Hassaan Shahawy 00:00
How do we understand the historical weight of different legal traditions and different moral traditions and different social and civilizaitonal traditions and how they interact with our own American policy and legal debates today?
Clearly part of being a Muslim in the modern world and trying to continue our very proud and deep intellectual tradition is to think deeply about what changes and what stays the same. This isn't the first time that Islamic civilization or Muslims have gone through transformational changes.
Harry Bastermajian 00:43
Hello, and welcome to the Harvard Islamica Podcast. I'm Harry Bastermajian,
Meryum Kazmi 00:48
and I'm Meryum Kazmi. In this episode, we're joined by Dr. Hassaan Shahawy, who is a second-year law student at Harvard Law School. Hassaan was recently elected president of the Harvard Law Review, and, in addition to being the first Muslim in this position, he is also, as far as we know, the first in it to have expertise in Islamic law. Hassaan graduated from Harvard College in 2016 and went on to study at the University of Oxford as a Rhodes Scholar, where he earned his master's and Ph.D. in Islamic law. We'll start by talking more generally about the intersection of Islamic law and legal studies and then in the second part, talk more about Hassaan's Ph.D. dissertation on istihsan in the early Hanafi school. Welcome Hassaan, congratulations, and thank you so much for being here.
Hassaan Shahawy 01:33
Thank you for having me. It's a real pleasure. I'm so excited for our conversation today.
Harry Bastermajian 01:38
Great to have you here. Hassaan, could you tell us a little bit more about your background and how you became interested in the study of Islamic law and law more generally?
Hassaan Shahawy 01:49
Absolutely. I was born in Los Angeles to an Egyptian Muslim family and grew up very much close to my Muslim community here in LA. And our community tended to be more interested in sort of the American Muslim identity, looking forward at what Islam in America would look like. And I wasn't too exposed, actually, to much academic or traditional knowledge of the Islamic sciences. As I was growing up, I mean, I had a very thoughtful and wonderful mosque community, and very full of really wonderful people, and very intelligent and thoughtful people who knew the religion very well, but I didn't necessarily know much about traditional sciences and traditional scholarship. When I started as an undergraduate at Harvard, I started taking classes in classical Arabic and also, in the Boston community, started meeting more traditional scholars. And you know, there were certainly some in LA, I just hadn't met many of them. And that's when I really became interested in this deeper and broader tradition and history of the Islamic sciences and what we could learn from it and keep going with us to inspire how we practice Islam in the United States. And that began my journey. And I definitely slowly and slowly became more deeply involved in and attached to the traditional sciences and studied them traditionally with scholars in Boston, and then when I moved to the UK, with scholars in the UK, and I spent some time in various Muslim countries, studying with scholars there as well. And that, you know, is really-- my journey, I think, was from a Western intellectual tradition to really diving into our own Islamic intellectual tradition and learning to find the amazing parallels and the amazing synergies between the two and how they've interplayed with each other throughout the years. I think maybe that sums up how I've gotten maybe to at least the beginning of my journey.
Meryum Kazmi 04:05
Before we move on, do you mind talking a bit more about how you decided to go to law school after getting your Ph.D?
Hassaan Shahawy 04:11
Yes, sure. It's funny, I actually knew I wanted to go to law school. And I went to Oxford, originally just planning on a master's and then really loved my project, loved my advisor, Professor Christopher Melchert. I had spoken to him about just trying to get my project done and what he thought of it, and he seemed to like my project, and so I decided to commit extra time and finish it. But my plan was always to go back to law school. I really wasn't-- I'm still not sure if I want to be an academic. I think I'm interested in being perhaps a legal academic, a law professor because you're able to do both the academic work and what you'd call practical work sort of taking on, you know, you can litigate. A lot of law professors have a pro bono docket on the side where they litigate cases that they're passionate about or they're actively writing amicus briefs in support of cases that they care about. They're involved in clinics, maybe, at their law school. So it's a way to maybe straddle the academic and the practical and direct services and client-oriented work that I'm also interested in. So I'd always wanted to go back to law school, because I'd felt like I wouldn't be satisfied with a purely academic career and I think that's still true. At the moment, I want to get some litigation experience and see what that's like. But that's ultimately why I decided to go to law school, and also, it is my academic passion. I've loved studying the law, both Islamic law and other forms of law and legal questions, since undergraduate now and so even academically, it's been an extremely fulfilling experience.
Meryum Kazmi 05:56
And how did you become interested specifically in the topic of your dissertation, which is called, "How Subjectivity Became Wrong: Early Hanafism and the Scandal of Istihsan in the Formative Period of Islamic Law"?
Hassaan Shahawy 06:09
Yes. Yeah the title always gets people. I threw the word "scandal" in there to make it a little more exciting. I came to it, sort of, within the journey that I just described in my first answer. Clearly, part of being a Muslim in the modern world, and trying to continue our very proud and deep intellectual tradition is to think deeply about, given just the challenges of modernity, the basic questions that many Muslims ask is, "What changes and what stays the same?" And in thinking about that and in looking at how previous scholars have handled that same question, you know, this isn't the first time that Islamic civilization or Muslims have gone through transformational changes. So, one, Muslim scholars have faced profound social change in the many previous centuries in which that happened, whether that's just expansion beyond the Arabian Peninsula, whether that's the Mongol conquests, whether that's the conquest of South Asia, I mean, many contexts in which Muslims were suddenly confronted with much that was new, and also with struggle and defeat. So I think I wanted to see how scholars in those times answered those types of questions, because that could inform our own approaches to how we might try to answer those questions, and I found that there was a big debate, especially in what I ended up focusing on in the eighth and ninth century, precisely over this mechanism called istihsan, which is really a shorthand, you could say, at least for the Iraqi scholars of the time, for what to do when the practicalities of your given time and place might make you feel like the law needs to change somehow or needs to adjust, sometimes to help ease the transition, and sometimes to make sure that society doesn't move in a negative direction. So it's not always just towards the future, sometimes it's preservative, sometimes we need to adjust the law in response to a social change that is happening that is actually negative, and we can get more into that later in detail. But that really spoke to me. And there's so many parallels in those discussions with discussions that Muslims started having with their confrontations with modernity in the beginning of the 20th century and through today, the debates that the Muslim community is still having over how we continue to adjust and how we do that in a way that is inspired by our tradition, and not just either ditching the tradition entirely or holding fast to it as if it never changed.
