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The Legacy of Muslim Societies in Global Modernity | 7. Panel 5: Islamic Law in/and the Literature of Decline
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7. Panel 5: Islamic Law in/and the Literature of Decline

Engin Akarli, Brown University

Nelly Hanna, American University, Cairo

Andrew Newman, University of Edinburgh

Engin Akarli Presentation Summary

Prof. Akarli spoke of decline after 1300, another form of decline after Suleyman, Abbas, and Akbar, and the reasons for decline as a concept and a discourse that developed in Europe and is relevant to and concerned with developments in northwestern Europe. According to that concept, Islam’s function was to pass along the intellectual link to the Greeks, and once the Muslims did that, their role ended. Another form of the decline paradigm emphasized a return to an imagined, pure state of civilization, in this case a pure form of Islam. The rest of history represents a departure from that pure state. Yet another form of decline related to the concept of the nation-state, in the sense that the development of history as a discipline is also a function of the 19th century and a servant of the nation-state—history serving to create a sense of nationality, of belonging. A convergence between centers of historical knowledge production in Europe with nationalists in the Muslim regions who were also creating such centers.

Akarli stated that addressing both decline paradigms must involve distinguishing between these various aspects in order to transcend these paradigms and write better histories. Because these paradigms rely on a dichotomy between East and West, on a polarity between Christianity and Islam, and because the concept of Western Civilization relies on the world-class notion of Enlightenment. More recently, the concept of a Judeo-Christian side of the polarity has developed, added to the earlier polarity that excluded Judaism.

Akarli noted the connection with Sisman’s paper in that the three empires were not “Islamic” in the sense that they were not majority Muslim polities. With the exception of the Safavid empire, most were not majority Muslim, even in the capital cities. We forget that the Ottoman empire became majority Muslim sometime in the middle of the 19th century, only after shedding some territory. This is a very important dimension in understanding Islamic law. When scholars talk about Islamic law, people assume it means a law for Muslims, not for non-Muslims. Non-Muslim subjects of the Ottoman are supposed to have been oppressed, according to this narrative, and only recovered a history after they broke free of the Ottoman empire in the 19th century. The clearest expression of this Orientalist discourse is the statement by Lord Cromer; “If Islam changes, it is no longer Islam.”

In discussing the first aspect of decline noted above, it is necessary to consider that the origins of the Ottoman empire are said to lie in Anatolia around 1300 CE, yet the Ottomans who built an enduring empire entered Anatolia in 1071 CE. About 3008 years later the Ottomans established the proto-empire. Historians need to ask, like Gabor Agoston for the later period, “What happened during those 300 years?” During that time, they must have established networks and formations on which they were able to build a stable society, and one that included people who did not share the same religion.

The focus on law offers a window on the complex relationships that make up society. It sheds light on various fields of force in society, including cultural norms and values held by different social groups. Law is important in perpetuating a regime’s legitimacy by providing society with a sense of order. Study of Ottoman legal practice should provide insights into the longevity of the Ottoman state, and obliges historians to include law in the broad picture of Ottoman history.

Akarli’s central contention was that the Ottoman empire could not have survived as long as it did without engendering a sense of justice and legitimacy among the people, a sense of order among both Muslims and non-Muslims. The Ottomans adopted Islamic legal traditions and built a legal system on that model from the very beginning. Unlike many scholars in both East and West, however, we should not presume a priori that the Ottoman legal system was meant only for Muslims, merely because of its Islamic origins. The Ottoman courts were open to all members of the state in all matters, and they were the only channel for some matters. Scholars are wrong in asserting that because non-Muslims took their cases the Ottoman courts, it means they had no autonomy. Islamic law did not preclude the existence of various levels of the courts. In certain matters other religious groups had their autonomy. In certain issues—even where there was autonomy—they could come to the courts and not be turned away. These state courts had to hear the cases.

