By Elizabeth Urban (West Chester University of Pennsylvania)
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.”
I must admit at the outset that I am not a scholar of Islamic law, but a scholar of early Islamic history. I have selectively read texts such as Mālik’s Muwaṭṭaʾ to find information on the historical topics of interest to me—namely mawālī and other enslaved or formerly enslaved Muslims—but not to study them as legal texts. Thus, the strategies I offer here are not about how to study Islamic law per se; rather, I suggest some ways that Islamic history and historiography may be fruitful for scholars of Islamic law, and how studies of Islamic law might be embedded and contextualized within a wider study of history. It is above all a call for interdisciplinarity and scholarly dialogue.
Strategy 1: Embrace the “Debris”
Patricia Crone once famously described the Islamic historical tradition as “the debris of an obliterated past.” All historians of early Islam recognize the methodological challenges of studying this period. We have a few contemporary documentary sources—such as papyri from Egypt—but these sources do not answer all our questions and they certainly do not “speak for themselves.” Our abundant literary sources were written in the eighth century CE at the earliest (and often in the ninth and tenth centuries), composed by particular authors with particular agendas. Some of these sources draw upon earlier written materials that can be tentatively reconstructed; some of them have oral chains of transmission that can be analyzed. Still others do not tell us much at all about their methodologies or relationships to earlier traditions, and so we must simply subject them to literary and/or historiographical analysis.
While this may be somewhat old-fashioned of me, I still think we can sift through this late, literary material to unearth some “gems” of historical truth (with a lower-case t) about seventh-century Arabia. Generally, this can be done by identifying phrases or accounts that do not easily fit the ideological agendas of our authors (which is an imperfect methodology to be certain, but a useful one nonetheless). For example, by sifting through many texts, I found that an early Muslim named Abū Bakra was likely not legally a mawlā (freedman) of the Prophet Muḥammad, as he is commonly remembered. Instead, in a few texts he is identified by the unusual phrase, ṭalīq Allāh (freedman of God). The legal literature I consulted does not use the phrase ṭalīq Allāh, but it appears to have been something akin to the sāʾiba, or unconditionally manumitted slave. This unusual phrase hints at one form of manumission that may have been practiced in very early Islamic Arabia but was soon abandoned.
However, I also suggest that we should not dismiss everything else—the “debris”—as useless. In this case, I found the “gem” of the ṭalīq Allāh embedded in contestation about the meaning of the term mawlā, the meaning of Arabness, enslavement, freedom, and justice, and the proper relationship between piety and politics in the Umayyad period. I would have missed this richness if I had eschewed searching for glimmers of historical truth in the first place, but I also would have missed the richness if I had dismissed all the debris as worthless. I suggest that we should embrace the problems of the sources and try to understand what these problems tell us about the Islamic past—particularly what debates, dialogues, and processes of negotiation people were engaging in in the first few centuries of Islamic history.
Strategy 2: Use many genres to study the past
While I am not intimately familiar with all the genres of Islamic legal thinking, I am more familiar with some of the genres of early Islamic history (such as maghāzī, sīra, taʾrīkh, and ṭabaqāt) that obliquely shed light on Islamic law. For instance, many early Islamic historians and biographers treat Abū Bakra as a mawlā, while many ḥadīth scholars treat Abū Bakra as an Arab, presumably because the latter applied the legal canon of al-walad lil-firāsh (“the child belongs to the bed”) to his case. While categorizing Abū Bakra as an Arab tribesman erases some of the symbolic meaning of his pious mawlā persona in the narrative historical tradition, I do not mean to imply that the muḥaddithūn are wrong to identify him as an Arab tribesman. Rather, I suggest that their legal categorization of Abū Bakra becomes more meaningful when it is placed in a wider historical context and juxtaposed with other ways of categorizing him.
Similarly, a multi-genre approach helps resolve a question concerning Abū Bakra’s legacy as a ḥadīth transmitter. Abū Bakra was reportedly found guilty of qadhf (slander) and refused to repent thereof; he is thus a fāsiq whose authority as a ḥadīth transmitter should be rejected. However, the narrative historical tradition presents this qadhf affair in ways that are sympathetic to Abū Bakra and portray him as an innocent foil to his wicked half-brother (and perhaps stand-in for the Umayyads in general), Ziyād ibn Abīhi. While it remains unclear what “actually” happened to Abū Bakra in this case, it is clear that his qadhf case was not as straightforward as it might first appear, and that early Islamic law and historiography intersect in complex ways.
Strategy 3: Attend to the perspectives of women (and enslaved persons)
Feminist history demands that we not mistake male (or free) perspectives for objectivity. This slippage between male and objective is quite pervasive, both in the early Islamic sources and in modern scholarship. When I speak of feminist history, I am referring to a specific set of historical theories and methodologies, not to an anachronistic search for proto-feminists or instances of “girl power” in the past. Feminist history seeks to identify the diverse ways that women have experienced and participated in their societies, recognizing that women have often supported patriarchal structures and upheld normative male models of sexuality, behavior, and morality. It can be very difficult to challenge hegemonic, male-authored narratives about early Islamic history, but legal scholars may find the following feminist historical strategies fruitful: 1) Consider what choices were available to women in any given historical context, as well as the costs and benefits of making particular choices, 2) Focus on descriptions of female actions instead of the intention ascribed to those actions by male authors, 3) In analyzing female actions, seek to recover possible female interpretations of texts or ideas.