Harry Bastermajian 08:52
You've spoken a little bit about this journey from the Western to Islamic intellectual tradition. How do you feel your background in different legal traditions-- and particularly the study of Islamic law-- how do you think that affects your study of law more generally at Harvard Law School?
Hassaan Shahawy 09:12
Yeah, on a superficial level, it was fun, for example, when I took-- part of the first year curriculum is the required property law course-- and in property law, in particular, I think it's the area of American law that is most, maybe, in sync with its medieval origins. A lot of trusts and estates law, a lot of property law just stems from the medieval English legal tradition, a lot of legal mechanisms and constructs and terms are still sort of old English. And there's a ton of parallels between those and similar concepts in Islamic law. A very simple example is the right of preemption, or first purchase, which is, you write into a contract that, "You buy this from me, but if you choose to sell it, I get first choice over buying it. You'll give me the right to choose to buy it first." In Islamic law that's called shuf'a. It's a well-known property right that, for example, neighbors have, at least in the Hanafi school. Neighbors have the right of shuf'a over their neighbor's property. So if their neighbor wants to sell something, a neighbor has the option to buy it at the same price first, and then one neighbor is obligated to tell another when they're selling their property, when they've agreed to sell their property. So that's a superficial example of really interesting parallels. And in property law, in particular, and trust and estates law, those parallels are very interesting because there's some research that's been done on for example, how university endowments, the origins of university endowments, are from Islamic awqaf and Islamic charitable endowments that funded Islamic institutions and universities and there's specifically some research linking that to one particular college in Oxford that first adopted the endowment model and how it might have been an import from Islamic universities at the time. So various historical parallels. More profoundly, especially given the political reality that we find ourselves in and the way that law is so political in the US, I think having a background in Islamic law helps me pierce through debates that often seem two sided-- like if you are a progressive, you necessarily think this is the correct legal answer and if you are conservative, you necessarily think that is-- with a legal tradition that just doesn't abide by America's political spectrum and so can have often surprising answers, and I've often found that the spectrum ends up not making much sense applied to me. I think we're also coming to a time in American history where it's clear the political spectrum isn't quite a spectrum. The far right and the far left are, sort of, it's almost like a circle now. They're kind of meeting together at some sort of anarchical, libertarian version of society. There's funny incoherences that are happening at the moment and for me, coming from an Islamic law background, I felt that a lot, that sometimes Islamic law has a particular thing to say about one thing that would be progressive in the American discourse, and then on another topic is more conservative than the conservatives and there's not one single alignment of opinions that we often have in American politics, where you have maybe two platforms. You're assumed to have an opinion on X because you have an opinion on Y. And I've just found it really helpful for sorting between those debates for myself, being able to take every issue on a case-by-case basis, and not see these things as necessarily linked or finding other surprising intellectual linkages between an underappreciated link, that, if you take the "progressive" position on X, it actually seems like intellectually, or logically, you share a premise with the conservative position on Y. Why would that not take you there? And so, I've just appreciated the ability to come in with this third perspective, that's not so grounded in our own time and place.
Harry Bastermajian 13:08
That's really interesting. If I could just push a little bit more there, just thinking about the Islamic legal tradition, we have several schools of Islamic law and you’ve worked on Hanafism. Do you think the multiplicity, I guess, of legal traditions in Islamic law somehow plays into that multifaceted perspective you could have, or approach, I guess, to questions in Western law?
Hassaan Shahawy 13:46
I think so, yes. I think what's so interesting about the American legal tradition is you see a lot of the legal theory debates, jurisprudential debates that lawyers in many legal traditions have had across history, including the Islamic legal tradition, basic tensions between textualism and purposivism and how active a judge should be to-- what they call judicial activism in American law-- how active a judge should be to try to achieve what they think is just in a given case. You see those debates, they're foundational. Now we have a court that's now characterized as originalist and there's a big, there was a shift from a purposivist to an originalist court, sort of. What I see in that is so interesting is that in Islamic law, you have those rough differences between the different schools of law but they always coexisted and there were different judges using those different methodologies in the same courts. And you often had-- I mean, there are some famous examples from Mamluk Egypt-- where a scholar, a judge, from one school of law, when a dispute came before him, knew that his school of law's answer to that dispute wouldn't give the parties the resolution they were seeking. For example, in a divorce case, a woman whose husband had disappeared in one school of law cannot seek annulment of that marriage for X number of years. In another school of law, it's an entire lifetime. So there's clear situations where clearly [for] the woman, not being able to remarry or so on is very difficult. And the judge, knowing that that was their school's opinion on that, but seeing that its application in this given cases isn't ideal and recognizing the validity of the other schools of law, would actually recuse himself from the case and say, "You'll actually want to take this case before Y judge of this other school of law, because you might be able to get a better outcome there" and seeing themselves as both mutually valid. And the famous declaration in Islamic law that, "Every mujtahid," you could call, "Every legal thinker," "Every legal school," even, "is correct," in the sense that we all have different approaches and are trying at the same thing but none of us is sure who's getting at exactly the right answer means that, in the American context, you could come at-- imagine a radical situation where the originalist judge knows that the originalist answer in a case is not going to get a party exactly what they, what people would think of as just and there are cases where judges say, "The law, as applied to this case, is unjust, but I am bound to the law that's written in some opinions." And you can imagine a case where that judge, knowing that, and knowing that a judge who embraces a more purposivist or living constitution, or all these other jurisprudential modes that have come about in American legal interpretation in the past 50 years or so, could say, "Well just go to one of those judges instead." It's a radical idea, one that strikes at the core of how we think American law should be interpreted, but I think that's what's really helpful about coming at it from perspective in another legal tradition is there are very different conceptions of how law should work, how legal authority should work, how judgment, and how cases themselves should be managed.
