Shame (Haya') as an Affective Disposition in Islamic Legal Thought

journal of law, religion and state 3 (2014) 139-169

© koninklijke brill nv, leiden, 2015 | doi 10.1163/22124810-00302003

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1 Earlier versions of this paper were presented at the Conference on Law and Emotion, Cardozo School of Law, April 27–28, 2014 and at the workshop on “Approaches to Islamic Law in Society” at the Hagop Kevorkian Center, New York University, May 15–16, 2014. I thank the organizers of both conferences for inviting me, and I am grateful to my fellow participants, particularly Profs. Susan Bandes and Brinkley Messick, for their feedback. All errors are my own.

Shame (Ḥayāʾ) as an Affective Disposition in Islamic Legal Thought

Marion Holmes KatzNew York University

[email protected]

Abstract

The recent “ethical turn” in the study of Islamic law has directed much attention to the cultivation of “virtuous passions” as central to the project of the classical Sharīʿa. This model has been particularly salient in the study of normative rituals, and some schol-ars have extended it to encompass much broader social and disciplinary aspects of the ideal Sharʿī order. The present paper focuses on the concept of ḥayāʾ (shame), under-stood as the fear of moral or social disapprobation, which is arguably the affective trait Muslim thinkers saw as most fundamental to proper social functioning and adherence to the law. The article compares the treatment of ḥayāʾ in ethical and legal works of scholars of the Shāfiʿī legal school in the 11th to early 12th centuries and argues that works of substantive law pursued a deliberately minimal approach to the role of affect.

Keywords

Islam – law – ethics – affect

…Abū’l-Ḥasan al-Māwardī… said: “One night I saw the Messenger of God (peace be upon him!) in a dream. I said, ‘O Messenger of God, counsel

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2 This is the text of an actual ḥadīth report, although rephrased in the second-person singular as a personal counsel to al-Māwardī. See Muḥammad al-Saʿīd ibn Basyūnī Zaghlūl, Mawsūʿat aṭrāf al-ḥadīth al-nabawī al-sharīf (Beirut: Dār al-Kutub al-ʿIlmīya, n.d.), 1:504.

3 Abū’l-Ḥasan al-Māwardī, Adab al-dunyā wa’l-dīn (Beirut: Dār Iqraʾ, 1405/1985), 259.4 Talal Asad, Genealogies of Religion (1993), 219.5 Talal Asad, Formations of the Secular (2003), 205, 209.6 Ibid., 241.7 Saba Mahmood, Politics of Piety (2005), 123.8 Ibid., 129.

me!’ He said, ‘Be properly ashamed before God (istaḥyi min Allāh ḥaqq al-ḥayāʾ).’2 Then he said, ‘People have changed!’ I said, ‘How is that, O Messenger of God?’ He said, ‘I used to look at a child and see cheerfulness and shame (al-bishr wa’l-ḥayāʾ); today I look and do not see that in his face.’ … He did not begin with anything before counseling shame before God, and he made the cheerfulness and shame that were taken away from the child the reason for people’s changing. He specifically men-tioned a child because what he experiences comes by nature, without artificiality (takalluf).3

∵

The work of Talal Asad has spurred widespread interest in the “disciplined pas-sions” that stand at the center of Muslim ethics.4 Furthermore, Asad has elo-quently argued that these ethics are “embedded in the classical sharīʿa” in a way that contrasts sharply with the “distinctive relation between state law and personal morality” that is characteristic of modernity.5 In this view, the classi-cal Sharīʿa was an exemplar of “practical programs for the cultivation of moral virtues.”6 These insights have subsequently been extended by scholars inspired by Asad’s observations. Saba Mahmood focuses on the role of ritual practices (particularly canonical prayer, ṣalāt) in the formation of a Muslim moral self. The moral virtues produced through the performance of these rituals are pri-marily affective in nature. She describes how “sincerity (al-ikhlāṣ), humility (khushūʿ), and feelings of virtuous fear and awe (khashya or taqwa) are all emotions by which excellence and virtuosity in piety are measured and marked.”7 In her interpretation of her informants’ statements, “the enactment of conventional gestures and behaviors devolves upon the spontaneous expres-sion of well-rehearsed emotions and individual intentions…”8 More recently, Hussein Ali Agrama has extended this model far beyond the domain of pious

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9 Hussein Ali Agrama, Questioning Secularism (2012), 64.10 Wael B. Hallaq, The Impossible State (2013), 117.11 Ibid., 121. Compare Paul R. Powers, “Interiors, Intentions, and the ‘Spirituality’ of Islamic

Ritual Practice,” 72 Journal of the American Academy of Religion (2004), 425–459.12 Hallaq, Impossible State, 122.13 Ibid., 126.

self-cultivation, applying it to one of the central disciplinary institutions envisioned by classical fiqh, ḥisba (the Qur’anic duty of “commanding right and forbidding wrong,” which may be exercised voluntarily through individual persuasion or officially through the activities of formally-appointed inspectors of markets and morals). He writes:

Hisba is not just a set of limits and allowances, like the statutes of civil law, within which people pursue their interests. Rather, it is a practice that specifies the modes of its correct enactment in terms of proper dis-positions and passions… More than that, hisba is a practice aimed at pro-ducing the right fears and desires, such as the fear of God’s punishments, and the desire for His rewards. In other words, hisba is a disciplined prac-tice of moral criticism intended to produce proper Muslim selves, pos-sessed of the correct desires and passions.9

A similar approach has recently been pursued by Wael Hallaq, who argues that in the pre-colonial context the Sharīʿa was inextricably imbricated in social morality, which was in turn informed by the performance of the acts of wor-ship that grounded the legitimacy and persuasiveness of the law. “Their func-tion was subliminal, programmatic, and deeply psychological, laying the foundations for achieving willing obedience to the law that follows [in the ordering of classical fiqh compilations], that is, the law regulating, among much else, persons and property.”10 In discussing the individual acts of wor-ship, Hallaq strongly emphasizes the affective dispositions whose cultivation they involve. He argues that this is true even for the intention (nīya) that frames a given activity as an act of worship: “to intend an act of worship presupposes an emotive predilection on the part of the individual”; specifically, “niyya pre-supposes love.”11 Prayer is identified primarily with humility,12 while fasting “aim[s] to train the self to acquire and augment compassion, self-discipline, and gratitude toward both the Creator and creation.”13

Although much has thus been written asserting the centrality of the cultiva-tion of right “passions” or “emotions” to the theory and function of the classical Sharīʿa as a system, no systematic work has been done on the ways in which classical jurists referenced affective states in their analyses of the law, or which

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14 This word appears in some printed texts as tawba (repentance), but examination of the relevant entries confirms that the correct word is tuʾaba, from the root w-ʾ-b. It would not be unusual for a hamza to be absent in a manuscript.

15 Other genres of text sometimes do so. Following Aristotle’s Nicomachean Ethics, IV:9 (trans. C.D.C. Reeve [2014], 76), the Kitāb al-Saʿāda wa’l-isʿād attributed to Abū’l-Ḥasan al-ʿĀmirī (d. 992) states that a person feeling ḥayāʾ reddens, while one feeling fear grows pale (Abū’l-Ḥasan Muḥammad al-ʿĀmirī, al-Saʿāda wa’l-isʿād, ed. Mojtaba Minovi (Wiesbaden: Franz Steiner Verlage, 1957–8), 103). On the link between the Roman pudor and blushing see Robert A. Kaster, “The Shame of the Romans,” 127 Transactions of the American Philological Association (1997), 7.

of these states were most central to their understanding of its operation. The present paper argues that ḥayāʾ is a good candidate for the affective disposition that classical Muslim thinkers considered most fundamental to the formation of a Muslim moral self, and thus to the production of obedience to the law. It also argues, however, that even this highly-valued affective disposition played a relatively marginal role in the classical Islamic legal project (as distinct from the broader ethical and mystical discourses with which it was often in dia-logue), and that jurists were implicitly quite pessimistic about the possibility of actively fostering it, rather than simply accommodating its strength or weakness in individual cases. Furthermore, the kind of moral probity or social respectability understood to result from possession of ḥayāʾ bore an ambigu-ous and at times tenuous relationship with conformity to the Sharīʿa; virtue ethics, social order, and law were not always a single, seamlessly-integrated project, but sometimes a rather uneasy combination.

1 Defining Ḥayāʾ

While some terms are understood by Muslim scholars to have a legal (sharʿī) meaning distinct from their general usage in classical Arabic (lugha), ḥayāʾ is not assigned any technical meaning distinct from ordinary usage in legal works. Similarly to many other words that were assumed to be familiar to competent users of the language, ḥayāʾ is routinely glossed in pre-modern Arabic lexica by a small set of related terms (particularly ḥishma, tuʾaba14 and inqibāḍ), which are in turn defined in terms of each other (for instance, Ibn Manẓūr defines al-ḥayāʾ as al-tuʾaba wa’l-ḥishma, and al-ḥishma as al-ḥayāʾ wa’l-inqibāḍ.) With differences of emphasis and usage, all of these connote some combination of physical contraction or withdrawal, emotional discomfiture, and social con-straint. Classical lexica do not provide inventories of the physiological or behavioral indices (blushing, avoidance, or the like15) associated with ḥayāʾ,



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16 Lisān al-ʿarab, s.v. ḥ-sh-m.17 Tāj al-ʿarūs, s.v. w-ʾ-b.18 Abū Hilāl al-ʿAskarī, al-Furūq fī’l-lugha (Beirut: Dār al-Āfāq al-Jadīda, 1393/1973), 239.19 Maḥmūd ibn ʿUmar al-Zamakhsharī, al-Kashshāf (Cairo: Muṣṭafā al-Bābī al-Ḥalabī

wa-Awlāduhu, 1385/1966), 1:263 (commentary on verse 2:26).

but they do provide occasional examples of the concrete manifestations of this linked circle of terms. For example, ḥishma may be defined as what inhibits (al-inqibāḍ) one from seeking food or other favors from one’s fellow.16 Through the term tuʾaba, ḥayāʾ is also associated with social degradation and disgrace (khizy, ʿār).17

In places where it seems appropriate to provide an English gloss of ḥayāʾ, I am provisionally translating it as “shame.” Its semantic range would also embrace the English terms “modesty,” “bashfulness,” and even (as I argue below) “inhibition.” I have chosen “shame” because I believe that modesty (in the sense of avoiding excessive physical or social self-display) is only one instantiation of the word’s broader reference to an aversion to performing inappropriate actions. Similarly, “bashfulness” should be seen as a specific (and intense) manifestation of ḥayāʾ; in its broadest usage, the word does not sug-gest the possession of a retiring or self-effacing personality, but merely a sensi-tivity to the possibility that specific actions may be unbecoming. Although this usage is not idiomatic in English, “shame” should here be understood as the opposite of “shamelessness.”

