Tuesday, May 16, 2017

Problematizing Few Claims in Dr. Brown’s Paper on Sodomy

Dr. Adis Duderija

I would like to briefly critique some assumptions behind some claims made in the article by Dr. Brown on sodomy from the perspective of problematizing the assumed concept of Sunna in the paper, a topic I have been publishing on for a decade.
The concept of Sunna as I demonstrated in my publications   remained epistemologically , and methodologically in dependent of the concept of a sound hadith as per classical ’ulum ul hadith for a period of two centuries or so. In my paper which traces the meaning and evolution in the meaning of the concept of Sunna during the formative period of Islam I conclude as follows:

“At the beginning of this article, two questions that guided its analyses were asked: namely whether the traditional definition of Sunnah that took root and established itself during the post-formative or classical period of Islamic thought reflect the way this term was understood during the preclassical period. The answer, based on our above analyses is a clear ‘no’. We have seen that over a period of some 250 years Sunnah was semantico-contextually and epistemologico-methodologically fluid. Secondly, this article has attempted to explain which mechanisms were responsible for its conflation with an authentic Ḥadīth as defined by the classical ʿulūm al-ḥadīth sciences and when they became apparent. From the above chronological analyses of the concept of Sunnah we can conclude the following. At the time of the Prophet and the first three to four generations of Muslims, the Qurʾān and Sunnah, in terms of their nature and scope, were conceptually seen as one organic whole. In addition to the ʿibadah dimension of Sunnah both of these sources of Islamic thought were primarily seen in ethico-religious and objective or values-based concepts and were reason inclusive. All these aspects of Sunnah could be formulated, preserved and transmitted orally. The concept of Sunnah was conceptually differentiated from that of Ḥadīth may it be in a form of sunnah al-maʿrufah or that of sunnah madiyyah. With the process of what we have described as traditionalisation, this concept of the nature and the scope of the concept of Sunnah (and that of the Qurʾān) underwent important conceptual changes. Severance of the symbiotic link between the Qurʾān and Sunnah occurred, and, over time, its hermeneutical dependence on Ḥadīth-based literature was largely engendered, thus changing conceptually its nature and scope as it was understood during the first three generations of Muslims.239 Secondly, the nature and the scope of the concept of Sunnah was conceptually distorted and conflated with the concept of ‘a post-Shāfiʿī authentic Ḥadīth’ which is how the contemporary Islamic majority mainstream thought continues to conceptualise it to this day.”

Early pre-Shafi’i  Hanafis and Malikis (to the extent we can tell) especially resisted the hadith-based concept of sunna but later on succumbed to it to a lesser or greater extent ( as discussed by various contributors to my edited book on sunna)  for the following reasons that I explain in the introduction section of  my edited volume on Sunna and its Status in Islamic law :

“● the continued growth and proliferation of had ī th ;
● the increasing importance given to ad ī th at the cost of what I have termed the non- ad ī th-dependent concept of sunna that was prevalent in the first two centuries of Islam as explained above;
● the articulation of non-verbally based aspects  of sunna into an individual, sound ( a ih ) ad ī th ;
·         the increased application of ad ī th to Qur ʾā n and sunna sciences such as jurisprudence ( fiqh) , Qur ʾā nic exegesis ( tafs ī r), and legal hermeneutics (u ū l al-fiqh) ;

·         ● the development of hierarchical, legal, hermeneutical models that were entirely text-based (i.e., based on Qur ʾā n and ad ī th ) and the marginalization of non-text-based epistemological and methodological tools of sunna (and Qur ʾā n) such as raʾy (reason-based opinion ), ijtih ā d, isti s ā n ; and

● the idea that sunna (and the Qur ʾā n) are conceptually coterminous with certain ethical values or principles, such as justice or righteous conduct, including the expression sunna ʿ ā dila that was employed by Muslims in the second century AH. “

