Islamic Legal History Research Articles

The Transformation of Islamic Property and Evidentiary Law in Colonial-era Morocco: The Case of Shufʿa as Préemption

Abstract A cornerstone of French land policy in colonial Protectorate Morocco (1912–56) was to restrict jurisdiction of sharīʿa courts while maintaining sharīʿa-based property laws in French courts. This article examines the Islamic property concept of shufʿa (the right of “preemption” or “first-refusal” for co-owned land) as adjudicated in sharīʿa courts and French courts of colonial-era Morocco. Both jurisdictions claimed to uphold the provisions of shufʿa stipulated by the Mālikī legal school of Islamic law; however, the French courts used a codified version—le droit de préemption—while relying on property facts established by the new colonial institution of land registration (Fr., immatriculation foncière; Ar., taḥfīẓ ʿaqārī). By analyzing paradigmatic shufʿa disputes in each jurisdiction, the article argues that evidence and procedure are critical to understanding Islamic law’s encounter with the colonial state. Most importantly, French courts implemented a hybrid version of Islamic property law in which immatriculation supplanted Islamic legal modes of proof making. The French hybrid approach thus constituted a competing version of state sharīʿa that was mutually exclusive with the sharīʿa courts and persisted into the post-colonial period. This discussion more broadly seeks to center property, evidence, and judicial procedure in scholarly narratives concerning twentieth-century Islamic legal history.

Editor’s Introduction to the Special Issue: Reevaluating the Norms of Law and Governance in Islamic Legal History

This special issue explores the interplay of the norms of governance and Islamic law in Muslim societies, historically, from the eighteenth to late twentieth centuries, right at the moment when Western colonial powers arose to assert hegemony over the Muslim world. These four essays engage scholarly debates about continuities as well as discontinuities between historical and modern Islamic political–legal paradigms for state laws in imperial, colonial, and postcolonial contexts. Within this debate lies the opportunity to reexamine the modern legacies of early Islamic norms for law and governance as they intersected and diverged in novel ways.

Islamic Law, Islamic Legal History and the Possibility of Muslim Self-Government

Islamic Law, Islamic Legal History and the Possibility of Muslim Self-Government

Judicial Crisis in Damascus on the Eve of Baybars’s Reform: The Case of the Minor Orphan Girl (651–55/1253–57)

Abstract This essay reconstructs a late-Ayyubid court case in Damascus that was litigated repeatedly between 651/1253 and 655/1257, five years prior to the beginning of Sultan Baybars’s judicial reform in 660/1262. The case involved the marriage of a minor orphan girl. The Shāfiʿī chief justice of Damascus initially permitted the marriage but later instructed his deputy judge to annul it, a move that outraged jurists and elicited a transregional debate. I reconstruct the case proceedings and ensuing controversies primarily from an unpublished treatise by Abū Shāma al-Maqdisī (d. 665/1268), which is partly corroborated by contemporaneous fatwas and historical chronicles. The case illustrates that pre-reform Ayyubid courts lacked the coherent jurisprudence and institutional oversight that might have prevented abuses of power by unscrupulous and inept officials. Although Baybars’s reform has long been recognized as a critical turning point in Islamic legal history, this case exposes the social and institutional dilemmas that the reform sought to address.

Success, Failure, and Other Historical Crafts

AbstractThe author of Afghanistan Rising responds to our critical review essays by six scholars of diverse historical expertise, from the late Ottoman and Habsburg Empires to Southeast Asia, and Islamic legal history to the political economy of the British Raj and Indo-Afghan frontier. Centering administrative and constitutional developments in Afghanistan within broader regional and global currents connecting the Balkans to Indian Ocean at the turn of the twentieth century, Ahmed reflects on what it means to write “a history that most people do not think exist.”

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.

New Approaches to Islamic Law and the Documentary Record before 1500

Marina Rustow notes how prevalent scholarly attention is to long-form texts of Islamic law—attention that she argues, comes at the expense of studying Islamic legal documents in a sufficient manner. Study of the documents is an indispensable enterprise if we are to fully understand “how law worked in practice.” In view of what we know to have been “heaps” of documents produced by Muslim judges and notaries, Rustow underscores how particularly noticeable a disjuncture there is between those documents and the long-form texts. Moreover, scholars often skip over and thus fail to avail themselves of the utility of documents in adding texture to social and legal history. She cautions social historians against “pseudo-knowledge,” that is, the temptation to overlook complex factors, usually embedded in legal documents, that render our otherwise tame scholarly perception of the past truer but more “unruly.” In the end, her invitation to join her in the study of documents and thereby improve the state of Islamic legal history is terse and timely: “Please go find yourself some documents.”