In the texts discussed below, ḥayāʾ implicitly refers primarily to what might be termed “anticipatory shame,” that is, a person’s visceral awareness of the ignominy that would result from an envisioned action (and resulting disincli-nation to perform it), rather than the feeling ensuing after the action is per-formed. The tenth-century C.E. philologist Abū Hilāl al-ʿAskarī notes that the difference between embarrassment (khajal) and shame (ḥayāʾ) is that khajal appears on the face when one experiences chagrin at, for instance, the refuta-tion of one’s argument, whereas ḥayāʾ deters one from doing something in the first place; the person is “ashamed to do” it. In short, “embarrassment is from what has happened, and shame is from what will happen [in the future] (al-khajal mimmā kāna wa’l-ḥayāʾ mimmā yakūn).”18 The 12th-century philolo-gist al-Zamakhsarī defines ḥayāʾ as “a change and dejection (inkisār) that affects someone out of apprehension of what would cause him to be criti-cized and blamed.”19 Here it is assumed that there is indeed a change in the person’s demeanor, but the anticipatory nature of the feeling is similarly clear. Indeed, ḥayāʾ may be defined as a type of fear, specifically the fear of

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20 See the comment of Ibn al-Athīr cited in Lisān al-ʿarab, s.v. ḥ-y-y, which assumes that ḥayāʾ involves the fear of blame or disgrace. Aristotle defines shame as “fear of disrepute” (Artistotle, Nicomachean Ethics, 75 [IV.9]), an idea cited in his name in al-Saʿāda wa’l-isʿād (103: al-khawf min al-danāʾa wa’l-ʿār); see also Abū Ḥayyān al-Tawḥīdī and Miskawayh, al-Hawāmil wa’l-shawāmil, ed. Aḥmad Amīn and Aḥmad Ṣaqr (Cairo: Maṭbaʿat Lajnat al-Taʾlīf wa’l-Tarjama wa’l-Nashr, 1951), 41. Douglas Cairns defines the ancient Greek aidōs as “an inhibitory emotion based on sensitivity to and protectiveness of one’s self-image” (Douglas L. Cairns, Aidōs: The Psychology and Ethics of Honour and Shame in Ancient Greek Literature [1993], 2).

21 For critiques of the traditional distinction between guilt as “internal” and shame as “exter-nal,” and of the associated contrast between “guilt cultures” and “shame cultures,” see Cairns, Aidōs, 14–26; Ying Wong and Jeanne Tsai, “Cultural Models of Shame and Guilt,” in J. Tracy, R. Robins and J. Tangney, eds., Handbook of Self-Conscious Emotions (2007), 210–223, especially 210–211.

22 Thus, al-Qushayrī introduces the concept of ḥayāʾ in his handbook of Sufism by citing Qur’an verse 96:14, “Does he not know that God sees?” Abū’l-Karīm al-Qushayrī, al-Risāla al-qushayrīya fī ʿilm al-taṣawwuf, ed. Maʿrūf Zurayq and ʿAlī ʿAbd al-Ḥamīd Balṭajī (Beirut: Dār al-Jīl, n.d.), 214.

23 Aristotle defines shame not as a virtue but as a feeling (Nicomachean Ethics, 75), a view reproduced in al-Saʿāda wa’l-isʿād (103), but Cairns observes that aidōs may be disposi-tional rather than (or as well as) occurrent (Aidōs, 11). Paul Ekman has defined emotions as having “unique physiological patterns” and being evanescent rather than enduring. In his later work, he included “shame” in his enumeration of thirteen distinct, universal “basic” emotions. However, ḥayāʾ, as defined in the classical Arabic literature discussed here, does not correspond directly to this emotion, primarily because it is anticipatory rather than involving an immediate physiological response to an “antecedent event.” As understood by the authors under consideration here, ḥayāʾ is the fear of social disapproval that restraints one from committing actions that would evoke “shame” in the sense intended by Ekman. It is also understood to be a sensibility that one possesses on an ongoing basis,

social disapprobation; this definition has clear roots in the Greek philosophi-cal tradition.20

Disapprobation or disgrace must be exercised by some audience, at least a hypothetical one. From the point of view of linguistic usage, one feels shame (istaḥyā) “from” (min) – in the sense of “in front of” – another person. The gaze that evokes ḥayāʾ may be imagined or internalized such that no concrete exter-nal observer is necessary.21 As reflected in the quotation at the opening of this article, the divine gaze was envisioned by Muslim scholars – particularly, although not exclusively, among Sufis – as the omnipresent source of proper ḥayāʾ.22 Nevertheless, the social and relational nature of ḥayāʾ is never com-pletely absent. Finally, the texts consulted here tend to assume a relatively durable capacity for (or lack of) ḥayāʾ; thus, “having ḥayāʾ” should be seen as an affective disposition rather than simply an evanescent feeling.23



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rather than an evanescent feeling, and it may be defined using Ekman’s terminology as an “affective personality trait.” See Paul Ekman, “Basic Emotions,” in Tim Dalgleish and Mick J. Power (eds.), Handbook of Cognition and Emotion (1999), 45–60.

24 See, for instance, Bukhārī, Ṣaḥīḥ, Kitāb al-Adab, Bāb al-Ḥayāʾ.25 See, for instance, Bukhārī, Ṣaḥīḥ, Kitāb al-Īmān, Bāb al-Ḥayāʾ min al-īmān.26 See, for instance, Bukhārī, Ṣaḥīḥ, Kitāb al-Īmān, Bāb al-Ḥayāʾ min al-īmān; Kitāb al-Adab,

Bāb al-Ḥayāʾ and Kitāb al-Adab, Bāb Idhā lam tastaḥī fa’ṣnaʿ mā shiʾta.27 Ibn Qutayba, Taʾwīl mukhtalif al-ḥadīth (Cairo: Dār Ibn ʿAffān, 1430/2009), 440, 441–442;

see also Ibn Ḥajar al-ʿAsqalānī, Fatḥ al-bārī bi-sharḥ Ṣaḥīḥ al-Bukhārī, ed. Ṭāhā ʿAbd al-Raʾūf Saʿd (Cairo: Maktabat al-Kullīyāt al-Azharīya, 1398/1978), 1:137.

28 On the “ethical turn” in anthropology and its application to the genre of the fatwa, inter-preted in terms of the “ethical notion of the care of the self,” see Hussein Ali Agrama, “Ethics, Tradition, Authority: Towards an Anthropology of the Fatwa”, 37.1 American Ethnologist (2010), 2–18 (especially 2 and 13).

Among Muslim scholars, reflections on the pivotal role of shame in the ethi-cal regulation of the individual were evoked in part by a range of statements attributed to the Prophet Muḥammad. The Prophet himself is said to have been “more bashful (lit. “more intense in shame,” ashadd ḥayāʾan) than a virgin in her alcove.”24 Widely-cited ḥadīth texts state that shame is “part of faith” (min al-īmān) or “a branch of faith” (shuʿba min shuʿab al-īmān).25 A report transmitted in the Ṣaḥīḥ of al-Bukhārī avers that “shame brings nothing but good” (al-ḥayāʾ lā yaʾtī illā bi-khayr), while another declares, “If you don’t feel shame, then do what you like!” (in lam tastaḥī fa’fʿal mā shiʾta) – a piece of wis-dom identified as being preserved from the “first prophecy” (al-nubūwa al-ūlā).26 Based on such texts, shame is consistently identified by ḥadīth schol-ars as the affective trait that restrains people from wrong actions. The ninth-century C.E. ḥadīth scholar Ibn Qutayba notes in a sentiment widely reproduced in later centuries that “We say that a person who feels shame (al-mustaḥyī) desists from acts of disobedience [to God] through shame, just as he desists from them through faith, so it is as if it were a branch of it…” He glosses the prophetic report “If you don’t feel shame, then do what you like” as meaning “that anyone who does not feel shame and is immoral (fāsiq) will engage in every obscene act and commit every bad thing, because neither reli-gion (dīn) nor shame (ḥayāʾ) restrains him. Don’t you see that religion and shame perform the same function (yaʿmalān ʿamalan wāḥidan), so it is as if they were the same thing?”27

The concept of ḥayāʾ was particularly well-developed in two Islamic disci-plines relevant to the issues of moral self-cultivation raised by the “ethical turn” in the contemporary study of Islamic law and piety,28 Sufism and ethics (akhlāq). Statements about ḥayāʾ, understood as the spiritual-affective state

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29 See Qushayrī, Risāla, 214–218.30 See T.J. Winter, Al-Ghazālī on Disciplining the Soul: Kitāb Riyāḍat al-nafs & on Breaking the

Two Desires: Kitāb Kasr al-shahwatayn, Books XXII and XXIII of The Revival of the Religious Sciences, Iḥyā᾽ ʿ ulūm al-dīn (1995), li. For this schema in the thought of Ibn Sīnā, see Peter Heath, Allegory and Philosophy in Avicenna (Ibn Sînâ) (1992), 61.

