Introduction
No legal tradition begins or exists in a vacuum.1 Islamic law, like any other legal tradition, began as (and continues to be) a fusion of legal traditions. Thus, the story of Islamic law begins before Islam began, in the legally pluralist environment of its beginning.
This legal environment will be explored in two overlapping geographic spaces. First, I will focus on the Arabian Peninsula, the proximate surrounding of the Islamic movement’s beginnings. Second, I will refer to the diverse legal traditions of ‘Near Eastern’2 legal culture, of which Arabian legal traditions were a part.3 As for the temporal scope, I will concentrate on the early seventh century, specifically, the decades that immediately preceded the Islamic movement; thus, I will not include ancient ‘Near Eastern’ legal traditions (such as the laws of Hammurabi).4 The basic premise of this chapter is that late antique Muslims built and modified their legal traditions while adapting their antecedent (pre-Islamic) and their neighboring legal traditions. Pre-Islamic laws became Islamic and fused with new laws in a process that may be likened to a craft: the artwork of Islamic legal recycling.5The recycled component parts of Islamic legal artwork are not, however, distinguishable for at least three reasons. First, for the most part, the pre-recycled materials used in Islamic legal recycling simply cannot be identified. That is, when we examine a specific Islamic law, we usually cannot determine which pre-Islamic laws were recycled. Second, many prerecycled materials do not ‘belong’ to only one legal tradition. Most pre-Islamic laws were part of a shared legal culture; categorization of laws as belonging to one legal tradition is often based on the idiosyncratic preservation of historical sources and on neglect of antecedent and shared laws.
(This is particularly evident in the overemphasis of biblical law as compared to ‘Near Eastern’ customary traditions.) Third, the recycled artwork of Islamic law is not static, but rather fluid and dynamic. A pre-Islamic law that might appear to have been applied as Islamic law in the late seventh century may disappear by the eighth century. In short, the recycled art of Islamic law is too hybrid and too shifting to be measured in terms ofpre-Islamic legal traditions. Thus, I do not quantify which or how much pre-Islamic legal traditions were recycled in the craftwork of Islamic law.It should be clarified, however, that I am not arguing against the exercise of analysing particular Islamic legal traditions in relation to pre-Islamic legal traditions. Indeed, much of my scholarship has done precisely that.6 Nevertheless, we need to recognize the limitations to this type of inquiry: examining legal doctrines from two (or more) legal traditions conveys information about the legal culture or the socio-historical spaces of the doctrines, not about how Islamic law ‘borrowed’ pre-Islamic law. The recycled art of the Islamic legal tradition cannot be calculated in terms of pre-Islamic materials, but it can be appreciated as a holistic piece. We can and should consider the contours ofpre-Islamic and Islamic legal traditions for what they convey about the region’s legal culture, about the socio-historical dynamics that shape law, and about pre-modern legal traditions more broadly.
Islamic law’s recycled artwork fit within and simultaneously modified pre-existing molds (pre-Islamic legal culture and historical circumstances). In previous work, I explored the craft of Islamic legal recycling through case studies and macro-historical narratives.7 Those investigations advocated that there are variations in the abstract relationship between pre-Islamic and Islamic legal traditions depending on the area of law (as well as on time and place).
For example, while Islamic interstate law may closely overlap with pre-Islamic customary interstate law, Islamic purity laws may differ considerably from pre-Islamic ideas about purity.8 Because different areas of law are generated by distinct sources and hermeneutics, they take different shapes; in turn, these forms imitate regional legal structures that may not be limited to any given legal tradition. In addition, I have emphasized that most resemblances between pre-Islamic and Islamic legal traditions are the consequences of a shared legal culture or of equivalent historical circumstances. For instance, I have illustrated that nearly simultaneous changes in Jewish and Islamic divorce practices resulted not from ‘borrowing’, but rather socio-political changes in shared historical spaces.9 In a similar vein, Jewish, Zoroastrian, and Islamic jurisprudence relied heavily on oral testimony and evidence because material sources were not widely avail- able.10 Pre-Islamic law relates to Islamic law through ‘Near Eastern’ legal culture and historical circumstances.These observations can be extended to broader and more abstract relationships between pre-Islamic and Islamic legal traditions. In this chapter, I will offer some modest suggestions for rethinking the relationship between pre-Islamic and Islamic legal traditions. In doing so, I will build on previous scholarship in order to focus on two dimensions. First, examining this relationship reveals important patterns in ‘Near Eastern’ legal culture, particularly the arrangements between law and the state.11 Specifically, understanding legal pluralism within ‘Near Eastern’ legal culture illuminates crucial differences between pre-modern legal traditions and modern legal systems. Second, investigating orthodox Muslim perspectives on the relationship between pre-Islamic and Islamic legal traditions exposes how the Muhammad and Muslim scholars transformed, accepted, or rejected pre-Islamic laws. Before addressing these topics, however, I will summarize briefly the historiographic and theoretical limitations in existing scholarship on pre-Islamic legal traditions.
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