This is the first of a two-part series on teaching Islamic law and literature. The second part discusses the modern period through a discussion of the novel.
I teach a course on Islamic Law and Literature. It is housed in the Literature Department and cross-listed with Legal Studies. Its official title is “Lit 168A The Culture of Islamic Law,” and it is designed largely for literature, humanities, and Legal Studies majors with little-to-no background in Islamic Studies. Somewhat unexpectedly, it has become one of my favorite courses to teach—the room often having that electric energy of interest and surprise. Unexpected because the prospect of combining these subjects for students with little background was daunting.
The core idea is that this is a class that investigates how the legal text (its composition, interpretation, and circulation) shares fundamental practices and methods with the literary text (or with what one might call literary, since, to my mind, the categories of law and literature are neither transhistorical nor transcultural). The core idea is, therefore, that the textual practice of the law is a literary practice. The second main idea, to some extent stemming from the first, is that the representation of law in literature is worth investigating, literature very often representing (and misrepresenting) law in a very knowing way.[1] And while I’m not fully committed to proving this second idea, it does seem to work and provides fertile ground for thinking through the very complex relationship between the two fields. The course thus is an exploration of literature in the law and the law in literature; of how law is a literary practice and how literature represents law, and what we can learn from this peculiar embrace.
Its main takeaways are clear and, I think, vital for having a notion of the historical experience of Islamic societies and for the wider concept of how narrative and interpretive practices operate across our cultures, in our politics, our laws, and our arts of representation. Five main points I want students to take away could be stated as follows: (1) That law (and Islamic law specifically) is fundamentally connected to literature and religion, (2) because it shares tools of interpretation with these wider fields of cultural activity; (3) that interpretive practices feed and are refracted both ways (from legal to literary interpretation and vice-versa); (4) that the law is, therefore, not an isolated intellectual field and that you can ask the legal text all kinds of questions; and (5) that it bears fruit to interrogate the representation of the law in literature, over time and space, because of what it has to say, among other things, about normativity and narrative, and that this also illuminates aspects and areas of Islamic law (and other non-western legal and religious traditions) that may be unfamiliar (such as ritual law).
I should say that I came to teach this, not as someone who worked on literature, but in a more roundabout way. Academically and research-wise, I identify more with medieval and Islamic studies. I wrote a dissertation, first monograph, and second book, squarely in the “historian” lane, having been trained as a medieval historian with a secondary interest in Islamic law and society.[2] I wrote on social and institutional history through a close reading of legal texts. My first job was in Islamic world history. And I came to teach in a particular way (largely through lecturing and providing complementary and illustrative texts) before making a move to a rather different pedagogical environment, “Literature” (which in my university is a department), where students want you to walk them through texts. I have often thought of them as “allergic” to history, but perhaps now I’d say, to “history presented in a certain way.” They do respond when the history is directly incidental to the text or when clearly connected to one of their interests.
I was excited about the “unmediated” pedagogy of literature. One thing I changed in my teaching was jettisoning the history textbooks and relying more squarely—often exclusively—on primary source material. This has served me (and the students) really well. Most of my courses—for example, my class on Islamic Spain and another on Classical Arabic Literature and Islamic Civilization—I teach exclusively with primary sources, a mixture of literary and “non-literary” (historiographical, legal, religious, etc.). I have made it my bailiwick to show how literary and non-literary texts are deeply connected, how you can apply the techniques of close reading to non-literary texts, and how creative sparks fly when you put the two together.
Initial development was a challenge because of that familiar problem of wanting to find short theoretical texts suitable for undergraduates. I kept feeling like I was coming up empty handed. There is a wide literature on the field of law and literature, but a lot of it seemed modern, western, and not particularly insightful. But this is one of those areas that once you make some headway, you start to see more and more. One useful heuristic came from narrative theory and employing the concept of narrative disputation: the process by which narratives compete to forge consensus, a process central to politics, law, journalism, and to our everyday lives (e.g., parents and children arguing about what happened, why something happened, whose fault it was, what to learn from what happened). We can transpose this idea onto examples of legal consultation (istiftāʾ), especially in cases in which there are competing versions of events and contradictory evidence. Through the presentation of evidence and through the extensions of the process of investigation, we can see the formulations of competing narrative scenarios, as put forth by the litigating parties, and as understood by the investigator, judge, or muftī, which in turn inform the questions and the answers and opinions.