31 Ibn [sic] Miskawayh, Tahdhīb al-akhlāq (Beirut: Dār al-Kutub al-ʿIlmīya, 1405/1985), 17.

resulting from consciousness of the contrast between God’s majesty and grace and one’s own shortcomings, are attributed to early mystical authorities such as Dhū’l-Nūn al-Miṣrī (d. 861) and al-Junayd (d. 910). Ḥayāʾ was also identified as one of the ascending spiritual “stations” (maqāmāt) traversed by the Sufi aspirant.29 In the Greek-inspired Islamic ethical tradition, ḥayāʾ was understood in terms of a Platonic model positing four cardinal virtues (wisdom, courage, temperance, and justice) and three faculties of the soul (rational, nāṭiqa; irascible, ghaḍabīya; and concupiscent, shahwānīya).30 In his ethical manual, Tahdhīb al-akhlāq, the 10th-century philosopher and historian Miskawayh lists ḥayāʾ first among the traits associated with temperance (ʿiffa), the virtue specific to the concupiscent power. He defines it as “the soul’s con-straint (inḥiṣār) out of fear of committing repugnant acts, and apprehension of criticism and rightful blame.”31

2 Ḥayāʾ in Islamic Legal and Ethical Works

The present paper examines the meaning and role of ḥayāʾ in the work of Shāfiʿī jurists of the 11th to early 12th century, particularly focusing on Abū’l-Ḥasan al-Māwardī (d. 1058), who lived in Baghdad; ʿAbd al-Malik al-Juwaynī (d. 1085), who spent most of his life in his native Nishapur; and the latter’s student, Abū Ḥāmid al-Ghazālī (d. 1111), who lived and worked in both Baghdad and Nishapur. Al-Māwardī lived under Buyid rule, whereas the other scholars whose work is examined here flourished under the Saljuqs. The intent is not to argue that the ideas about ḥayāʾ appearing in these texts are specific to this period; rather, it is hoped that consistency in historical period and legal school can help to highlight the distinctiveness of the approaches of the individual scholars and the variation between works of different genres. Because our objective is to explore the ways in which ethics, understood in terms of the cultivation of right affective dispositions, is embedded (or not) in legal thought, we begin by examining works in which our authors (particularly al-Māwardī and al-Ghazālī) focus directly on ethical self-cultivation, and proceed to com-pare them with those written in a legal mode (texts of the genre furūʿ al-fiqh).



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32 Māwardī, Adab al-dunyā wa’l-dīn, 256–257. He describes good and evil (al-khayr wa’l-sharr) as “hidden/latent things” (maʿānin kāmina) that are revealed by “outward charac-teristics” (simāt) such as ḥayāʾ, here implicitly understood in a behavioral sense.

33 Ibid., 257.34 Ibid., 257.35 Ibid., 258.36 For a parallel statement in a somewhat later source, see al-Rāghib al-Iṣfahānī, al-Dharīʿa

ilā makārim al-sharīʿa, (Abū’l-Yazīd Abū Zayd al-ʿAjamī (ed.)) (Cairo: Dār al-Salām, 1428/2007), 208.

37 Māwardī, Adab, 259.38 For a more general discussion of the meaning of the word murūʾa and its historical devel-

opment, see Encyclopaedia of Islam (2nd ed.), s.v. “murūʾa” (by E. Farès).

As emerges from the epigraph to this paper, in his ethical work Adab al-dunyā wa’l-dīn al-Māwardī assigns a significant role to ḥayāʾ in his discus-sion of the virtues. His discussion of ḥayāʾ opens by describing it as an external and visible sign of internal and invisible virtue; here it appears to be a behav-ioral trait, opposed to impudence and vulgarity (al-qiḥa, al-badhāʾ).32 It is directly associated with social “face” in an epigram stating that “The face lives by its ḥayāʾ, as a seedling lives by its water.” (“The water of the face,” māʾ al-wajh, is an idiomatic term for honor or prestige.) Another aphorism declares that “Whoever is covered by the cloak of ḥayāʾ, people will not see his faults.”33 But ḥayāʾ is also a matter of internal motivation; al-Māwardī proceeds to assert that “Someone who is deprived of ḥayāʾ has nothing to restrain him from a bad action or deter him from a forbidden one; he embarks on what he likes and does what he pleases.”34 There follows an analysis of the Prophetic ḥadīth stat-ing that if one has no shame, one should do as one likes. Al-Māwardī prefers to interpret the demand “Do what you like!” as a rhetorical admonition against shamelessness, although he also entertains an interpretation (attributed to a Ḥanafī authority) in which the Prophet is understood to be counseling the use of one’s intuitive sense of shame as a source of moral guidance.35

The remainder of al-Māwardī’s analysis revolves around the three imagined observers before whom one may feel shame: God, other people, and oneself.36 Ḥayāʾ before God involves obedience to His commands and avoidance of actions He has forbidden. Shame before other people appears, perhaps sur-prisingly, not as an inferior and meretricious motivation, but as one intimately entwined with shame before God. Al-Māwardī cites one ḥadīth counseling to “Be ashamed before God as you are ashamed before the possessors of prestige among your people,” and another declaring that “Part of mindfulness of God (taqwā Allāh) is being mindful of people (ittiqāʾ al-nās).”37 Shame before other people is also closely associated with murūʾa, a concept sufficiently central to ethical and legal discussions of ḥayāʾ to merit close consideration.38

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39 See Hans Wehr, in J. Milton Cowan (ed.), Dictionary of Modern Written Arabic (3rd edition, 1976), 902.

40 Ignaz Goldziher, “Chapter one, Introductory: Muruwwa and Din” in S.M. Stern (ed.), Muslim Studies (translated by C.R. Barber and S.M. Stern)(2006), 22; see also M.M. Bravmann, The Spiritual Background of Early Islam, with an introduction by Andrew Rippin (2009), 5. Bravmann, however, critiques Goldziher’s arguments about the val-ues comprised in pre-Islamic murūʾa and their incompatibility with Islamic dīn, religion (1–7).

41 Toshihiko Izutsu, Ethico Religious Concepts in the Qurʾān (2002), 27.42 See, for instance, Tāj al-ʿarūs, s.v. m-r-ʾ.43 See, for instance, n. 64 below.44 See Ibn Manẓūr, Lisān al-ʿarab, s.v. m-rʾ.

The abstract noun murūʾa is derived from the noun marʾ, “man” or “person.” It is sometimes translated in gendered terms as “manhood” or “chivalry.”39 Focusing on the word’s etymology and its meaning in the pre-Islamic Arabian context, Goldziher defines it as the generous and warlike virtues of the tribal male and points out the correspondence between murūʾa and the Latin virtus, with its derivation from vir, “man.”40 Similarly, Toshihiko Izutzu observes that “the word means etymologically something like ‘the property of being a man,’ and one may feel amply justified in using the English word ‘manliness’ as an exact equivalent.”41 But in the classical Islamic legal and ethical texts under consideration here its usage is less consistently gendered and less focused on exalted “manly” virtues such as valor than these renderings might suggest; the same is true of the classical lexical tradition. The term marʾ is also used (with the addition of tāʾ marbūṭa as a feminine ending) to mean “woman,” and the most common gloss of murūʾa is simply “human nature” (insānīya), although “perfect manliness” (tamām al-rujūla) also occurs.42 It is possible for jurists to allude to the demands of murūʾa upon a woman.43 Classical Arabic lexica define it for example, as “for a person to engage in that which is considered praiseworthy (yustaḥsan) and avoid what is considered vile (yustardhal)” or as “protecting oneself from defilements (al-adnās ) and from anything that dis-graces one in front of people.”44 While murūʾa is clearly connected with ethical probity, it is thus grounded in sensitivity to the social perception of one’s actions. One achieves this quality by avoiding disgrace and taking into account what one’s peers consider to be praiseworthy or vile, in other words, one might say, by having a sense of shame. As suggested below, a loose but useful English rendering of murūʾa might be “social competence.”

In keeping with his general linkage between murūʾa and attentiveness to the opinions of other people, al-Māwardī links it to “love of praise” (ḥubb al-thanāʾ), which here notably appears as a positive trait; elsewhere in Islamic ethical and



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45 See al-Māwardī, Adab al-dunyā wa’l-dīn, 250 (love of praise as a fault); 260 (love of praise paired positively with “kamāl al-murūʾa”). Al-Ghazālī discusses at length the evils latent in the love of human praise, and methods to eradicate it; see Abū Ḥāmid al-Ghazālī, Iḥyāʾ ʿulūm al-dīn (Beirut: Dār al-Fikr, 1414/1994), 3:305–308. Compare Winters’ discussion of how “the virtue known as ‘greatness of soul’ (kibar al-nafs), while entirely acceptable in a Greek context,” seemed to some Muslim authors “to smack of vainglory” (lv).

46 Compare the saying attributed to Plato in al-Saʿāda wa’l-isʿād (105): “The utmost degree of virtue is for a person to be ashamed before himself; anyone who has no shame before himself does not respect himself.”

47 Māwardī, Adab al-dunyā wa’l-dīn, 260.48 On the “traditional association of aidōs with sōphrosunē,” see Cairns, Aidōs, 373.49 Abū Ḥāmid al-Ghazālī, Mīzān al-ʿamal, (Sulaymān Dunyā (ed.)) (Cairo: Dār al-Maʿārif

bi-Miṣr, 1964), 281.

mystical sources, including al-Māwardī’s own work, it is often framed as a car-dinal moral failing.45 In the context of his discussion of ḥayāʾ, however, atten-tiveness to praise and blame appears vital to ethical functioning.

Finally, completing the series of audiences before which one may feel ḥayāʾ, shame before oneself is manifested through self-restraint or temperance (al-ʿiffa) and good behavior in private (ṣiyānat al-khalawāt). Al-Māwardī quotes “a sage” as declaring that one should be more ashamed before oneself than before other people, and “a littérateur” as observing that “Anyone who does something in secret (fī’l-sirr) that he would be ashamed of doing openly has no respect for himself.”46 Strikingly, it is not clear that this list of three notional audiences is conceived as either an ascending or a descending series; attentive-ness to all of these different fora is affirmed to be vital to the formation of a sound moral self. Al-Māwardī concludes that “If a person’s ḥayāʾ is complete in all of its three aspects, the sources of good are complete in him and the sources of evil are dispelled; he becomes known for virtue and reputed for good actions.”47

In his ethical manual Mīzān al-ʿamal, al-Ghazālī, in accordance with the Greek-derived ethical tradition, discusses ḥayāʾ as the first quality associated with the cardinal virtue of temperance or restraint (ʿiffa).48 He writes that:

It has been defined as “a pain that affects the soul when one is apprehen-sive of [committing] a shortcoming (al-fazaʿ min al-naqīṣa).” It is also said that it is “a person’s fear of falling short in the eyes of someone supe-rior to him.” It is also said that it is “bashfulness (riqqat al-wajh) at the performance of bad deeds, and the soul’s reticence [to perform] a blame-worthy act that would put it at fault.”49

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50 Ibid., 281.51 Ibid., 284.52 Somewhat similarly, Aristotle declares that shame is praiseworthy only in children. But in

the Nicomachean Ethics he defines shame as resulting from the commission of repugnant actions (rather than providing the prior restraint to avoid them in the first place); thus a well-regulated adult has no occasion for shame (Artistotle, Nicomachean Ethics, 76; com-pare al-Saʿāda wa’l-isʿād, 104).

