In this final post reflecting on my primary source seminar “Readings in Islamic law,” I want to highlight three further topics covered in the course.
The first of these is the genre of comparative law (khilāf), for which we read writings by Ibn al-Mundhir from the early fourth/tenth century, al-Kadamī from the fourth/tenth century, and Shaykh al-Tāʾifa al-Ṭūsī from the fifth/eleventh century. A comparative reading of the three texts reveals interesting differences and developments over time. The genre seems to have begun as a Sunni endeavor to take stock of the legal opinions of other Sunnis (Ibn al-Mundhir was a Sunni jurist of the Shāfiʿī school). The arena was quickly joined by al-Kadamī, an Ibāḍī jurist, and al-Ṭūsī, a Twelver Shiʿi, both of whom added the opinions of their own respective schools to the Sunni positions outlined in the original works on which theirs were based. Yet the Sunni comparative legal genre did not subsequently integrate Ibāḍī or Shiʿi opinions into later works. This suggests that for Sunnis the purpose of the genre was specifically to delineate the spectrum of Sunni legal opinions. For the minority Ibāḍīs and Shiʿis, by contrast, writing these works appears to have served as a way to assert their participation in the same discursive arena as the hegemonic Sunni tradition.
Second, we read two investiture documents for Muslim judges, one issued by the caliphate of Cordoba in 353/964 to Muḥammad b. Salīm and the other by the Fatimid caliphate in Cairo in 389/999 to Ḥusayn b. al-Nuʿmān. Despite the obvious difference between the two issuing polities—the first ruled by Sunnis following the Mālikī school of law, the second by Ismāʿīlī Shiʿis led by an infallible imam—the contents of the two documents display remarkable similarities in their justifications of the office of the judge; their descriptions of his role, his ideal demeanor, and the sources of his rulings (with the addition of traditions from the imams for the Fatimid judge); and the particular emphasis they both place on maintaining endowments and protecting orphans. It was illuminating to read these documents in light of the letter that the second caliph ʿUmar b. al-Khaṭṭāb is said to have sent to his judge Abū Mūsā al-Ashʿarī (the correctness of this attribution is irrelevant here; what matters is simply that the letter predates the mid-second/eighth century). The content of the letter was clearly formative for the image of the ideal judge, even in the case of the Fatimids despite their hostility to ʿUmar. The overlap of the investiture documents with the letter indicates the existence of a common understanding of the judgeship and its responsibilities at least in the early Abbasid era, by when the letter was in circulation. The one significant point of difference in the Fatimid appointment document is that it obligates the judge to fulfill also a political role by protecting the caliph against challenges to his rule. This requirement throws into relief the generally non-political nature of Islamic judgeship. In the Fatimid case, the requirement was rooted in the fact that the Fatimid caliph, as an imam, was himself a source of the law, whereas the caliph in Cordoba was only its executor.
Finally, the readings shed light on differing conceptualizations of the deep structure of the law. The Ḥanafī jurist al-Dabbūsī (d. 430/1039 or 432/1041) located the origin of the right to life, liberty, and property and of contractual obligations in the universal human faculty of reason and the concomitant human responsibility. This remarkable discussion, found in al-Dabbūsī’s work on legal theory, Taqwīm al-adilla, demonstrates that ideas of human rights are already present in classical Islamic legal thought. A somewhat different conception emerges from al-Ghazālī’s (d. 505/1111) work on legal analogy, Shifāʾ al-ghalīl. Although al-Ghazālī denied reason’s ability to identify the ethical quality of an action without the aid of revelation, he believed that when the rules of Islamic law are analyzed inductively, they can be seen to serve discernible overall aims such as the preservation of religion, life, property, and so on. This insight, he argued, can then be harnessed to derive the law for new cases. Taking an entirely different tack, al-Shaʿrānī (d. 973/1565), in his Kitāb al-Mīzān, imported Sufi epistemology into the theory of the law, claiming that the various doctrines put forward by the founders of the Sunni schools of law do not simply reflect their own legal reasoning but rather embody objective truths that the Prophet Muḥammad himself validated when the school founders spiritually encountered him. This claim helped to entrench the dominance of the legal schools in the sixteenth century and beyond, almost to the point of sacralizing them.