Syed Adnan Hussain
This article examines the historical origins, sources, and subject-matter jurisdiction of Anglo–Muhammadan law, along with its influence on the trajectories of Islamic law. After providing a short history of Anglo–Muhammadan law, the article discusses its subject matter. In particular, it considers the contributions of Syed Ameer Ali, especially in the area of trust law, or awqaf. It proceeds by looking at various sources of Anglo–Muhammadan law, which include textbooks and English translations of primary texts, case law, and legislation and custom. To give a sense of how Anglo–Muhammadan law operated in case law, the 1922 case of Narantakh v. Parakkal is analyzed. The article concludes with an overview of changes in Anglo–Muhammadan law in the immediate period after independence and partition of India.
Mariam Sheibani, Amir Toft, and Ahmed El Shamsy
This article examines whether the Qur’an served as a source for the early jurists during the classical period; whether Hadith reports contain authentic information regarding Muhammad’s sayings and actions (and if they do not, when and how they became attributed to him); whether and how the regional legal traditions were transformed into legal schools centered around particular individuals; and how the nature of legal reasoning changed within this period. The article first revisits the debates regarding the role of the Qur’an and Hadith, respectively, in the formulation of Islamic law. It then reviews scholarship on the phases of Islamic law’s development, beginning with the emergence of geographically defined legal traditions and culminating in the formation of the legal schools and their distinctive theoretical principles and substantive doctrines. It concludes by suggesting directions for future research.
Mark E. Brandon
This chapter examines constitutionalism in the United States, with particular emphasis on its origins and the problems of constitutional failure. It begins with an overview of the origins of constitutionalism, from the ancient period to the Middle Ages and through the modern times. It then describes the characteristics of constitutionalism in the United States, focusing on the debates over the locus of the Constitution’s authority, the legitimacy of judicial review, and the phenomenon of constitutional change. It also discusses critical theories that have set themselves against aspects of U.S. constitutional norms or practices, if not against constitutionalism itself. Two types of critical scholarship are considered: the first radically questions whether the very direction and constraint that constitutionalism demands or presupposes are possible, and the second includes theories that view the Constitution as an instrument for establishing or preserving certain hierarchies, whether of class, race, or sex (or all three).
Emilios Christodoulidis and Johan van der Walt
This chapter traces the tradition of critical theory in Europe in the way it has informed and framed legal thought. A key, and distinctive, element of this legal tradition is that it characteristically connects to the state as constitutive reference; in other words it understands the institution of law as that which organizes and mediates the relation of the state to civil society. The other constitutive reference is political economy, a reference that typically grounds this tradition of thinking about the law in the materiality of the practices of social production and reproduction. It is in these connections, of the institution of law to the domains of the state and of the political economy, that critical legal theory locates the function of law, and the emancipatory potentially it affords on the one hand, and the obstacles to emancipation it imposes, on the other.
Rula Jurdi Abisaab
This article examines the relationship between the ‘urfi (monarchical/sultanic) and the shari‘a courts in the administration of justice in Safavid Iran. In particular, it considers the notion that there was a split between a sacred and a secular basis for justice in Safavid Iran. To prove that this is not the case, the article looks at the roles of the Shah, the sadr, the qazis, the shaykh al-Islam, and the divan-begi in administering justice during the period. It shows that legal roles and processes in the Safavid justice system unfolded within a religious framework, reflecting the interface between ideal stipulations and practical ends, and between public shari‘a -derived law and private monarchical law. This provides evidence that shari‘a and ‘urfi courts were interdependent and provided overlays of jurisdiction in Safavid Iran.
This article examines the place of law in the falsafa (philosophy) tradition. Political philosophy was largely a derivative topic for the philosophers of the Islamic world. One indication of this is that the falsafa tradition did not produce a coherent philosophy of law that would concern itself with the meaning, essence, source, and forms of “law”: as such. This article looks at several philosophers in the Islamic tradition who are associated with political philosophy, including Abu Nasr al-Farabi and Ibn Sina, with particular emphasis on their view that the highest form of human existence consists in intellectual and spiritual perfection. It also considers the views of Ibn Bajja, Ibn Tufayl, and Ibn Rushd.