53 Ibid., 281. Compare Iṣfahānī, Dharīʿa, 207. This work was one of al-Ghazālī’s important sources for Mīzān al-ʿamal. Note that al-Ghazālī develops the gendered aspects of al-Iṣfahānī’s discussion considerably. On the sources of Mīzān al-ʿamal, see Kenneth Garden, The First Islamic Reviver (2014), 40 and sources at 189 n.34.

54 Ghazālī, Mīzān al-ʿamal, 282; see Iṣfahānī, Dharīʿa, 208.

For al-Ghazālī, shame is both gendered and associated with a specific human developmental stage. He initially defines shame as “the medium between impudence (al-waqāḥa) and effeminacy (al-khunūtha),”50 and conversely defines effeminacy (al-takhannuth) as “a state that affects the soul from an excess of shame and restrains the soul from expansiveness in speech or action.”51 Excessive shame is thus incompatible with appropriate adult male gender performance.52 He further notes, “As for bashfulness (al-khajal), it is a feebleness of spirit (fatrat al-nafs) resulting from excessive shame; it is praise-worthy only in children and women, to the exclusion of men.”53

Indeed, a strong sense of shame is not only appropriate for a child but vital to its moral development. Al-Ghazālī notes that “[The Prophet] said ‘He who has no shame, has no faith’ because a person’s shame is the first sign of the intellect, and faith is the ultimate degree of intellect; how can he attain the ultimate degree if he has not traversed the first [degree]?”54 Shame corre-sponds to the intermediate level in the three ascending forms of motivation al-Ghazālī identifies for the performance of good actions in this world: the desire of reward and the fear of punishment; “the hope of praise and the fear of blame from those whose praise and blame is taken seriously”; and the seek-ing of virtue and of the perfection of the soul for their own sakes. He writes:

The first is what is dictated by desire; it is the rank of the common people (al-ʿawāmm). The second is what is dictated by shame and by the princi-ples of the defective intellect (al-ʿaql al-qāṣir); it is the practice of the sultans and grandees of this world and of the clever ones among them, who are considered rational in comparison to the common people. The third is what is dictated by the perfection of intellect; it is the practice of the saints and the wise and the truly rational. Because of the differences between these ranks, it has been said, “The best thing that a person can



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55 Ghazālī, Mīzān al-ʿamal, 287–288.56 Ibid., 288.57 See, for instance, Ghazālī, Iḥyāʾ, 3:338.

be given is an intellect that restrains him. If he does not have [that], then shame that forbids him. If he does not have [that], then fear that drives him. If he does not have [that], then money that covers up [his faults]. If he does not have [that], then a thunderbolt that burns him up, so that the people and the lands can be relieved of him.”55

These different forms of motivation reflect not only the varying moral and intellectual capacities of different groups within society, but the developmen-tal trajectory traversed by each individual. Al-Ghazālī observes of the growing child:

When he is in his early childhood, it is not possible to restrain or motivate him with praise or blame, but [only] with food that is at hand or a ready blow that he feels. When he reaches the age of discernment and comes close to puberty (al-bulūgh), it is possible to restrain and motivate him with praise and blame. The way to restrain him is to blame the thing he is to be restrained from doing and speak badly of the person who engages in it. The way to make him desire to learn good manners and other things is frequently to praise the person who does it and frequently to blame the person who avoids it; this will have a manifest effect. Most people never pass beyond these two stages to the third rank; their acts and their omis-sions arise from these incentives and deterrents.56

It is shame that enables the pedagogical deployment of praise and blame. Note that sensitivity to praise and blame is desirable only in specific contexts; atten-tiveness to social disapprobation may deter one from sin, but also, as al-Ghazālī warns in other contexts, be tantamount to hypocrisy.57 By associating depen-dence on shame as the primary source of moral regulation both with “sultans and grandees” and with pre-adolescent children, al-Ghazālī provides a mordant (if oblique) commentary on the level of ethical development displayed by those in power. But he also implies that shame, because it is essentially a fear of loss of face, is a particularly powerful motivator for those with social face to lose.

In his magnum opus, Iḥyāʾ ʿulūm al-dīn, al-Ghazālī similarly emphasizes the pivotal role of shame in human moral development. Here the emphasis is less on the elementary nature of shame as a motivator than on its intimate rela-tionship with the dawning intellect:

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58 Ibid., 3:78. Ghazālī’s remarks, as well as the broader discourse of ḥayāʾ, resonate with the idea that emotions (including shame) have inherent cognitive and evaluative dimen-sions, and thus are integral to legal judgments (rather than being “irrational” and thus fundamentally alien to the law). In this case, ḥayāʾ is the affective charge attached to the value placed upon social esteem. (See Martha Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (2004), especially 10–11 and 24–29.)

59 See Winter, Al-Ghazālī on Disciplining the Soul, lxiv; Avner Giladi, Children of Islam: Concepts of Childhood in Medieval Muslim Society (1992), 49, 52–53; Simon Swain, Economy, Family, and Society from Rome to Islam (2013), 409. Bryson’s invocation of shame is in Swain, 478 and 480 (Arabic) and 479 and 481 (English).

The first manifestation of that is the first signs of shame; if [the child] becomes bashful and ashamed (yaḥtashim wa-yastaḥī) and [starts to] refrain from certain actions, that is simply because of the dawning of the light of intellect (ʿaql) upon him, so that he perceives some things to be repugnant and different from other things and becomes ashamed of some of them but not of others. This is guidance from God Most High to him and a good sign that indicates the balance of his character and the purity of his heart; it portends the perfection of his intellect when he reaches maturity. The child who feels shame (al-ṣabī al-mustaḥī) should not be neglected; rather his shame and discernment (tamyīz) should be used to aid in his training (taʾdīb).58

The Greek roots of this passage, which draws directly from Miskawayh and indirectly from the 1st-century neo-Pythagorean Bryson, have been noted by several scholars.59

Al-Māwardī’s Adab al-dunyā wa’l-dīn and al-Ghazālī’s Mīzān al-ʿamal differ markedly in genre and approach; the former is a didactic compilation of wise sayings of diverse provenance (including ancient Iranian and Greek wisdom, Arabic poetry, the Qurʾān, and ḥadīth), whereas the latter offers a smooth and hierarchically-ordered synthesis of Greek-derived and Sufi-flavored ethics. In accordance with their different structures and priorities, they offer somewhat different pictures of ḥayāʾ; for al-Māwardī it is one of an unranked series of moral virtues celebrated in eclectic statements of ancient wisdom, whereas al-Ghazālī places it at a rather low level of a developmental progression, strongly correlated with gender and status, as well as with an ambitious form of ascending spiritual self-cultivation. Nevertheless, both authors depict ḥayāʾ as an affective disposition that is vital specifically to the human capacity for socially appropriate behavior and adherence to the law.

Given the central role that Muslim scholars such as al-Māwardī and al-Ghazālī assigned to ḥayāʾ in the discernment and avoidance of wrong



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60 A keyword search for the term “ḥayāʾ” (both with and without the definite article) in the legal texts compiled in al-Maktaba al-Shamela, a comprehensive digital database of clas-sical and contemporary Islamic works, yields more than 2,600 hits in a pool of 846 legal texts, suggesting that the term tends to be invoked several times in a typical work. Such a tally is highly provisional, however, in part because, in my experience, instances of a given word are not always detected by searches in the database.

61 See, for instance, Muslim, Ṣaḥīḥ, Kitāb al-Nikāḥ, Bāb Istiʾdhān al-thayyib fī’l-nikāḥ bi’l-nuṭq wa’l-bikr bi’l-sukūt.

62 Mahmood, Politics of Piety, 155. It seems likely that the gendering of the concept has shifted in the modern period – medieval texts rarely associate veiling with ḥayāʾ, for instance, whereas modern ones often do.

63 For example, a ḥadīth transmitted by Abu Dāwūd (Abū Dāwūd, Sunan, Kitāb al-Jihād, Bāb Faḍl qitāl al-rūm ʿalā ghayrihim min al-umam) equates the wearing of a face veil with ḥayāʾ. The gendering of ḥayāʾ is also discernible in the legal tradition; for instance, the 11th century Ḥanafī jurist al-Sarakhsī argues that custody of the daughter of separated parents should go to her mother until she reaches puberty, because “if she were given to her father she would mix with men and her shame (ḥayāʾ) would diminish; and shame in women is an adornment” (Abū Bakr al-Sarakhsī, al-Mabsūṭ (Muḥammad Ḥasan al-Shāfiʿī (ed.)) (Beirut: Dār al-Kutub al-ʿIlmīya, 1421/2001), 5:195). This is a fairly standard argument.

actions, one might expect this concept to play a significant role in Islamic legal discourse. One might also expect the evocation of shame to figure centrally in the disciplinary techniques envisioned to promote the good behavior of adults, as well as in pedagogy aimed at children. To some extent, this expectation is fulfilled; references to ḥayāʾ are, if not ubiquitous, at least not unusual in works of fiqh.60 Although it is difficult to make a rigorous comparison, it appears to me that ḥayāʾ is invoked more often in legal texts than other widely used Arabic terms for affective states highly valued by classical Muslim scholars in works focusing on Sufism or ethics. Although there are many scattered uses of the word in legal texts, it is particularly concentrated in discussions of two issues: the rules relating to the marriage of virgins and those having to do with the qualifications of witnesses in legal cases.

With respect to the marriage of virgins, the relevant issue is that, as man-dated by a ḥadīth,61 they may be married off by their guardians on the basis of silent acquiescence, rather than the explicit consent that is required from pre-viously-married women. Jurists routinely explain this distinction with refer-ence to the ḥayāʾ that a virgin would be expected to feel in expressing eagerness to marry, which would implicitly give voice to her sexual desires. This usage supports Saba Mahmood’s characterization of ḥayāʾ (which she glosses as “shy-ness, diffidence, modesty”) as “the most feminine of Islamic virtues.”62 The intimate interconnection between shame, physical modesty, and gender is suggested by other normative Islamic texts as well.63 I believe, however, that

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64 Compare Kaster’s observation, regarding Roman usage, that “Women certainly possessed a capacity for pudor, but it was largely limited to a single frame of reference, the sexual…” (9). Note that classical Islamic legal sources do not treat ḥayāʾ as a value unconditionally demanding self-concealment of women or even of their sexual desires. An opinion cited in the Mālikī manual Mawāhib al-jalīl argues that “it is not in conflict with praiseworthy shame (al-ḥayāʾ al-mamdūḥ) and commendable murūʾa (al-murūʾa al-mustaḥsana) for a woman to demand sexual intercourse [from her recalcitrant husband] in court, because [sexual intercourse] is the objective of marriage; if she contracts [marriage], everyone knows that this is what it is for, and if it turns out to be impossible it is permissible to demand it in terms of religion and sound murūʾa.” (al-Ḥaṭṭāb al-Ruʿaynī, Mawāhib al-jalīl (Beirut: Dār al-Kutub al-ʿIlmīya, 1416/1995), 5:256.) Note both the close linkage between murūʾa and ḥayāʾ and the unisex nature of murūʾa.

