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The Essential Shariʿah: Teaching Islamic Law in the Religious Studies Classroom

Jonathan E. Brockopp

WHEN I WAS IN CAIRO IN SPRING OF 1995, I regularly engaged in conversation with the men who gathered at the café next door to my apartment. Over time we came to know one another, and after they learned about my research into the manuscripts of early Islamic jurisprudence, our conversation frequently turned to religions. The discussion was often fervent, sometimes strident, as we covered the now familiar territory of the divinity of Christ, the imperialism of the West, and so on. One evening, though, toward the end of my four-month stay, they became quite serious when one of them asked me how I would teach Islam in the United States. Their concern was that Islam be taught within its own frame of reference, not merely as a foil for proving, for instance, that Christianity is a better religion or that Egypt’s poverty is due to Islam’s influence. However much these attitudes are ghosts of the past century, they still haunt my Egyptian friends, and they still influence our students. More often than not, students enter the classroom with a negative attitude toward Islam, as compared to, for instance, the overwhelmingly positive attitude they have toward Buddhism.

In my classes, therefore, I include a variety of texts written by Muslims themselves, not because I believe that Muslims can more accurately represent their tradition than non-Muslims, but because students need to learn that Muslims can also be sociologists, historians, religious scholars, and feminists. With my five courses a year on Islam, I have the luxury of examining a broad range of texts with students in a seminar setting. I know, though, that many colleagues struggle to discern the “essential” elements of Islam within a “world religions” classroom, where a fourteen-hundred-year-old tradition must be whittled down to three weeks. It seems to me, though, that each of us has the same problem. Both through voluntary and involuntary choices, reflecting personal competencies or availability of suitable texts, the instructor determines which aspects of the Islamic tradition will be considered. As a result, the presentation of Islam in the classroom is necessarily partial and incomplete—precisely the problem that worried my café cohorts. While a great deal of harm can be mitigated by emphasizing the incomplete nature of the presentation to the students, the search for the essence of Islam continues.

Shortly before his death in 1988, Fazlur Rahman wrote an important piece on the study of Islam, in which he largely argued against the primacy of the insider’s view of Islam.1 In this article, though, Rahman also argues for the necessity of a normative “anchoring point,” which “must modify the phenomenological approach which otherwise tends to be incurably relativistic” (p. 197). Rahman’s appeal for a normative Islam may seem out of date, but his argument has merit. On the scholarly plane, we still need the construct of normative Islam to speak effectively about movements and sects which use a variant norm. As for the classroom, we often have time to present only one view of the Islamic tradition, one which some of our students will invariably understand as normative. Where I differ from Rahman is in choosing the basis for this anchoring point. He chooses Quran and Sunnah, since any Muslim “will readily admit that what he considers true or correct Islam is to be judged (solely) by the Quran and Sunnah” (p. 197). But I find this definition problematic, since it suggests the existence of a Quran and Sunnah which is immutable, fixed in time as it were for all believers to consult. In fact, these sources must necessarily go through a level of interpretation, and it is the “proper” exegesis of these sources which is central to their normative value, not their authoritative status. Furthermore, Rahman is a modernist, following in the intellectual tradition of Muhammad Abduh and Iqbal. Naming Quran and Sunnah alone as normative, effectively wipes the slate clear for individual Muslims to exercise their own ijtihād, that is, to apply the principles of faith to their modern lives as they see fit. In other words, Rahman wants to “free” Muslims of their dependence on centuries of interpretation, allowing them to go back to the original sources.

I agree with Rahman that a norm is useful, but I believe that the addition of Islamic law to the Quran and Sunnah would make a more effective anchoring point. In studying the history of Islam, for instance, one cannot look at the Quran to understand the establishment of Islam in North Africa.2 Law, however, necessarily includes this important element of interpretation. While the Shariʿah, God’s path for humankind to follow, exists fully only in the mind of God, the application of that law in jurisprudence [fiqh] has been the subject of Islamic jurists in every time and place. Fiqh in its essence is mutable, incorporating the opinions of scholars in a continuous record of jurisprudential activity. Sources are available in English for the study of this activity in the early, medieval, and modern eras. For the early period, one can establish a clear picture of the ways in which the jurists [fuqahā’] perceived Islam; that is, one can reconstruct a theoretical norm, however sporadically it may have been applied. From the fourteenth-century onward, one can also consult books of legal opinions from actual cases and, in the Ottoman period, actual records of court proceedings. In our own time, the workings of the Islamic court system can be studied effectively as an important intersection between the demands of Islamic religion and the burdens of modern society.

