To define Islamic law you must first understand the nature of the universe (pt. 2 on theorizing Islamic law)

We all need to start giving more of a flux.

I’m halfway serious.

Consider a rock. It persuades you that it is a thing, and quite convincingly. But it’s lying. It’s not a thing, obviously — it’s an event.

And don’t take my word for it. As Carlo Rovelli, the renowned theoretical physicist, puts it, “even the things that are the most ‘thinglike’ are nothing more than long events.”¹ A rock’s declaration of its identity, I am a rock!, is true — but for a moment. Within the universe a subset of atoms are briefly arranged in the form of a rock but are always in the process of being reconfigured. All we ever encounter is a temporary stability on its way to becoming some-”thing” else.

This very idea was expressed way back in the 5th century B.C.E. by the Greek philosopher Heraclitus, who’s catchingly referred to as the “philosopher of flux.” In response, Parmenides argued that the universe is made of clunks and chunks. Two centuries later Plato and Aristotle sealed the fate of Western philosophy by subscribing to Parmenides “static” understanding of the universe and denouncing Heraclitus as a — gasp! — “dialetheist”! (Back then you did not want to be a dialetheist, though nowadays it’s more accepted in polite society).

Heraclitus’s insight has been rehabilitated in the modern school of “process philosophy,” and theorists are once again starting to give a flux. (Of course, often forgotten is the fact that process philosophy was already being developed in late 16th century Iran by the great Mullā Ṣadrā).²

If natural kinds (e.g., rocks) are processes, then social kinds certainly are, too. Social kinds are those objects whose reality we conjure with our minds. Think of money and universities. Paper and bricks are natural kinds. But as a social kind, money is a currency I can do a lot of things with, and a university is a pile of bricks that I indebt myself to so I can get a job to pay off that debt.

What does this have to do with Islamic law?

Well, everything, because Islamic law is a social kind. The same goes for the concept of law in general and, for that matter, the concepts of religion, politics, property, the economy, fine dining, classical music, family, etc. Our social world is built on, by, and around social kinds.

And this matters why? For the sake and integrity of knowledge. The full argument is brilliantly made by Jason Ānanda Josephson Storm in his 2021 book, Metamodernism: The Future of Theory. In a nutshell, for decades academics have been at each other’s throats arguing about what concepts (like religion, the state, law, slavery…) mean, where they come from, and who invented them (normally a group of European thinkers sometime between the 16-18th century tend to get all the credit).

Here’s a classic one: “religion” was invented by Protestant thinkers in the 16th century and existed nowhere else in the world until Europeans introduced it. The same argument is sometimes made about law. European and North American legal philosophers talk about the “primitive law” of savages — it’s not “law” because it doesn’t meet their standards, standards that are historical, contingent, and socially constructed. And the same argument is applied to Islamic law still.³

Storm doesn’t like this, and I don’t either. The very concepts that help us make sense of our world have been slowly dissolving and, as a result, undermining our ability to say anything meaningful about anything. However, the problems that began 2,500 years ago with that pesky Parmenides and his talk of “things” suddenly go away once we realize that a philosophy of flux is so much better not just because it sounds cooler, but because it makes a lot more sense.

When you understand that objects never rest in being but are always becoming, always changing and fluxing about, you avoid the problem of essentialism and many others.

Turning our attention back to Islamic law, and here I am specifically talking about the discipline of fiqh, we no longer need to worry about whether fiqh is “law” by measuring it against the standards set by modern legal philosophers in the Global North. We no longer need to parse which elements of fiqh are “law” or “ethics” on ideological grounds. We can avoid the colonial methodology of trying to impose sense on an object of study in order to make it legible to the Euro-American gaze.

But by saying that fiqh is law, do I not slide back into a substance ontology? Not quite. Going off Storm’s argument, the right question to be asking is not whether fiqh is law, but when and where is it law. Storm invites us to think about a ball. Is it a toy, or an art installation? That depends — is it featured in a museum, or are school kids playing with it in class? A ball becomes an art installation or a toy depending on the time, place, and manner of its use.

So we can say that fiqh is law, but it can also be ethics. It can be both, depending on the context (though, as I’ll argue later, it’s always law). All this assumes that there is a more abstract concept of law and ethics that I am drawing on, but the point is that it not be inextricably tethered to any one historical conception. In other words, and this is the clincher, the criteria for when fiqh is law or ethics should not be established with reference to a modern Euro-American perspective.

(I’m assuming there is a general concept of law in which fiqh partakes. That’s where Storm’s theory on how to construct disciplinary objects — broad categories like law, religion, etc. — gets more complicated. There’s no substitute for reading his book itself.)

Here’s the odd thing: nobody’s really tried to understand how Muslims themselves historically understood their legal tradition. Instead, the starting point tends to be a positivistic account of law — state-centered and oriented around power, enforcement, and violence. Though there are exceptions, these criteria are what tend to be used to identify law in Islam. But how did Muslims themselves define law? That’s for the next post.

A note to the disgruntled reader: You’ve a right to be unsatisfied that I’m not giving a fully fleshed out theory, but that’s mainly due to the limitations of this form. You might also begrudge all this as persnickety ivory-tower fussiness. But I think the implications are worth caring about more than just on a scholarly level. Any decolonial approach worth its salt must not only invite scholars and students to think differently, but show how the stakes are methodological, political, and moral, as I hope to do in this series.

1. The Order of Time, 98.

2. See Sajjad Rizvi, Mulla Sadra and Metaphysics: The Modulation of Being.

3. For a recent example, see Baudoin Dupret, Positive Law from the Muslim World. Dupret’s argument is more sophisticated than previous attempts to define Islamic law but nevertheless falters because it presumes a substance ontology.