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A Century of Milestones of Non-Muslim Islamic Law Scholarship

Published online by Cambridge University Press:  28 February 2019

Peri Bearman
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Extract

My assignment has an added degree of difficulty in that I follow Frank Vogel's presentation on Islamic law, which captured your intellectual interest, and precede Lesley Wilkins’ talk on building a library collection, which will interest you professionally. I have chosen to offer a talk on the achievements made in non-Muslim — here primarily European and American — scholarship on Islamic law, scholarship in the making, as it were, hoping that it will segue easily from the one talk to the other. I will not be describing the Islamic Legal Studies Program and what we do, but if you have any questions about the research program we run, I will be happy to answer them afterwards.

Type
Law of the Islamic World IALL 21st Course on International Law Librarianship
Information
International Journal of Legal Information , Volume 31 , Issue 2 , Summer 2003 , pp. 370 - 379
Copyright
Copyright © 2003 the International Association of Law Libraries 

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References

1. See for an overview, Crone, Patricia, Roman, Provincial and Islamic Law (Cambridge, 1987), pp. 1–2; and MacDonald, B.D., The Development of Muslim Theology, Jurisprudence and Constitutional Theory (New York, 1903), pp. 65–117.Google Scholar
2. Published in English as Muslim Studies, ed. Stern, S.M., trans. Barber, C.R. and Stern, S.M. (2 vols, London, 1967, 1971). The second volume in particular is influential for the earliest history of Islam.Google Scholar
3. Goldziher, art. “Fikh,” in The Encylopaedia of Islam 2 (hereafter EI 2) (repr. Leiden, 1987), p. 886b (cf. also Goldziher, Muslim Studies, vol 2, pp. 126ff.)Google Scholar
4. Ibid., p. 887a. Patricia Crone (Roman, Provincial and Islamic Law, p. 3) asserts that Goldziher's knowledge of Roman law was very elementary and that his postulations of large-scale borrowing were made “on the basis of purely external similarity,” as e.g. his suggestion that “the names of legal speculation (fikh = intelligence) and of its students fukaha’ (intelligent) have been influenced by the Latin terms (juris) prudentia and (juris) prudentes in their special application to the study of law and teachers of law” (art. “Fikh”).Google Scholar
5. Crone, , Roman, Provincial and Islamic Law, pp. 4–5.Google Scholar
6. Schacht, Joseph, The Origins of Muhammadan Jurisprudence (Oxford, 1950), p. 149.Google Scholar
7. Schacht, Joseph, An Introduction to Islamic Law (Oxford, 1964), chapters 4,5, and 6; Forte, David, “Islamic Law: The Impact of Joseph Schacht,” in Loyola of Los Angeles International and Comparative Law Annual 1 (1978), p. 9.Google Scholar
8. E.g. “We must therefore suspect on principle statements which refer to the pre-literary period unless they are verified,” Schacht, The Origins of Muhammadan Jurisprudence, p. 228.Google Scholar
9. For a discussion of the mutawtir (multiple) report, see Juynboll, G.H.A., art. “Tawatur,” in EI 2 (Leiden, 2000), pp. 381b-382a; see also the third chapter of his book Muslim Tradition: Studies in Chronology, Provenance and Authorship of Early Hadith (Cambridge, 1983), where he traces two mutawatir reports.Google Scholar
10. Schacht, , The Origins of Muhammadan Jurisprudence, pp. 171–172.Google Scholar
11. Mustafa Al-Azami, M., On Schacht's Origins of Muhammadan Jurisprudence (Riyadh and New York, 1985). He also published a critique of Goldziher's theories: see Studies in Early Hadith Literature (Beirut, 1968). For an overview of the Muslim reaction in English to Schacht's theories, see Forte, “Islamic Law: The Impact of Joseph Schacht,” pp. 26–31. See also Sezgin, Fuat, Geschichte des arabischen Schriftums (Leiden, 1967), I, pp. 53–84; and Abbott, Nadia, Studies in Arabic Literary Papyri (Chicago, 1967), Vol. 2, both of whom use internal evidence to support conclusions opposite to Schacht, while taking as axiomatic Muslim historical postulations regarding the development of the prophetic reports.Google Scholar
12. Edinburgh: Edinburgh University Press. For Coulson's opposite postulate, that “an alleged ruling of the Prophet should be tentatively accepted as such unless some reason can be adduced as to why it should be regarded as fictitious,” see p. 65.Google Scholar
13. Juynboll, , Muslim Tradition, pp. 72f.; Motzki, Harald, The Origins of Meccan Jurisprudence: Meccan Fiqh Before the Classical Schools (Leiden, 2002), pp. 145f.Google Scholar
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15. Cf. Calder, art. “Usui al-Fikh,” in EI 2 (Leiden, 2000), p. 933.Google Scholar
16. Schacht, , An Introduction to Islamic Law, chap. 10; for followers of this theory, see e.g. Coulson, , A History of Islamic Law, p. 73: “The spring of juristic speculation, which had supplied the rapidly moving stream of Islamic jurisprudence in its early stages, gradually ceased to flow; the current slowed; until eventually and inevitably, it reached the point of stagnation.”Google Scholar
17. Schacht, , An Introduction to Islamic Law, pp. 75. Also, on p. 77, “… the ideal theory, being essentially retrospective, was from the early ‘Abbasid period onwards unable to keep pace with the ever-changing demands of society and commerce.”Google Scholar
18. Hallaq, Wael B., “Was the Gate of Ijtihad Closed?” in IJMES 16 (1984), pp. 3–41. See also his later study, “On the Origins of the Controversy About the Existence of Mujtahids and the Gate of Ijtihad,” in Siudia Islamica 63 (1986), pp. 129–41.Google Scholar
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20. Anderson, J.N.D., Law Reform in the Muslim World (London, 1976), p. 7.Google Scholar
21. For a discussion of ijtihad and taqlid, see also Jackson, Sherman, Islamic Law and the State. The Constitutional Jurisprudence of Shihab al-Din al-Qarafi (Leiden, 1996).Google Scholar
22. See, in particular, the work of Powers, David S., e.g. the edited volume, with Muhammad Khalid Masud and Brinkley Messick, Islamic Legal Interpretation: Muftis and their Fatwas (Cambridge, Mass., 1998) and his recent Law, Society, and Culture in the Maghrib, 1300-1500 (Cambridge, 2002).Google Scholar
23. For example, Rosen, Lawrence, The Anthropology of Justice: Law as Culture in Islamic Society (New York, 1989), and the work by Erin Stiles, who recently received her doctorate from Washington University, St. Louis, for her research into the Islamic courts of Zanzibar.Google Scholar
24. Wansbrough, John, Quranic Studies: Sources and Method of Scriptural Interpretation (Oxford, 1977); Burton, John, The Collection of the Qur'an (Cambridge, 1977).Google Scholar
25. Cf. Welch, A.T., art. “Kur'an,” in EI 2 (Leiden, 1986), pp. 404a-407b.Google Scholar
26. Schacht, , An Introduction to Islamic Law, p. 18.Google Scholar
27. Anderson, , Law Reform in the Muslim World, pp. 9–10.Google Scholar
28. Vogel, , Islamic Law and Legal System, p. 363.Google Scholar