The study of Islamic law is still relatively new at Harvard and other campuses; only becoming a wide field of research around 1990. But Harvard Law School Professor Intisar Rabb says that the time is right for a fresh look at this growing area of legal scholarship, which she believes is set to expand.
That was the focus of a discussion Rabb organized last month among more than a dozen leading scholars on Islamic law. The Roundtable on Islamic Legal History and Historiography grew out of the Islamic Law Blog, which she edits with University of Toronto history professor Mariam Sheibani, and looked at some of the key issues and debates as the study of Islamic law evolves.
"It was really prompted by three major shifts, maybe even tectonic shifts in the study of Islamic law and history," said Rabb, who is also of a professor of history at Harvard University's Faculty of Arts and Sciences. "The first is the rise of digital humanities and data science — ironically, the pandemic ushered that in because people started digitizing more texts. The second is that my colleague, Mariam Sheibani, and I noticed that four different handbooks in the study of Islamic law and history were published in the last ten years alone. And finally, there has been new attention to more expansive categories of study including the one I focus on, legal canons. That's a major area of Islamic law that that nobody's really studied as a major field."
Islamic legal canons, she explained in a recent interview, are guiding principles for legal interpretation. Legal canons are like memes: they are concise expressions of core legal principles and values, in ways that — like genes, or memes — spread and evolve over time. In American law, those include well-known maxims (ie, "innocent until proven guilty") as well as more technical phrases, some in Latin dating back to Roman law, that may be used in courts. The ways a judge might interpret these canons, whether parsing the meaning of each word or considering social and historical context, could affect the outcome of a case.
In Islamic law, Rabb says, the study of canons becomes more complex. "You have a system where there is no legislature to update the text. You don't have any insight into what God or the Prophet Muhammad actually intended; you've got to rely on the texts. So, these legal canons end up having out-sized importance for that reason. To me that is really intriguing and really challenging; these things are used more voluminously and over a greater span of time — We're talking about 1400 years." How strictly to interpret a canon, and how much to adjust for changing norms, became a key point for discussion in the roundtable.
"I think there was a broad consensus, with many variants within it," she said. "The broad consensus points to the idea that Islamic law emerged in a certain time and place. So, to understand it, either as lawyers or as social historians, we have to put ourselves in the shoes of the person standing in that time and place, to grasp the meaning or the import of words."
Interpreting often ancient precepts today, she believes, requires "some interpretation to abstract out a principle or a function, to see how a particular law or legal canon might apply in a different context. The breadth or the leeway for doing that is where folks differ."
For example, laws governing ritual might be subject to a wide range of potential readings. "Some might say that everyone should pray the same way at all times; that should not change based on where you live. Others might say that everything is up for grabs and you have to see if there's a principle that pulls through in every context — almost with a presumption that it's likely to change as time and place change."
In a recent blog post, Rabb deals with a particularly dramatic example of two interpretations clashing. When Malcolm X advocated for the religious rights of Attica State prison inmates who had become Muslim, he was challenged in court by Joseph Schacht, a Columbia University professor and German expatriate, who was a strict constructionist of Islamic law.
"At the broader level, it was a debate about the methods and meaning of Islamic law, how to approach it in a modern context," Rabb argued. In the end, both sides effectively won: the court decided that the inmates' religion was not traditional Islam, but nonetheless a religion which the prison would recognize.
These events, she notes, came sometime after Schacht delivered the first lecture on Islamic law to be given at HLS. "And there's a rich history here. He was invited in 1947 by Erwin Griswold, the former dean of HLS, who then became the Solicitor General of the United States in 1967. And he's the one that prosecuted the Muhammad Ali case in 1972 at the Supreme Court. There's a lot of interpretation of Islamic law involved in that case as well."
When Ali refused induction into the army during the Vietnam War, claiming that doing so would violate his Muslim faith, he was convicted of evading the draft. Although the U.S. Supreme Court overturned the decision a few years later, the famous boxer was never granted full conscientious objector status on religious grounds.
Now that many Islamic texts are newly digitized, Rabb says that there may be a new wave of scholarship, comparable to many universities beginning to study Islamic law in the 1990s.
"When I went to law school two decades ago, we had to go to the basement and 'shepherdize' — to go into every book and see if a particular case is still current. No law student knows how to do that anymore, because the computers do it for them. They get a whole history of the case and every subsequent court that cited it. That only happened in two decades, and I think the same is coming for Islamic law."