Meryum Kazmi 17:11
It would be great if you can tell us more about what your role as president of the Harvard Law Review entails and, if you have anything to add, about how you think your background in Islamic law is helpful for this role.
Hassaan Shahawy 17:22
It's funny, because when I was first elected, there were some funny, I'm not on social media, but my wife told me about some funny Tweets, where there were people like, "This is the beginning of the Harvard Shari'a Review" and I thought that was funny. I actually wanted to get a shirt made that said, "H-Shin-R," you now, the letter shin, for Shari'a, instead of "HLR." Obviously, not going to happen, a little controversial, but, you know, taking it tongue and cheek. But I did, in my candidacy, when I was speaking to editors about my idea for what I wanted to bring to the work-- in the Harvard Law Review the president is actually not as involved in deciding what articles we publish, for example. In other journals, the president sits on the articles committee, and helps decide what gets published. There's actually a very strong norm against that at the Harvard Law Review. We're a very democratic and egalitarian institution, so we have an articles chair and an articles committee. They do their thing, they read the articles, they accept them. We have a full body vote, actually, at the end of the articles process when we're deciding which articles to accept. Every editor-- we have 100 editors on the body-- every editor votes and that's how we decide, at the final stage, what to accept. The president and the articles chair aren't allowed to speak at that meeting even, because that's how strong our norms of just kind of democratic decision making and anti-hierarchy are. So my role doesn't come in deciding what to publish, but what the president at the Harvard Law Review does do traditionally is, when we do accept an article, the president does something called a president's read, which is the first substantive edit pass of an article, and that tends to be quite a long memo, 10 to 20 pages, sometimes, of really big picture edits that we suggest to authors, counter arguments, new literature to engage with, restructuring whole sections, or things like that. And in that role, the President can often have an active voice in pushing the authors to engage with a different set of ideas or even different literature, and, you know, what would the social science take on this argument be. It can really be as big picture as we want and, ultimately, the authors accept and reject what they will. This is all just editing work to help bring out the author's voice, but we sort of provide our own perspective in that way. I'm really excited about trying to bring more international and comparative perspectives to issues that are discussed, especially in American law, sometimes in a very domestic and parochial way. So I remember there was an article about the usage of debt as a means of social welfare in American politics and policy, and there's just so much to think about on a historical level in terms of the treatment of debt by various societies and various legal systems, the treatment of financial interest in particular. It's not just Islamic law, but Christianity and Judaism that had strong admonitions, if not prohibitions, on usury, and then the definition of what usury is and so on. And so the story of the rise of financial interest in American policy and debt funding as a way of uplifting the middle and lower classes also must grapple with, well, how did, for example, early 20th century or late 19th century Christians view the moral debates around usury, and how did they balance that with starting to implement active debt funding as a matter of policy? And that necessarily goes further back. What are the Christian perspectives on usury? And as part of that, what are other social perspectives on usury around the world and how other societies use this, if we're criticizing the usage of debt in American society? Have other societies also criticized it? Certainly historical ones have. What about modern societies? And so that's part of what I hope I'm able to bring. A perspective that is not as, maybe, domestic as some of our American policy debates can tend to be. And of course, that's in a way exactly what the people who are worried about "creeping Shari'a," this would probably terrify them, my statement there. But ultimately, I think, most would hopefully acknowledge that it's at least good to engage with policy solutions that have worked around the world, especially in the modern world. And then even in terms of, for example, this debate about financial interest, for example, there was a recent initiative by Bernie Sanders and Alexandria Ocasio Cortez to cap usury at 15% and some conservatives supported it and tweeted their support of it, citing the traditional biblical prohibitions on usury. So this isn't just creeping Shari'a, this is how do we understand the historical weight of different legal traditions and different moral traditions and different social and civilizational traditions and how they interact with our own American policy and the legal debates today?
Meryum Kazmi 22:46
Another example of bringing the Islamic legal perspective into the American context is your article called, "Judgment and Forgiveness in Texas: The Amber Guyger Case Through the Lens of Islamic Law." Can you tell us a bit about this article and some of the issues that you discussed?