One case I have written about provides a good example. It involved an extended water dispute between a miller and some orchard owners and was presided over by Qāḍī ʿIyāḍ (d. 544/1149) of Sabta in northern Morocco in the early twelfth century.[3] In formulating his question to the muftī, Qāḍī ʿIyāḍ describes a series of stages in a dispute between the parties that produced new evidence and testimony at different intervals, which in turn appeared to change the story (about who owned what and when, what rights were included in the ownership, and who had access to the water first). Put simply, there were two main stories being championed by opposing parties, and then a version of the story as understood by the presiding judge (somewhere between the truth and the legally verifiable) and formulated with an eye to achieve a workable solution. The whole process provides a wonderful parallel to common devices for structuring fiction: the investigation (detective, courtroom based, journalistic), which often presents two stories in tension, that of the investigator uncovering the truth and that of the events themselves often only revealed at the end.
One title recommended to me when I was building the syllabus has proven fundamental: Robert Cover’s classic essay, “The Supreme Court, 1982 Term – Foreword: Nomos and Narrative.”[4] It is a bit of a steep climb for undergraduates. But it benefits from slow reading and rereading and introduces a whole set of concepts for structuring a discussion on law and literature. The second part of the article (focused on the civil rights movement) takes up the question of whether and how law is generated outside and beyond the courts.[5] For this class, however, the essay’s opening discussion is most germane, providing a framework for examining the relationship between a narrative tradition and the law.[6] It does so through a basic but highly useful concept: That stories map social and personal situations and their potential outcomes. They map possible scenarios and chart the myriad choices confronting the actors. Broadening out a bit, we can see that our narrative traditions (such as those of the Hebrew Bible, which Cover uses as his model) represent universes of stories that map such scenarios, the moral choices involved, and their many outcomes. Such a corpus or tradition of stories informs (perhaps always?) a legal tradition with the material it uses to think and reason. It also provides the material by which it teaches and transmits (in what Cover calls a “paideic” tradition).[7] Ancient and medieval legal and literary traditions have at their hearts narrative complexes from which they generate meaning, interpretive stances, and, of course, further stories.
The narrative complex at the heart of Islamic law is the life of the Prophet Muḥammad, which is in turn imbricated in the lives and history of the prophets, on the one hand, and the lives and actions of the Companions and Followers, on the other. It is an unbounded tradition, which interweaves and echoes beyond the strictly religious and legal into the literary (including into other narrative traditions, such as the fantasy and folk tale tradition and the lives and works of Arab poets, such as represented by the Kitāb al-Aghānī).[8] This echo and refraction occurs, among other reasons, because the core narrative complex provided the shared educational repertoire for the literate class, and echoed across legal, literary, and historiographical traditions.
The texture of the imbrications of the story traditions with authoritative texts across to other traditions is fascinating in and of itself. I try to explain how the ḥadīth is interwoven with the sīra (and its devotional offshoots, which one might denote as some of the most affectively powerful narrative traditions in Islam), so that the “dry” authority of the ḥadīth text is backed up by an affectively powerful narrative context. I try to explain how the ḥadīth and the sīra provide a basic interpretive “scaffolding” for understanding the Qur’ānic text, which in turn, bridges to a vast narrative tradition of prophetic stories and histories. This core textual/narrative tradition reaches to the past and future through the many stories of prophets past and the histories and actions of moral actors in the future, following from Muḥammad’s Companions and Followers, striving to emulate his model and echoing his story through theirs.
From this vantage, it seems less quirky (and more meaningful) that a figure like Hārūn al-Rashīd turns into a character in stories (in The Thousand and One Nights) and acts as a kind of judge of stories, an expert listener with the wisdom and authority to decide that a story deserves being put down in writing because of the wisdom it contains.[9] The same vantage would seem to shed light on how and why one of the founding texts of Arabic literary prose, Kalīla wa-Dimna, a collection of animals fables, was translated through the patronage of the caliph’s court: a collection in which animals tell ambiguous stories to argue against each other, framed by a story in which one of the animals (Dimna) is put to trial for scheming and rhetorical manipulation.[10] In the original Sanskrit, this takes place within an outer frame story in which the stories are told by an old wise blind teacher to educate and tame the energy of three incorrigible princes.[11]
In the second half of the term, we turn to literature and the representation of law. The first piece of literature I often share with them is Tanūkhī’s[12] “Girl of Ramla,” in which a stranger, by chance, spots a young woman, dressed as a wolf, rummaging through a cemetery.[13] He wounds her (thinking her a beast) and follows it/her home, where he discovers that she is the daughter of the village qāḍī. What ensues is not quite a litigation, but certainly a kind of negotiation in which the qāḍī presents a figure of social authority of which the protagonists—the adventurous man and the young woman resisting authority—are keenly aware.
