The Beginnings of Islamic Law

Late Antique Islamicate Legal Traditions

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Lena Salaymeh
  • New York, NY: 
    Cambridge University Press
    , November
     2016.
     253 pages.
     $99.00.
     Hardcover.
    ISBN
    9781107133020.
     For other formats: Link to Publisher's Website.

Review

This book has been reviewed in JAAR by Mohammed Fadel. Click here to read the review.

 

The novelty in Lena Salaymeh’s book, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions, lay in her nuanced argument that carves a path between historiography and theory. She begins her approach by laying out the critical framework that will inform the rest of the book: reassessing the terminology of the “beginnings” and “origins” of Islamic law and maintaining that these approaches distort Islamic legal history. Partly as a result of this, she argues that conventional definitions in this field have a tendency to essentialize Islamic law, ignoring the diverse ways in which it is constituted or mistakenly identified as orthodoxy. Salaymeh’s remedy is to “de-essentialize Islamic law by presenting its contingency, its multivalence, and its legal-hermeneutic centrifuges” (5).

To this end, Salaymeh calls into question the methodologies of historiography in an effort to give a “contextualized narrative” of what she claims are silenced currents of thought in late antique Islamic legal history. It must be remembered that Islamic studies, broadly speaking, is a vast field that is approached in different ways and with different methodologies depending on the discipline in which one is trained. In this respect, while her work on Islamic law is relevant both to scholars in the field of religious studies as well as historians, the latter may take issue with certain elements of her methodology while simultaneously recognizing certain conclusions as conventional to the field. However, this should not detract from the overall success of her theoretical project and the nuance with which it is attended to.

A non-essentialist approach such as Salaymeh’s recognizes that Islamic law changes over time and space. The same may be said of the Muslim jurists throughout history who recognized, likewise, that there is a modicum of malleability to the sharia whereby Islamic law—via the different juridical schools—offers different instantiations of a hermeneutical process in which sharia is interpreted. Salaymeh mitigates the interchange between law in history in the structure of her book, with her efforts to engage in critical theory to “deconstruct” historiography in the odd-numbered chapters and interposed by case studies in the even-numbered chapters to show how certain legal perspectives become orthodoxy over time.

Her thesis in chapter 1 states that conventional Islamic legal historiography essentializes Islamic law—especially à la Joseph Schacht [d. 1969] who Salaymeh sees as the pioneer of such an approach—is not inherently controversial in light of scholarship in recent decades—much of which has, in fact, already offered a systematic critique of the field, and highlighted a number of previously un- or under-studied figures and trends. It is nevertheless central to the overall scope and breadth of her argument, which rightly holds that that law is an interpretive praxis.

Chapter 2 examines the treatment of prisoners of war and finds that both historical narratives as well as late antique juristic opinions largely held that execution was impermissible—despite a minority that allowed it—which is in marked contrast to how medieval Islamic jurists tended to treat the issue. In this, she concludes that “Prophetic precedent was not a significant factor in medieval Islamic legal reasoning” (67).

Chapter 3 returns to the theoretical foundation that Salaymeh constructs in the first chapter in order to analyze “non-linear” relationships in Islamic law, and its relationship to other legal systems such as Jewish law. While rejecting earlier comparative scholarship of Jewish and Islamic law, and the European invention of the categories of “Semites” and “religion,” she advances a more contextualized and systematic approach in which she argues that “Islam was and is always hybrid” (104), finding that that the two legal systems did not borrow from each other, but rather occupied the same socio-historical space.

Chapter 4 is another case study, this time drawing on the theoretical underpinnings of the previous chapter to examine temporal and spatial dimensions of ritual male circumcision in Islamic legal doctrine. Salaymeh suggests that male circumcision was a prerequisite for fulfilling Abrahamic commands, and in so doing avoids offering an “origin” to the practice. Instead, “The distinct ways in which the circumcision ritual was elaborated over time suggests a different understanding of this process: initially, Muslims defined themselves against polytheists; later, they defined themselves as differentiated monotheists” (135).

Chapter 5 argues that “‘Islamic legal orthodoxy’ shaped the everyday practice of law, legal education, and the organization of the legal profession” (161), which itself was “the result of a socio-political struggle for power”—the nuances of which Salaymeh tries to capture in her use of the term “Islamicate” history, to illuminate the interplay between the transformation of Near Eastern traditions by Muslim jurists while simultaneously adapting to the broad socio-political and economic changes.

Chapter 6 is the final case study: two chronologies of legal changes related to wife-initiated divorce in Jewish and Islamic legal history. Salaymeh’s underlying argument is that professionalization and institutionalization within the Islamicate environment led to a consolidation of juristic opinions which, in turn, may have limited women’s options.

A key insight of this book, and one in which it really shines, is the importance of taking seriously the politics of academic knowledge production which, Salaymeh convincingly argues, is at the heart of methodological debates in Islamic studies. Salaymeh’s theoretical lens thus rightly highlights the diversity of social locations and influences that shaped the religious and cultural phenomenon that is Islamic law. Scholars in the study of religion will especially welcome and appreciate her engagement with critical theory as it is interwoven with history and case studies—an attempt to give voice to the multiple genres, categories, and indeed jurists, that determine Islamic law.

About the Reviewer(s): 

Yusuf Lenfest is a graduate student at the Divinity School at Harvard University with research interests in religion, law, and society in the Islamic tradition.

Date of Review: 
July 7, 2017
About the Author(s)/Editor(s)/Translator(s): 

Lena Salaymeh is Associate Professor (Senior Lecturer) of Law at Tel-Aviv University. A prolific author and public speaker, she is currently writing on the secularization of Islamic law and the role of materiality in Islamic legal history.

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