In a separate article which traces the historical emergence of the concept of a sound hadith I conclude as follows:
“This article attempts to present a brief chronological analysis of the development of the Sunni Ḥadith literature and the concept of an authentic Ḥadith. The article has focused in particular on the question as to what extent the classical definition of the concept of Sunnah can be seen to embody the concept of Sunnah as it was understood during the formative period of Islamic thought. Relevant, recent Western scholarship found in literature was used in order to shed light on this issue. In this context, the extent, importance and nature of Ḥadith literature as well as the developmental stages of an authentic Ḥadith, during the first four generations of Muslims, have been investigated. The findings presented herein suggest that the writing of Prophetic reports probably took place even during the Prophet’s time, although the conditions for its widespread writing, transmission and proliferation were not favourable, not only in relation to circumstances surrounding the Prophet’s life but also on the basis of cultural preferences for oral transmission of knowledge. This led Juynboll to assert that the volume of Ḥadith literature remained very small during the first century. Moreover, its importance during this period of time as source of law against the regional concepts of Sunnah was negligible. A marked growth in the corpus of Ḥadith literature, although still not in its ‘authentic form’, took place from the middle of the second century. It was during this period of transition that an epistemologico-methodological shift in the concept of Sunnah was becoming ever more prominent. Consequently, this resulted in its more frequent semantic association with Ḥadith. However, as Souaiaia demonstrated in relation to Islamic inheritance laws during the formative period of Islamic thought, spanning the first two and one half centuries or so, traditions from the Prophet in form of Ḥadith as defined by classical ʿulum-ul-ḥadith sciences could not alone produce an adequate framing of inheritance laws. As such, even towards the end of the second century, Sunnah and Ḥadith were seen as conceptually different terms. Due to his effort to bring more uniformity into the largely divergent legal theories in various regions of the Muslim empire, Shafiʾi was the first second-century-born jurist to narrow down the concept of Sunnah to that of an ‘authentic Ḥadith’ usually going back to the Prophet. This conceptual alteration in Sunnah provided by Shafiʾi was brought to its logical extreme, accepted and further consolidated by Ahmed ibn Ḥanbal. It is his literal, decontextualised, reason-condemning bilā kaifa (‘without asking how’) approach to ‘authentic Ḥadith’ as sole repository, conveyer and ultimate interpretational tool of Sunnah that is implied by the muḥaddithūn’s classical definition of the concept of Sunnah which did not correspond to the way the concept of Sunnah was understood by the first four generations of Muslims but is still prevalent in the majority mainstream Muslim community.”

The hadith independent concept of sunna is one of the reasons why Hanafis, as noted by Dr.Brown on p.5.  resisted identifying  “liwāṭ as one of the Hudud crimes and set a punishment” due to the disagreement of early Muslim scholars which indicates clearly that had the  specific punishments identified in the hadith with all their variations been part of sunna , early Muslim scholars would NOT have been ignorant of it and /or disagreed so sharply. It is important to note that here we are talking about  a practice,  in actu ( ‘amal)-based element of sunna ( or if you wish the terminology of muhadithun, sunna fi’liyya )which does not need  textual documentation to be known. If indeed these hadith were part of sunna based practices, the early Muslim scholars would have identified them as such. Otherwise, we would need to be prepared to accept that early generations of Muslims did not know what Sunna was which is antithetical  to  Sunni  traditionalist worldview. It is much more likely , as I alluded to in my quote above ( and explain in my article  in some detail) that early Hanafis thought that  the concept of sunna was something independent of sound hadith  (terminology they used was   sunna madiya or sunna al-ma’rufa al-ma’fuza) and were able to reject these hadith regardless of their authenticity. It is worth noting that the early Malikis too had an independent concept of Sunna as it is  demonstrated both in  my article and edited volume  on sunna.

Another statement which is very revealing of Dr. Brown’s lack of adequate unawareness of the dynamics of  the concept of Sunna , it nature and scope in formative Islam and how it  was contested and evolved  over time is that he cites a  work of a muhaddith Al-Darimi as  proof that Sunna overrides the Qur’an and not other way around ( yes, I know other scholars take that view but they all operate within the hadith-based  classical concept  sunna paradigm) . Even if we accepted this  proposition  (which is rejected by  some Muslim scholars on perfectly legitimate grounds as explained in my edited volume on Sunna )  this  statement  assumes that the concept of sunna  that  Al-Darimi  had in mind ( which is that of  what I termed a hadith-dependent concept of sunna  discussed above)  is self-evident and that  it also assumes the classical post-Shafi’i concept of  sunna as alluded to above is somehow   the only  concept of sunna that ever existed  which, of course  is not the case.

As I outlined elsewhere there are other scholars who have theorised the concept of sunna differently from its classical definition including scholars like Ghamidi and his teachers ( who in my view are staying true to early Hanafi position on the question of the concept of Sunna) , Al-Alwani, F.Rahman , M. Shahrur  and myself.
 I have  also argued that we need a paradigm shift in the manner in which sound hadith are used in Islamic theology and jurisprudence away from focus on classical ulum ul hadith methodologies and more on usul ul fiqh, including progressive approaches to usul.

Finally I have made an attempt to identify a new methodology of the nature of the concept of sunna in articles that can be accessed here and here .

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