Tracing the History of Ibāḍī Law and Jurisprudence

In this essay, Ersilia Francesca reviews scholarship on Ibāḍī law, an understudied and marginalized subfield of Islamic legal history. She argues that recent scholarship in Ibāḍī law has demonstrated that Schact was mistaken to dismiss Ibāḍī jurists as outliers who adopted Sunnī legal norms with only a few tweaks. To the contrary, studying Ibāḍī law as a view of Islam “from the edge,” she contends, enables a fuller picture of the multi-faceted process of Islamic law’s emergence. She further offers a periodization for the study of Ibāḍī jurisprudence in three chronological stages: a formative stage in Basra, an intermediate stage generated by Ibāḍī travels to Oman and the Magreb, ending in “a stage of maturity.”

Semantic Mapping of An Ottoman Fetva Compilation: EBUSSUUD Efendi’s Jurisprudence through a Computational Lens

Abstract Fetva collections are important sources for Islamic legal history. However, few scholars have considered a particular collection of fetvas or the fetvas of an individual jurist as specific areas of legal and historical exploration. Instead, most researchers use fetvas selectively and instrumentally, that is in (at best) small groups, and in their explorations of various other topics. This article proposes computational methodologies that could characterize the contents of a 6,000-fetva corpus by an important Ottoman jurist, Şeyhülislam Ebussuud Efendi (d. 1574), to reveal its substantive composition and range. The article conceptualizes a previously uncharted textual space in a way similar to how a map depicts a geographical one. By doing so, it also provides insights into Ebussuud’s jurisprudential legacy and the major socio-legal concerns and anxieties in the Ottoman Empire during the sixteenth century.

History of Hospitality Laws - Do Islamic and South Asian Legal History Have the same Approach? (A Comparative Approach of Sharīʿah & Law)

Respect for guests and visitors, indeed, always remain a common notion of civilized nations; existing on this earth since its inception. This peculiar characteristic, of course, differentiates human beings from animal where the previous are rightly called social animals. The South Asian countries i.e. Pakistan, India, Bangladesh and Nepal are not different in this regard. Their history is always remained a solid evidence of their generosity towards the guests and visitors. Being remained under the rule of the Great Britain, these countries have the same legal history and legal spectrum for dealing tourists and visitors. However, this similarity in terms of hospitality laws is also owing to the similar teaching of their corresponding religions. Findings show that Islam, Buddhism and Hinduism have some common teaching regarding the respect of guests. While having deep sentiments for religious teaching, the residents of such states want the inculcation of religious guidelines in their legal system. Islamic law offers a comprehensive guideline for hospitality comparatively to other religions. Being an Islamic country, it is supposed that such guidelines should be followed while framing legislation for hospitality and tourism. However, study shows that much work is not done yet in this regard. Content analysis technique of qualitative research has been followed in the present work for the investigation of the issue.

WHY DID KOMPILASI HUKUM ISLAM SUCCEED WHILE ITS COUNTER LEGAL DRAFT FAILED? A Political Context and Legal Arguments of the Codification of Islamic Law for Religious Courts in Indonesia

Codification is a relatively new phenomenon in Islamic legal history. It intensified in the second half of the 20 th Century with the adoption of modern nation state by Muslims which eventually replaced the judicial function of madhhab . Thus, fiqh must transform into state-sanctioned law to remain relevant, as it is also an avenue to apply Islamic law in Indonesian Religious courts. This article aims at unveiling the process of codification of three statutes of Islamic family law, but with different result. While KHI was successfully enacted, CLD KHI failed after facing fierce opposition from Muslim community. The different fate of these two statutes is at least due to two aspects; time and content. KHI was enacted in 1991 when president Soeharto was courting Muslim groups for political supports in his New Order authoritarian regime. Its content is somewhat mirroring the 1974 Marriage Law. Drafts of CLD-KHI was circulated in 2004 after the fall of Soeharto in which free speech is a norm. Content wise, CLD KHI featured liberal interpretation of Islamic family law or even departure from it which is prone to opposition from various Muslim groups.

