A book about the beginnings of Islamic law has its own story of beginning
Beginnings are difficult to retrace. And the beginning of my book, The Beginnings of Islamic Law, is no exception. There are many experiences that shaped the writing of the book, including ones that predate when I began researching it. Looking back at the project now, I see a beginning in my training as a lawyer because it led me to combine law, critical legal theory, and Islamic legal studies. While my book explores issues of historiography, jurisprudence, and comparison in the study of Islamic law, those particulars are motivated by three broad and abstract questions:
First, what is “Islamic law”? In law school, I pondered the question “what is law?” and realized that it is rarely asked in Islamic legal studies. “Islamic law” refers to the multi-vocal legal tradition that has been and continues to be produced with the objective of being in accord with the Islamic movement. The singular term “Islamic law” can be misleading because in actuality Islamic law is generated by multiple groups and institutions and non-Islamic legal systems coexist with Islamic ones. As I have written about extensively, Islamic law is not equivalent to sharīʿah (divine law). Indeed, the Islamic law tradition is shaped by customary practices and regional, socio-political processes. I demonstrate that Islamic law functioned like any other legal tradition in Chapter 6, which examines wife-initiated divorce as a regional legal norm.
Second, how has Islamic law changed throughout history? As a lawyer, I researched legal precedents, which is inevitably a historical task because it tracks changes in law over time. Thus, the question “what is law?” has a temporal dimension; this is why I became interested in Islamic legal beginnings. As I elaborate in the book, Islamic law simply began in particular historical circumstances. Islamic law is unfixed and flexible; at any given historical moment, Islamic law is defined by a struggle for legal-political authority. It is important to recognize these dynamics because medieval Islamic legal orthodoxy is often (and incorrectly) assumed to represent all Islamic law. However, minority and even extinct legal opinions provide important evidence of diversity and heterodoxy, particularly in late antiquity (late third through the end of eighth century ce). This historical evidence is significant because it illuminates legal options that may be recovered and legal possibilities that may be formed in the future. Elucidating legal change is the objective of Chapter 2’s case study, which outlines how the execution of war prisoners shifted from being impermissible in late antiquity to permissible in the medieval era.
Third, what makes Islamic law “Islamic”? Because my legal education combined U.S. law and Islamic law, I observed inherent similarities in how these legal traditions operate. From this vantage point, I contemplated the distinct aspects of Islamic law. Islamic law is “Islamic” because Islamic jurisprudence is generated by an interpretive process anchored in canonical Islamic sources (the Qurʾān and tradition-reports). Yet Islamic law is more than simply “Islamic” because it also reflects the socio-political surroundings in which it developed and because it assimilates diverse Near Eastern legal traditions. My book, and much of my scholarly work, focuses on the specific relationship between Islamic law and Jewish law in order to illustrate the complexities of identifying what about Islamic law is uniquely Islamic. I illustrate this point through Chapter 4’s case study on circumcision, which discusses why male circumcision in late antiquity had dissimilar values in Jewish, Christian, and Islamic legal practices. In classifying the Islamicness of Islamic law, I draw attention to the inadequacy of modern comparative legal categories by demonstrating that premodern Islamic law cannot be categorized as either “religious” or “secular.”
These three questions and brief answers illustrate some of the basic ideas animating The Beginnings of Islamic Law. My legal education laid the groundwork for the book’s unconventional ways of conceiving and of writing about Islamic law. Nevertheless, the book itself is a beginning, a foundation for further explorations of Islamic jurisprudence and legal history. I invite readers to share their ideas about this book and future research with me through Facebook or on my Amazon author page.
More information on the book is available here.