Setting up a normative anchoring point does not mean that teaching Islamic law and Quran is a sufficient presentation of the Islamic religion, or that either of these is the essence of Islam. Rather, Islamic law provides a lens through which one can observe the rich variety of phenomena in the Islamic world. Even so, there are limitations. First, the study of Islamic law can solidify the characterization of Islam as a rigid system of rules which restricts free expression and change. Such a characterization is a particular danger among students who may seek to portray Christianity as a religion of love and Judaism and Islam as religions of law. Along the same lines, one should not use Islamic law as a litmus test, against which one can determine the relative “Islamness” of any particular group or ideology. Rather, a Muslim’s relationship to Islamic law is only one of several key elements in the formation of their identity as Muslim.3 On the other hand, the very fact that most Americans connect Islamic “fundamentalism” with the establishment of the Shariʿah argues for the need to teach Islamic law in the classroom. Before turning to a review of several new resources for the teaching of Islamic law, I will briefly cover some of the most important features of early Islamic legal development, particularly since our understanding of the early history of Islam has improved dramatically in recent years.

A Brief History

Before incorporating Islamic law into the syllabus, there are a number of misconceptions which still survive in the secondary literature on Islam and which must be challenged. These misconceptions are based on three basic errors: the treatment of the first two centuries of Islam as a type of “dark ages,” of which we know little; the assumption of rigidity in the application of law; and the use of Christian categories to characterize Islamic law. The best background sources are somewhat dated and often out of print, but all provide a solid foundation for lectures. I would especially recommend works by Joseph Schacht and Noel Coulson.4 Ignaz Goldziher’s Introduction to Islamic Theology and Law (Princeton, 1981) was originally written almost 100 years ago, yet his explanations are so lucid I still use his text in my courses. These books, and especially those of Joseph Schacht, have been subjected to significant criticism in recent years,5 and none take into account the impressive advances made in the last thirty years, in fields ranging from paleography to anthropology.

New scholarship on the earliest period of Islamic history, for instance, has allowed scholars to clarify some aspects of the early development of Islamic jurisprudence. Most important, Islamic jurisprudence is now known to have undergone a long period of development during the first 300 years of Islam. As a result, it is misleading to assume that categories from later periods typify early law. In fact, several of the standard features of medieval Islamic law, including the five Shariʿah values [aḥkām], the four schools of law, and the four roots of law, are unknown in the earliest centuries of Islam. As for the aḥkām, the division of acts into categories of required [wājib], recommended [mandūb], permitted [ma’dhūn], reprehensible [makrūh], and forbidden [ḥarām] does not appear at all in legal sources of the second and third Islamic centuries. Rather, a looser form of categorization appears to have obtained, rendering acts as good, bad, or indifferent. While use of intermediate terms (like desirable [mustaḥabb]) can be found, they are not used systematically. Along these lines, early texts show no systematic use of what came to be known as the four roots of jurisprudence, in which the Quran would first be consulted, followed by recourse to the Sunnah of the Prophet, and finally, consensus of the scholars or reasoning by analogy if the other sources failed. Instead, these texts utilize a broad range of authority, with Quran and hadith only one voice among others, and with dependence on scholarly opinion particularly obvious. The use of multiple systems in these texts is striking, with some texts treating hadith as primary, while others are predominantly dependent on opinion. Substantial variations are even seen among supposed representatives of the same school of law, which also calls our conception of the four orthodox schools into question. While definite regional tendencies can be observed, including a dichotomy between Iraqi and Hijazi law, each of the eventual four schools had an independent process of development and coalescence, so that the dates of their “founding” are still debated.6 The history of the development of these concepts reveals a flexible system, able to adapt to local custom and necessity.

As an example of the way recent scholarship has affected the field, consider that until recently, the Muwaṭṭa’ of Malik b. Anas (d. 179/795) was thought to be the earliest example of systematic legal writing in Islam. However, scholars are beginning to close the 150-year- gap between the organized, thorough presentation of the Muwaṭṭa’ and the hodgepodge array of legal exhortation found in the Quran (compiled sometime around the Prophet’s death in 10/ 632). Already, the thoughts of some pre-Muwaṭṭa’ scholars, such as al-Awza‘i (d. 157/774), al-Majishun (d. 164/780), and ‘Abdallah b. Lahi‘a (d. 174/790), have come to light. Their texts begin to provide a context within which we may better understand Malik’s Muwaṭṭa’.7 Malik has usually been portrayed as the defender of hadith in law, while the Hanafis supposedly defended personal opinion. But the Muwaṭṭa’ is much more than a hadith collection, as comparison with Ibn Lahi‘a’s text readily reveals. On the other hand, much more attention is paid to the chain of transmission [isnād] in Malik’s work than in al-Majishun’s, where out of five Prophetic hadith, none are found in the familiar isnād/matn format. Finally, it may be said that for both Malik and al-Majishun, hadith did not determine law but was subordinate to it, especially if it came in conflict with the customary practice of Medina.8

Although one may see a definite tendency to limit this subordination of hadith to local practice in the third and fourth Islamic centuries, it would be wrong to characterize Islamic jurisprudence of the middle periods, from roughly the fourth/tenth centuries to the twelfth/ eighteenth centuries, as ossified. It is true that Islamic law is based on the absolute authority of God as lawgiver, but the discovery of that law, through interpretation of the sources and application of their principles, remains open.9 Moreover, the canon of texts which formed the basis of every jurist’s course of study varied from place to place and never resulted in a codified law. Therefore, on the most fundamental level—the application of the law in the court system and in individually requested opinions [pl. fatāwā, sing. fatwā]—Islamic jurisprudence retained and continues to retain a remarkable level of flexibility.