Legal Framework of Kadhis’ Courts in Zanzibar During the Post Colonial Era

This paper is extracted from an unpublished doctoral thesis: An Investigation of Application of Islamic Jurisprudence on marriage in Kadhis Courts in Zanzibar and Kwara State of Nigeria. Kadhis courts had been in existence in Zanzibar long before the colonial era. The region is located along the east coast of Africa and it is part and parcel of United Republic of Tanzania. The court system of Arab legacy in this region of Africa. Kadhis courts assisted in maintenance of good governance and peaceful co-existence among different peoples within the region since independence. The court makes use of Islamic law in adjudication process on Muslim personal matters such as marriage, divorce, inheritance and other related matters. Kadhis courts are part of Islamic legal history of Zanzibar till contemporary era. The court system had witnessed different political regimes. Different reforms were made to make the court system relevant to the ever changing modern world. Kadhis courts do not exist in isolation but are within the hierarchal courts’ structure of Zanzibar. Keywords: Kadhis Courts; Islamic law; Muslim personal matters; Post-Colonial era and Zanzibar. DOI : 10.7176/JLPG/86-04 Publication date :June 30 th 2019

Categorized Conception of Islamic Legal History of Ibn Khaldun: A Retrospective Paradigm of Legal Cartography

Sinir otesi yasal anlayis, herhangi bir yargi yetkisinin, soz konusu sistemle celisen durumu cozmesine yardimci olacak eril bir aygittir. Anlamanin farkina varmak icin, bazi teorik araclar merkezi oyuncular olarak islev gorur. Bu araclar arasinda yasal haritacilik cok onemlidir. Son yillarda bati hukuk akademisinde karsilastirmali hukuk disiplininin yukselisini tetiklemis olabilir. Buna karsilik, Islami yasalarin, tum bu anlayislarla ve yuzyillar oncesinin otesinde zengin oldugu gorulmustur. Doktrin yontemini benimseyen bu makale, Ibn Haldun'un Mukaddimesindeki jeolojik ev sahipleriyle eslestirildigi sekliyle Islam Hukuku'nun cesitli yasal metodolojilerini ele almayi amaclamaktadir. Bu calisma, Ibn Haldun'un, farkli doktrinsel okullarin (madhahib) alanini, kartografik bir paradigma olarak betimleyip, bati hukukculari ve hukuk akademisyenleri tarafindan agir basan bir Islami yasal haritaci oldugunu gostermektedir.

The Transliteration and Translation of the Leiden Manuscript Cod. Or. 5626 on the Sijill of the Qadi of Banten 1754-1756 CE.

The article provides the critical edition of the Leiden Manuscript Cod. Or. 5626. It gives the transliteration from the pegon (Javanese in modified-Arabic letters) into the Latin letter and the translation from Javanese into English. The publication of this edition is intended to reach a wider reader, especially to the philologist and scholars in Islamic law, in order to have an access to the original text. It should serve a precious source for those who are interested in Islamic legal history. This is the oldest and the first register of qadi ever known from Southeast Asia. The paper contributes tremendously to the field of Islamic law and Southeast Asian studies.

Concubinage and Consent

In our imperfect world, rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex. So pervasive is deference to some notion of consent that even Daʿish supporters who uphold the permissibility of enslaving women captured in war can insist that their refusal or resistance makes sex unlawful. Apparently, one can simultaneously laud slave concubinage and anathematize rape. A surprising assertion about consent also appears in a recent monograph by a scholar of Islamic legal history who declares in passing that the Qurʾan forbids nonconsensual relationships between owners and their female slaves, claiming that “the master–slave relationship creates a status through which sexual relationsmay become licit, provided both parties consent.” She contends that “the sources” treat a master's nonconsensual sex with his female slave as “tantamount to the crime ofzinā[illicit sex] and/or rape.” Though I believe in the strongest possible terms that meaningful consent is a prerequisite for ethical sexual relationships, I am at a loss to find this stance mirrored in the premodern Muslim legal tradition, which accepted and regulated slavery, including sex between male masters and their female slaves.

