Summarized by Hadi Qazwini
This post is part of the Roundtable on the History of Islamic International Law. It is a summary of Fahad A. Bishara‘s contribution titled “Markets and the Making of the Islamic World” to volume eight of the Cambridge History of International Law series, co-edited by Intisar Rabb and Umut Özsu.
Fahad A. Bishara’s chapter on “Markets and the Making of the Islamic World” explores the histories of Muslim commerce and communication and the discussions surrounding Islamic law that emerged out of these histories, spanning the mid-1st/7th to mid-9th/15th centuries. Bishara argues that the relationship between political economy and law (“the material” and “the ideational,” respectively) is dialogical and that historians must investigate the two together if we are properly to conceive of an economic history of the Islamic world.
Beginning with the emergence of Islam and continuing to the eve of the Ottoman conquest of Constantinople, Bishara’s chapter includes a broad historical survey of political and economic transformations that took place in the Islamic world, connecting the Arabian Peninsula to the Mediterranean and Indian Ocean. These transformations include the rise and disintegration of different empires and political formations, the development of systems of land tenure and revenue, the infrastructural changes that accompanied them, and the emergence of transregional marketplaces and commercial and communicational networks. Bishara’s expansive survey serves three purposes: to highlight the transregional and interconnected nature of marketplaces and communication technologies in the vast Islamic world, to decenter the Arab heartland from the story of Islamic law and commerce by offering a broader commercial geography, and to counter the enduring myths of decline following the mid-7th/13th century Mongol invasions by highlighting the dynamism of maritime trade and its accompanied intellectual currents during this period.
Following his broad survey of political and economic transformations, Bishara investigates the legal discussions and frameworks set up by Muslim jurists surrounding questions of trade, commerce, and marketplace exchange. For instance, as Bishara notes, the agrarian transformations accompanying the early geographic expansion of Muslim rule under the Rashidun Caliphs, followed by further developments under the Umayyads and ʿAbbasids, necessitated the production of legal treatises discussing questions of labor, landholding, revenue, taxation, and other related topics. Bishara draws attention to several important legal (fiqh) texts. One of the earliest is the Kitāb al-kharāj of al-Qāḍī Abū Yūsuf (d. 182/798), produced at the request of the ʿAbbasid caliph Hārūn al-Rashīd (r. 170-93/786-809), who appointed Abū Yūsuf chief qāḍī of Baghdad. In Bishara’s words, “the questions Abū Yūsuf seeks to answer in the Kitāb al-kharāj might be thought of as matter[s] of political economy, mediated through law…At a more fundamental level, though, Abū Yūsuf seemed to be grappling with questions of legal personhood and property rights – twin pillars of law and political economy – and how to bring the two together within a fiscal regime that was beginning to take shape under a slowly bureaucratizing empire.” Bishara draws on other notable legal treatises, such as the Kitāb al-amwāl of Abū ʿUbayd Ibn Sallām (d. 224/838), the works of Aḥmad b. ʿAlī al-Maqrīzī (d. 845/1442), and other texts to explore questions of law and economic activity.
In addition to legal treatises, Bishara draws attention to the place of the continued production of and commentary on legal query (fatwā) texts and manuals written for marketplace inspectors (muḥtasibs), all of which point to robust legal activity accompanying various economic and political developments on the ground well into the 10th/16th centuries. Bishara’s accompanying exploration of “legal orders that existed beyond the books – or, more accurately, in their shadows,” such as custom (ʿurf) and mercantile practice (ʿādāt al-tujjār) and associations – including among Christian, Jewish, and Muslim traders – as well as formal legal institutions and informal business dealings, supports his argument for “a sense of pluralism in Islamic legal history, particularly when it comes to economic life.” As Bishara succinctly states, “Rather than limit the scope of Islamic law to a known set of institutions, we ought to read it against the broader commercial and juridical fabric in which it was embedded, and to see the ways in which Muslim officials tried to nest these jurisdictions within one another.”
Bishara concludes his chapter with a survey of recent scholarship on capitalism in the Islamic world and its relation to Islamic law. For instance, he includes studies by Marxist economists such as Maxime Rodinson, Subhi Labib, and Jairus Banaji, all of which, Bishara notes, largely considered law as “epiphenomenal to capitalism.” On the other hand, Bishara holds that other “institutionalist” scholars, identifying especially with the New Institutional Economics, recognized law as the primary engine of economic history, but many of whom, including Timur Kuran, highlight the “long-term drawbacks” of Islamic legal institutions. Bishara reveals a scholarly consensus on two matters: “first, that there existed a body of Islamic law on commercial matters that was distinct from the broader legal terrain in which it played out; and second, that it manifests itself in a range of institutions and practices that can broadly be coded as Islamic.” Bishara maintains that these assumptions must be interrogated, arguing instead for more nuance and convergence. He states:
But rather than think of Islamic law as constituting a separate juridical sphere, we might profitably conceive of it as being constitutive of and by economic life in the region. If Islamic law is a discourse that is universalist in its ambitions, it cannot exist in ether of jurisprudence alone; it has to instantiate itself in the vernaculars of production and exchange. That is, the categories that structured marketplace activity and those that animated the discussions in the texts of jurisprudence might be thought of as being mutually constitutive.
 For a detailed study of Abū Yūsuf’s Kitāb al-kharāj, see Normal Calder, Studies in Early Muslim Jurisprudence (New York: Oxford university Press, 1993), 105-160. For other detailed studies on kharāj, see Hossein Modarressi, Kharāj in Islamic Law (London: Anchor Press, 1983).
 For examples of Abū Yūsuf’s discussions of questions of legal personhood and property rights – what Bishara refers to as the “twin pillars of law and political economy” – see the discussions of the fifth-tax (al-khums) for spoils based on the classifications of political jurisdiction, religious status, and emancipatory standing, as well as the right of landholding through labor of barren or “dead” lands (mawāt al-arḍ) in regions that have been conquered by force (ʿanwa) or through treaties (ṣulḥ) in Abū Yūsuf, Kitāb al-kharāj (Beirut: Dār al-Maʿrifa, 1399/1979), 22, 63-64.