By Rula J. Abisaab (McGill University)
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.”
Scholars of Islamic legal history seeking to understand the transformation of legal traditions over time, and the relationship of law to society, have started to move away from a positivist approach to the primary textual sources. Such an approach assumes that the textual sources are self-explanatory, merely reflecting the purpose of the author, without recourse to historical context and more importantly, relations of power. Postcolonial theory has offered important analytical frameworks and methodological tools for scrutinizing Western sources on Islamic law and society. A range of theoretical and conceptual tools drawn from feminist theory, literary criticism, and race theory have started to inform our scholarship on legal history. Promoting an interdisciplinary approach to Islamic law is promising, but the thorny question is how to pursue it in ways that can shape the field at large rather than remain a marginal endeavor. On the one hand, there is a need to engage the textual tradition on its own terms. On the other hand, there is a need to overcome the resistance to theory in general, and not merely the type of theoretical frameworks provided by the above disciplines.
My approach to Islamic legal history was shaped by my training in literary criticism but more so by anthropology. I had to scrutinize the very tools and conceptual frameworks that defined the field and its founders. Moving to Islamic Studies, I was astonished by how normative a scholarship of “origins,” “authenticity,” and “cultural borrowings” was, and challenged it.  My post builds on these efforts, but more specifically on my experiences as a historian of Safavid Iran, attempting to rethink the relationship of legal texts to context, given the limitations of our legal sources, and the way they have shaped our scholarship.
Layers of Text and Context: Methodological and Conceptual Considerations
A solid knowledge of Arabic and critical textual analysis of materials within and across legal genres have paved the way for understanding a range of Islamic legal epistemologies and hermeneutical techniques, as well as legal practices and judicial procedures. We have tended to focus predominantly on the dialogical relationship between one legal text and its predecessor(s) without considering the relevance of any other context, such as socio-political, economic, or theological factors as well as the historical shifts in the conditions of the legal actors in question. Still, it is possible, based on this approach, to push the boundaries and logic of legal texts such as furūʿ works, judicature manuals (adab al-qāḍī), and fatāwā, by changing the questions we pose of the texts or investigating areas that defy a neat categorization. This is what Yasmine Badr, for instance, has done with respect to rape, looking in unfamiliar places, such as legal delineations of sexual assault (ṣiyyāl) and compensation (diya), as well as fasting, ablution, pilgrimage, marriage, and divorce. In addition, she investigated the complex legal delineations of the coercer’s capacity (qudra). She argued convincingly that unless these multiple legal definitions and classifications in connection to the means and context of the act of rape are investigated, an accurate conceptualization of rape under Islamic law in not possible. Thus, Badr, despite the fact that she has not examined court cases on rape, and has not investigated the historical context for certain shifts in the legal arguments of Sunni jurists, she has worked creatively with legal manuals such as al-Fatāwā al-Hindiyya, looking at links between rape and other legal categories, and accounting for disagreements and ambiguities.
Some bodies of legal theory accord us limited access to context while others do not. The ikhtilāf (disagreement) literature, for one, sheds light on the internal debates taking place within the legal madhhab (school of law) or among communities of jurists and their wider scholarly and political contexts. By attending to debates over the validation of textual proofs based on consensus (ijmāʿ), for instance, I have learned a lot about legal authority in Twelver Shi`ism and theological-political considerations tied to it.
Beyond critical and creative textual analysis, it is important to read around and outside the legal text itself, which may include biographical notes, accounts from chronicles, ethical works, anecdotal literature, and unconventional sources dealing with literature, art, and architecture. While it is true that Islamic legal writings are most often in conversation with earlier foundational texts, the conversation is not pursued in a historical vacuum. To give but one example, Mālikī qāḍīs’ unique inclusion of rape under ḥirāba (armed robbery) can be illuminated by looking outside the legal text, and into biographical and historical notes. These qāḍīs faced recurring incidents of kidnapping of Muslim women by militia men of the Almoravids. One qāḍī insisted that usurping and violating a Muslim woman is a greater crime than usurping a Muslim person’s possessions or money (al-ḥirāba fī al-furūj afḥashu min al-ḥirāba fī al-amwāl).
