Tape Transcription Islam Lecture No. 1 Rule of Law Professor Ahmad Dallal ERIK JENSEN: Now, turning to the introduction of our distinguished lecturer this afternoon, Ahmad Dallal is a professor of Middle Eastern History at Stanford. He is no stranger to those of you within the Stanford community. Since September 11, 2002 [sic], Stanford has called on Professor Dallal countless times to provide a much deeper perspective on contemporary issues. Before joining Stanford's History Department in 2000, Professor Dallal taught at Yale and Smith College. Professor Dallal earned his Ph.D. in Islamic Studies from Columbia University and his academic training and research covers the history of disciplines of learning in Muslim societies and early modern and modern Islamic thought and movements. He is currently finishing a book-length comparative study of eighteenth century Islamic reforms. On a personal note, Ahmad has been terrifically helpful and supportive, as my teaching assistant extraordinaire, Shirin Sinnar, a third-year law student, and I developed this lecture series and seminar over these many months. Professor Dallal is a remarkable Stanford asset. Frederick the Great once said that one must understand the whole before one peers into its parts. Helping us to understand the whole is Professor Dallal's charge this afternoon. Professor Dallal will provide us with an overview of the historical development of Islamic law and may provide us with surprising insights into the relationship of Islam and Islamic law to the state and political authority. He assures us this lecture has not been delivered before. So without further ado, it is my absolute pleasure to turn over the podium to Professor Dallal. Ahmad? (Applause.) PROFESSOR DALLAL: Good afternoon, and thank you, Eric, for all the work in putting together this course and this lecture series. Both in terms of its normative influence and the status of its practitioners, the Islamic legal legacy is the most central of all the learned traditions of classical Muslim societies. The legal profession was the most prestigious profession in the medieval Muslim world. The structured the educational patterns for which the Muslim world is famous were first developed in conjunction with the study of the law. Initially, the madrasas, not the madrasas of the Taliban but the old madrasas, the four-year colleges, which were the precursors of our modern university system, were established for the study of the law and allied disciplines in its service. In medieval Muslim societies, the scholar per se was the jurist. As the most consequential manifestation of Islamic thought, it is not possible to speak of Islam in any meaningful way without understanding Islamic law. In its scope and reach, Islamic law is much more encompassing than law in the modern technical sense of the word. It covers worship and rituals such as, for example, prayer, dietary laws, the rites of pilgrimage and so on and so forth. It covers religious and ethical rules including rules of conduct and ethical behavior. It covers politics, as well as the more familiar aspects of law such as family law, marriage, divorce, etc., inheritance laws, pious foundation laws, Islam Lecture No. 1 - 2 contracts and obligations, commercial law, penal law (although that's the least developed of all aspects of Islamic law, in part because criminal justice was taken over by the state). It covers taxation, constitutional law, and the law of war. In addition, Islamic law, or what is grouped under the rubric of Islamic law, also covers such technical branches as written documents, the formulaic written documents, and legal devices or tricks, literally, for the evasion of law. The word in Arabic is hiyal and it means tricks, legal tricks. And that is part of the law. Like other legal systems, therefore, the mature Islamic legal system with its complex procedures and technicalities is a legitimate object of study in its own right, but at the same time, it is not possible to fully understand Islamic law in its formative past or its contemporary predicaments in isolation from other cultural trends in Islamic history, including sectarianism, theology, mysticism, and above all of course, politics. Islamic law is a system of law, and as such it is a process, always in the making. It is, however, Islamic, rooted in Revelation, and as such rendered Islamic by virtue of its relationship to this Revelation. Undoubtedly, therefore, Islamic law, like everything Islamic, was occasioned by the Qur’an, but this is only part of the story. To start with, the Qur’an has a historical context, namely, the polity established and headed by Muhammad in Medina. And it is within this polity that the Qur’an as law gained its meaning. In Medina, Muhammad acted as a Prophet, ruler and legislator, and his life example, to the extent that it can be reconstructed, is as significant in defining the rudimentary laws of Islam as the Qur’an is. In fact, it is in the context of this early polity that the Qur’anic rules gain their momentous historical significance as factors that ushered in a new social and political order, an order, which was radically different from the one that existed in Arabia on the eve of the rise of Islam. Basically, the new polity, the new social order that Muhammad established, was different in terms of its self-definition, in terms of structures of authority, in terms of the rules that prevailed, and in terms of so many other things, and all of that therefore is a result of a symbiosis, of a mutual relationship between both the Qur’anic injunctions as well as the polity and social order that Muhammad introduced. Moreover, normative as both the Qur’an and the practices in the newly-formed polity were, and are for Muslims throughout the ages, the rudimentary laws and rules articulated in both the Qur’an and the practices of Muhammad, are significantly different from the later complex system of law which they inspired and gave rise to. With some exceptions, Qur’anic law is not the finished product which was articulated and elaborated in Islamic legal manuals and in the canonical books of various schools of law. These manuals and books were not created by a mechanical compilation of Qur’anic or Prophetic legal dictums. Rather, Islamic law was created by a rational method of understanding, and of interpretation, and the difference between these two things is not just one of organization. Much as one tries to rationalize revealed law, it is grounded in and derives its authority from the very fact of Revelation, from the belief that it comes from God. The Islamic legal canon, however, is a compilation of the reasoned legal opinions of scholars, of professional jurists who had to justify their opinions. God doesn't have to justify anything. The sacred of course is always present. Above all, it is the source of the religious and moral standards that provide the unifying framework for the Islamic system of law, but the Qur’an and even the traditions of the Prophet Muhammad, on the one hand, and the law, on the other, are not identical. Islam Lecture No. 1 - 3 Now of course there were various components, legal components, legal elements that were integrated into what became Islamic law, including the laws of pre-Islamic Arabia, Jewish law, Roman provincial law, and various aspects of the laws of the conquered territories. All of these systems of law, elements from these systems of law, were recast by Muslims in a completely novel system of law, and they were unified partly by subjecting them to a religious scrutiny on the basis of an emerging and strictly Islamic methodology. Diverse legal subject matter became Islamic law by a subtle but systematic process of organizing and systematizing through which these laws became part of the religious duties of Muslims. There are additional factors that further complicate the process through which the law, Islamic law that is, was produced and, at least in theory, may still be produced. So some of the things that I say today have contemporary significance. I will point out some of these contemporary issues and then I will be more than glad to address more of these in the question- and-answer period. The Qur’an, to start with, is limited in size, and in its legal subject matter. Only 11 percent of the Qur’an deals with legal issues, and of course the Qur’an, the scripture of Muslims, is much smaller than the Torah and the Bible. It's a much smaller book. Many of the legal injunctions of the Qur’an are ambiguous, as the Qur’an says of itself. Historically, many more Islamic laws were based on the Hadith and the Sunna, the sayings, traditions, and practices of Prophet Muhammad, and in contrast to the Qur’an, there is no consensus over the authenticity of this body of literature. Muslims believe that the Qur’an is authentic and it has an early provenance, it's what Muhammad brought forth from God, but there is no consensus among Muslims regarding the traditions of Muhammad, the sayings of Muhammad, and this is the largest body of literature, which is used as a source of law. Therefore, from the very beginning the question of who after the Prophet has interpretive authority, was implicated in the articulation of an Islamic legal system. The question of authority, of course, was not restricted to the discussion of the law, and in the early period the law was not even the primary arena where this question was addressed. In the beginning, there was politics.