The fact that Islam never developed a legal code (that is, until the nineteenth century in some areas) reveals several fascinating aspects about this religious tradition. One could argue that lack of a code is simply an accident of history, since there were only a few, limited opportunities for a law code to form in Islam on those rare occasions when political power joined together with legal authority. The ‘Abbasid Caliph Harun al-Rashid, for instance, is said to have attempted to promote Malik’s Muwaṭṭa’ as a code, but Malik refused. While these stories of great personality clashes are entertaining, I find a systemic explanation more satisfactory. It seems that the very methods of collecting hadith from many individual sources promoted a view of legal authority which enshrined decentralization. This diffusion of authority among a broad base of individual jurists [fuqahā’] made the work of Umayyad and ‘Abbasid caliphs difficult, as they tried to establish a codified form of the law. Their attempts at political control, through appointments and inquisitions, ultimately failed and only served to demonstrate the power of the legal community in resisting centralization of authority.

In retrospect, this system of decentralized authority was surprisingly effective. For instance, it promoted long years of study, providing the populace with well-trained scholars learned in all aspects of legal thought. This community regulated itself, with effective methods for weeding out incompetent or undesirable members. Moreover, through the promoting of individual choice in seeking a legal opinion [fatwā], or in choosing a teacher, popular scholars remained accessible to the public, regardless of the political choice for judge. In addition, the system probably benefited the scholars. By refusing to allow political authority over the Shariʿah, the jurists maintained both their own integrity and the integrity of the religious law. Only in this way could they be sure that rulings would be made on the basis of the Shariʿah and not merely on the whim of the ruler. The result of this lack of codification was not injustice, but a limitation on centralized power.

Finally, it is always worthwhile to maintain a healthy skepticism toward “common facts” about Islamic law. For instance, it is often stated, quite incorrectly, that there is no separation between “church and state” within Islam. Civil and spiritual authority have never been combined in Islam, not even during most of the Prophet’s lifetime, and with no organized clergy there never has been a cognate institution to the Christian Church. Moreover, whenever a caliph, sultan, or imam has attempted to combine these realms, his rule has not long been tolerated by his subjects.10 A similar point can be made about commonplace assertions that Shi‘i law is more draconian than Sunni law, and that interpretations of Islamic law by Muslim revivalists are authoritative.

Teaching Islamic Law

The above points are meant as a guide for advanced reading in Islamic law, but for the undergraduate classroom I would especially recommend concentration on three specific areas: (1) the development of Islamic law in the earliest period, (2) the court and fatwā systems, and (3) the role of Islamic law in Muslims’ lives today. I choose these areas both for their importance within the Islamic tradition and for their relevance for the broader study of religion; also, sufficient resources are available for classroom texts and further consultation. These three areas could be used to structure a series of lectures or seminar discussions if time allows; at the end of this essay, I have appended my own syllabus to show how these areas may be used to structure an entire seminar. Alternatively, one might suggest that students concentrate on one of these areas in an independent research paper.

Beyond the older texts outlined above (see n. 4), there are few secondary works on early Islamic history suitable for undergraduates. Bernard Weiss’s excellent new book, The Spirit of Islamic Law (Athens, GA, 1998) may be useful for those considering the relationship of law or philosophy, but it is probably too demanding for most undergraduates. Likewise, the pro-misingly titled Islamic Law: Theory and Practice is of little help.11 Coulson’s Conflicts and Tensions in Islamic Jurisprudence (Chicago,1969) is surprisingly accessible, however, and can be used effectively with other primary sources. In a series of short chapters, Coulson address the complex problems of inheritance law as they appeared in traditional commentary and hadith literature. His occasional references to “modern” British and Islamic law effectively contextualize the issues (though they also clearly date the book). The negative aspect of Coulson is his lack of historical context and criticism of the sources, but if combined with excerpts from early Islamic legal texts themselves, this book can serve as a fine teaching tool. To highlight the variability of early texts, I would recommend a thematic approach, illustrating Coulson’s discussion of inheritance, marriage, and divorce law with examples from Quran, the Muwaṭṭa’, al-Risālah by al-Shāfi‘ī (d. 204/820), or the Ṣaḥīḥ of al-Bukharī (d. 256/870).12 Since these sources are so rich in detail, excerpts need not be large.

