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Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth

by Aasem Bakhshi

Please refer to part 1 and 2 for the background.

To effectively address the original Weberian objection i.e. normative pluralism is substantively irrational, it is mandatory to reformulate the problem in concise terms, starting point being that change in Islamic law takes place by means of some interpretive mechanism called Ijtihad. What exactly constitutes it: Is it the interpretation of the textual source ab initio; is it merely a pseudo-clandestine thought experiment to seek out verdicts on issues on which there is no past consensus among jurists; or is it merely a different solution to an old problem, but one which is in sync with contemporary social reality?

Irrespective of the particular theoretical inclination favored, there is no doubt that multiple norms will be generated in any interpretive undertaking; a fact which is amply observed by the term ta’addud al-ahkam in traditional Islamic literature. That this multiplicity of norms gives an irrational character to the law is the contention I am presently trying to analyze.

In my view, basis of this contention can be traced back to Islamic legal history and literature with some effort. After the post-recognition phase of Madhabs (the schools of Islamic Law), Muslims jurists increasingly found it hard to espouse the concept of Ijtihad “proper” through the medium of ifta’a, thereby limiting the response of an independent jurist to the ambit of his own juridical school. At times, some of these jurists resorted to quasi-artificial casuistic methods in order to achieve equity between presumed universality of complete legal paradigm, i.e. Sharia’h, and its practical manifestation when it comes to application of law to facilitate the functions of a society. Most of these casuistic developments – for instance Istihsan (Juristic Preference), Istishab (Presumption of Continuity), Urf (Custom) – in medieval times were arguably instigated by the desire to achieve a rational character of the law, thereby circumventing an almost subjective and probably mistakenly understood and emphasized universality of norms. And if all these developments and the enormous literary genre evolved from them achieved a kind of “practical wisdom” in line with social reality of times, it seemed rationally inconsistent to a modern critical mind.

But there is more to this discourse than casuistry acquiring a contemptuous nuance in Islamic law. Continue reading

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The legend of Kasu Ma sati in Pakistan’s Sindh

Kasu Ma is said to have immolated herself in the 18th century, after her son died in battle. She took on what was traditionally a wife’s duty because her daughter-in-law refused to die on the pyre – a bad omen which Kasu Ma hoped to negate with her own death

Zulfiqar Ali Kalhoro

An elderly woman leaned against the pillar of Kasu Ma sati, her head bowed down in prayer, oblivious to her surroundings. As I approached her, thinking to ask about the sati, she turned around and signalled for me to sit down. Her name was Shani Bai, she told me, and she was a member of the Meghwar community and a devout devotee of Kasu Ma sati. She had come to the shrine, in Sindh’s Mithi district, from the nearby town of Chelhar to pay homage.

Sati is a funeral rite, practiced by some Hindus, in which a recent widow immolates herself on her late husband’s funeral pyre; the term can also refer to the widow herself. The ritual is named after the goddess Sati, who, according to Hindu mythology, burned herself to death after her father insulted her husband, the god Shiva. Although strict proscriptions against the rite now exist, sati dates as far back as the fifth century, if not earlier, and was practiced regularly in parts of India until the 20th century. Even today, sati veneration is widespread throughout the Sindhi district of Tharparkar, where nearly every village has a memorial stone commemorating a sati.

As she sat in front of the shrine, Shani Bai told me she paid her respects to Kasu Ma whenever there was a problem in the family – and she is hardly alone. Many women of her community visit the shrine of Kasu Ma regularly in hopes of finding solutions to their worries and travails. During the annual mela, almost every caste of Hindus swarm to the shrine, where Maganhars, who have traditionally provided musical services, sing bhajan (devotional songs) and chhands (folk poetry) in honour of the sati. Continue reading

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