65 Although legal manuals often provide analyses of the various behaviors a virgin may dis-play in response to a proposal of marriage, these are symptoms of her unvoiced pleasure or displeasure and not of the ḥayāʾ that is assumed to prevent her from articulating these sentiments. Thus, shame itself is not central to these analyses.

66 See Muḥammad ibn Idrīs al-Shāfiʿī, al-Umm (Beirut: Dār al-Maʿrifa, n.d.), 7:53.

rather than reducing ḥayāʾ to this specific usage, we should see the concept of ḥayāʾ as accommodating gendered expectations of modesty in the context of a much broader affirmation that attentiveness to social values of propriety is integral to right conduct.64 Both men and women are expected to manifest ḥayāʾ through sensitivity to appropriate social norms, although the specific norms at play vary both across and within gender categories.

Because the interpretation of a virgin’s silence in terms of ḥayāʾ functions as the ex post facto justification of a textually-stipulated rule, this point is usually not the occasion for wide-ranging reflections on shame by legal scholars.65 Analyses making explicit connections between ḥayāʾ, social conformity, and adherence to the law occur primarily in discussions of the qualifications required of witnesses in court cases. One of the qualifications for the rendering of valid testimony before a qāḍī is ʿadāla (probity, integrity); in the Shāfiʿī legal school in particular, ʿadāla is understood as involving murūʾa as well as the avoidance of serious or habitual sins.66 As we have seen, murūʾa was closely linked to ḥayāʾ because both implied attentiveness to potential social disap-probation. Abū Isḥāq al-Shīrāzī (d. 1083) writes in his Muhadhdhab, one of the most influential Shāfiʿī legal manuals produced in this period:

Testimony is not accepted from someone who has no murūʾa, such as a singer (qawwāl) or a dancer, or a person who eats in the markets and walks with his head uncovered in a place where it is not customary to expose the head, because murūʾa is human nature (insānīya); it is derived from marʾ [“man,” “person”] and someone who abandons human nature cannot be trusted not to bear false witness; and also because a person



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67 Abū Isḥāq al-Shīrāzī, al-Muhadhdhab (Muḥammad al-Zuḥaylī (ed.)) (Damascus: Dār al-Qalam, 1417/1996), 5:600. Such texts cannot be treated uncritically as ethnographic data. For instance, eating in the street was probably genuinely gauche in the social milieus of the authors who invoked it, but it is also a legal trope as old as the Babylonian Talmud, which similarly regards it as a potential disqualifier of legal witnesses (Kiddushin 40b). Compare, however, Paulina Lewicka, Food and Foodways of Medieval Cairenes (2011), 365, which relates the perceived indignity of public eating to the historical practices of both Jews and Muslims in medieval Cairo.

68 See the discussions of Goffman’s work in Nussbaum, Hiding from Humanity, 173, 176, 217–221.

69 Kaster, “Shame of the Romans,” 10–11. Compare Goffman’s contention that “there is only one complete unblushing male in America: a young, married, white, urban, northern, het-erosexual Protestant father, of college education, fully employed…” (cited in Nussbaum, Hiding from Humanity, 173).

who is not ashamed in front of people in abandoning murūʾa doesn’t care what he does. The proof of this is what Abū Masʿūd al-Badrī (may God be satisfied with him!) transmitted that the Prophet (peace be upon him!) said, “Among the statements of the first prophecy that have reached the people [today] is, ‘If you don’t feel shame, then do what you like.’”67

To the extent that scholars like al-Shīrāzī understood murūʾa as conditioned on a proper sensitivity to shame, and denied the ability of some stigmatized social groups to attain murūʾa, shame here appears as an emotional sensibility positively correlated with social status. This underlying assumption contrasts sharply with the association between shame and the social stigma suffered by marginalized groups, for example in the work of Erving Goffman.68 Robert Kaster writes of the Roman pudor (shame) that “the richest sense of pudor belonged to the adult elite male… In this respect, we might say that Roman social life was structured precisely as a twofold challenge: on the one hand, to show always that you were a decent sort, capable of feeling pudor, and on the other hand, to behave always in such a way that you did not need to feel it.”69 A similar statement may be made about ḥayāʾ in its relation to murūʾa. If one was already a dyer or a tanner (and thus beneath social contempt), one was implicitly free to expose one’s head or eat in the marketplace; only those with social capital to lose were to be judged by their sensitivity to ḥayāʾ, as mani-fested by the avoidance of occasions of shame.

In his legal manual al-Ḥāwī, al-Māwardī offers a detailed analysis of the con-tent of murūʾa and the forms of murūʾa that may or may not be relevant to a person’s fitness as a witness. He invokes the concept of ḥayāʾ, but far less cen-trally than we might have anticipated based on his extensive attention to the subject in Adab al-dunyā wa’l-dīn. According to al-Māwardī, the form of murūʾa

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70 A line of poetry quoted by al-Māwardī in Adab al-dunyā wa’l-dīn uses this verb in pairing “preserving honor” (ʿirḍ) with fearing God and having shame before other people (260). The implicit connection between shame and honor may evoke the “honor and shame” complex that was associated with the Mediterranean region as a whole (and sometimes with “Islamic” societies) in scholarship beginning in the 1960s. As David Gilmore notes in the introduction to a volume on that subject, “Since all face-to-face societies are moral communities where public opinion arbitrates reputations, all such societies may be said to have some form of honor and shame… However, what seems descriptively outstanding about the Mediterranean variant is the relationship to sexuality and gender distinctions” (David D. Gilmore (ed.), Honor and Shame and the Unity of the Mediterranean, A Special Publication of the American Anthropological Association (1987) 22, 3). As we have seen, there is a discernible connection between gender and shame in Islamic legal texts. But remembering that the ṣiyāna (understood as “seclusion”) of women is merely one mani-festation of a broader emphasis on the conservation of social capital for high-status peo-ple of both sexes, as eloquently expressed in the work of al-Māwardī, may help correct a tendency to over-emphasize and artificially isolate issues of women and sexuality from their broader contexts in Islamic legal thought. Similarly, thoughtful examination of ḥayāʾ as a gendered virtue, like that of Mahmood, can be usefully placed within an understand-ing of ḥayāʾ as a horror of social nonconformity or exposure of any kind.

71 For instance, the English edition of Hans Wehr’s dictionary defines form five of the verb as “to uphold one’s honor, live chastely, virtuously (woman); to shut o.s. off, seclude o.s., protect o.s.” Wehr, Dictionary, 831.

that is definitely required as a component of ʿadāla involves the avoidance of frivolous talk and excessive levity; presumably this issue was sufficiently closely related to probity of speech to be uncontroversial as a condition of witnessing. The form of murūʾa that is definitely not required of a qualified witness involves the bestowal of money, food, and other aid on others. Although al-Māwardī does not elaborate, these actions were presumably socially prestigious, but supererogatory and not essential to a person’s reputable status. The two arenas of murūʾa whose relevance to witnessing are disputed, according to al-Māwardī, are customs (ʿādāt) and professions (ṣanāʾiʿ). Al-Māwardī’s analysis of the issue of “customs” revolves mainly around the opposition between “people of respectability” (ahl al-ṣiyāna) and “people of degradation” (ahl al-badhla, per-haps more idiomatically translated as “people without honor”). Ṣiyāna (or taṣawwun) is a term referring to preservation or protection; implicitly, what is being preserved in this context is honor or reputation.70 Badhla (or ibtidhāl), in contrast, refers to expending something or wearing it out; it is used in refer-ence to activities that diminish one’s prestige. The terms ṣiyāna and ibtidhāl, which consistently appear in contrast with each other, are widely used to refer to a respectable woman’s seclusion (on one hand) and the loss of social capital that occurs if she is publicly exposed or loses her virginity (on the other).71 But



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72 Abū’l-Ḥasan al-Māwardī, al-Ḥāwī al-kabīr, ʿAlī Muḥammad Muʿawwaḍ and ʿĀdil Aḥmad ʿAbd al-Mawjūd (eds.) (Beirut: Dār al-Kutub al-ʿIlmiya, 1414/1994), 17:151.

73 Ibid., 17:152.74 Ibid., 17:152. The text seems to be somewhat garbled here, with the relevant sentence

appearing twice at different places in the passage, and the word in question appearing once as “ḥayāt” (life) rather than ḥayāʾ; another edition (Maḥmūd Maṭajī (ed.), (Beirut: Dār al-Fikr), 1994, 21:164) similarly has ḥayāt. Ḥayāʾ certainly seems to fit better in mean-ing; but even counting this sentence as a reference to shame, al-Māwardī’s invocation of the concept in this passage is fairly limited.

the link with concealment and sexuality should, as in the case of ḥayāʾ, be seen as just one instantiation of a larger concern with the factors that preserve or erode social prestige. Some people (ahl al-ṣiyāna) have reputations to lose, while others (ahl al-badhla) are compelled expose or degrade themselves in ways that squander their potential reputational capital.

Al-Māwardī writes that with respect to customs, murūʾa is for a person

to follow the example of the people of respectability, not the people with-out honor, in his clothing, food, and conduct. He should not take off his clothes in a place where respectable people wear clothes, not take off his trousers in a place where respectable people wear trousers, and not uncover his head in a place where respectable people cover their heads… As for eating, he should not eat in the middle of the streets or while he is walking… As for conduct, he should not buy his food and drink himself or carry it [home from the marketplace] in a locality where respectable peo-ple avoid that, in addition to similar things involving degradation (badhla) and neglect of one’s reputation (tark taṣawwun).72

From the point of view of law (fiqh), only the ʿawra (pudendal parts of the body, defined for men as the area between the navel and the knee) is required to be covered from the gaze of non-related persons; for a man to fare forth in public without headgear is thus not a sin. Buying and toting one’s own provi-sions is similarly a permissible, if humble, activity. What is at stake here is not moral viciousness or religious deviance but self-respect, defined as one’s atten-tiveness to social standards of dignified comportment.