As an example of the way this type of comparison can be done, take the Islamic law of slavery. The Quran retains a remarkable amount of legal material on slavery, for instance, most of which has to do with rules on emancipation and sexual relations.13 These rules are found in some thirty verses and appear to regulate several pre-Islamic practices, but the main thrust of this material is to ameliorate the position of slaves and offer them some protection. Slavery was therefore fully acceptable in the Quran, though the slave is always categorized as a human being, not a mere piece of property. By the time Malik formulated his juristic dicta in the second Islamic century, Muslim jurists had greatly increased the legal material on slaves, developing both a sophisticated structure for discussion of slave law and a common vocabulary. The early jurists reserved as many as five chapters in their multivolumed law books particularly for slaves: emancipation [‘itq]; the relation of the freed slave as a client of his or her former master [walā’]; the slave who is promised freedom upon the master’s death [mudabbar]; the one who enters into an emancipation contract [mukātab]; and the one who bears her master a child [umm walad]. The material on these subjects in the Muwaṭṭa’ is substantial and deals with a broad range of distinct concerns, both in terms of general rules and specific cases. In other words, during the 150 years between the recording of the Quran and the Muwaṭṭa’, Islamic law moved from modification of a preexisting system to establishment of whole new categories of law, including increased regulation of the status of a slave’s children; new rules on slaves and business transactions; and expanded rules on emancipation. In general, Quranic rules are concerned primarily with ameliorating the position of slaves in the context of accepted societal norms, while early Islamic law focuses on the details and ramifications of slave emancipation in the context of a developed legal system.

In a course on comparative law or comparative ethics, concentration on the primary sources is the only basis for comparative work, since there are almost no secondary sources available.14 Nevertheless, comparative work can provide a contextual base for understanding Quranic and early legal rules. In the case of slavery again, comparison with legal codes from other Near Eastern cultures, including Judaic, Christian, Byzantine, and Sasanian, demonstrate that Malik’s Muwaṭṭa’ is addressed to a vastly different audience than that which received the Quran: first, to a society that has assimilated numerous cultures, along with their practices; and second, to jurists who seek to bring these practices in line with Islamic sensibilities. For instance, while certain emancipation practices have roots in the Quran and early Muslim practice, their particular mode of application could vary widely, depending on the practices of the preexisting local cultures, which also had long traditions of emancipation. I would particularly recommend comparative readings in Talmud, Byzantine law, and Sasanian law.15

Just published is a helpful new teaching resource for the comparison of Jewish and Islamic law. In Comparing Religions through Law: Judaism and Islam (London, 2000), Jacob Neusner and Tamara Sonn discuss many of the most important theoretical aspects of law in Judaism and Islam. While the authors’ choice of sources limits the scope of their discussion, they are able to make some substantial discoveries about the nature of religious law. A companion volume, Judaism and Islam in Practice: A Sourcebook, has also appeared (London, 2000). This volume contains extensive excerpts from the classical legal texts, as they struggle with common questions of prayer, marriage, charity, and the community. Together, these two texts can provide the basic reading for a whole course on the subject of comparative religious law.

The benefit of focusing on original sources in translation is to give students first-hand experience working with the authoritative texts which have helped define Muslim thought over the centuries. Legal handbooks, however, are best understood as theoretical expressions of the law, as a guide to correct behavior with no guarantee as to how closely such suggestions were followed. A balance to this material can be found in collections of official legal opinions [fatāwā] and other court documents. These texts are usually tied to specific cases and when combined with historical contextualization, provide a rich slice of Muslim life in various times and places. While it is true that the vast majority of the populace would not go to court to solve legal problems, and that therefore the documents cannot be said to be representative of all Muslim society, they offer rare insights into the way Islamic law could be applied.

Tales of courts, judges, and famous cases are found throughout Islamic historical texts, but fatāwā were not actually collected until much later. For instance, Kitab al-mi‘yār is a collection compiled by Ahmad al-Wansharisi (d. 1508 C.E.), which contains fatāwā dating back centuries earlier. In a series of articles, David Powers has traced dozens of fatāwā from al-Wansharisi’s collection, providing much historical and legal background in the process.16 Any of these articles would serve as an excellent introduction to the topic for undergraduates. For instance, in “Kadijustiz or Qadi-justice?”17 Powers outlines the facts of a case in fourteenth-century North Africa, in which a politically well-connected family is embroiled in an inheritance lawsuit. It seems that the deceased may have adopted his bastard child Salim as a son, and now Salim has sued the family for a portion of the estate. In telling this tale, Powers uses historical and legal sources to provide rich detail on fourteenth-century politics and jurisprudence, bringing this 700-year-old court document to life.

