This interview was conducted by Omar Abdel-Ghaffar (Harvard University, PhD student).
This interview 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.”
Islamic Law Blog [ILB]: Your first book, Marriage, Money and Divorce in Medieval Islamic Society, used biographical dictionaries and even diaries to explore questions of social history and Islamic law, and transformed our view of women in medieval Islam. Your latest book was based to a great extent on tax records, and I understand your current research involves close studies of epic poetry. What do literary vs. documentary sources contribute to historiographical debates in the study of Islamic law? How and why do you incorporate these varied sources into your scholarship on Islamic legal history?
Yossef Rapoport [YR]: Since I do not see that the law is separate from society, historical sources can tell us about how people act in the legal sphere. But to be honest, I am first and foremost a social historian, not a legal historian. Legal sources are for me, a tool. I think anyone who does social history needs to understand the basics of Islamic law. I remember Michael Cook at Princeton made us read through all the bābs [chapters] of one of the classical manuals, and then asked us what the topics were. Anyone who does social history needs a class on the basic concepts and the major themes of Islamic law and how to read its genres. When I read these legal sources, I am interested in the changes of doctrine and the applications of the law by litigants. So, I am generally optimistic about sources and, at the end of the day, I see them as part of my work as a social historian.
For example, if you look at the cadastral register [used in “Rural Economy and Tribal Society in Islamic Egypt: A Study of al-Nābūlsī’s ‘Villages of Fayyoum’”] you will see that it lists the zakāt. You can understand how the zakāt works in practice from a tax register, not in the legal manuals. You suddenly have a completely different understanding of what zakāt is in practice, once you read it through the register of a tax collector. What I know from my sources is that in this particular period [the thirteenth century CE], we have an actual example of zakāt’s meaning as a tax, not as a sacred duty or as an act of worship. For the register, the zakāt is a tax on sheep, goats, camels, and slaves. The register situates zakāt as one tax among many, and so we can understand the zakāt in a practical sense.
ILB: “Rural Economy and Tribal Society in Islamic Egypt” was groundbreaking in exploring the experiences of another oftentimes overlooked group in Islamic legal historiography: the inhabitants of the hinterlands. Why did you choose to focus on this group? Would you advise that Islamic legal historians similarly widen their scope of research to cover subjects beyond the usual ones?
YR: One thing is striking about the popular epic cycles; the qāḍīs are the villains. The qāḍī is the villain in Sīrat Baybars, he is the major villain in Sīrat al-Baṭṭāl, and the qāḍīs are the bad guys in popular literature. I actually think that this reflects something about the way marginal groups understood qāḍī justice. It was clearly less in their favor than other forms of justice. Of course we have seen so many accounts of the qāḍī protecting wives and orphans, and I myself have contributed to demonstrating this. But we may have overemphasized this. At the same time, I am also doubtful about claims that customary law better reflects the interests of these marginal groups. I also argue against the idea that customary law is some kind of justice that comes from below. I really doubt the narrative. Custom, or ʿurf, is seen by jurists more often as the adaptation of Islamic law by local political authorities, whether it be a state, tribal leadership, or a guild. I think ʿurf is a reaction by political elites who do not like the Sharīʿa’s rulings on certain issues and so develop an alternative ʿurf that is then valorized by the jurists. Customary law was not the refuge of the marginalized, on the contrary.
The point is that law, even Islamic law, sacred law, is ultimately a law, and as a historian, I see it first and foremost as an instrument of power. For the sources I am using, there is a finite number of possible interpretations, given the Qurʾān, given the ḥadīth, given the possibilities within these pre-modern societies. Within these finite options, the people who had authority to interpret the law were men with certain economic interests. And so they wield the law as an instrument of power. This does not make it a corrupt law; the fact that law is an instrument of power is a social fact, and there is no system where the people who interpret the law do not come from a certain class, or do not have a certain agenda.
I assume that a good jurist will always find the source to bolster his argument, and I do not hold it against him as a kind of instrumentalism. He might not be interpreting in his own interests, that is too crass, but his ideas of the social good are informed by his position. A jurist’s job is to legitimize the norms that are very often perceived to be for the greater good of society. I presume that there is a social goal and that the jurist will find a way to advance his social aim with the sources he knows his audience consider to be authoritative. The key is always to understand the social goal of the jurist. In fatwā literature, we must also understand the social problem that is being presented.
ILB: How does a historian identify the social goal of the jurist?
YR: When looking at a fatwā or treatise of a jurist, you must understand what came before and thus how the jurist is shifting from the established position. And then if you can, link this shift to things that appear in chronicles, or even better, in documents from that period. That is the best way to see the relationship between law and history. Most jurists will at some point explicitly mention the social problem they are trying to solve. These problems usually are articulated in the fatwā, or oftentimes treatises will put them in terms of the social reality these jurists are trying to change. Ibn Taymiyyah (d. 728/1328) is great in this respect because he actually articulates the social problems more explicitly than others.
