Breaking the Law: Criticizing the Modern Study of Islamic Law

MRB March 28, 2017 1

Joseph Lowry on Lena Salaymeh’s The Beginnings of Islamic Law

Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions, Cambridge University Press, 2016, xiv + 242 pp., $99.99.

Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions, Cambridge University Press, 2016, xiv + 242 pp., $99.99.
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Historical understanding is never achieved from an unsituated vantage point, and an inescapable feature of our situatedness as scholars is that the distribution of power in our sadly imperfect world has material consequences that adversely affect scholarly procedures in many ways. Power is key, because, like it or not, it is no more possible to wish away the colonialist origins and legacies of Islamic studies and Islamic legal history, as disciplines, than it is to ignore suffering in the MENA region today and look away from its causes. Yet it is not always clear how historians of Islamic legal history, especially premodern history, should respond to such wrenching realities. A possible response to the dilemmas posed by this situation is to frame one’s historical research—whatever it might be—with rhetoric that clearly signals one’s intellectual and political commitments. That is the approach taken in Lena Salaymeh’s The Beginnings of Islamic Law—to find and deploy a scholarly vocabulary that the author finds intellectually and politically satisfying. In that respect, Beginnings is reminiscent of Wael Hallaq’s recent scholarship.

Salaymeh’s Beginnings offers three things to its readers: an investigation of some discrete topics in Islamic legal history, a provocative critique of the modern study of Islamic law, and some suggested theoretical bases for the future study of Islamic law. Those three offerings are closely connected, since her case studies aim to illustrate both the field’s shortcomings and the theoretically informed approaches she believes ought to be employed by the field. The book’s critical and theoretical dimensions, though not without merit, make for a somewhat fraught, self-conscious, and halting presentation, as the author herself seems to recognize.

 Beginnings consists of an Introduction, six chapters, and a Conclusion. All have something valuable to offer and all also invite readers’ critical reflection. Chapters that outline critical and theoretical frameworks (“historiography”) alternate, by design, with chapters that provide case studies of changes in specific legal doctrines (“historical jurisprudence”). Each chapter “fuses precise theoretical insights with close examination of sources.” In the Introduction, Salaymeh explains that she has “fine-tuned [her] instruments… and absorbed Islamic law’s operational logics.” Having done that, she then “engages critical theory in an effort to deconstruct Islamic legal historiography and to reconstruct Islamic legal history,” using an “approach [that] is not simply ‘postmodern’” but that can, rather, “engage in a postfoundationalist understanding of history that rejects the positivist methodologies of modernism and the nihilistic relativism of post-modernism.”

The focus in Chapter 1 is “on illustrating the relationship between historiographic methods for studying Islamic law and essentialism of Islamic law.” The field of Islamic legal history she sees as dominated by a search for origins, a search informed by models of source and textual criticism that posit, in an essentialist way, the existence of an original. A non-essentialist approach, by contrast, is one that “recognizes that Islamic law simply changes over time.” Documentary sources are said to be underused in the study of early Islamic law, but also to be in danger of being over-valued by the positivist proclivities of the field; they must be used in a complementary way with narrative-historical sources. The field is also wrongly suspicious of orality in the sources, mistaking it for a hallmark of unreliability.

The field’s methodological shortcomings have wider consequences, however, and the author goes on to “point out the power dynamics that underlie methodological discussions.” Reading, for example, hadith texts in a narrowly empiricist way—solely on the basis of dating, textual criticism, and a search for origins—misses important historical data. More significantly, she notes, “The communal process by which late antique Islamic historical sources were compiled is disconcerting to modern scholars who are more trusting of individual or institutional authors.” Empiricist readings of early Islamic sources result in a “double subalternizing effect: (1) the subaltern narrator… is subjected to a linear, textual critical analysis that ‘modernizes’ his or her speech; (2) the subaltern, medieval Muslim historian is erased… The reasons for doing so are political, not methodological . . . .” She adds that “Because these [methodological] orthodoxies are hegemonic, resistors are silenced in much the same ways that the sources themselves are silenced.”

The reference to the silencing of resistors reinforces throughout a subtext that Beginnings is itself an act of resistance which, along with its author, is in danger of being silenced. The book is published by Cambridge University Press and described on the press’s website as “a major and innovative contribution.” It is also endorsed by four reputable scholars on its back cover, whose descriptions of it include the words “superlative,” “inspired,” “erudite,” “a classic,” “compelling,” “landmark,” and “liberating,” as well as longer singularly laudatory phrases and sentences. Beginnings’s Bibliography includes 10 of the author’s own publications. This review was solicited in June of 2016, over four months before the book was even in print, so the book’s fame clearly precedes it and it has in no sense been silenced.