Hassaan Shahawy 23:01
The article, I think, can exemplify that, hopefully, or at least, that's one of my first attempts at that and we'll see how that develops. The Amber Guyger case, for people who don't remember the name, it was big in the news a couple years ago. Amber Guyger was the police officer who entered a black man's home and shot him and tragically killed him while he was famously on the couch eating ice cream. And then there was a lot of outrage, justifiably, at that event, and then there was sort of a second round of outrage when, in the trial itself, the judge essentially expressed kindness for Amber Guyger and said, "I'm praying for you" and then she hugged Amber Guyger in court and the victim's brother also said that he forgave her and hugged her in court. And there was a lot of tension that many people felt between systemic justice, wanting this event that keeps happening again and again, the killing of black lives by police officers, wanting to see that taken seriously and not trivialized and not looked over and brushed over so quickly again and again. And the ACLU, I think, even had a statement that the black perpetrators of these crimes are never treated this way and we treat the white perpetrators of crimes with much more humanity. And so that's why the double standard was really difficult for people. At the same time, you, you know, what I'm talking about in the article in this tension is you don't want to judge every case on a systemic level and lose the case by case basis and the sort of individual justice that every person deserves. And that's such a profound tension, one that we've seen come up, for example, in the Me Too movement when it comes to the presumption of innocence versus believing women who have been assaulted. How do you balance the two? Wow do we fairly prosecute an individual that might have assaulted a woman when it's so hard for women in a systemic sense in our society to get justice when they've been assaulted in these ways? And so this tension comes up and up. And what I tried to do through writing about it through the lens of Islamic law is, I guess, show Islamic law's radical take on achieving personal justice in individual instances, which is to try to-- you know, there are famous cases of doing all that one can procedurally to avoid punishment, while at the same time finding ways to right the wrongs and do justice to the victims-- and so for example, cases where somebody has stolen something, there's a very famous and funny anecdote where a judge tells the thief that essentially everybody knows is the thief to not confess to the crime because nobody at that point wanted the-- even the victim was like, "It's okay, just give me my stuff back. I don't want that person to be punished," but obviously, there's a law on the books that punishes theft. And so the judge just says to the purported thief, or you know, who probably is the thief, says to him, just confess. It's actually a woman in this case, [he] says to her, "Don't say that you stole, but say that that property is that person's and so that way you've testified, we have witnesses to the fact that this property belongs to the other person, we'll get that property to the other person, but we don't have to prosecute you to the full extent of the law." And sometimes there's an even more radical case where one judge asks the purported thief, "Have you stolen? Say no," and says, "Say no," immediately on the heels of his question because at that point, if the person says no, no matter what anybody thinks or doubts, then there's not enough testimony to prosecute her. So there are these funny cases that get at the heart of this tension of how do you make sure that we're not prosecuting somebody when nobody wants that individual prosecuted, while still upholding the systemic justice that we want to see and also the justice for the victims. Obviously, this isn't a perfect parallel to the Amber Guyger case. Many in the family did want Amber Guyger prosecuted. But there are other cases in American law where there are-- mass incarceration is an excellent example of this-- there are times when people are committing crimes that nobody thinks this person should go to prison for this long at least, but somehow society, because of the laws on the books, the legal system still feels obligated to prosecute them according to the law on the books, even if the victims and the family of the victims are-- in victimless crimes it's much harder to see who has an interest-- but even in crimes with victims, family of the victims are saying, "We forgive them, it's fine, we don't have to prosecute them," but victim impact statements in American law only go so far, they don't completely erase the law. And prosecutorial discretion exists but it also only goes so far, sometimes the prosecutor just you know, has already started prosecuting and the case goes how it goes. So we have cases in American law where people are imprisoned who no individual in the society thinks or wants to be in prison. And Islamic law had ways to avoid that and avoided it quite actively, arguably, too radically and too far in the other direction, which would be surprising because most people think of Islamic laws as too strict when that's absolutely historically and doctrinally not true. And what I mean by historically is that there was actually the opposite concern, I also mentioned this in the article. About 200 years ago, the British colonialists in South Asia complained that Islamic law was way too lenient, that murderers were constantly getting off the hook because victims' families were forgiving them and because there was almost too much social reconciliation and too much forgiveness and not enough punishment. And so British colonial leaders actually wrote what they called the Anglo-Mohammedan Code to essentially fashion Islamic law in a more penal Western legal image. So it's a funny way that our perceptions of Islamic law today don't even map on to Western perceptions of Islamic law 100, 200 years ago.
Meryum Kazmi 29:34
Thank you. Before we move on, I was wondering if you wanted to say anything about other interests you have. I remember reading and in the articles about your new position that you're also interested in criminal justice reform and refugee issues. And I guess the issue of criminal justice came to my mind, because this is, of course, a big issue in the American legal context but also for the Muslim community as well.
Hassaan Shahawy 30:02
Yeah, absolutely. I mean, I've been very passionate about criminal justice since high school, really, I mean it's sort of cheesy, but when I read The Autobiography of Malcolm X, as a young Muslim coming of age and a young person of color, that was a transformative moment for me. And I knew also, here in Los Angeles, some friends of mine, whose families at least had been affected by mass incarceration. And then continued with that in undergraduate, I took a few classes related to it, I did an internship with the ACLU, I actually volunteered in a prison in the Boston area, sort of as a friend of a couple of incarcerated people there, and would go visit them every once in a while and write to them. So it's always been close to my heart. And as you say, quite rightly, I think, Meryum, it's also a very, you know, an issue that's very close to the Muslim community. Islam is also a major phenomenon in American prisons. Many incarcerated people convert to Islam in prison and many prisoners rights cases-- the Supreme Court doctrine on prison law and prisoners' rights, for the most part actually, results from many Muslims incarcerated, advocating for various protections and rights. There's a very proud tradition of essentially black Muslim prisoners fighting for their rights in prisons. So it's close to my heart in a number of ways, and just for the simple human fact of justice, and the tragedy of so many years of people's lives being taken from them and from their families. So I'm trying to find, you know, how that will be a part of my work going forward. I hope it always is. And this also is, you know, not everything has to be wrapped up in a pretty little bow. I don't think my academic work on Islamic law is directly relevant to my passion for criminal justice reform-- I think in some ways, it is actually because Islamic law has radically different notions of criminality, and criminal justice and criminal punishment, that can have us rethink even just long bouts of incarceration as a punishment. But beyond that, that sort of philosophical, you know, criminology topic, I just want to be involved in a day-to-day level in my local society and try to make change in a very local and marginal way, by remaining connected to the invisible that live around me, whether that's the homeless refugees, or those that are in a prison only a few miles away, that we never see because they're locked up there.
Harry Bastermajian 32:55
So we're going to switch gears here a little bit and go back to the discussion of your academic work at Oxford and your dissertation. If you could talk a little bit about istihsan, if you could explain what it is, for those of us who don't know, and its role in the development of Hanafism and how is istihsan used, or how do you use it, rather, in your study to challenge any sort of common perceptions and its role in early Hanafism?
