::Roundtable:: Islamic Legal History & Historiography

In light of recent developments in the field, we convened this Roundtable on Islamic Legal History and Historiography to take stock of myriad changes developments in approaches to the study of Islamic law and legal history. We invited leading and emerging scholars of Islamic law and history to weigh in on their approaches to questions of history and historiography, method and meaning in Islamic legal history. Contributing scholars include Rula Jurdi Abisaab, Michael Cook, Metin Cosgel, Bogac Ergene, Maribel Fierro, Ersilia Francesca, Robert Gleave, Najam Haider, Wael Hallaq, Haider Hamoudi, Marion Katz, Irene K. F. Kirchner, Joseph Lowry, Carl Petry, Intisar Rabb, Yosef Rapoport, Marina Rustow, Ahmed El Shamsy, Sohaira SiddiquiPetra Sijpesteijn, Elizabeth Urban, and Hiroyuki Yanagihashi.

(Suggested Bluebook citation: Roundtable on Islamic Legal History and Historiography, Islamic Law Blog (Intisar A. Rabb & Mariam Sheibani eds., 2020-2021), https://islamiclaw.blog/2020/12/10/legalhistoryroundtable/)

(Suggested Chicago citation: Intisar A. Rabb & Mariam Sheibani, eds., “Roundtable on Islamic Legal History and Historiography,” Islamic Law Blog, December 10, 2020, https://islamiclaw.blog/2020/12/10/legalhistoryroundtable/)


From the Roundtable Editors …

Edited by Intisar A. Rabb (Harvard Law School) and Mariam Sheibani (University of Toronto)*

Last December we launched our Roundtable on Islamic Legal History and Historiography, which brought together leading and emerging scholars of Islamic law and history to weigh in on diverse approaches to questions of method and meaning in Islamic law and legal history. After publishing twenty one essays throughout December, January, and February, the Roundtable culminated on Friday, 5 March 2021 in a live webinar over Zoom. During the live Roundtable webinar, contributing scholars reflected on the larger themes, questions, debates, and conclusions that came out of the online Roundtable.  For the first time, these Roundtables—both written and live—put a wide array of legal, intellectual, and social historians in conversation with one another, connected by the sources and insights about Islamic law that have animated the field over the last half century of scholarship on Islamic law. We are pleased to present these thought-provoking essays, and invite you to join us and contributing scholars in continuing conversations that sparked by this historic discussion about the state of the field of Islamic legal history.

*Intisar Rabb is a professor of law and history at Harvard University, Director of its Program in Islamic Law, and Editor-in-Chief of the Islamic Law Blog. Mariam Sheibani is an assistant professor at the University of Toronto and Lead Blog Editor of the Islamic Law Blog.  As conveners of this Roundtable on Islamic Legal History and Historiography, we gratefully acknowledge the comments from Professors Abigail Balbale of New York University, Najam Haider of Barnard College, and Adnan Zulfiqar of Rutgers Law School; and the editorial assistance and contributions of two stellar student editors: Cem Tecimer, a SJD candidate at Harvard Law School, and Omar Abdel-Ghaffar, a PhD student in the Department of History at Harvard University.

Methods and Meaning in Islamic Law: Introduction

By Intisar Rabb, Harvard Law School

“When Malcolm X squared off against Joseph Schacht in a 1962 New York court room, ostensibly over whether inmates at Attica claiming to be Muslim were entitled to religious accommodations, the two were arguing about methods and meaning in Islamic law and history. Years earlier, when Joseph Schacht accepted Harvard Law School Dean Erwin Griswold’s invitation to deliver the first major lecture on Islamic law at an American law school in 1947, the two were engaged in a conversation about method and meaning in Islamic law and history in the academy and in the courts. … Myriad engagements with Islamic law and its historical moorings motivate a slew of sometimes existential questions: Is Islamic law a lived tradition with varied socio-historical manifestations, or is it a set of doctrines and rules contained in normative texts that many label “orthodox”? What is Islamic law and history about? How do we know? And to what end? We asked leading scholars of Islamic law and history to weigh in on the methods and meaning they notice or favor, at a time when much has changed in the field and the world since Islamic law emerged as a major field of studies in the global academy over the last century, and at a time when access to new sources, historiographical advances, and data science tools promise that more changes are yet to come…”

Click here to read the rest of the general Introduction to the Roundtable, which includes a list of sources for Further Reading. Below are the essays contributed to the Roundtable.

