Vol. 7 No. 6 (June 1997) pp. 260-261.

Sarakhsi—Hugo Grotius of the Muslims: The Doctrine of Juristic Preference and the Concepts of Treaties and Mutual Relations, by Husain Kassim. San Francisco: Austin & Winfield, 1994. 153pp. Cloth $74.95.

Reviewed by Steven Forde, Department of Political Science, University of North Texas.

The title of this work leads the reader to believe that its subject is Islamic thinking regarding international law. And so it is, in an oblique way. The bulk of the work is devoted to rather intricate discussions of technical debates within Islamic jurisprudence, debates which touch upon issues in what we think of as international law. The book is much better at bringing out the technicalities than at applying them to international matters in any concrete sense. It is also written in a difficult style that makes it very difficult for the non-specialist to get anything useful from the argument. Specialists will be more likely to benefit, but their interest once again will be directed more toward intricacies of Islamic jurisprudence than issues of international law as we know them.

Throughout the work, the author uses transliterations of the key Arabic words, with translations in parentheses. This allows the reader with some knowledge of the technical terms to follow the discussion more closely, but for most of us, it will prove a distraction. Consider the following passage, which states part of the thesis of the book:

Sarakhsi asserts that the istihan (juristic preference) is a kind of qiyas (systematic reasoning) and both are, in fact, not different from each other except that the ‘illa (effective reasoning) employed in both of them is of a different nature. In the doctrine of systematic reasoning, it is apparent (jaliy) but weak(da‘if) in its evidence (athar) and in the doctrine of juristic preference, the ‘illa used is concealed (khafi) but strong (qawi) in its evidence (p. 24). There are actually interesting issues at stake in this passage, and the reader who succeeds in weathering the prose eventually begins to pick up on them. It turns out that "juristic preference" is an awkward translation of the notion that interpreters of the law may and should use practical considerations such as different circumstances, local customs, etc., in applying the law, rather than rigidly applying the law as given in scripture and in authoritative tradition in each and every case. This is an issue that has been debated in the West since Aristotle, and of course has its counterparts in Jewish and Christian legal theology. Sarakhsi and his fellow Islamists debate other issues with counterparts in the Western tradition, such as the difference between things commanded by divine law, things forbidden, and "indifferent" matters in between, and between "perfect" and "imperfect" duties. Law, and legal reasoning, have a different character in different spheres.

Mr. Kassim’s argument is that Sarakhsi, an 11^th century writer, was the first to put forward a systematic defense of "juristic reasoning" as a valid form of legal interpretation. He did this by showing how it could be grounded in the "Origin (asl)," that is, in the fundamental principles of (Islamic) law. This required him to identify a specific type of reasoning (‘illa), less rigid than formal legal logic, that takes into account variations of circumstance and the like. Western readers might think here of the difference between theoretical and practical reasoning. They might also think of the notion of prudence, defended by Aristotle and Aquinas among others, as a legitimate form of rationality that proceeds not by pure logical syllogism but by something looser than that. For Sarakhsi, this new logic allowed for law to become more flexible and humane. Mr. Kassim is not only an expounder of Sarakhsi’s thought, but its defender, a role that he plays well; but in his zeal to dismiss the Islamic skeptics of juristic reasoning, he sometimes underplays the problems presented by flexible, prudential reasoning within the context of law. Current debates between advocates of strict and flexible interpretations of the U.S. Constitution show that there is a greater problem here than Kassim acknowledges.

In Kassim’s account, Sarakhsi applied the doctrine of juristic preference primarily to treaties and to mutual relations of Muslims with non-Muslims. This is apparently what makes him the "Hugo Grotius of the Muslims." There are tantalizing hints of a Grotius-like role for Sarakhsi, such as the ability of juristic preference to base its judgments upon custom, but overall the analogy with Grotius is very inexact. Grotius found an international law of a kind in widespread custom, to which nations were presumed to have consented. This law meshed in complex ways with a permanent natural law, and with the "law of the gospels." In Sarakhsi however, there seems on Mr. Kassim’s account to be no notion of custom forming the basis of legal norms in itself, and no notion of natural law. In my understanding, these notions have very little place in the Islamic tradition overall, due to the overwhelming presence of divine command. It was the fact that Christianity in its origin was not wedded to specific political system or legal code, it seems, that allowed (or forced) it to draw upon such resources as natural law and custom in its legal thinking.

However that may be, Mr. Kassim does not mention Grotius once in his book, despite its title. For those interested in the way that Sarakhsi deals with issues of international law or morality, the book provides some insight, but will ultimately prove unsatisfying. Readers today might be especially eager to learn about how much flexibility Islam can muster in its dealing with non-Islamic states, since basic Islamic doctrine holds that the regions of Islam are at war with non-Islamic regions, unless specific treaties have been entered into. Sarakhsi’s flexible understanding of legal interpretation might hold out hope, but Mr. Kassim’s treatment of this issue is not well-developed enough to make matters clear one way or another. His book will be of great interest to those who are interested in details of the Islamic legal tradition (and who already know a fair amount about it), but will be a very difficult read for those who want to learn in a general way about the nature of Islamic legal thought or the attitude of the Islamic tradition toward international law and ethics.