Hassaan Shahawy 33:31
Istihsan literally means "to seek what's good," "seeking what's beautiful," you could say, and it was a term used by early judges in eighth century and ninth century Iraq, and then throughout the Hanafi tradition after that, mostly, to connote what you could call juristic preference or a juristic choice, a judicial choice, to choose one ruling over another. And that's commonly been associated with cases of, sort of, practicality, when it would just be impractical to stick to the letter of the law and the legally, technically obligatory or correct solution for something, to use this sort of juristic preference to say, "Well, actually, this other law may be more appropriate or may be better." So a very easy example of this is, for example, if you have a well, a well of water, that some kind of impurity falls into, animal feces or something, or an animal dies in the well, technically, that makes the whole well impure. You shouldn't be able to drink that water anymore, both on a hygienic level, but also a religious level. But the question is, after you remove the animal and sort of clean things up, is the water really still ritually impure such that we can't drink it and use it for ablutions and shower in it, and so on and so forth? Technically speaking, yes, because you never were able to remove all the water and purify the entire well and put the water back in. You just can't do that for a well. So practically, it probably makes the most sense to come up with a solution. And the solution is, and it's been reported by the earliest figures of Islam and therefore became sort of the legal solution, was to take out some nominal number of buckets from the well, three, seven, ten buckets of water from the well, and then you declare the well clean, even though that clearly didn't, technically, clean the entire well. That seems like a very technical and small example, but it quickly has big implications. You get into cases where it's essentially the feeling of the letter of the law versus the spirit of the law. It's that the basic human civilizational legal question of, do you follow the law when you feel like the law is for some reason not best in this situation, either because it's achieving an unjust result, or it just feels overly impractical or technical, or it's actually opening a huge legal loophole for achieving some evil ends through nominally legal means? And this is the big debate that I found early legal scholars to be having in this time over this usage of istihsan, of juristic preference. So I think I've described a little of why it's such a core question. In American law, you could call it the absurdity doctrine. There's cases where we just say, "This result is absurd." And therefore, for example, there's a famous case where a grandson kills his grandfather, but there's no technical reason why, if he's named in the grandfather's will, he shouldn't be able to inherit from his grandfather. There was no legal reason on the books yet, there was no statute written that said that a murderer cannot inherit from the person that they murdered. That obviously opens a huge legal loophole and so courts in the early American years called that the absurdity doctrine. They said it would just be morally absurd to allow this to happen, and morally and even socially, it opens huge incentives, bad incentives for people to murder the people that they are bound to inherit from, and not fear the-- they'll still get punished for the murder, they'll still go spend some years in prison, but there's nothing preventing them yet from receiving the money from the will. So in the early American years, before statutes were written specifically on the topic, judges just had to say, "Well, this is absurd. So we can't do that. The ruling cannot be that. It's going to be something different. We're going to create a law essentially, which says that somebody who murders the person they're bound to inherit from cannot inherit from them." And you see some of this happening in Islamic law, where a judge just feels "We're going to have to create a law here," or "We're going to have to suspend a law here to get at what's morally, practically, so on, socially optimal and ideal." This is clearly subjective and it clearly can get you into trouble at trying to justify what reasons are good enough for a human, especially in a religious law, what reasons are good enough for a human to decide when to suspend God's law, when to either put a pause on a religious law that does exist or to create a law where none exists. And this is the famous response from a very important early Islamic legal thinker, al-Shafi'i, who is one of, if not the most prominent Islamic legal thinker of Islamic history, famously declared istihsan impermissible, haram, categorically prohibited, sinful, and says that it's clear that anybody who uses istihsan is doing something impermissible. And this is really big because Abu Hanifa, the other huge legal scholar at the time, and his students, and the entire early Iraqi legal doctrine, was filled with istihsan and he said that this was all sinful. And specifically, he has another famous line where he says, "Anybody who's using istihsan, it's as if they're creating their own law, they're legislating, they're pretending they're God." He uses the word "sharra'a," which comes from Shari'a, it's the verb of it, which is to create Shari'a, to create a law. And he's saying you're playing God by making these laws where none exist. So this is a very fundamental, legal, philosophical question that every legal tradition has faced and I was really excited about getting to it in the Islamic legal tradition. And you could summarize my findings as saying that the early usage of istihsan was very much actively engaged in doing this kind of social weighing. Jurists, not all the time-- I found about 500 or so rulings in the early Iraqi legal corpus out of 10s of 1000s, so it's not that many at all-- but they did do it in some cases, and extreme cases, especially. And I found that in the century or two afterwards, there was a big debate over, okay, what's the justification for this? You don't have a strict legal proof. You don't have a strict textual proof to support this. How does this hold up as a matter of legal theory, which is, of course something American law has always debated as well. And what I found was fascinating was there were a group of people who didn't survive into orthodoxy into the 10th and 11th centuries of Islamic legal and they were arguing that, in the end of the day, we just have to say that sometimes judges, people, scholars who are well learned enough, who are pious, and have studied so much, can sometimes make law out of practical necessity or without evidence. This was extremely controversial, didn't survive into orthodoxy, but I was just intrigued by that historical fact of finding this school of early Iraqis, probably from the city of Basra, who over the course of 100, 150 years, were putting forward many different legal, logical, textual arguments for why there should be certain scholars, certain figures, who we allow to make law without any textual evidence, without any logical evidence, and it was just, you know, it's exciting to find, I think, this whole almost methodology, legal school, that that ended up dying out. The historical narrative there is tough. I'm trying to find out okay, where exactly were they? Who exactly were they? What books were they writing? But I think I've done enough in the dissertation to show that they existed and to find their arguments, quoted in many different texts.
Meryum Kazmi 41:20
It would be great to hear more about your analysis of Kitab al-asl by Muhammad al-Shaybani and how you went about analyzing the use of Esther Hassan by the Hanafi founders and what you found.
