Baudouin Dupret (2021), Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge: Cambridge University Press). ISBN: 978-1-108-84521-2.

This is an erudite, remarkably wide-ranging, and otherwise magisterial treatise on ‘law properly so called, from an Islamic vantage point’ (xi), a turn of phrase invoked with a nod to renowned Benthamite jurist John Austin (1). Written by Baudouin Dupret, one of the leading Western scholars of Islamic law and a prolific contributor to important debates in socio-legal studies, the volume is a most welcome contribution both to comparative-historical analyses of law generally and to the field of Islamic socio-legal scholarship in particular. The expansive, transdisciplinary scope and granular detail of the book build not only on thirty years of praxeological (‘practice-oriented’) research in Egypt, Syria, Morocco and elsewhere, but also on close collaboration with a number of scholars from Europe and the Global South. The capacious purview of the book and Dupret's explicit concerns with the Great Divide between ancient legal regimes and modern, rationalised systems of law (defined, following Austin, as ‘rules emanating from the sovereign command of the state’ [54]) will remind some readers of the field-defining scholarship produced by sociologist Max Weber in the early twentieth century. Weber's work has been unparalleled in the period since his death in 1920, though anthropologists such as Jack Goody subsequently pursued some of Weber's most general comparative-historical concerns to great effect. The same may be said of Dupret, whose stunning achievements in Positive Law from the Muslim World and other recent publications ensure that many of us will remain in his debt for years to come.

The book is organised into three parts, each of which consists of three chapters. Part I: The Concept of Law aims to disabuse readers of the notion that law is universal (or nearly so). This was one of the defining (though contested) arguments advanced by Malinowski, Gluckman, Hoebel and various others writing in the early to mid-twentieth century, key components of which continue to find support in some circles. Dupret does of course acknowledge that morally and religiously defined regimes of normativity, which are sometimes glossed as ‘folk law’ and/or ‘customary law’ in the literature, may bolster (or contravene) the codified, positivised law of states. He argues, though, that these regimes need to be treated as analytically distinct from the realms of law per se. He views the latter realms as sociologically and contextually specific historical phenomena that arose in conjunction with processes of state formation and centralisation, and the nation-building and imperial missions that accompanied them, in the ‘“very long 19th century” … between the Seven Years’ War (1756–63) and the First World War (1914–18)’ (54). For these and other reasons, he endeavors to rescue the concept of (positive) law from those who sometimes speak of it in the same breath as ‘natural law’, ‘legal pluralism’ and the like.

Another goal of the first part of the book is to lay the groundwork for some of the praxeological arguments developed later on. Dupret thus asserts: ‘It is absurd to ask, at a general level, “What is law?” However, the question “What do people mean when contextually using the word ‘law’?” is not only meaningful but also merits a conceptual inquiry’ (44). The enquiry begun here, much of which focusses on law's ‘grammar-in-action’ (43) in Muslim-majority settings, builds on Dupret's encyclopaedic knowledge of both foundational Islamic texts (the Quran, hadith) and the art, science and historical development of Islamic jurisprudence (fiqh). Additionally, it draws on his extensive understanding of the legal and political history of Muslim-majority regions and Europe alike, and is deeply informed by writings of myriad legal scholars (H.L.A. Hart prominent amongst them) as well as philosophers such as Ludwig Wittgenstein and Ian Hacking and ethno-methodologically oriented sociologists like Harold Garfinkel. One of the many virtues of the book is the incisive way that Dupret both weaves together and moves beyond the insights of these and other luminaries to develop his unique theoretical and methodological perspectives.

Part II: Historical Ontologies includes chapters on Moroccan constitutionalism, the development of forensic psychiatry in Egyptian law and justice, and the legal positivisation of ‘custom’, especially in colonial Morocco. The first – and to a lesser extent the third – of these chapters engages Morocco in comparative-historical terms to illustrate some of the varied ways in which colonial enterprises and the ‘complete redrawing of the world map’ (103) that occurred in the very long nineteenth century gave rise to the drafting and introduction of modern constitutions. These documents envisioned a variable balance both between monarchical orders and shari'a on the one hand (126) and between formally codified, positivised law and various non-codified regimes of normativity on the other. The specific balance (such as it was) that was struck in Morocco and most everywhere else in the Muslim world tended to favour monarchs and formally codified, positivised law over shari'a and non-codified regimes of normativity – even when constitutions paid lip service to shari'a (e.g. as a or the source of the constitution and the nation's laws more broadly) and incorporated some of its features into ‘Islamic family law’ (and other ‘personal status law’). These are amongst the reasons Dupret suggests considerable caution in using the expression ‘Islamic law’ as an unqualified gloss for shari'a and fiqh. Dynamics of this general sort also help explain why he rejects the contentions of certain other highly regarded authorities on Islam based in the West, such as Wael Hallaq and Abdullahi An-Na'im. These eminent scholars sometimes essentialise classical shari'a in the course of highlighting its differences vis-à-vis modern-day Islamic law (which, as suggested above, tends to be heavily circumscribed by states’ predominantly secular constitutions and their attendant regimes of civil or common law). Arguably most relevant here, they go on to contend that, at present, what is usually characterised as Islamic (or shari'a) law is altogether foreign to – and incompatible with – the essence and spirit of shari'a as understood, practised and experienced in classical times. I might point out that even when they are appropriately qualified, contentions along the latter lines are anathema to many ‘ordinary (and other) Muslims’ residing in Asia, Africa and elsewhere.

