Limitations of conventional historiography

Much modern Western scholarship has been oriented towards discovering the ‘origins’ of Islamic law by cataloguing which pre-Islamic legal traditions were ‘borrowed’ by Islamic legal traditions.¹² A primary way in which scholars have investigated pre-Islamic legal con­nections has been by identifying specific Islamic laws that resemble pre-Islamic laws (espe­cially Roman or Jewish).

anti-intellectual identity politics. Law cannot be ‘pure’. As noted, legal traditions inescapably produce recycled artwork, such that it would be impossible for the Islamic legal tradition (or any other) not to integrate pre-Islamic law. So much of a legal tradition consists of customary practices shared with other legal traditions that the attempt to identify exclusive (or unique) laws within a legal culture is a misleading endeavour. The integration of pre-Islamic laws within the Islamic legal tradition is so inevitable as not to merit questioning. In short, much conventional Islamic legal historiography has been limited by misunderstandings of law and of historical change.

Some scholarship has acknowledged the shared legal culture of pre-Islamic and Islamic traditions as the explanatory basis for similarities between pre-Islamic and Islamic laws.¹⁴ Crone and Silverstein recognized that land distribution through lot casting demonstrated ‘the shared roots ofJewish and Islamic culture in the ancient Near Eastern tradition’.¹⁵ Young observed that ‘stoning for adultery and hand-amputation for theft were part of the corpus of Arab customary law before the revelation of the Qur’an’;¹⁶ arguing against borrowing, Young insisted that ‘Islamic law is a natural outgrowth of its Near Eastern Semitic heritage’.¹⁷ Some scholarship has also correlated distinctions within Islamic legal schools to variations within the region’s legal culture.¹⁸ These observations, and similar ones made by other schol­ars, have not shifted an unfortunate paradigm in contemporary Western scholarship.

I want to direct attention to an interesting and underappreciated implication of con­ventional scholarship’s emphasis on Islamic law’s ‘borrowings’ from pre-Islamic legal tra­ditions: scholars usually focus on what they perceive to be positive or neutral aspects of the Islamic legal tradition. By comparison, when it comes to Islamic laws that are criticized in contemporary debates (such as those related to violence, the status of women, or the treatment of minorities), the possibility that the Islamic legal tradition ‘borrowed’ from pre-Islamic legal traditions conveniently disappears.²⁰ By way of example, many Islamic laws concerning the status of women and non-Muslims resemble pre-Islamic laws; yet, there is little (if any) scholarship alleging that Islamic law ‘borrowed’ these laws from pre-Islamic traditions. This is yet another demonstration of the ideological undercurrents in Islamic legal ‘origins’ historiography. Of course, it would be absurd to react to this bias by ascribing to equivalent, false assumptions about ‘legal borrowing’: one should not claim that the Islamic legal tradition ‘borrowed’ any pre-Islamic law, regardless of its positive, neutral, or negative associations for contemporary observers. As I have emphasized, distin­guishing content within the artwork of Islamic legal recycling is a polemical, rather than an intellectual endeavour.

Once we accept the limitations of the ‘origins’ paradigm, it becomes necessary to consider alternative approaches to understanding the relationship between pre-Islamic and Islamic legal traditions. To do so, I suggest beginning from the premise that Islamic legal recycling occurred within ‘Near Eastern’ legal culture. Accordingly, we should explore how the Is­lamic legal tradition relates to ‘Near Eastern’ legal culture. I propose that one important way in which the Islamic legal tradition connects with ‘Near Eastern’ legal culture is the construction of a particular relationship between state and non-state law. As was the case in pre-Islamic ‘Near Eastern’ legal culture, the Islamic legal tradition accommodated pluralism both within Islamic law and between Islamic and non-Islamic legal traditions; this legal pluralism defined the relationship between law and the state in ways that are distinct from contemporary legal systems.

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