: Weber very clearly shows the mutuality of bureaucratic order and the idea of hierarchical rules.

9 But see Ghobadzadeh and Akbarzadeh (2020).

10 Edmunds (2013), p 416.

11 Williams (2008), p 262.

12 I am using ‘rule of law’ terminology loosely here. For a similar comparative and critical use of ‘governance’ as a heuristic to think about law as more than rules, see Hallaq (2013).

13 Bowen (2003), pp 5–9. Bowen describes his object of study as ‘normative entanglement’, and as ‘socially embedded forms of public reasoning’ (at p 5).

14 This research was approved by the Australian National University, Humanities & Social Sciences Delegated Ethics Review Committee (Protocol number 2016/364). Participants were recruited after receiving approvals from community and institutional gatekeepers in both Australia and Iran. All participants were recruited at fieldsites by word of mouth, and professional standards of continuous and informed consent were maintained throughout the process. The names of institutions and persons given in this article are pseudonyms.

15 Bowen (2003) describes the ‘metarules’ and ‘metalevels’ of public reasoning at work in Indonesia (at pp 8, 13).

16 Berger (2018), p 242.

17 Dupret (2021), p 77.

18 Hallaq (2013).

19 Berger (2018), p 248.

20 Salvatore (2007); Salvatore (2016); Asad (2015); Scharbrodt (2020); Kadhum (2020). The title of this article pays tribute to Asad (2015).

21 So it shares the critical vantage of Davies (2017) without the secular humanist overlay. For a critique of the latter, see Hallaq (2018).

22 Asad (1993), p 23.

23 Davies (2017), p 48.

24 Foucault (2006).

25 Foucault (2006), pp 17–18.

26 Foucault (2006), p 112.

27 Foucault (2006), p 319.

28 There is a large literature on this process, but for one particularly striking account see Messick (1993).

29 Hallaq (2009b), passim.

30 This includes the direct repression of opposition voices within the seminary and clerical hierarchy.

31 Ghobadzadeh and Akbarzadeh (2020).

32 At least among my own interlocutors, the Islamic Republic’s supporters are quite aware of the historical break embodied by its form. They tend to historicise the Islamic Republic’s uniqueness within a broader narrative of historical marginalisation and modern opportunity.

33 On this phenomenon, see Bano and Sakurai (2015), pp 9–10.

34 Blanch (2020).

35 The phases of the moon are not legally incidental. They are essential for distinguishing the beginning of Ramadan, and so one’s compliance with the laws of fasting.

36 Foucault (2006), pp 43–45, 74–75.

37 Foucault (2006), pp 33–39.

38 Of course, legal training in the Common Law involves its own traditions of ethics, for both solicitors and barristers, exemplified by the modern professional ‘codes’. Ethics and professional responsibility are prescribed components of training for admission to the legal profession in Australia. What is different in the Shia context is that this ethical formation maps directly onto jurisprudential capacity. It is Foucault’s point to trace difference between such orientations of knowledge and practice.

39 A reference to the ritual of ‘stoning’ Satan during the Hajj pilgrimage.

40 See the wide literature on emulating the Imams and the Prophet’s close female relatives: Deeb (2005); Deeb (2009); Spellman-Poots (2012); Sharif (2005).

41 Foucault (2006), p 308, passim.

42 In a very different context one might recall how in Mrs Dalloway, Virginia Woolf has Hugh Whitbread’s deportment standing as the sole basis of his employment in the royal court. We can read his peers’ scepticism of this aesthetic ‘merit’ tracing the disruption of Victorian England’s hierarchical structures. In Bleak House also, Dickens has us laughing at the simulation of moral excellence by old Mr Turveydrop, the master of deportment. By contrast, Dickens gives us little to laugh at about the legal profession’s formal simulation of probity, represented by the merciless Mr Tulkinghorn and the glacial Jarndyce v Jarndyce. Yet Dickens’ own role in narrating injustice is a reminder of the internal complexity of the Western tradition.

43 On having discourses ‘available to hand’ see Foucault (2006), pp 324–327. For stories as a tradition of practical wisdom see Benjamin (2019), pp 26–55 (‘The Storyteller’).