Then we read a selection from the Maqāmāt al-Ḥarīrī (in Michael Cooperson’s wonderful adaptation).[14] I particularly like Imposture #9, in which a mother drags a dead-beat father (Abu Zayd, the pícaro hero of the Maqamāt) before a judge, suing for alimony, and arguing that she has been duped by his lies. Abu Zayd defends himself before the judge, arguing that his rhetorical skills aren’t as much in demand as they used to, a situation from which he has suffered economically. He also contends that he didn’t lie, that he just bent the truth. The judge is sympathetic to Abu Zayd, agrees with his plea, and lets him off the hook (another close escape for the pícaro). The episode thematizes and dramatizes the use of rhetoric and argumentation to bend truth, the ambiguity of language, and its ability to lend ambiguity to social situations and negotiations, all couched in a high rhetorical style, set in a court of law, where the practitioners are acutely aware of the ambiguous and shifty nature of their craft of interpretation and communication, in which truth and falsity wink in and out of sight.
Notes:
[1] The two texts I have most frequently used to present Islamic Law in a class like this are Bernard G. Weiss’s The Spirit of Islamic Law (Athens: University of Georgia Press, 1998), for its engaging presentation of the legal tradition as a philosophical, ethical, and coherent whole, and Kecia Ali’s classic, Sexual Ethics and Islam: Feminist Reflections on Qurʾan, Hadith and Jurisprudence (London: Oneworld, 2006), which introduces a series of key questions involving gender in a way that speaks directly to students’ interests. I have liked assigning sections of al-Shāfiʿī’s The Epistle on Legal Theory: A Translation of Shāfiʿī’s Risāla, trans. Joseph E. Lowry (New York: New York University Press, 2015), to give them a taste of the discursive style. Much of the other reading consists of excerpts from other legal genres and a variety of literary genres, such as the ones mentioned below. I try to bring in a couple of new texts for each iteration of the class.
[2] Camilo Gómez-Rivas, Law and the Islamization of Morocco under the Almoravids: The Fatwās of Ibn Rushd al-Jadd to the Far Maghrib, SHSM Vol. 6, (Leiden: Brill, 2015), and Camilo Gómez-Rivas, The Almoravid Maghrib (Leeds: Arc Humanities Press, 2023).
[3] Muḥammad b. ʿIyāḍ and ʿIyāḍ b. Mūsā, Madhāhib al-ḥukkām fī nawāzil al-aḥkām (Beirut: Dār al-Gharb al-Islāmī, 1997), 109–21; also in Delfina Serrano’s study and translation: La actuación de los jueces en los procesos judiciales (Madrid: CSIC, 1998), 246–61; see also Camilo Gómez-Rivas, Law and the Islamization of Morocco Under the Almoravids: The Fatwās of Ibn Rushd Al-Jadd to the Far Maghrib (Leiden: Brill, 2014), 113–48.
[4] Robert M. Cover, “The Supreme Court, 1982 Term: Nomos and Narrative,” The Harvard Law Review 97, no. 1 (1983).
[5] Ibid., 46–53.
[6] Ibid., 9–10.
[7] Ibid., 12.
[8] Abū al-Faraj al-Iṣfahānī d. 967, Kitāb al-aghānī 20+ volumes (Cairo: Dār al-Kutub al-ʿArabiyyah, 1927-1938). Digital version at AUC Library.
[9] As he does in the story of “The Porter and the Three Ladies of Baghdad.”
[10] Ibn al-Muqaffaʿ, Kalīla wa-Dimna, trans. Michael Fishbein and James E. Montgomery (New York University Press, 2023).
[11] Visnu Śarma, The Panćatantra, trans. Chandra Rajan (Penguin Classics, 2007).
[12] Abū ʿAlī al-Muḥassīn al-Tanūkhī d. 994 was a judge and writer/anthologist who collected a series of volumes of popular tales. For an exploration on the mixing of law and literature in his work, see Intisar A. Rabb and Bilal Orfali, “Islamic Law in Literature: The Pull of Procedure in Tanūkhī’s al-Faraj baʿda al-shidda,” in Tradition and Reception in Arabic Literature: Essays Dedicated to Andras Hamori, eds. Margaret Larkin and Jocelyn Sharlet (Wiesbaden: Harrassowitz Verlag, 2019), 189–206.
[13] “Prose Narrative: Four Stories by al-Tanūkhī,” in Classical Arabic Literature: A Library of Arabic Literature Anthology, ed. Geert Jan van Gelder (New York University Press, 2013), 225–44.
[14] al-Ḥarīrī, Impostures, trans. Michael Cooperson (New York University Press, 2021), 81–89.