[RG #77] Law and the State in Classical Islam
September 1999 - February 2000
Yohanan Friedmann (The Hebrew University of Jerusalem)
Nurit Tsafrir (Tel Aviv University)
The study of Islam has been at the cutting edge of Islamic studies in recent years. The development of Islamic law beyond the Qur’ānic stage, the rise of the schools of law (madhābib) and their geographic spread, the relationship between the rulers and the jurists, the amount of freedom enjoyed by the jurists in the development of the law – all these are being subjected to intensive scrutiny.
An important question is the development of Islamic law from the Qur’ānic layer in early Islamic history, through the books of the 8th and 9th centuries, to the great compendia of later periods. It was accepted until recently that the early Muslim jurists derived the law from the Qur’ān and the prophetic tradition (hadith) during the first 250 years of Islamic history by way of individual reasoning. According to this view, the freedom to exercise individual reasoning gradually shrank and the jurists relied more and more on the decisions of the predecessors. These decisions were collected in large compendia and gradually acquired unquestionable authority. At the end of this process, in the 10th century CE, the right of individual reasoning disappeared totally and Islamic law lost its ability to adapt itself to the changing historical circumstances. If this theory is correct, a book of law written, for instance, in the 12th century cannot be used as a document reflecting the social and legal situation in the period in which it was written, but rather the legal tradition which prevailed in the 9th century and has remained stagnant ever since.
Recently, various scholars began to question the validity of this description and to argue that the “gates of individual reasoning” never closed and Islamic law has never lost its flexibility or ability to develop. The study of this question is a challenge for scholars of Islam. Islamic law is perceived as immutable because it is believed to represent the divine will. It therefore stands to reason that later jurists, even if they wanted to introduce changes into the law, invested much effort to present their views as identical with those of their forebears, or, at least, as derived from them. This is the reason why books of law from different periods appear very similar to each other. In order to discern changes which may have occurred in a certain field of law, it is imperative to examine numerous sources from different periods and compare them to the compendia of tradition and law from the 8th and 9th centuries. If we learn that Islamic law continued to develop throughout Islamic history, then books of law written in later centuries are of much greater value than that ascribed to them so far: they constitute historical documents which can shed new light not only on the development of law, but also on the social situation of the areas and periods in which these books were written.
This is one of the fields in which we will conduct research. Another is the study of the development of Islamic law in various areas of the Islamic world in different periods, as well as in the differences between the various schools of law on specific issues.