Chapter 2, in which the author “offers a non-linear, contextualized narrative of late antique Islamic legal history that parallels [her] non-positivist, multi-layered approach to historical sources,” is subtitled “A Case Study in International Law.” The term “international law” seems anachronistic, since the author herself cautions that the state in the periods she is working in must not be confused with the modern nation state. On the other hand, it is often necessary to remind readers as a strategic matter, as the author presumably does here, that Islamic law and the Islamic legal system are comprehensive and sophisticated in a way that makes comparison with premodern, early modern, and modern legal systems fully appropriate. The specific topic of Chapter 2 is whether Muḥammad and the early Muslim community executed, or considered it legal to execute, prisoners of war. After a critical examination of sources (mostly sīra and maghāzī literature), she very reasonably concludes that execution of prisoners of war was not a practice of the early Muslim community; execution would have made no sense in the social situation of seventh-century Arabia, so prisoners were customarily likely to be ransomed or pardoned. Although the early exegesis of relevant qur’anic verses was not uniform, the earliest jurists mostly prohibited the execution of prisoners of war, even though a minority allowed it.

But she also finds that Islamic law on the topic changed—medieval exegetes read the Qur’an differently than their predecessors and medieval jurists did authorize the execution of prisoners of war. She very reasonably attributes this change to changes in the medieval jurists’ interpretive framework relative to their late antique counterparts, but she is also puzzled by the jurists’ reluctance to adhere to the precedent that she has identified as presumptively binding or applicable. She labels their use of the Qur’an as “unsystematic” and argues that they did not defend their opinions rigorously with citations to appropriate hadith-texts.

I wonder whether the medieval jurists’ systematicity perhaps lay elsewhere, such as in a desire to develop doctrinal grounds for providing maximum flexibility for the executive, an interpretation which she rejects as too cynical, but which is already suggested by materials in some of the earliest tafsīrs that she examines. I also wonder whether al-Māwardī’s massive Kitāb al-Ḥāwī might have yielded more useful information about his reasoning than al-Māwardī’s strangely reticent and equivocal memorandum on the executive branch al-Aḥkām al-sulṭānīya, on which she relied for this chapter. She concludes, conjecturally, that doctrinal support for executing prisoners of war “is a remnant of the biblical tradition, which is indicative of ancient Near Eastern customary practices” and that “… there may have been a deep-rooted customary practice legitimating prisoner execution” unrelated to the Qur’an or the practice of the Prophet or the early Muslim community.

Chapter 3, building on the Introduction and Chapter 1, lays the theoretical and methodological bases for a consideration of the relationship between Islamic law and predecessor legal systems, especially Jewish law. The author identifies textual criticism as the unacknowledged and pernicious model for scholarship on early Islamic law and castigates origins-driven scholarship as leading to a racialized portrayal of Islam as an instance of miscegenation: “In effect, many scholars treat Islamic law as the ‘illegitimate’ child of an ‘Arab’ mother and either an Aryan or a Semitic father . . . .” Moreover, “the nineteenth-century scholarly invention of ‘Semite’ and the concept of Semitic law are precursors to religious law. Since ‘Aryan/Semite’ corresponds to ‘secular/religious’ in contemporary Western discourse, the category of religious law is implicated in a racial/colonialist discourse that continues to influence the way that Islamic legal systems are conceptualized . . . .” She thus “contend[s] that the category of religious law is imposed upon, and misjudges, Islamic legal systems.” She offers instead a “historically nuanced recognition of the assimilation of shared customary practices” and “an inherently hybrid, deracialized definition of Islam.” She focuses on relationships between Islamic and Jewish law (in chapters 4 and 6) because of their mutual proximity and the likelihood that their combined study will lead to “important historical evidence of Islamicate law.”

Chapter 4 puts those ideas into practice in an investigation of Islamic legal doctrine on male circumcision. Salaymeh helpfully sketches the context, situating the practice of male circumcision in the ancient Near East, late antiquity, and pre-Islamic Arabia, and arguing that “most shared ritual practices are regional (rather than solely confessional).” She also highlights the theological specificity of late antique Christian-Jewish polemics relating to circumcision, as part of which Christians proposed that baptism could be a possible covenantal counterpart to circumcision, and in which the connection of circumcision with covenant and communal identity was a key theme. In Islamic law, she argues, the requirement of male circumcision was, by contrast, more likely driven by conceptions of hygiene and ritual cleanliness. She also finds Islamic legal doctrine on the topic to be sparse and underdetermined because it dealt with a cultural practice that was neither widespread nor strongly symbolic of communal identity and individual commitment within a highly charged religious polemic. Late antique Muslims, she writes perceptively, “experienced circumcision as a mater of ritual purity, but rationalized it as an Abrahamic practice.” The analysis in this chapter was helpful, even though the theoretical perspective could have been greatly enriched by citation to some key works on ritual purity, such as those by Marion Katz (Body of Text) or Kevin Reinhart (“Impurity/No Danger”).

