I study the legal doctrine and legal theory, broadly construed, found mostly in formal written works produced by qualified Muslim jurists (ʿulamāʾ, fuqahāʾ), that may or may not have been practiced, enacted, or enforced. Other literary and documentary evidence may shed light on that body of doctrine and theory and on practices derived from them. Khaled Abou El Fadl has referred to such materials as "juristic discourses."
When did pious speculation by individual Muslims evolve into the formal, organized production of Islamic legal knowledge? Ibn al-Muqaffaʿ (d. ca. 139/757), in his Risāla fī al-ṣaḥāba, highlights one negative consequence of that evolution—legal disagreement—as an impediment to efficient imperial administration. So the very late 1st/early 8th centuries seems like a reasonable starting point, but determining precisely how and why that process commenced will require painstaking study of compilations such as the Muṣannafs of ʿAbd al-Razzāq al-Ṣanʿānī (d. 211/827) and Ibn Abī Shayba (d. 235/849) with careful attention to individual doctrinal complexes, critical scrutiny of pathways of transmission, and appropriate contextualization relative to neighboring legal traditions (West Arabian, South Arabian, Roman, Christian, Jewish, Zoroastrian). Marion Katz and Kecia Ali have provided model studies of early Islamic legal doctrine, studies that are sensitive to the logics of the early sources and contexts while employing productive and modern critical lenses. Harald Motzki and others have pursued a method for dating early legal dicta that is defensible and potentially fruitful for reconstructing that early history, but the history of the emergence and early development of individual areas of doctrine remains to be written.
The appearance toward the end of the 2rd/8th century of law books that share similar principles of organization and extensive presentations of doctrine (such as Mālik’s (d. 179/795) al-Muwaṭṭaʾ and the works of al-Shaybānī (d. 198/804-5) and al-Shāfiʿī (d. 204/820)) signals an advanced state of sophisticated and self-conscious legal expertise and thus the emergence of jurists and their legal literature as institutions in their own right. In addition to jurists and doctrine, Wael Hallaq would require a judiciary and a clearly articulated legal theory before we can speak of Islamic law as fully formed. Legal theory is evidence of the jurists’ consciousness of being involved in an enterprise governed by rules (in this case, rules of interpretation, broadly construed), so that may be a useful criterion, but I am not sure a judiciary is required before we can speak of Islamic law. On the one hand, the histories of early judges by al-Kindī (d. 350/961) and Wakīʿ (d. 306/918) can be illuminating for studying the early evolution of doctrine. The early judges’ activities provide a window onto what Schacht famously labeled "Umaiyad administrative practice." On the other hand, there is something to Norman Calder’s point that much of what is distinctive about Islamic law—conceived of as juristic discourses—may remain distinctive in the complete absence of real-world application. Perhaps the jurists’ pious speculation about norms is sufficient for Islamic law to exist.
It may be instructive to compare the modern study of premodern Islamic law with the modern critical study of Rabbinic law in its Palestinian and Sasanian-Babylonian settings. Recent studies of the Rabbis suggest that their own self-presentation may vastly overstate their social importance and thus the social footprint of Rabbinic law in the Jewish communities of those two areas. If Rabbinic law were not actually applied and enforced in Roman Palestine and Sasanian Babylonia in the ways implied by the Mishna and the Talmuds and related texts, would we think, as a result, that there was no such thing as Rabbinic law?
One consequence of locating the "beginnings" of Islamic law in the decades of the late 1st/early 8th centuries may be that legal materials datable to a time before the rise of jurists and doctrine require separate handling and conceptualization. Qur’anic legal material, considered in its original Meccan and Medinan setting, emerged in Arabia as part of the Biblical literature of Late Antiquity. Likewise, the Prophet’s acts, such as ransoming rather than executing prisoners of war, belong to the law of early 7th-century Medina (in this case, the law of armed conflict). Early jurists’ efforts to accommodate Qur’anic doctrines and formally collected Prophetic precedents (ḥadīth) represent the inception of a distinctively Islamic legal hermeneutics. We should not assume that Islamic law was an inevitable outcome of the early Qur’anic-Prophetic community in Mecca and Medina.
Some will probably find my working definition (and that’s all it is) of Islamic law too narrow; no doubt there are other valid ways of conceptualizing and studying Islamic law. The most important thing is to explain, when we write, what we mean by Islamic law, what sources we study and why, and why we hold the views we do. That is how we signal the bodies of evidence to which our conclusions may validly be applied. Of course we should argue about definitions, about what counts as evidence, and about our assumptions, language, conclusions, method, theoretical orientation, and so on. Everyone’s views are contestable, which quality may be what makes everyone’s views valuable (in this or any other field of humanistic inquiry).
Can ‘law’ be defined so narrowly—as the literary output of private scholars—without reference to the state? Knut Vikør, in his Islamic law textbook, begins by suggesting that there may be no such thing as Islamic law. He says this because he recognizes that, in regard to doctrine, Islamic law is multi-vocal (as Ibn al-Muqaffaʿ complained), but also because he assumes that ‘law’ must always be state law and therefore univocal. It is definitely possible to make the case for an Islamic legal system, in which doctrine and public law are equally relevant, and equally ‘Islamic’ in some sense. But is every decisory or administrative action of a Muslim holder of executive or administrative authority, in a political context in a premodern Muslim society, an Islamic act such that it deserves to be deemed a part of Islamic law?
That would be one way to understand the question posed by the 7th/13th-century jurist Shihāb al-Dīn al-Qarāfī (d. 684/1285) in his work on adjudication and legal opinions, recently translated by Mohammad Fadel. I worry about this question for reasons different than those that drove al-Qarāfī to grapple with it. I worry that public discourse (including academic discourse) often threatens to impute religious motives, sensibilities, or doctrines to Muslims in a way that makes them paragons of unrelenting religiosity—exoticized, hyper-religious actors who serve as foils for an ideologically driven picture of secular modernity. (As an aside, and back to the topic of "beginnings," a noteworthy trend in the historiography of Late Antique Arabia proposes accounting for Arab political domination of Western Asia without assuming that religious ideology played a primary role.)
For some, even defining ‘law’ as necessarily including power and enforcement is too narrow. Wael Hallaq makes Islamic law stand, metonymically, for premodern Muslim societies. Doing so allows him to argue that the dismantling of Islamic legal institutions by European colonizers should be understood as the wanton destruction of whole societies. Hallaq’s approach is politically attractive in some respects, but it flattens out the Islamic legal tradition and robs actors of agency and the capacity to innovate. The Ottomans, for example, with their codified administrative law and routinization of penal law, might have been portrayed, in a Foucauldian vein, as modernizers. Hallaq’s critical stance toward modernity and the state seems also to preclude considering elements of modern legal systems that draw on the tradition of fiqh as authentic.
The humanistic study of pre-modern Islamic legal thought in the present moment presents a dual challenge. Careful examination of the rich Islamic legal tradition through the lens of current travails will reveal familiar injustices, to be sure, and perhaps illuminate important aspects of this moment of social and political turmoil and upheaval. But we must also take care not to reduce our sources to a mirror of our own pressing predicaments, howsoever urgent.