Shīʿī Law/Islamic Law: Some Category Problems

By Robert Gleave, Professor of Arabic Studies at the University of Exeter

In his essay, Robert Gleave notes that the study of Islamic law in the Western Academy has come a long way since the 1980s, to the extent that it provided target practice for the late Shahab Ahmed, who sought to return Islamic law to just one of many ways of approaching Islam. Yet, for Gleave, there is much to be said and much still to be done in looking at history and other disciplines through Islamic law. To be sure, the plethora of sources, legal and non-legal, that scholars now see to be sources for the study of Islamic law is promising if disappointingly underutilized. Moreover, scholars today focus on Sunnī sources as default at the expense—with some exceptions—of robust engagement with Shīʿī and other minoritarian sources to tell a fuller legal history of the field. Gleave cautions that neither Ahmed’s “legal normativity” nor the field’s Sunnī dominance need lead the field; rather, the sources should guide the field.

Why did legal scholars write the books they wrote in pre-modern Islamic societies? The case of al-Andalus

By Maribel Fierro, Professor, Institute of Languages and Cultures of the Mediterranean, CSIC-Madrid

Maribel Fierro’s motivating question is “[w]hy books dealing with specific subjects were written at specific times and in specific contexts.” Relying on a dataset compiled by Historia de los Autores y Transmisores de al-Andalus (HATA), a project she directs that aims to map the intellectual production of al-Andalus, the author observes that the majority of scholarship produced by Andalusi scholars were fiqh and poetry texts. The former, she argues, is likely explained by the professional opportunities enabled by engaging in the study of fiqh at the time compared to other genres. What makes such research possible is the breadth of the dataset, in no small way thanks to the collegial sense of some of the scholars during the Andalusi era, exemplified by the case of Ibn al-Ṭallāʿ(d. 497/1104) whose Kitāb aqḍiyat rasūl Allāh lists thirty-four of the sources he relied on.

How not to reform the study of Islamic law: A response to Ayesha Chaudhry

By Ahmed El Shamsy, Associate Professor, Department of Near Eastern Languages and Civilizations at the University of Chicago

Ahmed El Shamsy responds to Ayesha Chaudhry’s contribution to The Oxford Handbook of Islamic Law titled “Islamic Legal Studies: A Critical Historiography.” Taking issue with her characterization of the field as dominated by two paradigms, El Shamsy addressed one of them: what she labels “White Supremacist Islamic Studies (WhiSIS).” He notes that Chaudhry avoided producing evidence to support her claims, which generates unsubstantiated and overgeneralized claims about the field. He focuses on her two main claims: (1) that the field is preoccupied with precolonial texts, which has the effect of treating Islam as a dead religion, and (2) that all scholarship is a form of activism. To the first of these claims, El Shamsy points to a long tradition of Muslims themselves—traditionalists and reformists themselves—actively using precolonial and purportedly “dead” texts to criticize contemporary approaches to Islamic law, rendering them anything but “dead.” As to the second, conceiving of scholarship as inextricable from activism, among others, runs the risk of turning the field into another battlefield for the culture wars.

Studying a Lived Law: An Interview with Yossef Rapoport

This interview was conducted by Omar Abdel-Ghaffar (Harvard University, PhD student).

In this interview, Yossef Rapoport emphasizes the inextricable connections between Islamic law and society, and therefore, the interdependence between the study of legal and social history. He urges complementing the study of legal manuals with a thorough examination of social and practical sources; a methodology that he has modeled in his own scholarship. The interview concludes with Rapoport’s observations about how the field has evolved in the past three decades, and promising emerging developments.

Tracing the History of Ibāḍī law and jurisprudence: A state of art

By Ersilia Francesca, University of Naples “L’Orientale”

In her essay, Ersilia Francesca reviews scholarship on Ibāḍī law, an understudied and marginalized subfield of Islamic legal history. She argues that recent scholarship in Ibāḍī law has demonstrated that Schact was mistaken to dismiss Ibāḍī jurists as outliers who adopted Sunnī legal norms with only a few tweaks. To the contrary, studying Ibāḍī law as a view of Islam “from the edge,” she contends, enables a fuller picture of the multi-faceted process of Islamic law’s emergence. She further offers a periodization for the study of Ibāḍī jurisprudence in three chronological stages: a formative stage in Basra, an intermediate stage generated by Ibāḍī travels to Oman and the Magreb, ending in “a stage of maturity.”

