How Do We Study Islamic Legal History?
The traditional understanding of Islamic legal history, with its emphasis on jurisprudence, has come under extensive criticism. There have recently been interesting attempts to reread the history of law by expanding the scope of law beyond its iteration in jurisprudence books.8 There have also been attempts to reorient our understanding of the history of law beyond textual sources by including oral narrations, hence challenging our understanding of the text as an embodiment of an objective, immutable reality.
Those efforts are to be lauded and would indeed constitute the basis for a distinctive examination of the regulation of armed conflict beyond the works of jurisprudence. An excellent example of this approach is Lena Salaymehs examination of the treatment of prisoners of war in Islamic law, where the author looks beyond the works of jurisprudence to narrations of siyar (narratives of early Islamic conduct during armed conflict) and maghazl (early raids) to trace the developments, formulations, and reformulations of Muslim approaches to the history of the treatment of prisoners of war in Islamic law.9 While the focus of the present book is on jurisprudence, an approach such as Salaymehs would prove incredibly useful to a tradition in which there is often an imagined reality of conduct of armed conflict by early Muslim rulers. Perhaps the two most interesting modern manifestations of this imagined past are isis's treatment of the Yazidis and7 Nathaniel Berman, “Privileging Combat? Contemporary Conflict and the Legal Construction of War,” ColumbiaJournal of Transnational Law 43 (2004-5), 5-17. See also David Kennedy, Of War and Law (Princeton, NJ: Princeton University Press, 2006), 36-37; Antony Anghie and B. S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts,” ChineseJournal ofInternationalLaw 2 (2003), 80; and Fredric Megret, “From Savages to Unlawful Combatants: A Post-colonial Look at International Humanitarian Law's Other,” in InternationalLawandIts Others, ed.
Anne Orford (Cambridge: Cambridge University Press, 2006), 265-317.8 Amr ShaltkanylslamWLegjalHtstoiAesJ Berkeley Journal ofMiddleEasterniandIsaicLaw
1 (2008), 1-82, online:, accessed 28 April 2017.
9 Lena Salaymeht, The Beginnings of IslamCc Law: Late Antique Islamicate Legal Traditions (Cambridge: Cambridge University Press, 2016), 43-84. of pre-Islamic artefacts and antiquities. ISIS relies on Islamic traditions and jurisprudential opinions to legitimate the annihilation of Yazidis and destruction of artefacts, on account of polytheism^ Examining textual sources to address the practice of ISIS is significant, and it is an approach resorted to in this book. But an equally valid question - a question that is proposed frequently, but not as a direct manifestation of Islamic law - is why Muslim rulers have not acted in accordance with ISIS's imaginary model of Islamic law. A more important question, one that is less frequently asked, is that if there is a presumed contradiction between jurisprudence and both early and modern Muslim practice, why is practice automatically assumed to be outside the purview of Islamic law?
But it is the contention of this book that expanding the scope of Islamic law goes hand in hand with a detailed examination of the presumed authority, objectivity, and sanctity of early traditional sources of Islamic law, whether by reinterpreting textual sources - as attempted by Firestone in his examination of the history ofjihad in the Qur'an؛؛ - or by contextualizing works of jurisprudence. This project is hardly novel, and it has provided illuminating outcomes in several branches of the law, most prominently in feminist analysis of Islamic jurisprudence and human rights.2؛ Even in the field of the regulation of armed conflict, numerous studies have asserted the contextual nature of jurisprudential responses to matters relating to how we resort to violence.3؛ However, most
10 Understood here as shirk bi-allah (belief in another God other than Allah) rather than as an antonym to monotheism.
11 Reuven Firestone, Jihad: The Origin of Holy War in Islam (New York: Oxford University Press, 1999).
12 See Anvor Emon, Mark Ellis, and Benjamin Glahn, eds., Islamic Law and International Human Rights Law (Oxford: Oxford University Press, 2012); Kecia Ali, Sexual Ethics in IsaFeinniistieflecttonsonQuram,Hadtthand Jurisprudence fOx⅛ord'.OneWor∖dP∖⅛- lications, 2006). For an examination of a modern Islamic approach to gender violence see Lynn Welchman, “Honour and Violence Against Women in a Modern SharT Discourse,” Hawwa 5, nos. 2-3 (2007), 139-65. See also Ziba Mir-Hosseini, “The Construction of Gender in Islamic Legal Thought and Strategies for Reform,” Hawwa 1, no. 1 (2003), 1-28.