Other work on fatāwā includes articles by Peters, Hallaq, and Tucker,18 as well as an edited volume by David Powers, Muhammad Masud, and Brinkley Messick (Islamic Legal Interpretation: Muftis and Their Fatwas, Cambridge [Mass], 1996). This book can serve as an excellent teaching source, taken either as a whole or as selections from its twenty-eight articles. Divided into sections on premodern, early modern, and modern periods, the book covers a wide range. Nevertheless, a clear focus is maintained on the court and its documents, including numerous translations of fatāwā from Andalusia to Indonesia. For instance, Mohamad Mudzhar’s contribution on the Council of Indonesian ‘Ulamā’ (pp. 230–241) includes a four-page fatwā from 1981, which explains in great detail why it is forbidden for Indonesian Muslims to attend Christian celebrations of Christmas. Mudzhar provides extensive background material on this declaration, describing the political and religious reasons that Muslim and Christian relations have recently been primarily characterized by rivalry. He also reflects on the ways in which changes in the nature of issuing fatāwā (from a central institution like the Council of Indonesian ‘Ulamā’ as opposed to the individual who issued the fatāwā [muftī]), result in substantial changes in the application of Islamic law. Other fatāwā in this collection include such issues as child marriage in seventeenth-century Palestine (pp. 131–132), postmortem examinations in 1940s Egypt (pp. 279–282), and Operation Desert Storm (pp. 279–300). Each of these fatāwā is placed in its historical and social context, providing an excellent resource for students. The benefit of working with such documents is to see both the range of material covered under Islamic law, and the methods employed by the lawyers in making their arguments.

Nonetheless, Islamic Legal Interpretation is rooted in the methodology of studying other cultures primarily through the documents they produce. While this is an appropriate method for a document-oriented field like law, the impact of Islamic law on the lives of modern Muslims may be best explored by the participant observation of anthropologists. Several recent contributions to the field of legal anthropology make excellent resources for studying the role that Islamic law has in modern Muslim societies. Moreover, the theoretical maturity of this field makes for some fascinating comparative possibilities, as well as useful material for courses focusing on gender, postcolonial societies, or religious revival.

Brinkley Messick’s recent book, The Calligraphic State (Berkeley, 1993) forms a bridge between studies of past societies through documents alone and studies of present societies. Combining local-level ethnography and textual analysis of the works of Islamic jurisprudence, Messick analyzes the role played by formal textual language and thought in the town of Ibb, Yemen. His book covers a variety of subjects, from the way the scribe records court proceedings to the politics of the Yemeni judges, drawing on theories of Geertz and Foucault. Yet in spite of the complexity of the subject matter, the book remains highly readable. For instance, Messick begins his chapter on “Judicial Presence” (p. 167) with a fascinating description of the physical format of a typical Shariʿah court session held in front of the qadi’s residence. Shifting to a criticism of old Orientalist snipes at qadis sitting under palm trees, Messick explains the particular way that this format promotes accessibility of justice. Furthermore, Messick places these practices within their historical and religious context, drawing on texts and philology to enrich the reader’s appreciation of the event. In short, the book exemplifies Geertz’s call for a “thick description” of events, and in Messick’s hands simple, everyday occurrences are infused with a rich profusion of meaning. Messick’s is only one of a number of recent studies on Yemen that can be used to complement a study of Is-lamic law.19

Two other works of legal anthropology focus on Islamic family law and its impact on women. Marriage on Trial by Ziba Mir-Hosseini (London, 1993) is a comparative study of Moroccan and Iranian family law courts based on information collected from 1985 to 1989. Although too expensive for the undergraduate, the valuable case studies in this book make it an excellent library resource. Mir-Hosseini’s introductory chapter is also an important and accessible statement on methodology. Shahla Haeri’s Law of Desire (Syracuse, 1989) also looks at Iran but concentrates solely on temporary marriage [muṭ‘a or sigheh]. Based on a series of interviews with both men and women, this book is particularly interesting as it tracks the differences in people’s attitudes to temporary marriage both before and after the 1979 revolution. In addition to general courses on Islam, Haeri’s book is strongly recommended for courses dealing with pilgrimage, prostitution, or Shi‘ism; it is both highly readable and theoretically sophisticated.

A Seminar in Islamic Law

In my opinion, it is important to avoid the temptation to concentrate only on these anthropological studies. While students are naturally attracted to the personal narrative of “real” Muslims, these studies are sophisticated examples of the use of traditional sources in daily life, and presume a significant background in Islamic history. Moreover, examination of one or two “real lives” of Yemeni women in divorce courts could lead to mistaken generalizations about the nature of Islamic law. As Messick’s book demonstrates, these two sources are best used together to complement one another, revealing both the depth and the relevance of the tradition. As I think back to my friends at the café, I realize that it was my knowledge of the classical texts that comforted them most. As difficult as they may be, the ancient sources play an essential role in defining the Islamic religion.

In the syllabus that follows, these classic sources form the core, and I address anthropological studies only after establishing a solid foundation in these sources. As may be gleaned from the introductory paragraphs, I change much of the course every year to reflect the interests of particular students, but the first six weeks remain constant. The course is run as a near-graduate seminar, in which one student takes responsibility for initiating discussion every week with a formal class presentation. The extensive recommended readings in the syllabus are designed to help this discussion initiator and also to provide preliminary bibliographies for research papers.