Guy Burak, The Second Formation of Islamic Law, The Hanafi School in the Early Modern Ottoman Empire

In his book The Second Formation of Islamic Law, Guy Burak convincingly challenges an outmoded but omnipresent narrative of legal decline in Islamicate lands after 1250s. He does so not only by calling into question the grand narratives of Islamic legal history which situate the second half of the nineteenth century as the momentum of major rupture but also by offering a new periodization. He puts forward a strong argument that some of the supposedly nineteenth-century novelties, such as the codification of Islamic law, are extant already in the sixteenth century.

The Register of the Qadi Court “Kiyahi Pĕqih Najmuddin” of the Sultanate of Banten, 1754-1756 CE.

The present study focuses on manuscript LOr 5626 from the archives of the Qadi of the Sultanate of Bantěn (1527-1813), in Indonesia. This codex is preserved in the Leiden University library, which acquired it from C. Snouck Hurgronje. It consists of the ‘legal cases’ brought before the Kiyahi Pěqih Najmuddin, the Islamic judge in Bantěn, by the inhabitants. The register, which covers the period from 1754 to 1756, is the oldest ‘sijill’ (court record) in Southeast Asia, and it contains cases on marriage, divorce, inheritance, litigation, private transactions, loans, debts, and violence. The manuscript demonstrates the judicial practice exercised by the qadi of Banten and reveals important findings on the relationship between Islamic legal theory and practice This essay hopefully will contribute to Islamic legal history in general both by providing textual evidence that the qadi record (sijill) existed in Southeast Asia during the eighteenth century and by presenting its contents.DOI: 10.15408/sdi.v22i3.2354

An Epistemic Shift in Islamic Law

In this article, I combine textual research with ethnographic data collected at al-Azhar and Dār al-ʿUlūm to investigate how the modernization of traditional religious learning has transformed the character of Islamic legal doctrine. I argue that changes in educational techniques have produced a shift in “episteme”. Whereas traditional religious learning was dominated by language-based conceptions of knowledge, modern reforms have reoriented education towards new conceptions modeled on the natural sciences. This transformation has fundamentally altered patterns of legal reasoning, particularly with respect to ijtihād and taqlīd. I use these observations to urge a rethinking of the perspectives on ijtihād and taqlīd that currently structure Western research on Islamic legal history.

Sharī‘a and State Law

The growing numbers of Muslims in the West have ignited a debate about the compatibility of Sharī‘a with state law. The present article explores the issue from a historical perspective by providing a brief survey of Islamic legal history. It specifically focuses on the interaction of Sharī‘a with the English legal system in colonial India. The main argument of the article is that during its long history, Sharī‘a co-existed with the ruler’s law (siyāsa) and customary law (‘urf). It was formally incorporated into the structure of the state with the active participation of Muslim legal commentators, judges, lawyers, politicians, and the ‘ulamā’ in colonial India. The incorporation of Sharī‘a into the state law was facilitated through the transplantation of legislative and hierarchical judicial institutions, which provided venues for a legal discourse among various stakeholders. Historical evidence suggests the feasibility of incorporating Sharī‘a into state law in Western democratic countries.

Sisi Positif Taqlîd dalam Sejarah Perkembangan Hukum Islam

The main problem that this paper is interested in dealing with is the notion of taqlid, the English translation of which being a blind acceptance. Taqlid is the opposite of Ijtihad, the intellectual exercise to draw certain legal rules from their sources. Muslims over centuries believed that taqlid in legal matters is not allowed, and that the door of Ijtihad has never been closed, as some Western scholars would emphatically argue. The paper nonetheless maintains that taqlid does take place in a major part of Islamic legal history. It has become unavoidable for Muslims to accept blindly –due to some reasons- the legal views of the earlier scholars and jurists. But the paper also argues that to accept without question the views of the authoritative scholars in legal matters is not always bad. The paper tries to show that there are –due to some conditions- positive things in committing Taqlid. To show this, the paper would attempt to scrutinize the historical facts in which Muslims do benefit from doing Taqlid. It means also that, Ijtihad is not always good for Muslims. By presenting some findings -the paper will argue- that in some cases, Muslims should abandon independent intellectual exercise and resort to blind acceptance if in doing so would bring benefit for them.