By Aya Saed
Lena Salaymeh’s The Beginnings of Islamic Law crafts an intellectually rigorous framework through which to interrogate the hegemonic tradition of Islamic jurisprudence. “The objective of this book is to sketch what that something else might have been,” deconstructing the linear, essentialist understanding of Islamic legal past “without assuming that the past inescapably leads to an Islamic legal present.” To do this, Salaymeh engages in a postfoundationalist understanding of history that “rejects the positivist notion that particular methodologies generate Truth; instead, postfoundationalism pursues heuristics that generate historical truth.”
To Salaymeh, there could have been alternatives.
Salaymeh begins her inquiry by questioning the need to find the origin of Islamic law’s “essentialist” features and argues that, “Islamic law has a beginning but not an origin.” The scholarly interest in locating the origin of Islamic law is motivated “by an interest in evaluating legitimacy and ethnic authenticity.” The need to identify an origin frames “historiography as a positivist search for the Truth,” when in reality, the beginning of Islamic law is syncretic. Its “syncretism opens up the possibility of understanding law more profoundly.” Rather than proposing an alternative answer to the origins questions, Salaymeh injects wave theory in her conceptualization of Islamic law’s birthplace. “Wave theory offers an alternative framework for understanding legal similarities not as derivative of an ‘origin,’ but rather as reflective of regional dynamics.” In this way, Salaymeh develops a study of Islamic law that is historical, contextual, and divested from prejudicial implications.
Salaymeh makes this point by engaging in two historiographies: prisoner of war standing, and divorce. This essay will focus primarily on her prisoner of war research. She argues that prisoners of war in Islamic history were not always condemned to execution. In fact, the Prophet and late antique Muslim jurists acted in harmony with prevailing norms of the region wherein it was custom to ransom prisoners of war, but not to execute them. Salaymeh engages in texts and oral histories from the Battle of Uhud, and Badr and concludes, “It is odd that two isolated and specific prisoner executions at Badr or one execution at Uhud would be sufficient to validate such a significant opinion.”
Salaymeh uncovers the historiographies surrounding prisoner of war rulings. In her investigation, she discovers that one incident stands as an anomaly to the Battles she studies: the Qurayzah clan trials following the Battle of the Trench. Medieval scholars cite this particular incident to formulate a ruling condemning all prisoners of war to death. Salaymeh takes issue with the precedential value of this incident. “The presumption that this incident is an implementation of ‘Islamic law’ ignores the treaty agreement, third-party involvement, trial-like circumstances, indefinite legal application, and lack of combat that distinguish a battle and prevent it from having a clear precedential value.” Indeed, it seems as though medieval Muslim jurists could not conceptualize Jewish Arab tribes as anything but a monolithic other, and therefore projected unambiguous confessional identities manifesting in violent hostilities between groups. Rather than accepting certain precedents as immovable, Salaymeh scrutinizes medieval juristic discourse and identifies the various subjectivities of judges of the era and concludes that medieval jurists “are motivated by factors that are both internal and external to their methodology.” “Interpretations of and assumptions about legal texts and precedents – rooted in complex, multilayered traditions – intermingle to produce juristic opinions.”
Throughout the book, Salaymeh presents a series of examples wherein medieval jurists relied on textual authority more than their late antique predecessors. This pattern, she argues, fundamentally shifted the shape and substance of Islamic jurisprudence. By contrasting late antique heterodoxy with medieval legal orthodoxy, Salaymeh makes clear that a judiciary, positive legal doctrines, and sciences of legal methodology are not essential to Islamic law. Indeed, Islamic jurists have precedent to craft legal opinions by fusing ancient norms, scripture, Prophetic precedents, local practice, and contemporaneous needs in unexpected ways. Like artists who use a combination of recycled and new materials, innovative legal reworking is a hallmark of Islamic jurisprudence.
 Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions 3 (2016).
 Id. at 3.
 Id. at 16.
 Id. at 22.
 Id. at 93.
 Id. at 41.
 Id. at 197.
 Id. at 100.
 Id. at 80.
 Id. at 75.
 Id. at 77.
 “Medival Muslim jurists either could not conceptualize the complex hybridity of Jewish-Muslim-Arab identity or chose not to accept it.” Id. at 79.
 Id. at 80.
 Id. at 83.