13 Abdulaziz Aziz Sachedina, “The Development ofJihad in Islamic Revelation and History,” ⅛ Cross,CrescentandSwodTJustifaionandLimitattonof War InWestemandIslanttc Tradition, ed. James Turner Johnson and John Kelsay (New York: Greenwood Press, 1990), 35-50; Majid Khadduri, War and Peace in the Law ofIslam (Baltimore, MD: Johns Hopkins University Press, 1955); Ahmed al-Dawoody, The Islamic Law of War: Justifications and Regulations (New York: Palgrave Macmillan, 2011); Khaled Abou El Fadl, “Between Functionalism and Morality: The Juristic Debates on the Conduct of War,” in Islamic Ethics of Life: Abortion, War and Euthanasia, ed. Jonathon E. Brockopp (Columbia: University of South Carolina Press, 2003), 103-28; Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2002); Abdullahi Ahmed of this literature is interested in offering a grand narrative, a narrative according to which we are given a definitive, well-contoured understanding of the Islamic regulation of armed conflict. But as mentioned earlier, such an understanding tends to gloss over differences and to overemphasize similarities within the tradition. For example, al-Dawoody, as well as many others, claims that the majority of jurists held that according to the Islamic laws of war, noncombatants may not be targeted.14 This claim, in and of itself, is based on another generalized and often repeated claim - that most jurists, with the exception of minority jurists like a!-Shafi'i, have espoused the view that war must be defensive.15 However, upon close examination of many juristic works, especially of the works examined in this book, it becomes clear that many jurists have acknowledged that war can be waged to propagate religion, and not simply to defend the right of non-Muslims to convert to Islam.
More important, the claim that non-combatants may not be targeted is indicative of the shortcomings of the state of research in the field. As I have noted elsewhere^ in order to make such generalized claims, primary sources that might lead to an alternative understanding of the issue and complicate the narrative are often disregarded. The narration that the Prophet held that all Banti Quraya? men who had reached puberty may be killed, for example, is rarely examined in the literature that advances the non-combatancy argument.i8 It is indeeda!-Natm, Ta dscmlsaRfo attoil: CIyII Uberttes, Hail Rt a Itwt (a Law (Cairo: American University in Cairo Press, 1992); Fred Donner, “The Sources of TsTamtcConceptIonsof-Way ⅛ Just WarandJihad:Historicaland TbeorettcalPers tives on Wc^r and Peace In Western and Islamic Traditions, eT. JoTm Kelsay and JamesTnmer Johnson (New York: Greenwood Press, 1991), 31-69; Wael Hallaq, ShartLa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009); James Turner Johnson anlJohnKel,eds., CrossCescentandSwoTbeJustlJJcattonandUImltattonofWarln Western and Islamic Tradition (New York: Greenwood Press, 1990); Ann Elizabeth Mayer, “War and Peace in the Islamic Tradition,” inJust War andJihad:Historical and Theoretical PerstIaes ^n Wc^r a^r^d Peace ^n Wι^s,^ι^m a^r^d Islamic Traditions, eT. Jolm Kelsay and
James Turner Johnson (New York: Greenwood Press, 1991), 195-226; Rudolph Peters, Jihad in Classical and Modern Islam: A Reader (Princeton, NJ: Marcus Wiener, 1996); Sohail Hashmi, “Saving and Taking Lives in War: Three Modern Muslim Views,” in Islamic Ethics ofLife: Abortion, War and Euthanasia, ed. Jonathon E. Brockopp (Columbia: University of South Carolina Press, 2003), 129-54.
14 Al-Dawoody, Islamic Law of Wrr, 111.
15 Mulammad Abti Zahra, al-Llaqat al-dawliyyaft l-islam (Cairo: alDr al-Qawmiyya li-l- Tibd'a wa-l-Nashr, 1996), 54.
16 Badawi, “Critical Comparativism.”
17 AJewish tribe in Medina.
18 'Ali Al mad b. Hazm, al-Muhalla bi-l-athar (Beirut: al-Maktab al-Tijdri li-]-Tiba'a wa-l- Nashr, 1969), 7:299.
true that many jurists have prohibited targeting of some categories such as hired men, the blind, the crippled and monks, yet, most classical works have rarely prohibited targeting on the basis of participation of the conflict. It is indeed possible to deduce from the differentjuristic positions on the lists of prohibited categories, in light of pre-modern conflicts and the absence of longstanding armies, that the modern parallel may be the prohibition of targeting non-combatants. However, the dismissiveness with which contemporary literature treats diversity in the classical tradition leaves that literature susceptible to accusations that it misrepresents the tradition and deprives us of the opportunity to reorient the held.
More importantly, contemporary literature does not engage with this significant and necessary question: if Islamic law is contextual, how did the con- textreflectitself? Perhaps, the most significant exception to this summary-based narrative is Khaled Abou El Fadl's seminal book, Rebellion and Violence in Islamic Law. In this book, Abou El Fadl takes us through a thorough and detailed journey of the evolution and articulation of the jurisprudential regulation of rebellion across different schools and among the scholars within those schools. Abou El Fadl, in his historical analysis of Sunni juridical works addressing rebellion in Islam, criticizes this overgeneralization of the tradition and shows how the juristic approaches to rebellion were more nuanced than a simple attempt to legitimate authority:
It is exactly because of the failure to examine the details of the linguistic practices of Muslim legal discourses that most contemporary commentators have adopted an erroneous view of the role of Muslim jurists. The traditional or accepted scholarly view tends to see Muslim jurists as conservative legitimists who simply rationalized the existing political order.... However, the accepted scholarly view achieves a very partial understanding of juristic discourse because it fails to focus on the details of the legal discourse - the linguistic practice - and analyze it in terms of the dynamics of power, legal culture and legitimation. It fails to examine the microdiscourses of the law, to look beyond its stated instrumental goals, and instead to search for the creative process and its symbolic content. Consequently, the accepted view results in a starkly monochromatic or bipolar understanding of the juristic discourses.19
19 Abou El Fadl, Rebellion, 324.
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