Concept of Obligation in Islamic Law (The)
Spring term, Block L
T,Th 5:00 PM - 6:30 PM
Professor Baber Johansen (Harvard Divinity School)
3 classroom credits LAW-33385A
The classical Muslim law concept of the legal personality as the seat of personal obligation and debt is the most important object of study in this course. The relation between legal personality, personal obligation and debt will be analyzed in different ritual and legal contexts in order to get a grasp on the full range of these categories' functions and meaning. We will read texts belonging to two different genres of legal literature. The first literary genre, called the "roots of the law", treats the theory of legal argumentation, the second one, "the branches of the law" presents the doctrine on actionable legal acts and legal facts. In the first group of texts we will study the concept of (divine) command, human obligation and the causes of performance of that obligation. Texts from both literary genres on the obligation to pray and to fast will help us to better understand the dimension of cultic obligations.
"Branches of the law" texts from Central Asia, Iraq and Egypt, ranging from the eleventh to the sixteenth century, will be used for the analysis of the law of transactions. As far as the objects of contractual exchange are concerned, the concept of obligation will be discussed in the light of the distinction between fungibles, individual things and their monetary value. The category of "monetary value" is a condition for a complete concept of fungibility that allows to measure the value of all things and of all obligations in comparable terms.
The obligations that arise from donations differ in status from those that result from commercial exchange. They give more importance to honor, generosity and social relations as factors of obligation than to the calculation of the monetary value of objects. Consequently, their obligatory character and the calculation of equivalents is much less strict. But precisely for a better understanding of the obligatory character of obligations ensuing from commercial exchange, a comparative analysis of both types of obligations is indispensable.
The modalities of debt extinction between living persons as developed by the classical Muslim jurists are a complex problem. The jurists work with two concepts: one is the liberation of the legal personality through the payment of the debt, the other one depicts debt as the coming into existence, through an act of commercial exchange, of the same monetary value in the hand of the buyer as an obligation to pay the price and in the legal personality of the seller as credit to the buyer. The payment of the price, in this form of reasoning, leads to a clearing of the two monetary values and the establishment of a new equilibrium. We will discuss the meaning of and the relation between these two explanatory strategies in some detail.
Another key to the jurists' understanding of the relation between the individual's legal personality, her assets and obligations is their doctrine on the insolvent person. The integration of the insolvent into the commercial exchange is conceived of at once as a risk, as a commercial necessity and as a justification for the inequality of the partners in such an exchange. We will, in this context, analyze the dissent between and within Sunni schools of law on the question whether a seller is entitled to dissolve a sale if the buyer turns out to be insolvent. We will discuss the theoretical consequences and the practical meaning of such dissent. A comparison between modern forms of microfinance and the salam contract of Muslim law will show some commonalities but also important systematic differences.
The last three sessions of the course will be dedicated to the question which elements of this concept of obligation have proved to be compatible with modern Arab or Pakistani law.
Students will be required to choose early (i.e. by the fourth or fifth session) from the reader a subject on which they will lecture the class in the second half of the course. The first three sessions will be dedicated to the discussion of the concept of obligation in the history of common law and civil law. In the fourth and fifth section we will discuss the available English texts on obligation in Islamic law.
From the sixth session on we will study classical sources of Muslim Law. At the beginning of the term, the professor will provide translations from the Arabic of legal texts for the seventh to the twelfth session. For later sessions, the translations will be available latest two weeks before the date for which their discussion is scheduled.
This course is by-permission of the instructor for 1L students.