This chapter examines how feminist legal history is conceived of as a unified field of study. The first part surveys the current state of the field, and by setting aside national borders and disciplinary origins, pays attention to the broader themes, topics, and issues feminist legal history has chosen to privilege. The second part, building upon this presentation of the field, by drawing attention, not only to the thematics of feminist legal history, but also to the process of its production, offers a critical understanding of what exists; in particular, the implications of its interdisciplinary nature. Finally, in pursuing a critical account of the work produced, possibilities for otherwise thinking of and ‘doing’ feminist legal history are considered.
Kristen Stilt and M. Safa Saraçoğlu
This chapter examines the scholarship that has dealt with the concept of hisba and the related position of muhtasib. The discussion includes a substantial section on the historical development of the concept of hisba and the position of muhtasib and a shorter section on their contemporary uses and practices. The historical section includes attention to the definitions and origins of the terms and to the position of the muhtasib, including the official’s jurisdiction, sources of law, biographies, and practice in particular historical contexts. The contemporary section focuses on the countries that have received the most scholarly attention regarding the practice of hisba and muhtasib today, notably Saudi Arabia and Egypt.
Historical jurisprudence first arose in the German romantic era in the early nineteenth century and lasted until it was gradually superseded by the sociological turn in legal thought between the 1880s and the First World War. There were some notable publications even after 1914, but they were an aftermath, mostly collecting or reprinting earlier work. By 1920, historical jurisprudence was legal history. This chapter first looks at historical jurisprudence in its various iterations; it was not only a German, but an international phenomenon. It then describes the work done by its adherents, in particular their purposes, objects, and approaches. In addition, a proper understanding of historical jurisprudence requires recognition of its political implications. The conclusion reflects upon the legitimacy of instrumentalizing legal history for current agendas.
This chapter provides a partial sketch of recent Islamic legal historiography in the West, with modest suggestions for future research. It suggests that historical research on Islamic law is a burgeoning field facing many of the political and normative challenges of scholarship in Islamic studies more generally. It would behove this field to confront these challenges more directly both by acknowledging them and by recognizing how they influence the contemporary writing of historiography. In turn, it is important to resist allowing contemporary politics to dictate the borders and content of historical research on Islamic law. With a wide array of sources and questions that have not yet been investigated thoroughly, historical research on Islamic law is a field that will continue to grow and to transform in unpredictable ways.
M. Reza Pirbhai
Whereas political and cultural histories of the Mughal Sultanate (1526–1858) abound, the study of Islamic law under the state’s auspices is less clearly drawn. This article considers the reasons behind the dearth by outlining the process by which major archival collections came into being and critically evaluating the secondary works produced over the last century and half. It argues that two factors are primarily responsible: 1) the qualitative and quantitative paucity of extant documentation as a consequence of no Mughal state archives and the fact that contemporary collections originated with British colonialism; 2) the approach too often taken by historians of South Asia. Early secondary works make little to no distinction between treatises reflexive of legal theory and practice, while many late works compensate by considering theory entirely divorced from Mughal practice. For the study of Islamic law under the Mughals to progress, practical and theoretical obstacles must be overcome.
This article discusses the historical development of Imami usul al-fiqh and the major themes that make Shi‘i usul a distinctive system of jurisprudence within the broader history of usul al-fiqh. After reviewing the history of Shi‘i usul and its early emergence from the time of al-Shaykh al-Tusi (d.460/1067) to the present, the article considers the reaction to the dominance of the model of usul al-fiqh which was initiated by al-‘Allama al-Hilli and summarised by Hasan b. Zayn al-Din. In particular, it looks at Muhammad Amin al-Astarabadi’s work called al-Fawa’id al-Madaniyya. It also examines the influence of Akhbarism on the development of Imami Shi’i legal theory and how its impetus has transformed into movements within Usulism. Finally, it explores the role played by Al-Shaykh Murtada al-Ansari as the founder of the contemporary school of Imami jurisprudence.
This chapter discusses the thought and works of Jeremy Bentham (1748–1832). Since the late 1960s Bentham scholarship has been driven by the appearance of volumes in the new authoritative edition of The Collected Works of Jeremy Bentham, prepared by the Bentham Project under the supervision of University College London’s Bentham Committee. The thirty-third volume in the edition, entitled Preparatory Principles, was published in December 2016. Bentham was the pre-eminent representative of the Enlightenment. He was the founder of the doctrine of classical utilitarianism, which remains one of the main strands in liberal moral philosophy; he set the parameters for the modern discipline of jurisprudence by distinguishing law as it is from law as it ought to be; his commentary on the French Declaration of Rights of 1789 constitutes a devastating attack on the philosophy of natural rights, and hence on that of human rights.
