Abstract
Were one to seek a single word to express the formative impression that Lena Salaymeh’s book creates, I believe that word would be “determined.” The book is not determined in the sense that its content – substance, arguments, conclusions – have been ordained by some exterior force; that is, the book is not determinate. Rather, the book is determined in its sensibility, in its palpable resolve, and in its refusal to be distracted from a fixed purpose which is pursued with unwavering commitment.
Salaymeh’s book is entitled The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions. Let us pause with that title. It speaks of “Beginnings” and again of “Traditions.” Neither term is directional: Salaymeh pointedly rejects the language of origin and development. Both terms are plural, as befits a book that emphasizes the plurality of Islamic legal discourse against eagerness for a single unilinear orthodoxy founded on an accepted body of authoritative “sources.” Second, the title speaks with specificity of an identifiable subject, “Islamicate Legal Traditions,” located in an identifiable moment, the “Late Antique.” Salaymeh’s book gives considerable attention to both temporal and spatial context, but the purpose of this specificity is to reinforce a thesis of overarching diversity. The key word is “Islamicate,” the term devised by the mid-twentieth century University of Chicago Scholar Marshall Hodgson to reference phenomena that were the products of regions in which Muslims were culturally dominant but that were not specifically religious phenomena, not specific to Islam as such, expressive instead of a diversity of cultural influences (The Venture of Islam: Conscience and History in a World Civilization 59). “Late Antique Islamicate Legal Traditions” thus references the identifiable moment of the late antique (the seventh and eighth centuries CE) as a time in which Islamic legal praxis was informed by all the plurality and heterodoxy of a place, the so-called Near East or Southwest Asia, that was Islamicate in character, offering all manner of diverse influences for potential assimilation. As Salaymeh notes, Islamicate is by nature syncretic in its implications. “Late Antique Islamicate Legal Traditions” thus describes an Islamic legal praxis that is syncretic by dint of the time and place of its beginnings. To define Islamic law, she tells us, one must begin with law rather than with Islamic (197). One begins with the praxis of the community, not with an essentialized characterization of what that praxis must look like.
To underline this, the title speaks twice of law. It speaks of “the Beginnings of Islamic Law” and of “Late Antique Islamicate Legal Traditions.” As we pass from one side of the colon to the other, from title to subtitle, the first phrase becomes the second. This teaches us that the Beginnings of Islamic Law are to be found in Late Antique Islamicate Legal Traditions, or even more forcefully that the Beginnings of Islamic Law are to be defined as Late Antique Islamicate Legal Traditions. And indeed this is confirmed early in the book. “Since law exists wherever communities engage a legal-interpretive praxis, Islamic law began when a Muslim community began” (2). Salaymeh’s term, “praxis,” is adapted from Dirk Heirbaut’s work on early Medieval Europe which defines law not in the language of fixed norms but as “an interpretative praxis, in which a community constantly justifies its own legal decisions” (“An Unknown Treasure for Historians of Early Medieval Europe: The Debate of German Legal Historians on the Nature of Medieval Law” 89). Differentiating a legal tradition expressed in jurisprudence and legal doctrines from a legal system expressed in rules and their enforcement, Salaymeh defines the Islamic law of her title as the legal-interpretive praxis of Islamic communities produced “with the objective of being part of the Islamic movement” (2), a praxis that engaged multiple groups and institutions, that expressed social and not simply legal practices, and that displayed interaction with coexisting non-Islamic legal traditions.
In the time and place of this book, the time of beginnings, there is little daylight between Islamic law and Islamicate legal traditions. And in this identification of law with legal traditions rather than systematic enforcement of systemic essentialized rules lies an embrace of openness that is almost wistful in its desire to forestall closure. “Contemporary conceptualizations of Islamic legal history are often historically inaccurate because they do not fully appreciate that Islamic law could have been very different – it could have been something else entirely. The objective of this book is to sketch what that something else might have been” (3). The “could have been” and the “might have been” expressed here appear to convey desire at least as much as scholarly disagreement. Perhaps by “could” and “might” Salaymeh is simply being tentative in the register of her disagreement. But that would be uncharacteristic, for this is not a tentative book. The could and the might suggest not simply alternate historical possibility but preferred present possibility – praxis not rules, traditions not system – and a wish for its realization.
It is worth parsing Salaymeh’s title for its instructive content because there is little in this book that does not have an instructive purpose. For example, decorative symbols (colloquially known as “dingbats” in the printing trade) introduce each chapter. Each has a specific design that in its variation on a common theme replicates the chapter’s substance. In light of so manifest a desire that the smallest detail instruct the reader it is not inappropriate or unfair to call the book didactic. Salaymeh’s commitment to instruction begins with the title. But it hardly ends there. Her book is very precisely organized. Law is rooted in historically situated societies, Salaymeh argues, and law and history are intertwined. To address their entwinement the book adopts an alternating bipartite structure. Odd-numbered chapters focus on historiography, even-numbered chapters on the legal-interpretive praxis of Islamic communities from which identifiable jurisprudence and doctrines arise. In the first, third, and fifth chapters, Salaymeh develops a rigorous critique of the prevailing methods and theoretical assumptions that characterize the field of Islamic legal historiography, and the positivist philosophy of history that those prevailing methods and assumption implicate. In the second, fourth, and sixth chapters, each addressing a specific issue – the treatment of prisoners of war, the ritual practice of circumcision, and wife-initiated divorce – Salaymeh offers case studies or examples of how Islamic legal history can be reconstructed once it has escaped the methods and assumptions that the first, third, and fifth chapters have challenged.
Together the book’s two alternating movements constitute its program of instruction, which Salaymeh calls “critical historical jurisprudence” (11). Salaymeh undertakes a multi-layered approach to late antique and medieval Islamic archives that opens Islamic legal history to the deployment of multiple forms of evidence beyond the privileged textual sources of orthodox scholarship – to biography, Koranic exegesis, historical narratives, so-called tradition reports, the evidence of co-temporal religious and legal traditions, and more. In so doing, Salaymeh is able to show in her case studies how practices of legal interpretation changed over time, how “the logic of Islamic law simultaneously recycles and innovates Islamic traditions within a dynamic normative space” (12).
Salaymeh seeks to dissolve orthodoxy and its supporting structures by placing it (and them) in historical context. This is, of course, the subversive role that history has always been called upon to play when mobilized against prevailing structures of belief. Purely as a matter of historical philosophy, I am less convinced than Salaymeh of the promise attending critical legal history’s embrace of radical contingency, its antifoundational impulse. Knowledge formats (“orthodoxies”) are stubborn, and persistent; they are temporally disobedient; they exist in relatively stable assemblages. It may well be that in the aftermath of the self-examination initiated by Salaymeh’s subversive account of Islamicate legal cultures one will discover certain kinds of intellectual persistence that survive her historicism. Indeed, she acknowledges this herself. Her approach is not simply antifoundational. “I engage” she says “in a postfoundational understanding of history that rejects the positivist methodologies of modernism and the nihilistic relativism of post-modernism. A postfoundational understanding of historical objectivity rejects the positivist notion that particular methodologies generate absolute Truth; instead, postfoundationalism pursues heuristics that generate historical truth” in the sense of the best account that is currently possible (15–16).
The important point, the bottom line, is that Lena Salaymeh’s book demonstrates why, in this realm of scholarship, a historicist self-examination is called for. Her book is important as a determined attempt to initiate a searching inquiry into how a field of study has conducted itself, and into the assumptions its methods have embedded in the very results it has produced. That examination is a vital prolegomenon to disciplinary renewal.