44 For a legal analytical account of the sources of Islamic law, see Hallaq (2009a), pp 14–30; Hussain (2011), pp 32–49.

45 Possamai et al. (2016b), p 4.

46 Possamai et al. (2016b), p 13.

47 Possamai et al. (2016b), pp 16–17.

48 Possamai et al. (2019), p 71.

49 Black and Sadiq (2011), p 411.

50 Black quoted in Possamai et al. (2017), p 120.

51 Voyce and Possamai (2011), p 343.

52 Possamai et al. (2017), p 111.

53 Possamai et al. (2017), p 112.

54 Possamai et al. (2016b), p 13.

55 See Asad (2013), pp 20–63. Asad reflects on the specificity of the link between truth and transparency in the Western tradition.

56 Hallaq (2009a), p 8; also Schacht (1964), p 209.

57 C.f. Fuller (1969), pp 39ff.

58 Black and Hosen (2009), p 415.

59 Black and Hosen (2009); Voyce and Possamai (2011), p 343; Black and Sadiq (2011), p 396.

60 Black and Hosen (2009), p 419.

61 Black and Hosen (2009), p 419. The authors also suggest that the introduction of this marketplace will lead to more progressive jurisprudence.

62 Turner and Possamai (2015), p 3.

63 Turner and Possamai (2015), p 7; Turner and Arslan (2011), pp 141–142.

64 Black and Sadiq (2011), p 412.

65 Saeed (2018), pp 275–769; Hussain (2011), chs.4-14; Voyce (2018); Black and Sadiq (2011).

66 Hussain (2011).

67 Possamai et al. (2017), p 119.

68 Black and Sadiq (2011), pp 403–404.

69 Black and Sadiq (2011), p 398.

70 Berger (2018), pp 256–257.

71 Farrar and Krayem (2016), pp 6–9.

72 Black and Sadiq (2011), p 383.

73 Blanch (2023).

74 Turner (1978), p 7.

75 Weber (2013), p 216.

76 This much we can take from Edward Said’s (1979) more famous critique of Orientalism.

77 Hallaq (2018).

78 On thinking about the Sharīʿa epistemically, see Hallaq (2009b), pp 15–17.

79 Hallaq (2009b), p 21.

80 Here I am thinking of the parallel with Sherry Ortner’s critique of ‘ethnographic refusal’ in anthropological studies of resistance: Ortner (1995), pp 173–193.

81 Berger (2018), p 238.

82 Voyce (2018) pp 257–258.

83 See Asad (1986).

84 Black and Sadiq (2011), p 383.

85 Dagistanli et al. (2018).

86 Dagistanli et al. (2018), p 1261.

87 I find the explicit normative preference for a Sharīʿa-mindedness surprising given Turner’s earlier critique of ‘faith’ and ‘conscience’ in Hodgson’s work: see Turner (2016), pp 75–89.

88 Saeed (2018), p 756.

89 Possamai et al. (2016a); Possamai et al. (2017); Possamai et al. (2019).

90 Berger (2018).

91 Possamai et al. (2016a), p 342; Possamai et al. (2017), p 109.

92 Possamai et al. (2019), p 69.

93 Possamai et al. (2017), pp 113–115.

94 Possamai et al. (2017), p 115.

95 Possamai et al. (2016a), p 349; Possamai et al. (2017), pp 116–117. There is an instance of inconsistency in the results: Possamai et al. (2016a) offers conflicting findings that either 12 or 28 respondents saw ‘no major difference’ between Sharīʿa and Western law (compare pp 347–348 and 349).

96 Possamai et al. (2019), p 77.

97 Possamai et al. (2019), p 74.

98 Possamai et al. (2017), pp 110; Possamai et al. (2019), p 73; Possamai et al. (2016a), p 349.

99 Possamai et al. (2016a), p 345.

100 A sophisticated account of ‘Sharia processes’ as ‘people, procedures and practices’ is offered by Ahmed and Krayem (2021), pp 1,12,15ff.

101 Possamai et al. (2019), p 169.

102 Saeed (2018).

103 Dagistanli (2018), p 1259.

104 Black and Hosen (2009), pp 407, 423–425.

105 Dagistanli (2018), p 1262.

106 On the ‘aestheticised politics’ of ‘cultural pluralism’ see Rose (1996), p 78.

107 Hartman in Rose (1996), pp 78, 99.