Introduction

Introduction The genealogy of this volume begins, as many volumes do, at a conference at the University of California Santa Barbara in February 2014 titled “Locating the Sharīʿa: Creating New Sources for Knowledge and Inquiry.” Its aim was to honor the scholarly contributions of Dr. Khaled Abou El Fadl and Dr. Sherman Jackson in the field of Islamic Studies and, more specifically, Islamic law. In addition to exploring the indelible impact of these two scholars on the field of Islamic law, the conference provided a periscope into the drastic evolution the field has undergone in the past few decades. With this insight in mind, instead of producing a conference volume of the proceedings, or a festschrift in honor of Dr. Abou Fadl and Dr. Jackson, which is rightfully due, the decision was made to produce a volume on the field of Islamic law itself—its methodologies, its contradictions, its possibilities and its future. It is not an exaggeration to say that the field of Islamic law has been bur- geoning over the past century in Western Academia,1 producing an increasingly dynamic and polyvalent intellectual scene that has evolved through, and at times away from, the early methodologies and inquiries characterizing the field. The preeminent early scholars of Islamic Law, Ignaz Goldziher (1850– 1921) and Joseph Schacht2 (1902–1969) introduced two central inquiries to the field that would continue to engage scholars for generations. The first exam- ined origins—questioning the development of Islamic law, its sources, and the eventual institutional form it took within the madhhabs. The second inquiry explored the divergence, or the gulf, that was noted to exist between the theory of Islamic law (uṣūl al-fiqh) and positive Islamic law ( fiqh).3 1 The broader systematic study of Islam began at the end of the 18th century and predates the more focused study on Islamic law. The first academic centers devoted to the study of the Orient were founded in the early 19th century in France (Société Asiatique, 1821), the United Kingdom (Royal Asiatic Society of Great Britain and Ireland, 1823) and America (American Oriental Society, 1842). 2 Ayman Shabana notes that there are two dominant paradigms for the study of Islamic legal history: ethnographic and textual. Goldziher and Schacht are representative of the latter trend, while Christiaan Snouck Hurgronje (1857–1936) and Robert Smith (1846–1894) are representative of the former. The volume will focus will be on the development of the textual trend of studying Islamic law. For the other see Ayman Shabana, Custom in Islamic Law and Legal Theory (New York: Palgrave MacMillan, 2010), 19–23. 3 The question of divergence was tackled differently depending on whether scholars adopted an anthropological or textual approach. Taking the anthropological approach, scholars were concerned with understanding how ritual and customary practice was considered legitimate © koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004391710_002 2 Introduction Goldziher tackled this first issue in 1890 in his seminal work Muhammed- anische Studien.4 In it he argues that Islamic law developed after the death of the Prophet and was an amalgamation formulated from Judeo-Christian and Roman legal practices.5 Most illustrative of this Judeo-Christian appropria- tion present in Islam were ḥadīth, which he argues gained prominence in the second century post-Hijri and can be directly traced to pre-Islamic or Judeo- Christian practices.6 As for the Roman influence within Islam, it can be iden- tified in the development of the School of Opinion (ahl al-ra ʾy) which stood in contradistinction to the School of Tradition (ahl al-ḥadīth). Turning to the sources of the law, the most spurious for Goldziher were ḥadīth which con- spicuously arose in the first two centuries after the death of the Prophet and were freely invoked by the jurists. Though Goldziher does not cast aspersions on ḥadīth altogether, and notes that early jurists did attempt to weed out fabri- cations, the rate at which ḥadīth literature grew quickly outstripped the critical capacities of ḥadīth scholars, allowing for the existence of in increasingly dubi- ous corpus of ḥadīth.7 Building on Goldziher’s answer to the origins of Islamic law, Schacht in his Introduction to Islamic Law asserts that in the first century after the death of the Prophet, ‘Islamic law’ as it is known today did not exist; rather, rudimentary forms of customary law existed by adopting pre-existing legal, administrative and political practices of newly conquered Muslim lands.8 It was not until the even if it seemed to contradict scriptural sources or the law as interpreted by jurists. The locus of their inquiry was the role of custom in law making, and the extent to which it was accommodated as a legitimate source of norm generation. As for the textual scholars, they were concerned with how legal theory related to legal practice, or in other words, how uṣūl al-fiqh related to fiqh. As the practice of law preceded its theorization by the schools, scholars were concerned with whether uṣūl al-fiqh actually produced fiqh or was simply a post-facto justification of what was already in practice. 4 Goldziher’s work was translated into English and published under the title Muslim Studies. Ignaz Goldziher, Muslim Studies (London: Allen and Unwin, 1967); Ignaz Goldziher, Introduc- tion to Islamic Theology and Law (Princeton: Princeton University Press, 1980). 5 Goldziher, Muslim Studies, 1:2, 75–87. 6 Ibid., 25, 42. 7 Ibid., 80–90. 8 Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 21. Also see Joseph Schacht, The Origins of Muhammadan Jurisprudence (London: P.R. Macmillan, 1961). For an overview of some of Schacht’s arguments see Wael Hallaq, “The Quest for Origins or Doctrine,” UCLA Journal of Islamic and Near Eastern Law 2, 1 (2002–2003): 1–32; Jeanette Wakin, Remembering Joseph Schacht (1902–1969) (Cambridge: Islamic Legal Studies Program, Harvard Law School, 2003)..

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