Given al-Māwardī’s emphasis on the concept of murūʾa in his discussion of ḥayāʾ in Adab al-dunyā wa’l-dīn, one may expect ḥayāʾ to feature prominently here. Indeed, he cites the ḥadīth, “If you don’t feel shame, then do as you like” in support of the view that adherence to locally respectable customs is a condi-tion of probity for witnesses,73 and makes a second brief reference to the rela-tionship between murūʾa and ḥayāʾ.74 But when juxtaposed with the fulsome

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75 As noted above, this is the approach taken by al-Shīrāzī in the Muhadhdhab; it was also followed by the later Shāfiʿī scholar, Taqī al-Dīn al-Ḥiṣnī (Taqī al-Dīn Abū Bakr ibn Muḥammad al-Ḥusaynī al-Dimashqī al-Shāfiʿī [al-Ḥiṣnī], Kifāyat al-akhyār fī ḥall Ghāyat al-ikhtiṣār (Cairo: Dār al-Salām, 1426/2005), 695).

treatment of ḥayāʾ in his work of ethics, it plays a surprisingly marginal role in this passage of his legal work. His closing argument in favor of the relevance of adherence to custom is that someone who has chosen social degradation (badhla) and deviated from respectability (ṣiyāna) for himself cannot be expected to be protective of another person (presumably, their reputation or interests). This logic eschews any reference to affective motivations in favor of direct reference to a person’s observed investment (or lack thereof) in social reputation. It would be possible to reframe this in terms of ḥayāʾ (a shameless person will do anything),75 but although al-Māwardī does cite the relevant ḥadīth in passing, this logic is not central to his analysis.

One explanation of the contrast between al-Māwardī’s approaches in his ethical and legal works is that Adab al-dunyā wa’l-dīn seeks to provide guid-ance for the individual (who is in a position to work on his character from the “inside” out), whereas al-Ḥāwī as a legal work must emphasize the regulation of external behavior on the basis of objective criteria. It would be reasonable to interpret ṣiyāna as the external, behavioral correlative of the affective capacity for ḥayāʾ. But it should also be remembered that al-Māwardī begins his discus-sion of ḥayāʾ in Adab al-dunyā wa’l-dīn by asserting that unlike internal “good character,” ḥayāʾ is externally observable. It is not that interiority is absent from his discussion (he clearly also understands ḥayāʾ as something someone feels “inside”), but he treats the connection between the internal sentiment and its behavioral manifestations as straightforward and transparent: You can tell if someone lacks shame because he acts shamelessly.

Another reason for the relative marginalization of ḥayāʾ in the legal text may lie in al-Māwardī’s serious treatment of the question of whether the behavior of the Prophet and his Companions can be regarded as incompatible with murūʾa. His discussion of ḥayāʾ in Adab al-dunyā wa’l-dīn systematically conflates the different frameworks in which an action may be deemed good and appropriate (or bad and shameless); the watchful gazes of society, God, and the individual conscience converge in evoking the salutary ethical senti-ment of shame. Just as al-Māwardī’s eclectic sources of moral wisdom in that work are made to speak in apparent concord, so the various criteria by which an action may be deemed disreputable are tacitly conflated. The concreteness of al-Māwardī’s legal analysis of murūʾa in al-Ḥāwī requires him to disentangle these different strands, and he spends much of his discussion probing the



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76 See, for instance, his attention to the argument that only violations of murūʾa that breach religious – rather than purely worldly – norms disqualify a person as a witness, “because the murūʾa of religion is legally stipulated (mashrūʿa), whereas the murūʾa of this world is merely recommended (mustaḥsana)” (Māwardī, Ḥāwī, 17:153).

77 Al-Ghazālī’s analysis of ḥayāʾ implicitly raises similar questions, although he chooses not to address them overtly. For example, his contention that extreme ḥayāʾ is effeminate stands in tension with the tradition that the Prophet was “more bashful than a virgin in her alcove,” which had long been in wide circulation by al-Ghazālī’s time. Elsewhere he cites a tradition stating that the Prophet “did not let shame prevent him from buying something in the market” and carrying it home himself, which would also be incompati-ble with conventional murūʾa (Ihyaʾ, 3:376).

78 Māwardī, al-Ḥāwī al-kabīr, 21:164.

potential divergences between the social competence implied by murūʾa and adherence to the Sharīʿa, with a clear agenda of affirming the supremacy of the Sharīʿa.76 Although he does invoke ḥayāʾ in passing, it is ultimately too blunt an instrument for his legal analysis.77

In discussing the different views on whether adherence to social custom is integral to murūʾa, al-Māwardī cites a series of reports stating, for example, that the Prophet mended his own sandals, the first caliph Abū Bakr fastened his cloak with a thorn, and the fourth caliph, ʿAlī, hired himself out to draw water for a Jewish woman. The social self-respect implied by murūʾa clearly stands in potential tension with the pious humility and egalitarianism that is central to so many reports about the Prophet and his Companions. Naturally, al-Māwardī firmly denies that any of these actions would have impaired the legal probity of the revered individuals in question. He also notes that the self-denying behavior of the first generation of Muslims (al-ṣadr al-awwal) cannot be con-sidered debasing “because it did not depart from the custom of its people in terms of asceticism and turning away from this world to the next.”78 In other words, humble self-denial was the social norm of the Prophet’s generation. This contention is made in support of the idea that adherence to custom is integral to one’s fitness for witnessing; al-Māwardī does not clarify whether such actions would be admissible for later generations, whose social mores are less praiseworthy. In any case, in this line of analysis the kinds of shame that might be evoked by socially disreputable comportment or by ungrateful disre-gard of God’s command unmistakably diverge: pious actions may well be socially degrading.

A quite different approach is taken by al-Juwaynī in his Nihāyat al-maṭlab, which al-Ghazālī used as the basis for two of his most important legal works. Unlike al-Māwardī, al-Juwaynī centers his discussion of the sins that disqual-ify one as a witness around an analysis of the internal processes and affective

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79 ʿAbd al-Malik al-Juwaynī, Nihāyat al-maṭlab fī dirāyat al-madhhab, ʿAbd al-ʿAẓīm Maḥm ūd al-Dīb (ed.) (Jiddah: Dār al-Minhāj, 2007), 19:5.

80 Ibid., 19:6.81 On this ḥadīth and its interpretation, see Louise Marlow, Hierarchy and Egalitarianism in

Islamic Thought (1997), 27–28.82 Juwaynī, Nihāyat al-maṭlab, 19:8.

dispositions that can be inferred from certain actions. Although the specific instantiations of sin are many and the requirements of murūʾa vary with con-text and status (al-ḥālāt wa’l-darajāt),79 al-Juwaynī argues that there is a simple rule of thumb: a witness is disqualified by any action, the performance of which indicates that a person is disdainful of religion (al-istihāna bi’l-dīn), not in the sense of disbelief, but in the sense that he is dominated by his “soul com-manding evil” (c.f. Q 12:53). If this evil impulse dominates, it makes bad deeds seem trifling; as a result, “it [sc. the soul] becomes trained and practiced (tatadarrab wa-tatamarran) in disobedience, in a spirit of cheerfulness (istibshār) rather than of awareness and dejection (inkisār).” Anyone whose deeds lead others to infer this about him should not be accepted as a witness.80 In contrast, someone whose misdeeds are mere slips in a general attitude of pious vigilance feels regret (tanaddum) about them and does not experience pleasure in his disobedience; rather, all of his other pleasures are spoiled by them. Grievous sins are committed only by those whose souls have already come to feel tranquility (ṭumʾanīna) toward sinning. Al-Juwaynī supports this observation with the ḥadīth “Forgive respectable people their stumbles,” which is usually taken to refer to people of respectable social status, although al-Juwaynī seems to be applying it to the pious.81

Unlike al-Māwardī, who treats the relevance of purely social norms to murūʾa as an open question, al-Juwaynī asserts at the outset that this concept applies exclusively to actions that are not religiously forbidden or sinful; his discussion is thus limited to behaviors that are stigmatized by custom. He states that the criterion for murūʾa is similar to that for disqualifying sins: a wit-ness must be disqualified for any relaxation of murūʾa that “implies heedless-ness (tark al-mubālāt) and abandonment of self-control (al-khurūj ʿan al-tamāsuk) that give rise to suspicions about [the person’s] care (taḥaffuẓ) in witnessing.”82 The key word, used several times in the passage, is inḥilāl (unty-ing a knot, setting oneself loose); the “looseness” involved in a violation of murūʾa makes one suspect a similar “looseness” with respect to sins, including bearing false witness. Perhaps “disinhibition” is the most appropriate English rendering of the term.



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83 Ibid., 19:8.84 Ibid., 19:8.85 On the history of Islamic attitudes toward stigmatized professions, see Louise Marlow,

Hierarchy and Egalitarianism in Islamic Thought (1997), 162–166 and the literature cited there.

86 Māwardī, Ḥāwī, 17:153–154.87 Juwaynī, Nihāya, 19:9-8; compare Abū Ḥāmid al-Ghazālī, al-Wasīṭ fī’l-madhhab, al-Ḥusaynī

ibn ʿUmar ibn ʿAbd al-Raḥīm (ed.) (Beirut: Dār al-Kutub al-ʿArabīya, 1422/2001), 4:330. Al-Ghazālī’s Wasīṭ was based on the Nihāyat al-maṭlab of his teacher, al-Juwaynī.

88 Juwaynī, Nihāya, 19:9; compare Ghazālī, Wasīṭ, 4:330. Similarly, in the Iḥyāʾ al-Ghazālī notes that “eating in the marketplace is [a sign of] humility and unpretentiousness (tawāḍuʿ wa-tark takalluf) for some people, in which case it is praiseworthy (ḥasan), and a violation of murūʾa for others, in which case it is repugnant (makrūh).” He concludes that only the mores of the specific place and the compatibility of this action with the person’s overall comportment can determine whether or not it should disqualify him from witnessing. The various motivations that can lie behind public eating reflect the dif-ferent implicit audiences for proper shame; al-Ghazālī cites an anecdote in which a Sufi, seen eating in the marketplace, is exhorted to withdraw discreetly into the mosque and retorts, “I am ashamed to go into [God’s] house to eat there!” (Ghazālī, Iḥyāʾ, 2:21).