Future Avenues in the Study of Islamic Law

By Najam Haider, Barnard College

In his essay, Najam Haider calls for “more cohesive and integrated scholarly engagement with the pre-modern Islamicate world.” To that end, the author urges scholars to creatively engage and treat legal texts as valuable sources for understanding the social and political predicates of Islamic societies. For example, tracing the creation and migration of legal texts across regions can yield valuable insights into multiple ideas and ideologies across the pre-modern Islamic world, as a part of a larger intertextual world where scholars study all actors in Islamic history as interacting with, complementing, and arguing against one another.

Writing Islamic Legal History

By Rula J. Abisaab, McGill University

Rula Jurdi Abisaab begins her essay by noting that the turn to literary texts in Islamic legal history should not assume that those texts can be explained by self-referential means only. She calls for attention to context alongside text, and above all, relations of power to explicate textual meaning. An example from her own work on Safavid Iran demonstrates the point: that critical textual analysis ought to be supplemented by “read[ing] around and outside,” which includes examining biographical notes, chronicles, anecdotal evidence and other unconventional sources — even when (or, especially when) the sources leave gaps.

Four Historical Strategies for Approaching Early Islamic Law

By Elizabeth Urban, West Chester University of Pennsylvania

Elizabeth Urban urges scholars of Islamic law and Islamic history to consider four strategies in their scholarship that collectively aim at achieving “interdisciplinarity and scholarly dialogue.” The strategies range from a capacious use of sources, a multi-genre approach to history and law, attending to the perspectives of the socially vulnerable—namely women and the unfree, and considering demographic change that may simultaneously prove to be a legal consequence to and cause of changes in early Islamic laws, from Islamic family law and beyond.

What is Islamic Law? How Should We Study It?

By Joseph Lowry, University of Pennsylvania

“When did pious speculation by Muslim individuals become Islamic law?,” asks Professor Joseph Lowry in his essay. He suggests that formal institutions applying legal norms historically may not have been necessary for the formation of Islamic law, especially if we understand that term to mean a collection of “juristic discourses.”  Although we should not assume that the Qur’an and the prophetic sayings inevitably culminated in a legal tradition, we can certainly see these sources as contributing to a “distinctively Islamic legal hermeneutics.” Read more to see how, and why scholars should clarify their own working definitions of “Islamic law” in their own discourse and use of the early sources.

Rethinking Dichotomies: Beyond Continuity and Rupture in Islamic Law in the Colonial Period

By Sohaira Siddiqui, Georgetown University in Qatar

Sohaira Siddiqui begins her essay by challenging the explanatory force that “dichotomies” wield in explaining history. The dichotomy of “continuity vs. rupture,” for example, is prevalent in Islamic scholarship, but is, she contends, overly reductive. Instead of seeing a bright-line “colonial moment” that divides two historical periods and generates a sense of rupture from a unified past, can we speak of “legal contestation, transformation, and reformulation” that better explains colonialism in parts of the Islamic world? Siddiqui urges scholars to answer this question with close analysis of transmitted texts and the history of courts and other institutions.

Pluralistic Methodologies in Islamic Legal Historiography

By Metin M. Coşgel, University of Connecticut & Boğaç A. Ergene, University of Vermont

In their joint essay, Metin Coşgel and Boğaç Ergene make the case for “a pluralistic approach to the study of Islamic legal history,” through the lens of law and economics and other types of quantitative analysis. Regression analysis, they suggest, provides especially useful approaches suited to interdisciplinary studies of historical events. To illustrate, the authors describe the findings of their previous scholarship on Ottoman court records, for which they coded data on court petitions and were able to arrive at generalizable conclusions about access to early modern courts. Noting the uptick in digitized primary sources in the field, they predict an increase in Islamic legal scholarship that integrates quantitative analysis. 

