The Neglected History of Furū’ and the Premodern/Modern Binary

Marion Katz reflects on major developments in Islamic legal studies since the 1990’s, the decade that saw – as noted in the introduction to this Roundtable– expanded and diversified scholarly attention to Islamic legal studies. For her, it is puzzling then that outdated frameworks continue to percolate in the field, such as the crude “premodern / modern binary” and the continued neglect of what she calls fiqh studies. Katz urges scholars to pursue more nuanced approaches to deal with the sheer volume of the textual corpus and to fill in chasmic history of substantive law, namely: (1) the study of “core samples,” that is, the diachronic investigation of individual concepts and doctrines to document inflection points, and (2) the study of “transverse slices,” that is, the synchronic study of a wide range of material from a specific historical context that helps expose underlying and pervasive assumptions behind a broad area of law.

Recent Case: The Turkish Decision on Hagia Sophia

On July 2, 2020, a division of Turkey’s highest administrative appellate court annulled[reference_link 1] a 1934 presidential decision[reference_link 2] by Kemal Ataturk, founding president of Turkey, converting Hagia Sophia (tr. Aya Sofya) into a museum. Days later, on July 10, 2020, Recep Tayyip Erdogan issued a decision[reference_link 3] based on the court ruling, restoring its status as a mosque open to worship and transferring its maintenance to the country’s Presidency of Religious Affairs. Following a Turkish administrative court ruling that revoked an earlier administrative decision (1934) converting the mosque into a museum, President Erdogan of Turkey was expected[reference_link 4] to restore Hagia Sophia’s status as a mosque. Upon his decision to restore the site’s status as a mosque open to worship, Erdogan personally inspected[reference_link 5] the site and the preparations to have it ready for the Friday prayer on July 24, 2020. The government quickly named[reference_link 6] 3 imāms, one a professor of religious studies, for Hagia Sophia. On July 24, 2020, Erdogan, accompanied by top government officials and politicians, participated[reference_link 7] in the first Friday prayer at the site after a 86-year hiatus where he recited passages from the Qur’ān. 350,000 people are estimated[reference_link 8] to have been in attendance). For further context, see the Case Roundup on the Islamic Law Blog.[reference_link 9]

Islamic Law from the Internal Point of View

Haider Hamoudi notes the different perspectives lawyers and historians employ in making sense of the law. Invoking H.L.A. Hart’s famous distinction between “internal” and “external” points of view with respect to law and legal rules, Hamoudi describes lawyers as primarily adopting the former, and historians, the latter point of view. This is not to suggest that lawyers do not take history into consideration, but rather to mean that when they do, their focus is results oriented in that they use history to understand the ultimate endpoint, the contemporaneous meaning of a legal rule or institution. Hamoudi observes two consequences emanating from lawyers’ adoption of the internal view that puts lawyers somewhat at odds with the demands of historical method and meaning. While deliberately omitting discussion on the normative desirability of either method, Hamoudi concludes by observing value in merely pointing out the differences between the internal and external viewpoints of law and history, respectively, to help expose “our own biases and assumptions.”

A Precedent for the Unprecedented

Historical Reflections on Plague, Quarantine, and Islamic Law in Morocco, written as part of the 2020 Roundtable on pandemics.

Quantitative Approaches to Ottoman Fatwā Collections

In their joint essay, Metin Coşgel and Boğaç Ergene make the case for “a pluralistic approach to the study of Islamic legal history,” through the lens of law and economics and other types of quantitative analysis. Regression analysis, they suggest, provides especially useful approaches suited to interdisciplinary studies of historical events. To illustrate, the authors describe the findings of their previous scholarship on Ottoman court records, for which they coded data on court petitions and were able to arrive at generalizable conclusions about access to early modern courts. Noting the uptick in digitized primary sources in the field, they predict an increase in Islamic legal scholarship that integrates quantitative analysis.

Methods and Meaning in Islamic Law

How should we think about the most pressing questions of Islamic law and legal history today? We asked leading scholars of Islamic law and history to weigh in on the methods and meaning they notice or favor, at a time when much has changed in the field and the world since Islamic law emerged as a major field of studies in the global academy over the last century, and at a time when access to new sources, historiographical advances, and data science tools promise that more changes are yet to come.

A Note on the Quantitative Analysis of Hadith

Hiroyuki Yanagihashi observes how recent developments make the quantitative analysis of ḥadīths a “promising” endeavor. The question then becomes: why and how the text of certain ḥadīths, taken literally, appear to contradict established Sunnī legal doctrine? The logical presumption is that either traditionists transmitted the jurisprudence of ancient legal systems that were eventually replaced by later-derived fiqh rulings or they reformulated the ḥadīths in the process of transmission to develop the rulings underlying those later legal systems. By way of example, and to investigate these possibilities, Yanagihashi proposes quantitative analysis to trace variations within the texts of two prominent ḥadīths over the course of more than a century. His analysis yields conclusions that corroborate other work in ḥadīth­­-related studies from recent years (e.g., those of Behnam Sadeghi on a larger scale in his “Traveling Tradition Test,” and Intisar Rabb with respect to a select ḥadīth in her evaluation of the doubt canon, and others): an increase in textual variation does not necessarily correspond to a change in legal doctrine; the number of variants can increase over time, even after the compilation of Sunnī Islam’s six canonical ḥadīth collections. His methods represent and propose new directions for quantitative analysis at the intersection of ḥadīth and law in early Islamic history.

Triple Divorce and the Political Context of Islamic Law in India

The 2019 passage of the ‘The Muslim Women Protection of Rights on Marriage Act’ criminalizing the practice of triple-ṭalāq has been actively debated in both political and academic spheres. For some, the act signals a much-awaited victory for the Muslim women of India who have suffered the consequences of instantaneous and irrevocable divorces; while for others, it signals the continued marginalization of the Muslim community and the willingness of the Indian government to encroach upon their rights as a distinct religious community. To understand the passage of this Act in context, this article explores the larger context surrounding debates over Islamic Law in India, prior watershed Supreme Court decisions, and the recent political agenda of the BJP. These explorations reveal that ‘The Muslim Women Protection of Rights on Marriage Act’ is a red herring that, if fully enacted, can exacerbate the social and legal challenges women face when seeking divorce while also encroaching upon the rights of the increasingly politically marginalized Muslim community.

Future Avenues in the Study of Islamic Law

In his essay, Najam Haider calls for “more cohesive and integrated scholarly engagement with the pre-modern Islamicate world.” To that end, the author urges scholars to creatively engage and treat legal texts as valuable sources for understanding the social and political predicates of Islamic societies. For example, tracing the creation and migration of legal texts across regions can yield valuable insights into multiple ideas and ideologies across the pre-modern Islamic world, as a part of a larger intertextual world where scholars study all actors in Islamic history as interacting with, complementing, and arguing against one another.

Her Majesty's Attorney General - v - Akhter & Ors.

This brief considers the February 2020 judgment of the Court of Appeal of England & Wales in Akhter - v - Khan, an appeal brought by the Attorney General against the decision at first-instance to grant the petitioner wife, Akhter, a decree nisi, or provisional decree of divorce. The decision of the Court of Appeal was against the backdrop of the Law Commission holding a public consultation into the status at law of certain 'religious-only' marriages (including Islamic weddings) and whether, absent a contemporaneous or succeeding civil marriage, they are to be regarded as void (entitling petitioners to ancillary relief, such as spousal support) or 'non-marriages'.