Hassaan Shahawy 41:35
Yeah, absolutely. So that was sort of the first part, you could say, of my dissertation, the first few chapters, definitely the most time consuming, because what I did was, as you said, I looked at the Kitab al-asl of Muhammad al-Shaybani. Muhammad al-Shaybani is one of the two prominent disciples of Abu Hanifa, so one of the three forefathers, you could say, of the Hanafi school of law, which is now one of probably the most, if not, second most, prominent Islamic school of law, and was the school of law of the Ottoman Empire and so on, and the Mughal Empire in India. So the fact that this is in the core of Hanafi doctrine makes it very important. So the Kitab al-asl is probably the earliest, you could say, complete legal treatise that we have of Islamic law, in the sense that it covers, you know, traditional Islamic law texts that arise one or two centuries later, have, you know, a chapter for each topic, and they're really very comprehensive, and they cover rulings on all types of things. And it goes from, traditionally, it starts with ritual purity, so how you make your ablutions and wash for prayer, through the worship sections, then through the transactional sections, business, contracts, marriage, things like that. So this is probably the first text that we have of that scale, of that comprehensive nature, and I went through it to find every ruling that I could of istihsan. Luckily, we have digital tools available now and I had a word that I could use to find it. So it was quite literally searching 30 different variations of the word istihsan and finding what in the end was about 550 rulings out of 10s of 1000s of them in this book that explicitly use istihsan. And then what I tried to do was categorize the types of reasoning that would go into that istihsan, because, like we said, istihsan just means the departure from what you think is the technically derived, objectively derived legal ruling to another legal ruling. And you can do that departure for any number of reasons. We already mentioned different distinct ones: practicality, avoiding a legal loophole. There are reasons that are not all the same, why you would depart from one ruling to another, and I found about 70 or so different reasons used, some of them much more often than others. So something like, for example, precaution. There's a legal ruling, you know, you're technically no longer obligated to pray that prayer, but out of precaution, we are going to use istihsan, juristic preference, to say you are still required to pray that prayer as a matter of precaution in the school, but even though it's precaution, we're saying it's actually obligatory, religiously obligatory. And there are about 20 cases of that. There's another one that I like to call decorum where, technically speaking, something should be legal, but because it doesn't look good, we're going to say that it's not legal. So for example, you technically speaking should be able to pray a funeral prayer while sitting or while actually riding on an animal and that's because, for any non-obligatory prayer, any prayer that's not one of the five daily prayers, you have the option to pray that sitting or to pray it while traveling, riding on an animal, or in the modern world it would be while in your car or in an airplane and not doing, you know, not standing up and doing the full motions, for a non-obligatory prayer. So the analogy goes that if the funeral prayer is a non-obligatory prayer, you know, it's obligatory that somebody pray the funeral prayer, but it's not obligatory that you pray it for everybody who dies, then you should also have the choice to pray it sitting or riding on an animal, just like any other optional prayer. And they say, "Technically speaking, yes, but it's not a good, you know, it's not good etiquette. It's not a good look, for people to be praying the funeral prayer sitting on animals or sitting down on the ground and not giving it its due respect" and they use the word "ugly" to describe it, "qabih," they say that it's not seemly, it's unseemly. So again, these are examples where you can see why al-Shafi'i, coming a few decades later, is going to say, "Who are you to say, who are you to decide what's unseemly, and what's not unseemly?" and that's where the subjectivity comes in. So that was my methodology and I went through it to categorize it into all these different types of reasoning and then I had other side metrics that I was very interested in. So I was very interested in when the ruling is attributed to a particular scholar, so often to Abu Hanifa, or to Abu Yusuf, or to al-Shaybani, and then sometimes to others as well. Can we pick out trends over how certain scholars would use it, and how other scholars would use it differently? And indeed, I find, I think, quite convincingly, that the sort of stereotypical narrative that Abu Hanifa was more willing to use istihsan in a seemingly subjective and problematic way and that over time, through Abu Yusuf and then through al-Shaybani who comes latest, the seemingly problematic or subjective uses decrease, and the ones that are more inspired by strict textual evidences and so on increase. I found that that actually bought out numerically, at least, in my numbers.
Meryum Kazmi 46:58
Yeah it was interesting to read about how while istihsan is often thought to lead to more lenient rulings, that, one, might not necessarily be the case, and that what we might-- what was considered lenience was not necessarily what we would consider to be good today.
Hassaan Shahawy 47:18
Yeah, absolutely. I think that's sort of one of the discrete arguments that I make in the dissertation. Istihsan is usually associated with lenience, but it's not always lenience. It's actually often stringency. And the case that I mentioned of precaution, or of decorum are good examples of that, where you should be able to do this, but we are actually going to say that you're not able to, or you shouldn't have to do this, but we're actually going to say that you have to. And those are the cases that al-Shafi'i I think was most concerned about and that bears out in his criticisms. He writes very long criticisms, critiques, of istihsan that I also get into in the dissertation, and it's clear that his critiques are angled specifically around when people are, you could say overstepping the bounds of the law, by creating new laws where there weren't, there weren't laws before or by suspending laws that exist. So you know, lenience is a much more prominent category and sort of easier to intellectualize because you can think about cases where, you know, a law shouldn't apply literally in every single case, and we just know that from our own personal lives. The most obvious example is, if you're in a medical emergency, you can speed. Nobody thinks that the speed limit should still apply. You can call that-- you know, it feels like lenience. It feels like we're going to put this law on pause because of a clearly more important priority that's happening here, but those aren't all spelled out in a religious scripture. So what priorities count? We're going to have to end up making human decisions about what our human priorities are. And that's what I found really fascinating about going through these rulings, is you start to piece together a vision of these jurists' social priorities, a vision of what they find is important enough to justify breaking the law, or changing the law. And not just important enough, but also, you know, intuitions that they have that we might not share anymore. And obviously, what the jurists are thinking is not necessarily reflective of what everybody else in society is thinking, but at least we're able to piece something together from one party of people and we can try through that maybe to do that for others as well.
Harry Bastermajian 49:28
You've touched on this at various points during our conversation today, but just sort of moving to later Islamic history, how did later Hanafis distance themselves from the notion of istihsan as subjective and why did they do that?