However, to this day, too many studies of Islamic law are just a list of jurists from different centuries, from different geographic regions, without any context. These studies usually note doctrinal changes over time, but in isolation from society, state, pressures, and interests. This still passes as history of Islamic law. My biggest problem is always with this type of study. Even if I do not mind the conclusions these studies reach, they must recognize that legal thinking is not happening in an intellectual bubble, but that jurists are part of larger societies and polities. After all, law is not theology or philosophy. Law is about how people live.
ILB: What would you say are the most important developments in approaches in the study of Islamic law over the past few decades? What forces do you think have driven these changes?
YR: The field has changed tremendously. You are so lucky. In the eighties, before Wael Hallaq came, people still talked about Islamic law as a dead letter. And Hallaq single-handedly changed that; his impact on the field has been electrifying. This change was the first major development. The second change transformed the way we perceived the effect of Islamic law: it was common to find caricatures of the law as violent, dark, and patriarchal. Today this has largely petered out, apart from perhaps discussions on the real margins of academia.
These are major changes that have enabled us to think about Islamic law as law, first and foremost. The third and last shift has been the most recent, and one I am really excited about. The attempt to view Islamic law as embedded in a totality of other legal systems, not separate from state, tribal or customary law, or from the law of non-Muslims, is the latest step I am observing in the field. There have been really excellent studies on the interaction between Islamic law and the laws of dhimmīs, on how both jurists and litigants adapted and interacted across religious boundaries.
I have been most interested in recent developments in the field showing how state law, or more precisely state judicial formations, interacted with Islamic law. I am so glad that this idea has actually filtered through to modern historians. Khaled Fahmy in his In Quest of Justice: Islamic Law and Forensic Medicine in Modern Egypt demonstrates effectively that siyāsa is integral to the Sharīʿa. This dichotomy, and the assertion that any intervention by the state is a type of corruption, is simply not historically accurate. As historians we can show that both jurists and litigants are aware of the multiplicity of judicial forms and legal systems, across madhhabs, sects, state and customary law, and so on. The systems and jurisdictions interact with each other and people move around within them. This understanding is only now emerging. The multiplicity of legal systems in pre-modern Islam is for me now the big step. And it requires knowledge across systems and across legal traditions.
I still think that there are not enough published editions of fatwā collections. Arab publishing houses usually prefer to publish legal manuals. There are many fatwās still in manuscript form and people are not interested in publishing them, because we do not know how to work with them. There is great work by Elise Voguet on fourteenth century fatwās from the rural Maghrib, but in terms of Arabic editions of these fatwās, apart from Ibn Taymiyya’s work, there are not that many. This is a point that still needs to be developed.
I also did not go through formal legal training. Someone like Mohammad Fadel, whose work I really appreciate, has this training as a practitioner. But I think that even people who are not practitioners must understand comparative law and theories of law. I did not get that training; it never occurred to anyone to teach us the theoretical side of the law. I feel I am lacking on this front. I hope the next generation of scholars working on Islamic law can be more appreciative of legal theories, and also know better how to work with comparative law.
My training in Islamic law however was rather unique. The Muslim qāḍī of Jaffa, Ahmad Natour, took me as his teaching assistant. That was my first exposure to Islamic law. He liked me, and I taught for him at the Law Faculties in Tel Aviv and in Haifa because he was promoted to the position of Chief Qāḍī of Israel and became very busy. He then decided to issue a marsūm qaḍāʾī, a fatwā changing the rights of divorced women to nafaqa alimony, through the sharʿī courts in Israel. He involved me in the research for this, and I saw for myself a qāḍī-jurist who has a certain concept of the social good he sought to promote. There were those who thought there was no way to reform these laws by looking at the sources, and there were those who thought he was too reformist. I do not want to say anything political about it, but I witnessed what I think is the way most pre-modern jurists worked. They wanted to change society using sources and methods considered valid within the framework of the community in which they were working. I have been very fortunate to have had that insider view as my formative experience of Islamic law.
(Suggested Bluebook citation: Studying a Lived Law: An Interview with Yossef Rapoport, Islamic Law Blog (Dec. 15, 2020), https://islamiclaw.blog/2020/12/15/studying-a-lived-law-an-interview-with-yossef-rapoport/)
(Suggested Chicago citation: Islamic Law Blog, ed., “Studying a Lived Law: An Interview with Yossef Rapoport,” Islamic Law Blog, December 15, 2020, https://islamiclaw.blog/2020/12/15/studying-a-lived-law-an-interview-with-yossef-rapoport/)