Examining the sources of legal history is essential to bringing new information on the past to light. Ottoman legal sources are rich but thinly mined, and need scholars trained to use and make sense of them. The records of the shari’ah courts when they were the backbone of the system contain registered agreements, that are important because they precluded future disputes. There is a huge amount of this material in notary public registers of shari’ah courts. Summaries of settled cases are not enough. There are judicial files of the imperial court, cases heard by the two Chief Judges of the Council, a high court. Court case contain the whole history of the cases (Diwan Muhimme). Legally relevant decisions of the government include imperial edicts, decrees, advisory legal opinions (fatawa), individual fatwas from Ottoman period. Materials related to legal training of jurists and bureaucrats was also important. Handbooks and guides for judges were used in the colleges. Controversies such as Himmet Taskomur studies, engendered commentaries and super-commentaries, other writings of jurists and legal specialists. Manuscripts related to political ethics and history sometimes contain specific information on their relation to the fiqh tradition. Such literature was also written in languages spoken in the Ottoman Empire, including Greek and Arabic, mostly written by Christian Arabs. The Greek Orthodox Church has such documents, and synagogues have them as well.

The archives contain information on the judicial affairs of various communities that have not been examined before. There was a presumption that Muslims, Christians, Jews did not mingle, when in fact they did, and it would have been historically unsustainable if they had not. Alavis and Druze, other unorthodox Muslim communities have written on legal matters. Other literary and popular sources include Nasruddin jokes to mine for information about popular views of the qadis and rulers. One would hope that this rich material about legal history would be relevant to adjusting the old paradigms.

There is a presumption is that fiqh is Islamic law, and it is important, but , but the dialogue between court decisions and other activities in society is equally important. Study of Islamic law is changing, but still suffers from total incomprehension of how modern minds could incorporate religiosity in a legal setting. How could a world religion inspired by God and making constant reference to God have anything to do with our modern era. The companion assumption is of course that modern Western law never, ever had anything to do with religion. To the contrary, earlier versions of many states’ constitutions make reference to or directly quote the Bible, yet this is not taken into account, so that only Muslims persist in this antiquated thinking. Critical reading of these sources would enable us to understand these interconnected matters.

Nelly Hanna Presentation Summary

Prof. Hanna began with the question of decline in relation to Islamic law, stating that the paradigm of decline has been applied to its development in the Abbasid period in the 9th and 10th centuries, when it was articulated into the several schools of law. The traditional view, which has since been challenged by scholars (though it has been poorly absorbed among the public), was that was that following these two centuries, the door of ijtihad, or independent judgment was closed, and subsequently, Islamic law stopped developing to become an ossified, medieval, unchanging body of laws. As a consequence, society changed but law did not, and this caused problems.

Hanna discussed areas in which recent scholarship is reconsidering this paradigm. On the one hand, this was being done by specialists of Islamic law, such as Wael Hallaq, who questioned the basic premise that Islamic law stopped developing after the 9th and 10th centuries. Hallaq covered the ensuing two or three centuries, however, his work did not go into the later centuries. On the other hand, there was a significant contribution to this debate by historians, whose research was not on the law but on its application; they made extensive use of court records which included the decisions of qadis, based on Islamic law. She cited as an example the work of Professor Engin Akarli. These records, available for the most part as of the 16th century, exist in most cities of the Ottoman Empire, except in parts of North Africa where they have not survived. In Egypt, Anatolia, Greece, Cyprus, and Yugoslavia, they exist, ranging from about the 1520s to the mid-19th century. These records contain information on property, artisans, contracts, family law and other matters, providing material for social, economic, cultural history and other areas, including the history of jurisprudence.

Hanna mentioned that they could also be useful for writing legal history, and specifically, on the way that the law was applied and on the development of the legal system. An appointed Islamic jurist had to apply the law within the framework of his adopted school of law, but in practice, there is a lot of work to be done in order to see if this was strictly done.