We can appreciate then the way structures of power (including, the greater role played by Safavid and Ottoman rulers in shaping Islamic law in comparison to earlier dynasties), sectarian (Shī‘a-Sunnī) difference, social class, legal authority, theological considerations, scholarly competition, medical-environmental conditions (among other factors) have also shaped legal history. I have tried to address some of the relevant factors in the development of Twelver Shī‘a jurisprudence. I admit that it is not always possible to know the conditions shaping juristic concepts and tools. But facing these limitations is not the same as insisting that abstract points of legal theory are divorced from what goes on in society.
Inquiries into Legal History and the Limitation of the Sources
Unlike the case with Ottoman Studies, where scholars have access to rich and diverse legal documents, Safavid-era scholars know very little about the day-to-day practice of the law and its relationship to legal doctrine. I faced this problem when I looked into the relationship of ʿurf (sultanic law) to sharʿ. Western travelogues were the only sources that depicted legal enactments in Iran, which I then scrutinized to reconstruct a different kind of legal history that was non-positivist, working through their ‘gaze’, gaps, and representations.
The Safavid period is rich with legal manuals, fatāwā, and distinct juristic works, but there is little interest in legal history, mainly because Safavid Studies became a contentious space for understanding the origins of the Islamic revolution, and even more so, the idea of Iran. Safavid Studies appeared also as a field of resistance to the modern Islamic state and the sharī‘a’s assumed rejection of various forms of Sufism. In this context, modern scholars have presented ‘the legal’ as not truly ‘authentic,’ and thus imposed on Iran from outside. We have a lot to gain, however, from intervening in these culturalist discourses, and locating Iranian legal culture in their intertwined spaces and sites of the madrasa, khānaqāh, mosque, and shrine.
 An attempt to disengage from this scholarship is reflected in my article, “Deconstructing the Modular and the Authentic: Husayn Muroeh’s Early Islamic History,” Critique: Critical Middle Eastern Studies, no. 3, 17 (Fall 2008): 239-59.
 Yasmine Badr, “Defining and Categorizing ‘Rape’ in Islamic Legal Discourse” (PhD diss., Institute of Islamic Studies, McGill University, 2018). Hina Azam also linked together categories of ikrāh and ghaṣb. See Azam, “Competing Approaches to Rape in Islamic Law,” in Feminism, law and religion, eds. Marie A. Failinger, Elizabeth R. Schultz, and Susan J. Stabile (Farnham, UK: Ashgate, 2013), 327-41.
 See Badr, “Defining and Categorizing “Rape,” 86-87. See also Niẓām al-Shaykh et al., al-Fatāwā al-Hindiyya, vol. 5 (Beirut: Iḥyāʾ al-Turāth al-ʿArabī, 1400/1980), 119, 148-49. Badr also integrated analysis based on a wide array of fiqh manuals such as Ibn Qudāma’s Mughnī, Māwardī’s Ḥāwī, Nawawī’s Rawḍāt. See “Defining and Categorizing “Rape,”174-76.
 Ibn al-ʿArabī, Aḥkām al-Qurʾān, vol.2, ed. Muḥammad ʿAbd al-Qādir ʿAṭā (Beirut: Dār al-Kutub al-ʿIlmiyya, 1971), 95
 Rula Jurdi Abisaab, “From Textual Evidence to Ijtihād: the Twelver Shiʿa Juristic Tradition, 10th – 16th Century,” ed. Kondo Nobuaki (Tokyo University of Foreign Studies Press, 2015), 1-37.
 Rula Jurdi Abisaab “Delivering Justice: the monarch’s ʿurfī Courts and the sharīʿa in Safavid Iran,” in Oxford Handbook on Islamic Law, eds. Anver M. Emon and Rumee Ahmed (Oxford: Oxford University Press, 2018), 1-32.
 These spaces were depicted by Shams al-Dīn Abī ʿAbdillāh Muḥammad b. ʿAbdillāh al-Lawātī al-Ṭanjī, Riḥlat Ibn Baṭūṭa, vol. 2, ed. ʿAbd al-Hādī al-Tāzī (al-Ribāṭ: Akādimiyyat al-Mamlaka al-Maghribiyya, 1417/1997), 20-53.
(Suggested Bluebook citation: Rula J. Abisaab, Writing Islamic Legal History, Islamic Law Blog (Dec. 24, 2020), https://islamiclaw.blog/2020/12/24/writing-islamic-legal-history/)
(Suggested Chicago citation: Rula J. Abisaab, “Writing Islamic Legal History,” Islamic Law Blog, December 24, 2020, https://islamiclaw.blog/2020/12/24/writing-islamic-legal-history/)