By Robert Gleave (University of Exeter)
This essay is part of the Islamic Law Blog’s Roundtable on Islamic Legal History & Historiography, edited by Intisar Rabb (Editor-in-Chief) and Mariam Sheibani (Lead Blog Editor), and introduced with a list of further readings in the short post by Intisar Rabb: “Methods and Meaning in Islamic Law: Introduction.”
The study of Islamic law in “Western” academia has come a long way from its position in the 1980s as an understudied subfield of Islamic studies. The 1990s, when I began my postgraduate studies, saw a steep rise in publications in “Islamic law” with the appearance of dedicated journals and book series. We “Islamic law” researchers felt we were beginning to find our place in the academic world. The 1990s also witnessed the emerging popularity of “Islamic legal studies” as a new moniker for the field. After 2000 (and particularly after 2001), the field continued to expand; so much so that one could not keep up with the publications. One had to be selective in what one read – quite a different situation to the early 1990s, when one could, as a graduate student, pretty much keep abreast of the whole field. By 2015, the dominance of the Islamic legal lens in conceptions of what is “Islamic” was the target of extended criticism by Shahab Ahmed – in his much-cited and influential monograph – What is Islam?:
To privilege the law and legal discourse as somehow being the arbiter and determiner of the theoretical object “Islam” is to endorse just one authority claim among many within the human and historical phenomenon of Islam.
In short, Ahmed is arguing that much recent Islamic studies research had drunk the fuqahāʾ’s Kool-Aid. The jurists have been banging on about how all Muslim behavior should be measured against the Sharīʿa; those of us working in “Islamic legal studies” had also successfully persuaded the rest of the field that legal normativity was the heart of Islam. While all this was happening in academia, within Sunnī Muslim communities, there was the emerging popularity of modern Salafism – in which conformity to legal norms was a (perhaps, the) benchmark for true membership of the Muslim community. Islamic law (whether one glosses this as Sharīʿa or not) was centre-stage in both academic and community discourses. Ahmed hints that the academic focus on Islamic law was an inadvertent promotion of certain form of Muslim legalist discourse; it makes “the analyst an (unacknowledged) partisan of that [Muslim legalist] claim,” Ahmed writes. To be sure, Ahmed is targeting the view that law determines what Islam is, rather than the exponential growth of the field of Islamic legal studies, but the latter would not have happened without the former. Some of us have made the Islamic legal tradition the focus of our research; any justification for our positions almost always features a plea that ignoring the legal intellectual tradition – or by thinking of it as tedious, casuistic, or irrelevant – is to rob the study of Islam and Muslim societies of an essential element. By making this argument, we recognized that academic jobs were at stake.
Ahmed’s assertion was, then, that there is an over-emphasis on law in the description of what is and what is not Islamic. His point was that law should not hold such a central place in the academic determination of the discipline. His critique, though, appeared after nearly three decades of rapid growth of Islamic legal studies in the field of Islamic Studies. Universities, it appeared, had also bought the argument that the best sort of Islamic studies program is one which has Islamic law/Sharīʿa at its center. Ahmed’s book can be read as a plea for Islamic studies to be less “law-focussed.” Following this argument, some might argue that the Islamic legal studies has been well-served – and we need a balance, with prominence given to non-legal Islamic studies. From within the field, though, I could argue the opposite. In Islamic legal studies – whether historical or contemporary – there is just too much to do. There are archives upon archives of documents yet to be studied; books, treatises, and fatwās fill our libraries. Governments, courts, judges, and jurists keep producing legal pronouncements creating yet more data for analysis. One of the main findings of recent research on Islamic law is that getting an overall picture of any element of this “Islamic law” thing is really a challenge.