Religion 321: Seminar in Islamic Law

Part of our task in this class is to criticize misconceptions of Islam and its holy law by examining the historical roots, early development, and application of Islamic Law in the modern world. As a 300-level course, familiarity with the basic history and institutions of Islam is assumed, and integration of your expertise in other fields is encouraged. Our emphasis will be on engaging original sources in a careful, thematic study which will follow the topics we agreed on last semester. When the course is finished we may not have all the answers, but we should be able to frame the right questions.

This course is conceived as a seminar, in which the arts of discussion and criticizing ideas are nearly as important as the material itself. Each week we will deal with a short primary text, which students are expected to prepare intensively—that means reading the material several times, taking notes, and coming to class with specific questions; part of this preparation should include consultation with recommended readings and standard reference works in order to fully understand the arguments in the text. In addition, students will have the opportunity to set the agenda for a session by presenting a paper to the class on a topic of their choosing. Class participation will be evaluated on the basis of preparation of texts and a brief oral exam; it will account for 25 percent of the final grade. There will also be two papers: one to serve as the basis for class discussion (7–10 pp., 20%), and a research paper (20–25 pp., 45%). A bibliographical essay, on the same topic as your research paper, will be worth 10 percent.

REQUIRED BOOKS (AVAILABLE FOR PURCHASE IN THE BOOKSTORE)

Haeri, Shahla. Law of Desire.

Khadduri, Majid. Islamic Jurisprudence: Shāfi‘ī’s Risāla.

Maududi, A. A.. Purdah and the Status of Women in Islam.

Messick, Brinkley. The Calligraphic State.

Schacht, Joseph. Introduction to Islamic Law.

RECOMMENDED FOR PURCHASE

Quran [Arberry’s edition is available in the bookstore].

Hourani, Albert. A History of the Arab Peoples.

ON RESERVE IN THE LIBRARY

Calder, Norman. Studies in Early Muslim Jurisprudence.

Coulson, Noel J. Conflicts and Tensions in Islamic Jurisprudence.

Coulson, Noel J. A History of Islamic Law.

Crone, Patricia. Roman, Provincial and Islamic Law.

Gibb, H. A. R. Muhammedanism.

Goldziher, Ignaz. Islamic Theology and Law.

Malik b. Anas. al-Muwaṭṭa’, Aisha Bewley, Translator.

Masud, Powers, Messick. Islamic Interpretation: Muftis and Their Fatwas.

Mir-Hosseini, Ziba. Marriage on Trial.

Watt, W. M. Islamic Philosophy and Theology.

STANDARD REFERENCE WORKS IN LIBRARY

The Encyclopedia of Islam (EI), new edition

Shorter Encyclopedia of Islam (SEI)

Encyclopedia of Religion (ER)

SYLLABUS

After a first week of essays from modern Muslim jurists, designed to demonstrate the wide variety of current thinking on Islamic law, I delve into a swift review of the first centuries. In the syllabus, I make use of the above abbreviations in reference to various encyclopedia articles.

The Discourses of Islamic Law

Prepare: Abdullahi al-Na‘im (Sudan/Emory): “The dichotomy between religious and secular discourse”; Fazlur Rahman (Pakistan/Chicago): excerpt from Islam and Modernity; Fatima Mernissi (Morocco): excerpt from The Veil and the Male Elite

Read: ER: “Islamic Law”; EI: “fiqh,” “Sharī‘a”; Coulson: History: 1–73; Schacht: 116–123

Muhammad and the Earliest Legal Institutions

Prepare: Quran: Surahs 74; 75; 2:157–200; 4:1–112; 17:80–91

Read: Schacht: 1–36; EI: “‘Ibādāt,” “Ḳur’ān,” “Mu‘āmalāt”; Quran: Surahs 2, 4, 5, 24

Rec: Hourani: 1–21; Gibb: 1–48

The Early Schools of Sunni Law

Prepare: Brockopp: “Early Islamic Jurisprudence in Egypt” in IJMES 30 (1998): 16–182

Read: Hourani: 22–58; EI: “Ibn ‘Abd al-Ḥakam,” “Muzanī”; Schacht: 37–48

Rec: Calder: Studies; EI: “Awzā‘ī,” “Ḥanābila,” “Ḥanafiyya,” “Mālikiyya,” “Shāfi‘iyya”; SEI: “Z.āhiriyya”

Early Court System

Prepare: Schacht: 175–211

Read: Schacht: 49–56; EI: “Ḳāḍī,” “Ḳaḍā,” “Muzakkī,” “Maẓālim,” “Shāhid”

Rec: Coulson: History: 75–148

al-Muwaṭṭa’, an Early Book of Jurisprudence

Prepare: Malik: 1–7; 24–35; 76–83; 173–183; 200–208

Read: Schacht: 37–85; EI: “Mālik b. Anas”; Malik: 209–220; 327–338; 355–357; 395–397

Rec: Gibb: 49–85

Shafi‘i’s Risāla—a treatise on the sources of jurisprudence?