This chapter argues that Jewish law’s distinctive nature is constructed from the ancient to the modern period in the midst of a complex, competing world of plural legalism. It examines how Jewish law appropriated, resisted, and oddly conserved, sometimes while claiming as its own, other forms of legalism—such as Roman or modern law—to create the impression of being a legal other. It also considers two contemporary trends in Jewish law: the stalled—perhaps even failed—attempt to deploy Jewish law as a foundational legal system for the modern Israeli state and, secondly, the project of mining traditional religious Jewish law for its non-parochial, broadly conceptual jurisprudential principles.
This chapter considers the era of ‘legal formalism’, which is usually taken to refer to the period in American legal thought between the 1860s and the 1920s, when a new generation of post-bellum treatise-writers and legal academics sought to discover the underlying principles of common law cases, and put them into a rational order. This period is sometimes also referred to as the era of ‘classical legal thought’. In contemporary jurisprudence, the term ‘formalism’ refers to a specific approach to adjudication and constitutional interpretation, which has its defenders as well as its critics. However, in the era under study, it was neither a term which jurists used to describe themselves, nor one which their critics used to describe them.
This chapter considers the implications of the ‘material turn’ in the humanities and social sciences for the study and writing of legal history. It suggests three paths forward for how legal historians might incorporate these insights into their research. These approaches are labelled as ‘categorizing’, ‘materializing’, and ‘filing’. ‘Categorizing’ refers to the possibility of redrawing ontological categories which could open up new ways of understanding law in the past. ‘Materializing’ looks at an analytical approach in which law is understood as a phenomenon composed of the material things it draws into itself. ‘Filing’ looks at the materiality of legal systems, both through their processes of record creation and their performative praxis, focusing attention on the co-constitutive nature of law and its material-bureaucratic apparatus.
Markus D. Dubber
This chapter outlines an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of ‘interdisciplinary’ analysis (economical, philosophical, sociological, literary, etc.) and ‘doctrinal’ analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between ‘modern’ and ‘traditional’ legal scholarship, and that between ‘common law’ and ‘civil law’ scholarship. According to this view of legal history, it is a mode of jurisprudence rather than a subspeciality of law or a form of applied history.
The contribution is about the development of the concept of law, and the theory of legal sources and methods in the early modern period. The chapter builds on continental legal literature, with emphasis on the Holy Roman Empire of the German nation. The author distinguishes two developmental phases: 1. the period from 1500 to 1650, which covers the era of humanism, and 2. the era of the Enlightenment from 1650 to 1800. From the first period to the second, the concept of law changes. Until c.1650, in order to be in force law had to be rightful and acceptable. From the mid-seventeenth century onwards, positive law depended on the will of the lawgiver only, while natural law evolved into a complete embodiment of rational law. The chapter demonstrates the influence, which the change in the concept of law had on specific parts of legal methodology.
Forty years after the 1975–1985 decade of socialism’s macro-political crisis, and of Western Marxism’s metastasizing theoretical crisis and eventual dispersal, we are in the grip of a new fast-forming historical conjuncture. Both globally, and within its historic Anglophone heartlands, capital is at war with itself, and it is liberalism’s turn to feel the cold pinch of disintegration. This chapter asks: What opportunities exist for renewing the attempt to create a Marxist legal historiography? What responsibilities attend that effort? It suggests that legal historians need to realize that what makes Marxist legal history useful and attractive is less that it is a particular way of doing legal history that produces specific outcomes than that it is an explicitly historical method.
This chapter considers the historical development of medieval canon law. The term ‘canon law’ refers to the body of law developed by the Catholic Church to govern the body of Christ on earth. In time, canon law came to designate the totality of laws, legislation, judicial processes, and institutions promulgated by the Church and enforced by its officers upon Christians, and sometimes non-Christians. This chapter covers the successes of canonists in consolidating their text base and laying the ground for an increasing professionalization of their discipline; the professional competition between canonists and theologians, which emerged in part out of a divide between those who understood the Church as a pastoral institution and those that understood it as a rigorously hierarchical administrative entity; and the emergence of new legal practices.