In the chapter on the development of forensic psychiatry in Egypt, Dupret expands his analysis to show that it was not only law that was positivised in the very long nineteenth century, so too was science (133). Both law and science were simultaneously vernacularised in the course of positivising processes encouraged by Egyptian leaders who endeavoured to modernise and consolidate their dynastic power. This entailed (inter alia) novel ways of thinking about and adjudicating both ‘traditional’ cases and the previously non-existent disputes and other dilemmas that arose as new entities and subject positions (‘public prosecutors, forensic psychiatrists, mentally ill people, criminals’ [152]) were identified in the shifting landscapes both of Egyptian society as a whole and in legal discourse and practice in particular. The more general point is that ‘science, justice, and the legal uses of science converged toward a common modern epistemology with the purpose of “making Egypt more efficient and manageable”’ (137).

Part III: Legal Praxeologies comprises chapters on present-day legal and cultural political controversies over ‘burkini’ swimsuits in France; the utilisation of fiqh to deal with gaps in legislation in marriage and divorce cases in contemporary courts in Morocco, Egypt and Indonesia; and the search for grounds of legal reasoning to adjudicate morally transgressive instances of homosexuality in Indonesia, Lebanon, Egypt and Senegal. This is the part of the book that will likely be of most interest to fellow anthropologists. One reason for this is the contemporary thrust of the discussion and the international attention accorded some of the cases explored here (perhaps most notably those dealing with homosexuality). A number of these speak to the deeply contested status and uncertain futures of liberalism and pluralism in the Muslim world and beyond.

The other reason this section of the book will likely be of significant interest to anthropologists is that here (and in the Conclusion) Dupret develops his practice-oriented perspectives to greatest effect. This involves demonstrating the value of exploring ‘ordinary methods of [judicial] reasoning’ (184), and, more generally, the ‘everyday’, ‘mundane’, intellectual and occupational tasks judges engage in during the course of their daily work routines. Some of these tasks have been transformed by the introduction of computers, which ‘makes it possible to reproduce the same formulas repeatedly through the medium of templates, [thus] … dramatically reduc[ing] the open-ended nature of legal debates in classical fiqh (214–215). Citing a passage from one of his earlier (2007) essays, Dupret observes, more broadly, that despite the Islamisation of many features of Egyptian politics and everyday life, Egyptian judges dealing with cases involving Islamic law do not frequently mention shari'a or Islam:

The reference to Islam is occasional; moreover, it is always mediated through the use of Egyptian law's primary sources, that is, legislation and case-law. … [T]his reference takes place in the banality and the routine of a judge's activity, which consists mainly in legally characterizing the facts submitted to him. By doing so, the judge is obviously more interested in manifesting his ability to judge correctly – according to the standards of his profession, the formal constraints that apply to its exercise, the legal sources on which he relies and the norms of the interpretive work his activity supposes – than he is to reiterate the Islamic primacy of the law he implements. (215; italics in original)

In the previously noted essay (but not in the volume reviewed here), Dupret elaborates with a few points worth mentioning in this context:

There is no doubt that, if asked, the same judge would underscore the conformity of his activity and the law he applies with Islamic law. However, such an attitude would only be retrospective, a posteriori and justificatory. In the course of his work, the judge does not orient himself to the necessity to assess the Islamic dimension of any object, even in this domain of law where the Islamic genealogy of rules seems most evident. … [L]aw is a practical accomplishment, rather than an archaeological search for the Islamic pedigree of the norm. (2007: 98)

One of the more general sets of themes addressed in the latter section of the book (and elsewhere as well) is the relationship between vocabulary and grammar, and the need to engage both features of language, while recognising their distinctiveness, and to pay especially close attention to grammar-in-action. Dupret illustrates, for instance, that ‘while judges deploy a vocabulary connected to traditional fiqh, the grammar of their legal reasoning is that of civil law’ (210). This leads him to ask an important question: ‘Does that mean that this is not Islamic law?’ (218). His altogether unqualified answer is as follows:

We contend … that this question is irrelevant. Islamic law is not what scholars decide it should be but what protagonists identify as such. … There is little doubt that most judges in Morocco, Egypt, and Indonesia hold that the use of templates and precedents does not make the law ‘unIslamic’ but, to the contrary, contributes to the tailoring of fiqh to legal modernity. … Rather than asking whether something is an instance of Islamic law, we should describe what actual protagonists refer to as Islamic law and how they do so. We need a detailed description of actual practices. (218)

Suffice it to add that I am amongst those who find considerable merit in these kinds of arguments (Peletz 2020) and that there are some broad epistemological and theoretical issues at stake here. A range of them are evident in earlier, sometimes unresolved debates in anthropology and beyond that focussed on the more general question ‘What is Islam?’. Others emerged through the critical interventions of scholars (e.g. Ahmed 2016; Osella and Soares 2010) who helped us overcome the impasse that stymied more than a few interlocutors. Dupret's volume, in its own way, offers similar paths forward, though that is only one of its many important contributions.

Michael G. Peletz

Emory University