Hassaan Shahawy 49:44
It's interesting, this relates to what I was saying about some of the arguments that is discussed not even surviving into orthodoxy. Classical Hanafism starts in the 10th and 11th centuries, and even by then, the earliest works of Hanafi legal theory that we know of are distancing themselves from subjective notions of istihsan. Their argument is that al-Shafi'i in his criticisms of istihsan misunderstood it, that it didn't mean this type of subjectivity that he's criticizing, that it just meant departure from one ruling to another ruling that is also in analogically derived through accepted methods of legal derivation. What I find in my analysis is that while it's true that that's actually the most common method, using an analogy, qiyas in the Arabic, using an alternative analogy to come to a different ruling, and calling that istihsan, because you're departing from one analogy to another, that is the most common, but it's only 80 of 550. And the others, some of them you could classify as conventional as well like obedience to a hadith of the Prophet, a practice of the Prophet, not all of the Prophet's practices are going to be perfectly analogically consistent, so you should obey a hadith sometimes over what you think is the analogical derivation of another ruling. So there are some that you could say are, yes, still conventional legal processes, but I think that's another maybe 20, there's 400 left that you still have to deal with as quite apparently subjective. The classical Hanafis really do get into, you could say, semantic debates about what istihsan means. Did it really connote subjectivity? Did it really connote a scholar's ability to make a law without evidence-- which is a reported early definition of istihsan given by Abu Hanifa himself, but very "reported," it's not clear, we haven't found it in any writing so we're not sure how concrete that is-- ? But they were at this point, when no legal theory-- there is no legal theoretical body of jurisprudence that has found a way to incorporate our intuitions of morality and justice. They're just so amorphous and so fluid, that, you know, this is something American law struggles with, the traditional struggle between positive, what you could call positive law and natural law, positivism and natural law, is a very traditional debate and, arguably, now positivism has prevailed because it's just so hard to think of, where do we find our natural law, what is in what is an objective human natural law look like that isn't subjectively shaped by our own time and place in our own circumstance? And so the debates that end up happening in Islamic law are very similar. You kind of had a natural law versus positive law debate, al-Shafi'i being the positivist the early Hanafis being the natural lawyers, and the positivists winning and legal theory, the entire field of Islamic legal theory, of usul al-fiqh, being based on the premises that all of law must be objectively drivable, otherwise, how can you call it law? Otherwise, how can you have 50 different rulings in different places? How can that be a coherent body of law, or even in the same place by 50 different people all saying this is just what I think is better and this is what I think is better? At the very least we can come to different conclusions by citing evidence and by arguing over evidence and rational argumentation and logic, but doing it just based on what we feel is right seems like a much bigger step that I don't know of any legal theory, school of legal theory in Islamic law or otherwise, that has wholeheartedly embraced that, except for what I was mentioning, which is this invisible group of Iraqis and Basra, for about 100 or 150 years that didn't survive into classical orthodoxy. And I'm sure there are many others, but they never really formed the mainstay of a legal tradition in Islamic law or others. And I think that the classical Hanafis ultimately had to find a way to reconcile their early doctrine with that theory and with a more objective legal theory. And that's where you get into questions of what's the relationship between legal theory and legal doctrine, positive law? Are the rules really created by the legal theory or, in the most radical and reconstructive notion, is the theory just post-hoc justification of all these rules that already exist? I think, as with all things, the truth lies somewhere in the middle. And yeah, it's just a fundamental question of lawmaking, of legal philosophy and jurisprudence, which is why I find it so fascinating, because the same debates that are happening in ninth, 10th century Iraq and the same confrontations and revisionism that the classical Hanafis have to engage in and think about are the same things that we've had to do in American law in the 19th and 20th centuries.
Meryum Kazmi 54:41
How did the Hanafis and jurists of other schools, if you want to touch on that, deal with changing social, economic, and political realities, theoretically and pragmatically?
Hassaan Shahawy 54:51
In my, I guess the towards the end of the dissertation, I discuss this example of how jurists adjusted to Islamic political decline. In the ninth and 10th centuries was the decline of the Abbasid Empire by the, slowly and slowly, the conquests of the central Asians, and in that process, you see the transformation of, at least in the Hanafi school, a specific ruling about how scholars should earn their livelihood. In the original Hanafi doctrine, it was impermissible for a scholar to charge money for teaching. It was seen as charging money for an act of worship and piety, and that that was an impermissible mixing of worldly and other-worldly intentions. But, again, they call this istihsan, which is one of the reasons why istihsan drew my attention as relevant to the debate of how Islamic law changes. They said, a century or two later, the istihsan position of the later Hanafis became that now it's actually permissible for scholars to accept money for teaching religious knowledge and then over time, even more things were included: for serving as the Qur'an reciter in a mosque, for serving as the adhan reciter, call to prayer reciter in a mosque. They now we started to permit scholars to earn money for those jobs and the justifications that they're giving are very much tied to social realities. They cite Abbasid decline and say that, in the earlier years, essentially, in the years of the Abbasid heyday, scholars received stipends from the treasury without strings attached. They didn't have to teach. They were being supported by patrons, similar to the patrons in Italy that supported Leonardo da Vinci and the others. Sometimes they were paying them for work that they were creating, but other times, they were just giving them yearly money to be part of their court and to produce what they were producing, you know, just a salary, a stipend. And the Hanafi scholars say, you know, in the early years, that's how Hanafi scholars were surviving, but due to Abbasid decline, they say, specifically, the payments from the treasury have been cut off. And they say that there's constant vying-- there was a lot of regime change happening, especially in the outer Hanafi, the outer Abbasid lands into Central Asia, modern day Afghanistan, and so on, cities were changing hands between different political, princely states and so on even though the Abbasids were still nominally in control, there were sort of different sovereigns, different governors coming in and out constantly-- and so they were saying there was just so much back and forth, and who would be in favor one year and then out of favor the next and who would get a stipend one year and not as not a stipend the next that income streams were just extremely unstable. So because of that, and recognizing that if scholars can make a livelihood they're going to have to stop being scholars, there's not an incentive for young people to become scholars because they don't have a financial livelihood, scholars aren't going to have time to teach, because of all these practical reasons, we're going to have