While my work does not deal specifically with the legal aspects of sex, concubinage, or prostitution, I do seek to understand how enslaved women in early Islamic Medina interpreted Q 24:33, “…And do not force your slave women into whoredom if they desire chastity….” When reading asbāb al-nuzūl for this verse “against the grain,” two distinct female actions emerge: one woman directly refused to continue working as a prostitute for her master, and one woman sought support against her master from the community of Anṣār in Medina. It seems that scholars of early Islamic law might read other āthār in this way, focusing not on male legal pronouncements or interpretations of authoritative texts, but rather on descriptions of female actions and the potential female interpretations that underlie such actions. Such methodologies can be controversial because they require historical imagination and often produce speculative results. However, I think the endeavor is nevertheless worthwhile because the experiences of women and enslaved persons are real and meaningful, and we must consider multiple perspectives if we are to approach anything resembling the “truth” of the historical past.
Strategy 4: Connect legal thought to demographic change
There are probably many ways to digitally mine legal texts to discover patterns that elude the unaided human mind. As a historian, here I merely suggest how studies of early Islamic prosopography may have ramifications for legal scholars. In my recent work, I trace early Islamic practices of concubinage, marriage, and procreation using Ibn Saʿd’s al-Ṭabaqāt al-Kubrā. In addition to tracing change over time, I also analyze tribal practices within Quraysh and the Anṣār. I find that the Hāshim clan of Quraysh bore more children from concubines than any other clan, and that the Hāshimites on average had more concubines than free wives (while all the other clans had more free wives than concubines). The Hāshimites also appear to have been early adopters of concubinage as a practice, compared to the other clans. What ramifications might these findings have for early Islamic law? Could such divergences in practice help explain some of the differences in how Sunnī and Shīʿī law schools treat the umm walad? I leave it to scholars with a greater legal understanding of umm walad status to answer such questions.
If there is a unifying thread that emerges from the strategies outlined above, it is an appreciation of the past as an unfolding process. Instead of thinking of the evolution of Islamic history as linear progress leading inexorably toward a “classical” or “mature” version that we already have in mind, we might better think of early Islamic history as a dynamic period of disagreement, dialogue, hybridity, creativity, and negotiation. To uncover this dynamic past will require interdisciplinary thinking and conversations (such as this one) among scholars with different areas of expertise.
 The research summarized in this blog post can be found in Elizabeth Urban, Conquered Populations in Early Islam (Edinburgh: Edinburgh University Press, 2020).
 Patricia Crone, Slaves on Horses (Cambridge: Cambridge University Press, 1980), 10.
 For more details on Abū Bakra’s biography, including his legal status and his legacy as a ḥadīth transmitter, see Elizabeth Urban, Conquered Populations, ch. 3. See also Elizabeth Urban, “The Identity Crisis of Abū Bakra: Mawlā of the Prophet, or Polemical Tool?,” in The Lineaments of Islam: Studies in Honor of Fred McGraw Donner, ed. Paul M. Cobb (Leiden: Brill, 2012), 121–49.
 For debates about Abū Bakra’s paternity and legal identity, see Elizabeth Urban, Conquered Populations, 56–63.
 See Elizabeth Urban, Conquered Populations, 63–8.
 For example, see Kecia Ali’s 2019 Islamic Law Blog roundtable post, “The Handmaiden’s Tale” on translating different Arabic terms for slaves into English; terms such as ama and jāriya are often rendered “female slave” (or “slave girl”), while the term ʿabd is often rendered simply as “slave” without qualifier, as though maleness is the normal or default state for slaves. Kecia Ali, “The Handmaiden’s Tale,” Islamic Law Blog, December 6, 2019, https://islamiclaw.blog/2019/12/06/muwa%E1%B9%AD%E1%B9%ADa%CA%BE-roundtable-the-handmaidens-tale/.
 I follow Jill Matthews in distinguishing feminist history from women’s history: the latter merely adds women into the preexisting historical narrative, while feminist history seeks to completely reframe the narrative by including female perspectives. See Jill Matthews, “Feminist History,” Labour History no. 50 (1986): 147–53.
 For a brief overview of feminist historical strategies, inspired by scholars of Medieval European history such as Judith Bennett and Gisele Bock, see Elizabeth Urban, Conquered Populations, 78–81.
 See Elizabeth Urban, Conquered Populations, 81–86. This section would have benefited from a greater engagement with legal scholarship on the topic, such as Hina Azam’s Sexual Violation in Islamic Law (Cambridge: Cambridge University Press, 2015). I thank Omar Anchassi for directing me to this source.
 For more details on these concubinage practices, see Elizabeth Urban, Conquered Populations, 107–18.
(Suggested Bluebook citation: Elizabeth Urban, Four Historical Strategies for Approaching Early Islamic Law, Islamic Law Blog (Dec. 30, 2020), https://islamiclaw.blog/2020/12/30/four-historical-strategies-for-approaching-early-islamic-law/)
(Suggested Chicago citation: Elizabeth Urban, “Four Historical Strategies for Approaching Early Islamic Law,” Islamic Law Blog, December 30, 2020, https://islamiclaw.blog/2020/12/30/four-historical-strategies-for-approaching-early-islamic-law/)