On Originalism and the Role of Legal Canons in Islamic Law

The 43rd annual Donald A. Giannella Memorial Lecture organized by Villanova University Charles Widger School of Law hosted our Editor-in-Chief, Intisar Rabb, with her presentation titled “Interpreting Islamic Law.” The presentation concerned the Mamlūk Empire during the thirteenth century, with a focus on the judicial overhaul overseen by its Sultan Baibars I.

In her presentation, Professor Rabb addressed three particular aspects of the judicial overhaul:

  1. The single chief ḍī system was abrogated to make way for the establishment of four chief judgeships, each representing one of the four major schools of Islamic law, also known as the madhhabs.
  2. The judges were instructed to rule based on opinions within their own schools.
  3. Depending on the subject matter concerned and the nature of the parties, the cases were brought before different judgeships.

Professor Rabb alluded to historians who have described this overhaul of the judicial system as a momentous occasion in Islamic history, since it resulted in the redefinition of the relationship between political authority and the scholar-jurist community. Commenting on the inclusionary nature of the Mamlūk-era reform, Rabb likened the transition from one chief judge to four chief judges from different schools to requiring justices representing textualist, originalist, and pragmatist schools on the United States Supreme Court.

The presentation also drew attention to an often overlooked aspect of Baibars’s reform – what Rabb labeled the “explosive growth on writings on legal canons.” Each school operated with a different set of legal canons, she noted, along with a separate order of precedence for each canon.

The rapid codification of canons by each school following Baibars’s judicial reform, an under-appreciated phenomenon by scholars of Islamic law, as Rabb noted, offers contemporary scholars a ripe area of investigation into how conceptions of Islamic law evolved, changed or persisted over time.

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