Prepare: Khadduri: 81–104; 154–163

Read: Khadduri: 3–54; 67–80; 179–229; 252–304

Rec: Hallaq: “Was al-Shāfi‘ī the Master Architect…” in IJMES; EI: “Shāfi‘ī”

Usually, I like to include a substantial section on medieval Islamic law, focusing on the social realities in a particular location, like Cairo, Baghdad, or Istanbul. Often, I include a more extensive discussion of Islamic theoretical jurisprudence (uṣūl al-fiqh), but in this year, students were particularly interested in modern applications and theological issues; therefore, the medieval period was limited to one week. The text here, A.J. Arberry’s Theology of Avicenna, is unfortunately now out of print.

Theology

Prepare: Arberry: Avicenna, 25–76

Read: Arberry: Avicenna, 1–25; Hourani: 59–79; Watt: Islamic Philosophy: 56–74

Rec: Goldziher: Islamic Theology and Law

A bridge to the modern period is formed by the Masud, Messick, and Powers book, which contains cases from medieval and modern law. This excellent resource is described in detail above.

Early Cases in Islamic Law

Prepare: Masud et al.: 47–86

Read: Coulson: History: 149–181; Schacht: 89–111; Masud: 1–43

Rec: Hourani: 81–205

Islamic Law in the Early Modern Period

Prepare: Messick: 1–131

Read: Hourani: 207–298

Rec: Masud: 151–220

The final section of the course focuses on modern cases from three localities: Iran, South Asia, and Yemen. These advanced texts worked well with my students, many of whom had done significant work in Asian Studies. The Haeri text is particularly challenging as a complex anthropological study of “temporary marriage” in modern Iran. In contrast, Mawdudi’s text is prescriptive, not descriptive, and demonstrates the way some reformers attempt to reclaim early Islamic history, proving the value of a solid grounding in the classic sources.

Iranian Application of Islamic Law

Prepare: Haeri: 1–102

Read: Haeri: 105–211

Rec: Mir-Hosseini: Marriage on Trial; Momen: History of Shi‘i Islam; Hourani: 299–415

Islamic Law in South Asia

Prepare: Mawdudi (entire)

Read: Peter J. Awn, “Indian Islam: The Shah Bano Affair,” in Fundamentalism and Gender, ed. J. Hawley (Oxford, 1994), 63–78; Rafiuddin Ahmed, “Redefining Muslim Identity in South Asia,” in Accounting for Fundamentalisms, ed. M. Marty and Scott Appleby (Chicago, 1994), 669–705; Shahla Haeri, “Obedience versus Autonomy,” in Fundamentalisms and Society, ed. Marty and Appleby (Chicago, 1993), 181–213.

Rec: Gibb: 113–131; Hourani: 299–349

Studies from Yemen

Prepare: Messick: 135–255

Read: Masud: 310–320

Rec: Hourani: 416–458

NOTES

1. Fazlur Rahman, “Approaches to Islam in Religious Studies: Review Essay,” in Approaches to Islam in Religious Studies, ed. Richard C. Martin (Tucson: University of Arizona, 1985. Reprinted, Oxford: Oneword Publications, 2001), 189–202. Find it in your Library

2. One could, of course, use interpretations of the Quran [tafsīr] for the same purpose. In fact, legal and mystical tafsīr are particularly important resources for students of Islam and the work of probing this material has only just begun.

3. In my opinion, an introductory course in Islam would be incomplete without some consideration of Baha’is or Nizari Shi‘is who consider themselves free of the bonds of Islamic law. On the other hand, the central role for Islamic law in twelver Shi‘ism forms an effective tool for questioning the common appellation of this sect as heterodox.

4. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964) Find it in your Library; and idem, Conflicts and Tensions in Islamic Jurisprudence (Chicago: University of Chicago Press, 1969). Find it in your Library Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon, 1950) Find it in your Library; and idem, An Introduction to Islamic Law (Oxford: Clarendon, 1964). Find it in your Library

5. For some recent criticism of Schacht’s theories, see Wael Hallaq, “Was the Gate of ijtihād Closed?” International Journal of Middle East Studies 16 (1984): 3–41 Find it in your Library; and idem, “Was al-Shāfi‘ī the Master Architect of Islamic Jurisprudence?” International Journal of Middle East Studies 25 (1993): 587–605. Find it in your Library Baber Johansen updates Schacht’s theoretical dependence on Weber in Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim fiqh (Leiden: E.J. Brill, 1999). Find it in your Library

6. For the latest installment of this debate, see Christopher Melchert, The Formation of the Sunni Schools of Law: 9th–10th centuries C.E. (Leiden: E.J. Brill, 1997) Find it in your Library, and the major reviews of this book in scholarly journals.