89 Juwaynī, Nihāya, 19:9.

Al-Juwaynī consistently links violations of “customary” murūʾa with the moral characteristics they are understood to imply; thus, someone who plays backgammon despite the opprobrium in which the game is held in his milieu is “impudent” (jasūr).83 In addition to addressing the regional variations stressed by al-Māwardī, al-Juwaynī emphasizes the importance of adhering to the dress and behavior appropriate to one’s profession and station in life.84 Both authors address the long-standing debate over whether the exercise of a stigmatized profession such as dyeing, cupping, or street-sweeping is inherently incompat-ible with murūʾa,85 but whereas al-Māwardī primarily explores whether social stigma counts in the absence of religious prohibition,86 al-Juwaynī again con-centrates on the evaluation of subjective motivations. Thus, he emphasizes the possibility that voluntarily choosing to pursue such tasks in the face of public disdain (izrāʾ) shows an indifference to blame that demonstrates vileness (khissa).87 As for someone who degrades himself (tabadhdhala) by carrying water or food home himself, it is disqualifying if he does so out of stinginess (al-ḍinna wa’l-shuḥḥ), but not if he does so out of humility and self-effacement (al-tadhallul wa’l-istikāna), or out of emulation of the early Muslims or the aspiration to acquire the moral qualities of the virtuous (tashawwuf ilā shiyam al-atqiyāʾ).88 Even inherently religiously innocuous activities can be incompat-ible with murūʾa if pursued to the point that they suggest lack of constraint by social norms (al-insilāl ʿan al-ʿādāt) or insouciance (tark al-mubālāt).89

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90 See Juwayni, Nihāyat al-maṭlab, 9.91 Al-Sarakhsī attributes to Abū Ḥanīfa’s student, Abū Yūsuf, the opinion that one may

accept the testimony of a sinner if he is of high social standing (wajīhan) among people and possesses murūʾa, because no one would dare bribe him to bear false witness owing to his standing, and he will refrain from gratuitous lying because of his murūʾa, but he himself rejects this view. Sarakhsī, Mabsūṭ, 16:154.

Al-Juwaynī does not use the word ḥayāʾ in this passage, but his terminology strongly echoes that used in discussions of ḥayāʾ. Murūʾa is canceled by actions that indicate deficient attentiveness to social disapprobation or lack of inhibi-tion, two related ideas that are central to the definitions of ḥayāʾ discussed above. More broadly, al-Juwaynī appears (particularly in contrast to al-Māwardī) to be greatly interested in incorporating both appropriate social performance and adherence to the law into a framework emphasizing the external manifes-tation of personal virtues reinforced by habituation. He dispatches the prob-lem posed by socially degrading acts of pious humility, such as toting home one’s own provisions, with reference to the different moral dispositions these acts may express. But especially when his discussion passes into the area of actions that are legally neutral in themselves, a potential divergence between social competence and legal compliance comes into view; a person can prove himself untrustworthy without violating the law. The potential divergence between religious probity, moral goodness, and social competence is high-lighted by al-Juwaynī’s presentation of the opinion, attributed to Abū Ḥanīfa,90 that it is permissible to accept the testimony of someone (presumably a poten-tate of some kind) who sins by engaging in usurpation and oppression (al-ghaṣb wa’l-ẓulm). Such a person is unlikely to lie, according to this view, because his pride (anafa) is presumed to render lying distasteful to him. Al-Juwaynī does not appear to favor this opinion (nor was it the preferred opinion in the Ḥanafī school91), but it complicates the simple equation between moral virtue and lawful action that al-Juwaynī has suggested earlier in the passage.

Unlike al-Māwardī, al-Juwaynī goes a long way toward situating his discus-sion of murūʾa as a qualification for witnessing in the context of an affect-based theory of the virtues. He does this by taking some pains to close up apparent gaps between the criteria of social status and those of ethical and religious virtue, for instance, in the suggestion that voluntary pursuit of distasteful trades reflects deficient personal sensibilities. Even so, the superimposition of virtue ethics onto the criterion of competent social performance implied by murūʾa proves somewhat unstable; it is conceivable that a person may, per-versely, be deterred from lying by the very haughtiness that makes him evil in other ways. Al-Juwaynī (and following him, al-Ghazālī) is willing to allow the



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92 Ibid., 4:223.93 Ibid., 4:225.

resulting ambiguity a role in his legal arguments, letting the status of a poten-tial witness who carries his own provisions from the marketplace depend upon subjective judgment of his motivations, which may involve either becoming humility or heedless vulgarity. Ultimately, al-Juwaynī is most interested in a simple dichotomy between inhibition and disinhibition (inḥilāl), but his dis-cussion makes it clear that there are different kinds of inhibition standing in different relations to both social performance and religious rectitude. Al-Māwardī struggles with the same issues to somewhat different effect, mar-ginalizing the discourse of virtuous affect in favor of direct reference to the preservation or squandering of social capital. Underlying both passages is an issue latent in the extensive discussions of ḥayāʾ in the ethical works: the potential tensions inherent in the simultaneous pursuit of social status and divine favor. Shame, understood as a basic affective aversion to the incursion of blame, is fundamental to both social competence and adherence to the Sharīʿa; beyond this elementary level, however, the specifics may swiftly diverge in ways that jurists must heed.

The complexity resulting from admission of affective factors into legal anal-ysis is sharply illustrated by al-Ghazālī’s discussion of another issue, the evils of unnecessarily asking for material favors. He observes that the recipient of such a request may give money out of shame or hypocrisy; conversely, if he refuses he may be shamed (istaḥyā) by suffering the pain of “seeing himself as a miser” (yarā nafsahā fī ṣūrat al-bukhalāʾ) – a telling example of the self as the imagined audience of shame.92

If you were to ask, “If [the petitioner] took [the money] with the knowl-edge that the donor’s motivation was shame (ḥayāʾ) before him or the [other] people present, and were it not for [shame] he would not have taken the initiative [to give it] to him, is [the money] licit, or question-able (shubha)?” I would say, “That is completely forbidden (ḥarām maḥḍ), without any disagreement in the Muslim community; the rul-ing on it is the same as the ruling on taking someone else’s money by means of beating and appropriation (al-muṣādara), since there is no difference between beating his external skin with wooden flails and beating his inner heart with the flail of shame and the fear of censure – [indeed,] interior beating is more wounding in the hearts of rational people.”93

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94 See, for instance, the references in al-Mawsūʿa al-fiqhīya (Kuwait: Wizārat al-Awqāf wa’l-Shuʾūn al-Islāmīya, 1410/1990), “Ḥayāʾ,” para. 7 (18:263). For a practical application of the principle that extracting donations through shame is tantamount to extortion, see Marion Katz, The Birth of the Prophet Muhammad (2007), 70–71.

95 Ghazālī, Iḥyāʾ, 4:225–6.

This statement appears in al-Ghazālī’s ethico-religious manual Iḥyāʾ ʿulūm al-dīn, but it is framed as a hypothetical fatwa laying down the legal status of the action; indeed, this judgment is incorporated (in al-Ghazālī’s name) in some later legal manuals of the Shāfiʿī school.94 Al-Ghazālī goes on to remark that at the level of “reaching judgments for the resolution of [legal] disputes” it is necessary to act on the basis of the donor’s apparent consent; nevertheless, if someone has acquired money in this manner he does not legitimately own it before God (fī-mā baynahu wa-bayna Allāh) and must return it to its owner.95 The rules of social respectability are enforced by ḥayāʾ; in this case they diverge from those of ethical conduct (which forbid both hypocritical giving and coer-cive taking), and fiqh must mediate between the two. Al-Ghazālī’s Iḥyāʾ melds fiqh and ethics to an almost unique extent, but even here he acknowledges a judicial realm where it is necessary to reach verdicts based on external facts rather than promoting or evaluating subjective moral states. More conven-tional fiqh texts contain a strong ethical element, but their interests and emphases are not identical with those of works expressly focused on ethical self-cultivation. Invocation of the affective disposition of ḥayāʾ, by demanding attentiveness to the censure of multiple audiences (both human and divine), generated conflicting criteria that limited the usefulness of the concept to strictly legal analysis.

3 Does the Law Seek to Cultivate Ḥayāʾ?

Even if their invocations of virtuous affect are limited and at times ambivalent, our authors do see some equivalent of ḥayāʾ – understood as the affective dis-position inhibiting a person from actions that would incur disapproval or dis-esteem – to be related to the assessment of the person’s likelihood to adhere to the law (in this case, by rendering truthful testimony). Does the evidence also support the idea that the underlying function of Islamic law, as understood by these thinkers, was to cultivate the ethical sensibilities grounded in the emo-tion of shame? Answering this question requires us to make two further inqui-ries. First, did Muslim scholars consider shame to be an affective capacity that could be actively cultivated? And second, if so, how did they believe that it



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96 Ghazālī, Iḥyāʾ, 3:60–63.97 Ibn Qutayba, Taʾwīl mukhtalif al-ḥadīth, 440.98 See, for instance, Yaḥyā ibn Sharaf al-Nawawī, Sharḥ Ṣaḥīḥ Muslim (Beirut: Dār al-Qalam,

1407/1987), 2:365; Ibn Rajab al-Ḥanbalī, Jāmiʿ al-ʿulūm wa’l-ḥikam (Cairo: Maṭābiʿ al-Ahrām al-Tijārīya, 1969), 2:251–2.

could be cultivated, and to what extent were the pedagogical and disciplinary provisions of the Sharīʿa understood to pursue this aim? Was this function spe-cific to ritual law, or did it extend to disciplinary institutions such as ḥisba?