To demonstrate that the supposed focus on law has in no way exhausted the research agenda, one can examine the on-going debates around the early development of Islamic law – that is the period before the much-debated formation of “schools” and their core texts. I think it is true to say that most in the field feel that, on the question of ḥadīth authenticity, a dead-end has been reached. The debates between gullible positivists and negative skeptics seem, when they happen these days, rather performative. The field’s preoccupation with ḥadīth authentication is a by-product of its obsession with “origins,” and since much of the ḥadīth material is legal in nature, dating ḥadīth is, to a large extent, about dating Islamic legal doctrine. In the 1970s, the publication of two large and important early ḥadīth collections – the Muṣannaf ʿAbd al-Razzāq (d. 211/827) and Muṣannaf Ibn Abī Shayba (d. 235/849) – provided a new raft of evidence for early Islamic legal thought; more recently, their availability in digital form has enhanced their status as research sources. Some scholars have argued these collections provide a glimpse behind the curtain, into the legal landscape of first/eighth century Islam – a period which is, largely speaking, devoid of useful contemporary sources. Recently, Lena Salaymeh has argued that the supposed paucity of sources for the early development of Islamic law is not the “problem” past scholars have viewed it: “[r]eading available sources closely and comprehensively introduces new or underappreciated insights,” she argues. This is a useful point, well made. Salaymeh’s aim, as she expresses it, is to use a wider variety of sources than those employed by the classic studies of early Islamic law. Such an emphasis is to be welcomed, aside from whether one finds her specific conclusions convincing.
With this in mind, I am still surprised (read: disappointed) that much of the recent scholarship on the early development of Islamic law is so limited in the sources it utilizes. For example, it is fashionable to criticize Schacht, but nearly all writers appear to have entirely accepted his assertion (made in the 1950s) that the early history of Islamic law can be written without any reference to Shīʿī legal developments. The flipside of this position appears to be that many appear to have also accepted the general thrust of the argument of the eminent Shīʿī studies scholar, Ali Amir-Moezzi, that early Shīʿism was uninterested in law (since it was too close, for him, to politics). Early Shīʿism was, it is claimed, primarily an esoteric movement; its legal thought was a later development, and hence of little relevance to any account of the regional schools of Medina, Kufa, or anywhere else. There are exceptions to this scholarly trend: occasionally Shīʿī perspectives inform more general accounts of the “formation” of Islamic law (Crone, Abou El Fadl, Haider), and Islamic legal doctrine more generally (Rabb, Zysow). On the whole, though, most of those working on early Islamic law consider Shīʿī sources too “problematic” (following Salaymeh) to be useful: issues around attribution, late recension, and the intrusion of Shīʿī political messaging scare some researchers when searching for sources. There is also a feeling, expressed to me on more than one occasion, that Shīʿī sources are “difficult” to read – not in the technical sense, but because researchers feel they cannot discern the wider Shīʿī context or the hidden message (it should be remembered – not all early Shīʿī material is avidly bāṭinī). Potentially useful Shīʿī sources are placed on the too-hard pile.
I have already got on my soapbox and bemoaned the implicit sectarianism in many of the major works on Islamic law – from studies of Islamic legal theory to research on legal practice. It seems perfectly acceptable that a work which references entirely Sunnī sources can claim to cover, via its title, the whole of “Islamic Law”; any work which uses primarily Shīʿī (or indeed Ibāḍī) sources needs a sectarian qualifier to designate its marginal status. However, in the Shīʿī corpus we have a quite rich collection of legal material which purports to go back to the mid-eighth century CE – that is the period for which we have the “source-gap” which has troubled commentators for so long. I have in mind here the opinions of the mid-eighth century imāms (primarily Imāms al-Ṣādiq and al-Bāqir) presented by al-Barqī (d. 274/887-888, i.e., over a century after the supposed original source) in his al-Maḥāsin, or by al-Kulaynī (d. 329/941, that is 200 years after the Imāms) in his al-Kāfī. The material may only have been collected in extant volumes in the tenth century CE, but it is now clear that was not invented at that time. In my preliminary studies, I argue that whilst they may not be verbatim reports from the Imāms, these sources are potentially sources for the history of Islamic law in the eight century. Careful reading of the Shīʿī material alongside those early texts – normally identified as “Sunni” – can reveal voices in the eighth century legal debates which are absent from nearly all scholarship on the period. This Shīʿī material is not strange or unusual – it is part of the narrative. Any account which neglects this element is always going to be methodologically deficient.
To return to Ahmed’s What is Islam?; his assertion that legal normativity should not dominate any definition of “Islam” is well taken. Alongside this, though, it is surely time for us to kick back against the widespread presumption in the field that the Sunnī legal traditions are the “mainstream.” Sunnī law, I argue, should no longer be the default focus of Islamic legal studies.