A Note on the Quantitative Analysis of Hadith

By Hiroyuki Yanagihashi, University of Tokyo

Hiroyuki Yanagihashi observes how recent developments make the quantitative analysis of ḥadīths a “promising” endeavor. The question then becomes: why and how the text of certain ḥadīths, taken literally, appear to contradict established Sunnī legal doctrine? The logical presumption is that either traditionists transmitted the jurisprudence of ancient legal systems that were eventually replaced by later-derived fiqh rulings or they reformulated the ḥadīths in the process of transmission to develop the rulings underlying those later legal systems. By way of example, and to investigate these possibilities, Yanagihashi proposes quantitative analysis to trace variations within the texts of two prominent ḥadīths over the course of more than a century. His analysis yields conclusions that corroborate other work in ḥadīth­­-related studies from recent years (e.g., those of Behnam Sadeghi on a larger scale in his “Traveling Tradition Test,” and Intisar Rabb with respect to a select ḥadīth in her evaluation of the doubt canon, and others): an increase in textual variation does not necessarily correspond to a change in legal doctrine; the number of variants can increase over time, even after the compilation of Sunnī Islam’s six canonical ḥadīth collections. His methods represent and propose new directions for quantitative analysis at the intersection of ḥadīth and law in early Islamic history.

The Neglected History of Furū’ and the Premodern/Modern Binary

By Marion Katz, New York University

Marion Katz reflects on major developments in Islamic legal studies since the 1990’s, the decade that saw – as noted in the introduction to this Roundtable– expanded and diversified scholarly attention to Islamic legal studies. For her, it is puzzling then that outdated frameworks continue to percolate in the field, such as the crude “premodern / modern binary” and the continued neglect of what she calls fiqh studies. Katz urges scholars to pursue more nuanced approaches to deal with the sheer volume of the textual corpus and to fill in chasmic history of substantive law, namely: (1) the study of “core samples,” that is, the diachronic investigation of individual concepts and doctrines to document inflection points, and (2) the study of “transverse slices,” that is, the synchronic study of a wide range of material from a specific historical context that helps expose underlying and pervasive assumptions behind a broad area of law. 

Crime during the Mamluk Period and the Study of Legal History

By Carl F. Petry, Northwestern University

Drawing on his research on the written works by Egyptian and Syrian Mamlūk authors, Carl Petry begins his essay by noting the increasing availability of a vast array of sources in the field, some of which have been digitized, which allows for enhanced quantitative analysis. He underscores the need to consider each source in its own right: while registers of legal proceedings are invaluable for making statistical generalizations, for example, more traditional historical texts offer a substantive foundation to interpret those findings. Noting that his research focuses primarily on the study of crime and transgressive behavior during the Mamlūk era, Petry writes that the insights from critical race theory and gender studies have been vital to his scholarship, especially to help expose the male lens from which the texts he studies were written.

Scholarship as Resistance: An Interview with Wael Hallaq

This interview was conducted by Omar Abdel-Ghaffar (Harvard University, PhD student).

In this interview, Professor Wael Hallaq calls on scholars to effect change by rethinking the basic epistemic structures of modern knowledge. He argues that through precise and sensitive research, the scholar of Islamic law is able to reconsider the basis of human experience and to develop new “technologies of embodiment.” He also argues that the very practice of scholarship constitutes one of the rich sources of self-education and ethical self formation. For him, the study of the Other (here: the pre-modern Islamic subject) allows an author to develop methods of “living in the world, not above it” by rejecting hegemonic structures and realizing an alternative system of knowledge. Hallaq insists that the study of Islam, whether in its legal or mystical dimensions, heuristically allows for a reformation of ontology through epistemology. Moreover, Hallaq argues, scholarship is not a mere job or a vocation, but an ethically self-conscious and deliberately structured way of life. He argues that the social role of the scholar of Islamic law, therefore, goes beyond looking to Islamic texts for inspiration, insight, or guidance. Rather, it is to lead a corrective epistemological revolution toward emancipation of the human being.

Simplicity, Creativity, Lucidity as “Method” in the Study of Islamic History: An Interview with Michael Cook

This interview was conducted by Intisar Rabb (Editor-in-Chief).

In this interview about the trajectory of Islamic history and scholarship, Michael Cook comments on the importance of deep immersion in language, sources, and other tools in graduate studies that prepare historians. While commending rapid digitization efforts in the field, Cook queries whether some things are lost by not “pick[ing] a book off the shelves” anymore. He succinctly points to the role of the historian as “mak[ing] the past intelligible to people of the present,” all the while espousing simplicity, out-of-the-box thinking, and lucidity. Drawing from his own teaching experience in the field, Cook advises his younger colleagues and colleagues-to-be to ask good questions that will help illuminate the past and resonate with students and the community of scholars. 