Historians have now entered the field of legal history. The questions that they ask differ from legal scholars’ questions, and they use a different methodology. For historians, an important question concerned the relationship between the law and its implementation. Although these two sets of scholars are interested in the same subject, communication between them is not always easy, since historians may not keep up with the scholarly literature written by scholars of jurisprudence or even at times understand the technicalities of this literature. A legal scholar, on the other hand, does not usually dwell on issues related to the historical context in which the jurist operated, his or her social background and origins, but a historian does ask such questions. A reciprocity between these types of inquiry would help to advance the field.

The court records, which have been a basic source for historians in many parts of the Ottoman Empire, date roughly from the 16th to the 19th centuries. Thus, as far as the implementation of the law by the qadi is concerned, there is a lot of material to work on. However, the same is not true of the scholarly writings of this same period. In fact, many of the works written during those centuries, have remained ignored as sources even though the volume of writings is enormous. This means that historians cannot make a correspondence between the work of jurists and the decisions of qadis to see if they mutually influenced each other. Hallaq’s work unfortunately stopped before the 16th century. Many have assumed that these works of jurisprudence were merely repeating what went before, based on the twin notions of taqlid (imitation) and decline. Before accepting such a conclusion, they need to be compared with the earlier, classical works.

Thus, there is still a lot of work that needs to be done to fully understand the directions in which the law and its application developed.

Andrew Newman Presentation Summary

Among the several ongoing conferences on empires, this is the more interesting forum because it takes on empires but also seeks to engage public perceptions about them and wider Muslim society. Newman drew attention to the abstract and esoteric nature of the law as well as its objective aspect. Perhaps the study of the Islamic law in western languages has played a role in the legacy of the decline paradigm. Newman addressed the decline of Twelver Shi’ism and its decline in legal development in particular.

Building on Prof. Hanna’s discussion of the early history of Islamic law and traditional views in which it was mired, there are many books from the 1970s written trying to figure out what Muslims were doing, with publications by Gibb, Schacht, Colson, and Hodgson himself working as an earlier generation of scholars. Wael Hallaq, despite the value of his work, missed the larger opportunity to challenge the role that was implicitly and explicitly ascribed to the closing of the door of ijtihad, a role at the heart of this forum. He did not address the issue of the larger decline. Newman argued that the law as a manifestation of culture was understood to be a marker that proved the broader, inherent lack of creativity within Islam in this period after the purported closing, to the point that this cultural marker set up the disaster of 1258 CE that ended the Golden Age.

Newman cited his work in Islamic medicine that witnesses a similar paradigm of a decline in creativity. Western scholars viewed Islamic medicine as consisting of dichotomous traditions—a pre-Islamic Hellenic tradition, and a prophetic tradition (tibb al-nabawi). These are said to have entered Islamic consciousness through the translation movement, carried through the twelfth century at the latest, and due to a lack of creativity in Islamic civilization, Islamic medicine is supposed to have been less and less interest in and effort to supplement Hellenic medicine. To struggle with the inherent lack of creativity. According to this notion, the prophetic medical tradition then took place of the fallen Hellenic tradition, which was viewed by western scholars as quackery. Thus the cultural dimensions of the socio-economic and political decline became evidence of the cultural decline, and vice versa.

As for the paradigm’s application to the Safavid Empire, there is a pre-1979 and a post-1979 understanding of “what went wrong” with the Safavids. Western Safavid studies have flourished since 1979, and an intimidating array of primary and secondary sources have become available, such as Persian court records, correspondence, waqf documents, material by contemporary western travelers written in French, English, German, and Polish. Safavid religious figures, those composing popular works wrote in Persian or Turkish, but most Shi’i scholars, whether resident in Iran or abroad, wrote in Arabic. Persian language alone is not enough to read this material. Then there is non-textual material, like monuments, coins, pottery, carpets added as aesthetic languages.

Efforts to encourage discussion among scholars of Safavid studies remain mostly in the pre-1979 rut. The paradigm of decline from that time still obtains, especially regarding the second Safavid century. The seventeenth century was the vital period, with Abbas as strong ruler in the role of the Great Man theory. The century is cast as ending in religious fanaticism, political and economic chaos. Scholars in sub-disciplines tend to take as given that the decline was inevitable already in 1722. . This periodization demarcates cultural matters as well, in alignment with the tendency cited earlier. Dating Safavid decline to this period is highly problematic, since most Persian language sources originated after the Safavid period. Contemporary accounts are not there. Western-language writings relied on western travelers of the period, but critical analysis of these sources is absent. Authors contradict each other and present as historical fact things gathered long after the events they portray. Political, religious, and commercial considerations render their material less than credible.