 It is not entirely clear to me why “Islamic legal studies” challenged (and perhaps conquered) “Islamic law” as the appropriate name for our field. It may have been an attempt to distinguish between two emerging groups of academics. On the one hand, there were those who “do” Islamic law – muftīs and qāḍīs, of course, but appearing more recently are university professors (many based in the Muslim world, but one does find them in “Western” university law schools also) who propose their own interpretations of “Islamic/Sharīʿa” rules, and novel “Islamic/Sharīʿa” solutions to legal problems. On the other hand, there are historians and analysts, who proclaim they simply study their subject, and their subject happens to be legal phenomena in Muslim contexts. The emergence of “Islamic legal studies” as a title for the discipline probably has much to do with paradigmatic divisions including the contrast of emic and etic; or in university disciplinary terms, between theology and religion/religious studies. “Legal studies” is also, of course, a turn of phrase popular in Law Faculties in Europe and North America; the emergence of “Islamic legal studies” may be linked to the increased interest since the 1990s in Islamic law from within Law Schools.
 Shahab Ahmed, What Is Islam?: The Importance of Being Islamic (Princeton: Princeton University Press, 2016), 123.
 At academic events (remember them?), STEM colleagues are often baffled when I describe my research area: “Really? Is there really anything left to study in Islamic law? Hasn’t it all been done already?” I could be insulted (“Do you believe my field – and perhaps all humanities disciplines – to be a rehash of well-known facts?”); but prefer to be indirectly encouraged (“I agree: one would think, given my subject’s importance, that it should have been thoroughly researched by now – but, alas, there is still much work to do.”).
 Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge: Cambridge University Press, 2016), 41.
 Despite its iconoclastic and mould-breaking emphasis, Salaymeh’s sources for the discussion around the execution of prisoners (for example) are well within the “canon” of the Islamicists: the Muṣannafs of ʿAbd al-Razzāq and Ibn Abī Shaybah, the Sīrah of Ibn Isḥaq/Ibn Hishām, etc.
 For example, Wael Hallaq’s important and influential work (including his The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2004)) could have been enriched (and perhaps even his conclusions modified) by the inclusion of Shīʿī material. Salaymeh’s monograph mentioned above is another example. The work has a promising set of objectives: to utilize a more diverse set of sources to undermine the established narrative of the beginnings of Islamic law. At one point, Salaymeh even says that here analysis is implicitly shaped by Imāmī Shīʿī jurisprudence (Salaymeh, Beginnings, 62; though, one could take issue with her reading of the tradition here). When taken as a whole, though, the work exhibits a rather limited use of alternative sources (not just Shīʿī, but other corpuses as well). Nonetheless, the book does constitute a methodological advance on much previous work in this area.
 This was first expressed in his M. A. Amir-Moezzi, The Divine Guide in Early Shi’ism (SUNY Press, 1994), 61-69 (first published as Le Guide Divin Dans Le Shi’isme Originel (Paris: Verdier, 1992)).
 R. Gleave, “Sectarianism and Integration: Contemporary Categories and the Prospects for Islamic Legal Studies,” in Locating the Shari’a: Legaql Fluidity in Theory, History and Practice, ed. S. Siddiqui (Leiden: Brill, 2019), 28-45.
 See, for example, R. Gleave, “Muck and Brass: The Context for Analysing Early Imāmī Legal Doctrine,” in Islam at 250: Studies in Memory of G.H.A. Juynboll, eds. Petra M. Sijpesteijn and Camilla Adang (Leiden: Brill, 2020), 133-49.
 The example analysed in the article above concerns of the legality of the sale of excrement: the opinions of the Shīʿī Imāms (including the juristic terminology and argumentation they use) demonstrate, I argue, legal views located between the time of Mālik (d.179/795) and the texts contained in al-Shāfiʿī’s (d.204/820) Kitāb al-Umm.
 Ahmed’s work though is, itself, remarkably “sectarian” (and hence limiting) with hardly a mention of any expressions or traditions of Islam aside from a privileged Sunnī milieu.
(Suggested Bluebook citation: Robert Gleave, Shīʿī Law/Islamic Law: Some Category Problems, Islamic Law Blog (Dec. 10, 2020), https://islamiclaw.blog/2020/12/10/shi%ca%bfi-law-islamic-law-some-category-problems/)
(Suggested Chicago citation: Robert Gleave, “Shīʿī Law/Islamic Law: Some Category Problems,” Islamic Law Blog, December 10, 2020, https://islamiclaw.blog/2020/12/10/shi%ca%bfi-law-islamic-law-some-category-problems/)