Al-Ghazālī was emphatic in his general insistence that virtues can be acquired,96 but as we have seen, he tended to treat ḥayāʾ as an innate quality to be used in the acquisition of more exalted virtues. Indeed, classical Muslim thinkers struggled with the question of whether shame was an innate gift or an acquired capacity. As early as the 9th century, Ibn Qutayba, who sought to defend the soundness and authority of hadith reports against the critiques of skeptics, listed the reported Prophetic saying “Shame is a branch of faith” among those that were claimed to be “refuted by rational reflection” (yukadhdh-ibuhu al-naẓar). Critics objected, according to Ibn Qutayba, that “Faith is something that is acquired (al-īmān iktisāb), and shame is an innate quality that is implanted in a person (gharīza murakkaba fī’l-marʾ), so how can an instinct be something that is acquired?”97 This question became a standard one among later commentators on this report, but other scholars affirmed that shame could sometimes be cultivated or acquired.98 Overall, in the schemas of both ethicists and Sufis, shame appears as a relatively elementary stage of moral and spiritual development. They envision ḥayāʾ as a basic socio-moral sensibility that can be utilized to cultivate more rarified states of awareness. From this point of view, it may be significant that it is ḥayāʾ, rather than any affective state higher in these thinkers’ schemas of ethico-religious develop-ment, that figures in legal discussions of the qualifications of witnesses. Beyond the absence of serious sins, what these scholars envisioned as supporting the likelihood of adherence to the law in this area was an affectively-colored sense of appropriateness associated with the socialization of children and the practi-cal competence to maintain a respectable social status. This is a fairly minimal incorporation of virtue ethics into their account of positive law, a fact that is all the more striking given that it appears to be quite rare for works of substantive Islamic law (furūʿ) to raise issues of affective cultivation at all.

Given that our authors assume that some adults may lack an adequate sense of shame, and that shame was at least sometimes considered a possible object of active acquisition, do they envision the Sharīʿa as providing tools to instill it? Both Saba Mahmood and Wael Hallaq have pointed to the most likely place to

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99 Marion Katz, Prayer in Islamic Thought and Practice (2013), 63.100 Ibid., 62; compare Iṣfahānī, Dharīʿa, p. 208.101 See Katz, Prayer, 70–72, 164.

look for techniques of moral self-cultivation: the laws regarding ritual and in particular prayer (ṣalāt), although neither of them associates ṣalāt specifically with ḥayāʾ (Mahmood because she equates ḥayāʾ with modesty, Hallaq because he focuses on humility as the sentiment cultivated by prayer). Standard legal manuals have little to say about the affective dimension of prayer, beyond debating whether its validity (as opposed to its merit) is conditional on khushūʿ (reverence). Al-Ghazālī, however, has a far richer account of the affective states evoked by prayer in his spiritual manual Iḥyāʾ ʿulūm al-dīn, where he argues that “presence of heart” (ḥuḍūr al-qalb) leads to comprehension of what one is saying and doing, which in turn leads to glorification (of God: taʿẓīm), awe (hayba), hope (rajāʾ), and shame (ḥayāʾ), which specifically results from the awareness of one’s shortcomings and sins.99 If devout prayer can evoke ḥayāʾ, however, the more elementary form of shame – that which arises from sensi-tivity to the perceptions of respected others in a social context – can also be leveraged to help realize the more rarified emotional states appropriate to prayer. Al-Ghazālī counsels the distracted worshiper, “Imagine as you stand in prayer that you are watched and observed by the alert eye of a virtuous man of your family or by someone whom you wish to regard you as virtuous. Then your extremities will become quiet and your limbs will become reverent…”100

Despite the potentially close and reciprocal relationship between shame and prayer, I do not believe that the evidence necessarily supports the idea that classical jurists envisioned a society morally conditioned by ṣalāt. Medieval scholars routinely acknowledged not only the frequency with which ordinary people failed to pray but the potential elusiveness of the ethical self-transfor-mation that even the most pious – including themselves – sought from perfor-mance of the ritual.101 The evocation of ḥayāʾ in discussions of bearing witness resonates more with the idea of shame as an innate and elementary sensibility, integral to social competence, than with any higher religious states that may be cultivated through ritual practice.

Turning to penal law, at first glance it appears that we immediately encoun-ter the salience of shaming as a disciplinary technique. Indeed, shame seems to play a central role precisely in the punishment for false testimony (shahādat al-zūr) – the specific offense that is intended to be avoided by subjecting potential witnesses to the requirement of ʿ adāla, discussed above. As Christian Lange has established in a study of penal theory and practice in the Saljuq period, the most important sanction for this crime in fiqh is precisely tashhīr,



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102 Christian Lange, Justice, Punishment and the Medieval Muslim Imagination (2008), 223–6.103 See, for instance, Dan Markel, “Are Shaming Punishments Beautifully Retributive?

Retributivism and the Implications of the Alternative Sanctions Debate,” 54 Vanderbilt Law Review (2001), 2157–2242; Chad Flanders, “Shame and the Meaning of Punishment,” 54 Cleveland State Law Review (2006), 609–635. I thank Prof. Susan Bandes for these references.

104 See the example from al-Sarakhsī in Lange, Justice, Punishment, 228.105 Ibid., 227.106 Māwardī, al-Ḥāwī al-kabīr (Dār al-Kutub al-ʿIlmīya), 16:320–21. Compare Shīrāzī,

Muhadhdhab, 5:614.

or the publicizing of the offense, to be achieved by public proclamation, the parading of the offender, or both.102 Lange describes tashhīr straightforwardly as “shaming,” and indeed the sanctions involved seem to parallel quite closely the “shaming punishments” that were widespread in early American history and have now once again become the topic of lively legal debate.103 Intuitively, it would be difficult to imagine a person enduring such exposure without expe-riencing shame, or to assume that this did not form part of the intent of those who advocated or imposed such punishment. But the procedures prescribed in fiqh texts (as distinct from the de facto practices described in narrative sources) often seem quite pragmatically designed to make known the individ-ual’s untrustworthiness as a witness (and thus, presumably, incapacitate him from further offenses in this particular area) rather than to evoke specific emo-tions in him. Even when the emotional effect of the event is explicitly invoked, it appears to be framed as a loss of honor or prestige (māʾ al-wajh) rather than the acquisition of a morally salutary affective disposition.104

Furthermore, Lange notes that the Shāfiʿī jurists manifested “near silence… about tashhīr.”105 One exception is al-Māwardī, whose discussion is instructive. He states that the ishhār (a synonym of tashhīr) of a false witness should be achieved by proclaiming at the door of his mosque or market or among his tribe or group, “We have found this [person] to be a false witness; know him!” One should not exceed this procedure by blackening his face, shaving his hair, or forcing him to make the proclamation about himself. The objective is to make people beware of him and to deter him and others from committing the same crime. Al-Māwardī goes on to note that if the false witness is someone with a reputation to preserve (min dhawī al-ṣiyāna) one should spare him the public proclamation and simply circulate word of his untrustworthiness, pre-sumably in a more discrete manner, based on a ḥadīth stating that one should pass over the faults of respectable people. (He also reports an alternate view according to which such a person has ceased to be reputable through the act of false witness.)106

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107 For instance, see al-Jaṣṣāṣ, Aḥkām al-qurʾān (Beirut: Dār al-Kutub al-ʿIlmīya, 1428/2008), 3:339; Ibn ʿĀbidīn, Ḥāshiyat Radd al-Muḥtār (Cairo: Muṣṭafā al-Bābī al-Ḥalabī, 1386/1966), 4:62.

108 Similarly, although tawba (repentance, which is defined as involving regret, and as such, implicitly with a sense of shame at one’s infraction) is sometimes a legally significant act, the legal literature has much to say about the effects of tawba, but as far as I have been able to determine little to say about techniques for evoking it, beyond simply exhorting someone to repent. See, for example, ʿAlī Dāwūd Jaffāl, al-Tawba wa-atharuhā fī isqāṭ al-ḥudūd fī al-fiqh al-islāmī (Beirut: Dār al-Nahḍa al-ʿArabīya, 1409/1989).

If the central objective of ishhār is shaming, al-Māwardī is quiet about this fact; indeed, the idea of adding elements of gratuitous humiliation to the dis-semination of factual knowledge of the crime is one that he dismisses briskly. It is conceivable that his exemption of reputable people from the more igno-minious forms of proclamation reflects an assumption about the varying affec-tive sensitivities of different classes of people. Indeed, some scholars argue that a person of murūʾa should not be corporally punished for a first offense (as long as it is not subject to a textually stipulated ḥadd penalty), creating a plausible if indirect link to the issue of susceptibility to shame.107 But if murūʾa implies an inhibiting sense of shame, it is something that the offender is assumed already to possess rather than something envisioned as being evoked by the punishment.108

If the broader Islamic tradition does offer reflections on the means to culti-vate shame, the fiqh tradition, more narrowly defined, appears to me to favor the pragmatic recognition that efforts at self-cultivation may fail, and that many people simply do not embark on them. Thus, measures of public order may build upon the well-formed moral dispositions of some people but should not count upon their existence or actively pursue their formation in the public at large. In the relatively rare instance of the evocation of an affective disposi-tion in works of Islamic substantive law (the requirement of murūʾa, and thus of ḥayāʾ, for witnessing), what seems to be at stake is a basic sensibility com-mon to all socially competent post-adolescents, not an open-ended ethico-spiritual project of the kind envisioned by the same authors when working in other genres.

Through their discussions of ḥayāʾ, these authors draw close connections between social competence, ethics, and law. To this extent, ḥayāʾ, as a disci-plined and disciplining passion, illustrates precisely the “distinctive relation between state law and personal morality” suggested by Asad. The texts exam-ined here also strongly support Wael Hallaq’s argument that “By capitalizing on the social substrate of morality, by giving direction and method to the force of social morality, the Sharīʿa generated its own ‘legal,’ but socially based,



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109 Hallaq, Impossible State, 113–114. His analysis in this work does not appear to discuss either murūʾa or ḥayāʾ.

110 Ibn Ḥajar, Fatḥ al-bārī, 1:138.111 Ibid., 22:324.

system of moral values.”109 With respect to both childhood development and adult self-cultivation, religious performance builds on the basic sensibilities that enable social competence; as an anonymous early Muslim is said to have declared, “I saw acts of disobedience to be degrading, and refrained from them out of honor (murūʾa); then they became [a matter of] religion (diyāna).”110 Some scholars posited that shame could be disciplined and refined on the basis of the Sharīʿa, resulting in a “sharʿī shame,” distinct from the fear of social disapprobation.111 Al-Juwaynī’s discussion of murūʾa reveals assumptions about behavioral habituation and the formation of a moral self that suggest the potential for self-cultivation. But it is no coincidence that the legal texts examined here, compared with works of other genres (even by the same authors), appear to have so little to say about virtuous passions such as ḥayāʾ. While legal texts occasionally reference their authors’ broader ethical visions, including the role of virtuous passions, they also pursue a distinctively legal project that centrally seeks to define workable rules for a society that they envision in quite realistic terms. They are content to craft rules designed for socially and morally competent actors, not necessarily virtuous ones.

Shame (Haya') as an Affective Disposition in Islamic Legal Thought

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