Islamic law and the documentary record before 1500: Unsolved problems and untried solutions

By Marina Rustow, Princeton University 

Marina Rustow notes how prevalent scholarly attention is to long-form texts of Islamic law—attention that she argues, comes at the expense of studying Islamic legal documents in a sufficient manner. Study of the documents is an indispensable enterprise if we are to fully understand “how law worked in practice.” In view of what we know to have been “heaps” of documents produced by Muslim judges and notaries, Rustow underscores how particularly noticeable a disjuncture there is between those documents and the long-form texts. Moreover, scholars often skip over and thus fail to avail themselves of the utility of documents in adding texture to social and legal history. She cautions social historians against “pseudo-knowledge,” that is, the temptation to overlook complex factors, usually embedded in legal documents, that render our otherwise tame scholarly perception of the past truer but more “unruly.” In the end, her invitation to join her in the study of documents and thereby improve the state of Islamic legal history is terse and timely: “Please go find yourself some documents.”

Islamic Law from the Internal Point of View

By Haider A. Hamoudi, University of Pittsburgh

Haider Hamoudi notes the different perspectives lawyers and historians employ in making sense of the law. Invoking H.L.A. Hart’s famous distinction between “internal” and “external” points of view with respect to law and legal rules, Hamoudi describes lawyers as primarily adopting the former, and historians, the latter point of view. This is not to suggest that lawyers do not take history into consideration, but rather to mean that when they do, their focus is results oriented in that they use history to understand the ultimate endpoint, the contemporaneous meaning of a legal rule or institution. Hamoudi observes two consequences emanating from lawyers’ adoption of the internal view that puts lawyers somewhat at odds with the demands of historical method and meaning. While deliberately omitting discussion on the normative desirability of either method, Hamoudi concludes by observing value in merely pointing out the differences between the internal and external viewpoints of law and history, respectively, to help expose “our own biases and assumptions.”

Measuring interpretive authority: a methodological reflection

By Irene K. F. Kirchner, Georgetown University

Irene Kirchner starts with a daunting query: what is Islamic law and who decides in the online world of cryptocurrency? This question “is very much a methodological one,” as answering it requires a determination of authority: what voices matter for resolving novel legal questions, including those introduced by developments in new technology and data science. To provide one method of answering this question, Kirchner turns to her own work on the permissibility of cryptocurrencies under modern interpretations of Islamic law. She proposes using measures of popularity and availability to inform the field. Though she is conscious of the implicit assumptions in her reliance on online search engines to locate primary and secondary sources of relevant laws commenting on cryptocurrencies, Kirchner nevertheless proposes that search engines provide more flexible and accurate answers compared to manual subject tags, especially when it comes to measuring popularity and availability.  

The continuum approach: Multiple legal solutions to run a diverse empire

By Petra Sijpesteijn, Leiden University

Petra Sijpesteijn focuses on two recent developments in the fields of law and history that enrich our grasp of how Islamic law historically operated in larger contexts. The first development is the increased scholarly attention to “empire studies.”  Early Islamic conquests, culminating in Abbasid rule that spanned diverse geographies, and consequently, diverse religions and cultures, resulted in numerous possibilities for interaction between Islamic law and other religious and customary laws. That fact renders the study of “Islamicate law-making” one of a far more complex and interactive social reality than typically appreciated. The second development is the increased availability of digital documentary sources. New online platforms offer users access to thousands of documents, and thus now serve a crucial role in the field of Islamic law and history. Appropriately used, these documentary sources and digital platforms will help legal and social historians make the promising move of restoring “the medieval world of intertwined legal practices and thought in multiple languages, geographical, and religious domains.”

Islamic Legal Canons as Memes

By Intisar Rabb, Harvard Law School

In her essay concluding the Roundtable, Intisar Rabb invites us to conduct a thought experiment— to think of legal canons as memes, that is, as cultural elements in circulation that, like genes, self-replicate and accrue to the benefit of human society. Just as memes spread, so do legal canons—principles that guide legal interpretation—from one scholar to another, from one written record to the other. Describing at length multiple angles from which legal canons can be categorized, Rabb shows that the many and varied types of canons illustrate how deeply embedded canons are in the social, cultural, and also legal culture that produces them. That, in turn, invites close collaboration between legal historians and data scientists to enable a mapping of a “meme pool” for legal canons, which she pursues through developing the Courts & Canons project at Harvard Law School: through digital tools, we will be able to trace the curious textual travels of legal canons (as memes), and through that, the transmission of cultures, practices, and ideas in through all manner of texts (their meme pool) recording the history and practice of law and society in the Muslim world.

Leave a Reply