to allow scholars to take money to teach so that they can teach and so that we can have scholars still practice as scholars. And that's just one nominal example of what I think is just a really fascinating social change. And they didn't at all reinterpret the original legal texts, or the religious texts that they had originally based the ruling on. They justified it as a matter of social reality. You can see that that reasoning is extremely relevant to debates that happen today. The early 20th century was very famous for debates among Muslims about financial interest, saying that, "We are economically inferior to the West. If we don't start participating in Western economies with financial interest, using loans to really kickstart our economies, if we don't do this, we will remain perpetually inferior to the West, the Islamic world will stay in a state of decline, and Muslims themselves will suffer economically and those greater social changes and needs justify a change in the law." So it's the same style of argument and then you get to the same question at the end of the day. This is a matter of, of really difficult subjectivity. Who's to decide when a necessity is great enough to justify changing the law? And ultimately, we might end up having to just trust scholars' intuitions, whatever that might be. And that's precisely why those early Iraqis were arguing, "Sometimes a scholar just has to be able to make law without citing evidence because they have to be able to make these kinds of decisions and maybe we have certain leaders who just know the law well enough and are well in touch with the ethics of the religion and so on and just have spent their whole life studying this. At some point, maybe somebody gains a status where they have the intuition and the knowledge and the experience to try to make these difficult calls. And can we agree upon a class of people for whom that applies?" I think that's what the early Iraqis were saying, and that's a type of argument that I think is extremely important and relevant for modern Muslims to think about. Who do we trust or what are our ideal, you could say, qualifications and what are ideal you know, metrics for who we decide, who we allow to make these types of decisions? And they're certainly not always going to agree, but maybe we can at least have a certain set of people that we think of as valid participants in this debate. And it's very interesting, if we were to write a list of what those qualifications would be for a person, many Muslims across the world would come up with many different types of qualifications and lists and implicating many different social dynamics, racial dynamics, gender dynamics. But I think that's why I was so interested in this topic, because it really makes us think about who are our leaders today?
Harry Bastermajian 1:00:45
You answered my last question here. I mean, the qualifications of what makes someone an authority is not only relevant, I think, in Islamic societies, but around the world, right? So, you know, just thinking a little more about this and your research on istihsan in the formative period of Islamic law. I mean, authority, but how else does this sort of resonate in contemporary Islamic legal debates?
Hassaan Shahawy 1:01:20
I think there is this basic dynamic that always occurs in any Muslim community, whether it's intellectual or social debate, where there are appeals to tradition always being made. "Our tradition changed in response to social realities," "Flexibility is part of the tradition." So everybody-- or the opposite, "Our tradition has always, this has always been the ruling of this tradition so this different ruling that's coming up today is clearly aberrant." So all parties, you could say, across the spectrum, are appealing to tradition, and trying to demonstrate that, you know, their methodology and their process of decision making is consistent with various aspects of our tradition. And what I think is really fascinating about getting into these debates in the formative period, is that means drawing a line from participants in those early debates, to their equivalent participants in today's debates. There was a huge range of disagreement, but can we link the parties that existed then to the parties that exist now in terms of their general, you could say, methodology, outlook, what they're advocating for and so on, versus which parties today really have no early cognate? And I think when we have these disagreements and debates, people make almost exclusive claims to tradition, and say, "This is our tradition" and I'm trying, hopefully, to say, here's the range of voices in the tradition. Let's draw lines to the range of voices we have today. And we can still say like, I'm quite, you know, willing to say, I don't think Islam means everything. Some things are right, and some things like-- there are right and wrong answers. So some voices might not, modern voices might not have traditional cognates. But at least we have a better sense of what those voices are and what those are not, and understand how those early parties engaged with each other and debated with each other so we can understand how parties today are echoing some of the same debates. And in some sense, we sometimes repeat history. We have the same debates in different terms over different concrete rulings and issues but facing ultimately the same moral and legal questions and philosophical questions, like, for example, this one about the end of the day, who do we trust to make this decision and who are the people that should be engaging in this debate?
Meryum Kazmi 1:04:05
So I guess to close out, it would be great to hear about any future research plans you have or just otherwise, if you'd like to share what you hope to do next.
Hassaan Shahawy 1:03:56
Yeah, I'm still halfway through law school now, a little more than half luckily. So you know, a year and some left and I'm continuing, for now, the Law Review work is taking up most of my time, basically, a full-time job, which has been so exciting and thrilling, and then pursuing my classes. I have budding interests in environmental law, I care deeply about climate justice and the future of the planet so I'm hoping to pursue that further. Again, I still care deeply about criminal justice and refugee law. I also have, as I mentioned a bit in the beginning, an interest in property law, just for historical reasons, so maybe more academic, I want to pursue that a little further. Otherwise, I think I want to gain some solid litigation experience. I want to be able to be an advocate as well as a you know, as well as a thinker, if I am a thinker, and I don't want to be writing books that not many people end up reading for my whole life. Unfortunately, that's the sad state, academia has always been a strange creature. It has tremendous impact but it's always unclear how many people are reading an individual book. But somehow, the whole scope of academia has a profound impact on the shape of the world, so I don't discount the value of academic work. But maybe for selfish reasons, I want to feel like I'm also sometimes in the trenches, you know, helping people that need to be helped. What's so wonderful about legal writing and legal advocacy is, in the end of the day, you write what you think is a really sometimes intellectually fulfilling piece of work with really rigorous research and, theoretically, the judge has to read it and then make a decision based upon it, it doesn't just sort of go into the publication ether. So that's exciting to me and I want to try to make a difference through my work and through my research, and I want to probably spend a few years after law school doing some kind of public interest lawyering and learn those skills.
Meryum Kazmi 1:06:09
That was our interview with Hassaan Shahawy, second-year law student at Harvard Law School and president of the Harvard Law Review. Please join us for future episodes of Harvard Islamica to learn more about developments in Islamic studies across Harvard University and beyond. I'm Meryum Kazmi, thanks for listening.