Chapter 5 reflects on the fact that the range of opinions on legal questions between late antique Islamic law and medieval Islamic law narrowed, and stark differences in interpretive approaches emerged between Late Antique and medieval jurists. As part of this process, “the hundreds of Islamic legal schools that existed in late antiquity consolidated into the several that dominated in the medieval period.” As part of her attempt to think more broadly about such changes, she rejects a developmental, linear approach in which early jurists are dismissed as unsophisticated and too much agency is ascribed to stand-out figures in a “‘great-men’ narrative of history.” Instead, she proposes “a genealogically oriented (rather than origins-oriented) historiography [that] scrutinizes the historical paths not followed,” and which entails “challenging assumptions about the inescapability (or evolutionary normalcy) of history by exploring the myriad contingencies of historical change.” Such an approach avoids privileging narratives of orthodox outcomes while striving to account for continuities in ways that do not legitimate orthodox narratives. In a section titled “Politics and Ideology: Scholarly Orthopraxy,” she argues that conventional scholarly methodologies mirror orthodox scholarship by creating a sense of belonging and, in a circular and insular way, reinforcing conventional thinking. On the other hand, while “the conventional scholarly macro-narrative of Islamic law is inappropriately evolutionary, … orthoprax scholarly methods of attending to details stifle macro-thinking.”

Salaymeh’s provisional antidote to these shortcomings is to offer two complementary periodizations of Islamic and Islamicate legal history through the late middle ages, each with an accompanying narrative. The category of “Islamicate” is designed to encompass the diversity of legal practices and systems (including those of non-Muslims) that existed in premodern Muslim societies and is juxtaposed with the more focused term “Islamic.” These two periodizations are offered “as a form of resistance against the field’s evolutionary theories of history and habitus of detailed orthopraxy”:

Moments in Islamic Legal History Moments in Islamicate legal history
ca. 610-800 CE Legal circles and networks:
Islamic legal beginnings
Diffusion and diversity
ca. 800-1000 CE Professionalization of legal schools Synthesis and systematization
ca. 1000-1200 CE Consolidation and formalization Legal structure
1200-1400 Technocratization Legal autonomy

 

The attempt to encompass larger movements (or “moments”) in a wider set of phenomena encompassed by the term “Islamicate,” such as Jewish law, is both stimulating and worthwhile and paves the way for a consideration of a specific topic in Islamic and Jewish law in Chapter 6. Likewise, the identification of late-medieval Muslim jurists as technocrats is innovative and potentially fruitful. For all the theoretical and critical work that surrounds them, however, these periodizations and their narratives, especially the one designated “Moments in Islamic Legal History,” are conventional by the standards of the field.

Chapter 6 applies the above-described theoretical and methodological insights in order to “offer some provisional explanations for why women’s divorce options became more limited in the medieval period (roughly 800-1450 CE).” The general argument presented is that doctrines allowing wife-initiated divorce in Islamic and Jewish law developed along more or less similar lines as “the result of common socio-political and jurisprudential dynamics.” The general conclusion, made on the basis of an intricate and convincing series of arguments that are styled “micro-histories,” is that professionalization and institutionalization within the Islamicate environment led to a consolidation of juristic opinions and a notion of fault-based divorce that may to some extent have limited women’s options.

In considering the intertwined histories of Islamicate, Islamic, and Jewish law, the fact that Geonic and Karaite law became Arabicized and Islamicized but that Islamic law did not become Hebraicized or Aramaicized seems pertinent. The Arabo-Islamicization of Jewish legal thought is a complex phenomenon that, on the one hand, resulted from Muslim political and cultural domination of Islamicate Jewish communities, while, at the same time, initiating a wave of intellectual creativity and possibly more profound cultural shifts in Islamicate Jewish thought and writing. The author is of course right to resist overemphasizing premodern Muslim political and cultural domination of Jews; such points are often mobilized as a reductive and pernicious trope of modern regional political agendas. But is the Islamicization and Arabicization of Jewish thought really not at all relevant to a consideration of historical commonalities in medieval Jewish and Islamic law? However one answers that question, this chapter successfully balances abstraction, concrete detail, speculation, and innovative and critical approaches to reading both primary sources and secondary literature.

A “Conclusion” sums up the author’s main points and reiterates her chief theoretical and critical concerns. A key, characteristically trenchant statement of principle is this: “Islamic law does not have specific features or innate characteristics and it does not develop.” This negation of temporality and specificity to Islamic law surely problematizes the writing of Islamic legal history.