7. For a more extensive discussion of this point, see chapter 2 of my Studies in Early Mālikī Law (Leiden: E.J. Brill, 2000). Find it in your Library

8. Miklos Muranyi writes on page 36 of Ein altes Fragment medinensischer Jurisprudenz aus Qairawan (Stuttgart: Franz Steiner, 1985) Find it in your Library: “Daß die Rechtsgelehrsamkeit der Frühzeit sich wenig um das ḥadīṯ kümmerte, das seinerseits noch in der Umgebung von al-Māgišūn, Mālik und ihrer Nachfolger zunächst Gestalt annehmen und auch dann dem anerkannten ‘amal entsprechen mußte, um sich im fiqh als Quelle behaupten zu können, ist im vorliegenden Werkfragment über Hağğ-Bestimmungen direkt belegt.”

Although it is an interesting study of the Muwaṭṭa’, Yasin Dutton’s Origins of Islamic Law (Surrey: Curzon, 1999) Find it in your Library cannot be recommended due to its prejudicial attitude toward the sources.

9. In A History of Islamic Legal Theories (Cambridge: Cambridge University Press, 1997) Find it in your Library, Hallaq demonstrates the flexibility and creativity of medieval and modern jurists, although his first chapter on early developments takes an uncritical stance toward the sources.

10. There are many examples in Islamic history of such rulers, who have been portrayed as despots, among them: the caliphs ‘Uthman b. ‘Affan (d. 34/656) and al-Mu‘tasim (d. 258/842), the sultan Abdülhamid (d. 1909), and Ruhollah Khomeini (d. 1989).

11. This book (ed. Robert Gleave and Eugenia Kermeli [London: I. B. Taurus, 1997]) contains an uneven collection of essays, most of which are quite specialized.

12. All these sources are available in translation. Aisha Bewley’s translation of Al-Muwatta of Imam Malik ibn Anas (London: Kegan Paul, 1989) Find it in your Library is not a scholarly translation and not based on a scholarly edition. While her English is usually accurate, there are some misleading and incorrect translations; a helpful index is included. Majid Khadduri has produced a very useable translation of al-Shāfi‘ī’s Risālah (Islamic Jurisprudence: Shāfi‘ī’s Risāla [Baltimore: Johns Hopkins Press, 1961] Find it in your Library; now available from the Islamic Texts Society in Cambridge), with a fine historical introduction. The Ṣaḥīh of al-Bukharī is available in several English versions, some of which are summaries of the original. Hadith collections can now be searched on-line at http://www. usc.edu/dept/MSA/reference/searchhadith.html, though the results are dependent on the vagaries of the English translation.

13. For background on this subject, see W. ‘Arafat, “The Attitude of Islam to Slavery,” Islamic Quarterly 10 (1966): 12–18 Find it in your Library; R. Roberts, The Social Laws of the Qorân (London: Williams and Norgate, 1925) Find it in your Library; and chapter 3 of my Early Mālikī Law.

14. Though see Daniel Brown, “Islamic Ethics in Comparative Perspective,” The Muslim World 89 (1999): 181–192. Find it in your Library This whole volume of The Muslim World is devoted to the Islamic ethics of abortion and euthanasia.

15. Translations of Talmud and the Justinian Code are readily available. For Sasanian law, see Maria Macuch, Das Sasanidische Rechtsbuch “Mātakdān i Hazār Dātistān” (Wiesbaden: Franz Steiner, 1981) Find it in your Library; for provincial Roman law, see Patricia Crone, Roman, Provincial and Islamic Law (Cambridge: Cambridge University Press, 1987). Find it in your Library For slavery, see also the important study by William Westermann, The Slave Systems of Greek and Roman Antiquity (Philadelphia: American Philosophical Society, 1955). Find it in your Library

16. See particularly “The Mālikī Family Endowment,” International Journal of Middle East Studies 25 (1993): 379–406 Find it in your Library; also: “Fatwās as Sources for Legal and Social History,” al-Qantara 11 (1990): 295–341 Find it in your Library; “The Islamic Inheritance System,” Arabic Law Quarterly 8 (1993): 13–29 Find it in your Library; and “Legal Consultation (futyā) in Medieval Spain and North Africa,” in Islam and Public Law, ed. Chibli Mallat (London: Graham & Trotman, 1993), 85–106. Find it in your Library

17. Islamic Law and Society 1 (1994): 332–366. Find it in your Library

18. W. Hallaq, “Murder in Cordoba,” Acta Orientalia 55 (1994): 55–83 Find it in your Library; R. Peters, “Muḥammad al-‘Abbāsī al-Mahdī (d. 1899), Grand Mufti of Egypt and his al-Fatāwā al-Mahdiyya,Islamic Law and Society 1 (1994): 66–82 Find it in your Library; and J. Tucker, “Muftīs and Matrimony,” Islamic Law and Society 1 (1994): 265–300. Find it in your Library Other issues of Islamic Law and Society are also recommended.

19. See, for instance, Anna Würth, “A San‘a Court: The Family and the Ability to Negotiate,” Islamic Law and Society 2 (1995): 320–340. Find it in your Library

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