The recent focus on economic trends and data such as the movement of specie, silk, and other goods is encouraging but one-sided. From the 1970s, such studies tend to follow Wallerstein’s world-systems model, accepting the end of the Safavid Empire as a result of internal and external forces at face value. Legal scholars figure prominently in the 1258 version of the decline paradigm. Majlisi, the legal scholar, has his own paradigm, and without definite proof, Majlisi was vilified as the fanatical leader responsible for the persecution of Zoroastrians, and later writers bought into this. So Majlisi has his paradigm, and the Safavids have their own paradigm. From their inception in 1960s, Shi’i studies showed interest in the compatibility of Sufism and Shi’ism, based on research in some key Arabic texts. These studies included religious texts and brought in lots of other types of texts. Religious texts written over the last couple of centuries competed for attention with other, more accessible material.

The modernists raised issues about clerical authority, and scholars read Persian sources. The assumption of modernization theory had dictated, before 1979, that religion would go away. After the Iranian Revolution of 1979, a paradigm shift seemed in order, but none was forthcoming. The idea gained currency that genuine Shi’ism was really closest to Sufism, putting Majlisi at the head of this hierarchy that placed itself at the head of Safavid society. According to this line of thinking, real Shi’ism is characterized by antipathy to political power. Extrapolated to the present, i.e. to Khomeini, others argued again that Shi’ism was otherworldly, and therefore the establishment of the faith in Safavid Iran could be dated to the rise of the doctors of the law, whose self-promotion was defined by the Imams. Jurists and theologians took the place of the Imam, personalized the Imamate as an ideology. This forum is no time to argue the merits of the case. More important, stated Newman, is the question of the implications of this line of thinking. When religion gets out of the box, in other words, disasters like 1722 happen. We seem to be writing the past and the present at the same time.

Ottomanists have long abandoned the idea of decline, but scholars of the Safavids are still rushing headlong into it. In Hodgson’s third volume, the Safavids are addressed first. Majlisi made his customary appearance, as a dogmatic figure, impugning Safavid religious scholars as having taken over in the absence of any strong hand. It isn’t up to historians to adjudicate disputes among disciplines, but Newman declared that they could do better.

Calling to mind the argument about the dominant paradigm, Newman stated that debates over law and jurisprudence should really have little influence historically. The essentialist argument before 1979 got new life after 1979. There was popular and academic dissatisfaction with the religious flavor of the revolution. Then as now, religion was implicated in the decline. Peter Gran said that deconstructing is easy, but reconstructing is much harder. Newman finds that biography may be the key to recreating and contextualizing the life of one person, in order to look at influences, at the preexisting legacy, the challenges the person faced, and the world in which they lived. A sound biography would help to contextualize the Shi’i scholar Majlisi, for example. Newman related that he has tried to make a negative argument in this manner, to refute contentions surrounding Majlisi.

Newman called for academics to get away from any essentialist readings. Although the law was codified by the literate few, others had something to say about it, and people from below did occasionally topple some officials. Newman seeks a methodology for recovering that popular view, as in subaltern studies, which are mostly applied to the modern period, not at all to religious material. Study of religious material to look for dissent and disagreement may offer an indirect way to find it, as E. P. Thompson found that you can use legal and religious material as a means to recover voices of non-literates and non-elites. Such an approach might be applicable to working on Sufis, uncovering evidence of conflict and disagreement. Interesting Ideas from outside our field, imaginative uses of existing sources, stepping back to admit pre-conditioned ideas. Newman advocated identifying the conventional and heading 180 degrees in the opposite direction. The truth is out there. And it is really much more interesting than the worn-out paradigm.


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