John Wansbrough and his student Norman Calder, in their postmodern (or maybe postfoundationalist) studies of Islamic beginnings, the Qur’an, and Islamic legal history offered radical reassessments of the ontology or textuality of primary sources in ways that—to howls of protest from the field—subverted positivist narratives. Still, they proceeded mostly by presenting their interpretations of the textual sources they studied, and careful textual interpretation lay at the heart of their scholarship (however one might assess it). One obvious consequence of the relentlessly postfoundationalist stance adopted in Beginnings is that abstraction and critical rhetoric have greatly reduced the available space for close reading in primary sources.

The consequences of Beginnings’s postfoundationlism for producing or evaluating scholarship on premodern Islamic law are less clear. Arguments are likely to be tested on normal grounds of efficiency—how much data do they explain, how plausibly do they explain that data, how do they improve on the results of previous scholarship, how convincing are they in their assessment of what counts as data, and so on. None of the case studies in Beginnings is formulated in such a way as to suggest that it should not be subjected to such conventional criteria of evaluation. And although the author’s approach to primary sources is often fairly blunt, her specific historical conclusions are frequently interesting, insightful, stimulating, and valuable. But by the standards of the field, they are hardly unusual or exceptional. Indeed, what is surprising in light of the way they are framed is just how conventional they are.

There are some minor slips in this book that should have been caught and corrected (e.g., al-Muzanī is not the editor of al-Shāfiʿī’s Kitāb al-Umm, and Lawrence Conrad is not the editor of Benjamin Jokisch’s book Imperial Law). One suspects that to point out such inaccuracies would be characterized as “micro-thinking” by the author. But for all its theoretical and critical vigor, which is considerable, the author does not really engage much with recent scholarship on Islamic law, and her view of the field might look to some like a caricature of a group wedded to the presuppositions of Goldziher and Schacht, who are especially frequent targets of her ire. Beginnings also offers larger and more significant exercises of interpretation with which one might disagree, but that are also valuable and sometimes even exciting. Those interpretations, however one assesses them, are part of this book’s value; the other part of its value lies in the author’s impatience with the field, her yearning for a more sophisticated theoretical lens, and her attempt to put Islamic legal history on a firmer methodological footing. That she is, in this reviewer’s opinion, not always successful in her practical and theoretical goals is hardly a reason not to read this book; few of us solve every problem and all of us need reminding that we must constantly reflect on what we do and why.

Joseph E. Lowry is a specialist in Islamic law, Arabic literature, and classical Islamic thought. He is the author, among other works, of Early Islamic Legal Theory: the Risala of Muhammad Ibn Idris al-Shafi‘i  (E. J. Brill, 2007) and the editor (with D. Stewart and S. Toorawa) of Law and Education in Medieval Islam: Studies in Memory of George Makdisi (Gibb Memorial Trust, 2005) and (with D. Stewart) of Essays in Arabic Literary Biography II: 1350-1850 (Harrasowitz, 2009). He has edited and translated al-Shafi‘i’s Epistle on Legal Theory for the Library of Arabic Literature (NYU Press, 2013) and is a member of the editorial boards of the Library of Arabic Literature and of the journals Islamic Law and Society (Brill) and Abbasid Studies (Brill). Before completing his Ph.D. he was an attorney in private practice.

  • Shah Muhammad

    A rather problematic review this, slyly trying to praise while also being typically dismissive of a book that makes critical theoretical contributions:

    1) “Beginnings’s Bibliography includes 10 of the author’s own publications.” How is this jab relevant? Would one ever say this about a white male scholar? Essentially he is saying why are you so angry girl when you got all this praise and got to put 10 of your books in the bibliography!

    2) “The book’s critical and theoretical dimensions, though not without merit, make for a somewhat fraught, self-conscious, and halting presentation, as the author herself seems to recognize.” This dismissive claim is never substantiated in the review. This is a common strategy of brushing aside of any work that tries to make theoretically attuned interventions.

    3) “John Wansbrough and his student Norman Calder, in their postmodern (or maybe postfoundationalist) studies of Islamic beginnings.” The reviewer needs to brush up on his knowledge of postcolonial studies before including Wansbrough in its ambit!

    4) “But by the standards of the field, they are hardly unusual or exceptional. Indeed, what is surprising in light of the way they are framed is just how conventional they are.” How? Why? Another entirely unsubstantiated dismissive claim.

    5) “In that respect, Beginnings is reminiscent of Wael Hallaq’s recent scholarship.” Just because they both deploy some vocabulary from postcolonial thought, they must reminisce! A typical construction of a mythic “theory-land” where all theory talk is essentially the same.