Lena Salaymeh’s The Beginnings of Islamic Law is a most welcome study of two distinct but interrelated issues. One is the state of the field of historical studies of Muslim jurisprudence in a general and synoptic way. The other comprises three substantive legal issues, both in themselves and by way of illustrating broader conceptual and historiographical issues: the treatment of prisoners of war, more specifically, the legitimacy of their execution; male circumcision; and wife-initiated divorce. The book is structured in three pairs of chapters, each pair starting with a discussion of concepts and historiographies, followed by a detailed study of legal discourses (rather than practices) as they developed from the earliest attested evidence of legal consequence during the lifetime of Muhammad up to the eleventh century and a little beyond. There is much valuable material in both the conceptual discussions and the historical sketches of jurisprudence. The author is quite right to argue against a number of misconceptions common in the study of Islam and of Muslim jurisprudence, both by international scholars and by Muslim traditionalists, medieval and modern. One could mention notions of “origin,” which is parsed as lineage and genealogy rather than in terms of proper historical arguments, and the use of “Islam” as an anthropomorphized entity, as a total and essentialist explanatory category, in effect as a grid of misrecognition. The author argues against reworking beginnings from the vantage point of outcomes. What emerges clearly is that Muslim jurisprudence changed meaningfully over time in all three domains chosen for inquiry. Legislation relating to the permissibility of executing prisoners of war moved over time from reticence about execution to greater acceptance of it. Chapter 4, on circumcision, shows a parallel move over time toward less latitude related to circumstance and greater acceptance of more summary and stringent rulings. Both here and regarding the first topic, the author’s account would have been enhanced by reference to practices and contexts. Salaymeh would have benefited enormously from greater acquaintance with pre-Muhammadan and Paleo-Muslim Arabian conditions. Such acquaintance would have been especially helpful in enhancing the chapter on wife-initiated divorce, perhaps the most well rounded in the book, where, in discussing Rabbinic law in some detail, the author makes frequent recourse to a broader range of modern scholarship than is available for the history of Muslim jurisprudence. Here, again, legislation moved toward greater stability, predictability, and simplicity. The author’s sketches of the development and transformations of Muslim legal traditions in the three chosen thematic areas contribute much to the demystification and historicization of Muslim jurisprudence. They also offer a most valuable shift of perspective on the relations between Muslim and Rabbinic jurisprudence, seen as arising under and responding to similar sets of circumstances. Also of special value is Salaymeh’s account, however sketchy and impressionistic, of the development of Muslim legal institutions and the discursive forms of juristic output. Here one witnesses sequential historical arguments involving temporal chains, and a linear developmentalism against which the author argues volubly in the conceptual and historiographical discussions (137–142). It is gratifying to see the author overcome her declared suspicion of contextualization for the unfounded fear that event, phenomenon, or fact might thereby be reduced to context and collapse into it, and to call for contextualization in a manner conforming with her overall approach and in order to reach “beyond contextualization” (6–15). The contours of the research object treated in this book remain, however, confined to Muslim jurisprudence—neither law as practice nor law as institutionally embedded. The distinction between law, custom, and other normative or pragmatic registers and practices seems unclear, and the three are sometimes conflated. There is no good reason to regard Muhammad’s various practices as law before these were incorporated into legislative arguments, or to regard Muhammad’s companions as “legal authorities” in Paleo-Muslim times and before legal institutions and legal traditions were instituted and constituted authorities (58). The author did not pay much attention to legal practice, and made only very limited use of historical sources. Attention to such matters would have enriched her discussions considerably, and would have enabled the author to avoid a number of factual errors (for example, that the Caliph ʿUmar standardized the Qurʾanic text ). One error of greater consequence to her historical argument, the claim that madrasas dated from the early ninth century (152), causes the author to suppose that professionalization of the ʿulamaʾ started much earlier than it did. This would necessitate rethinking her chronological scheme for the history of the ʿulamaʾ, a subject in which she appears to be not sufficiently versed. Her statement that jurists in Mamluk times were not affiliated to or regulated by the state (157) flies in the face of clear historical evidence of a situation in which jurisconsults, with few exceptions, vied meretriciously for state offices and favor as the Mamluks built what might be analogous to a state church. This book’s signal achievements notwithstanding, a very substantial part of the methodological, conceptual, and historiographic chapters—half the book—is marred by insistent academic in-group flag-waving. This seems to be driven by apparent anxiety of arresting acuteness toward what the author takes for cardinal sins—designated here as positivism, factuality, essentialism, linearity, evolutionism, and developmentalism—counterposed to: contingency, post-foundationalism, hybridity, and postcoloniality (3–6, 90–98). These targets of criticism appear here largely as blanket terms of polemic rather than as properly articulated concepts, and figure ultimately as satirical tropes that inflate one detail of the target, foreground it, and substitute it for the whole. There is no reason, for instance, to ascribe notions of inevitability to a historical narrative of Muslim legal history that looks at elements of accumulation and maturation, and at chains of historical causation, or to claim that such narratives necessarily make no room for contingency or for unintended consequences (this last term does not occur in the book). Much of this conveys the rather tedious air of battles some considerable way behind us now, learned at second hand. Clearly Begriffsgeschichte (history of concepts) of these ideas, as of others, such as state, historical process, religion and ritual, and historiography (which the author takes to mean historical writing), is not Salaymeh’s forte. Nevertheless, it remains the case that much of what has been positive in these controversies has hardly made its way into the persistently archaic institutional habits of thinking and teaching in many Islamic studies faculties, especially with regard to the early, Paleo-Muslim period. © The Author 2018. Published by Oxford University Press.
The American Historical Review – Oxford University Press
Published: Feb 1, 2018
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