This article examines the historical development and social and intellectual functioning of Islamic law in the twelfth through fifteenth centuries. In particular, it considers the progressive stabilization and institutionalization of the four classical Sunni madhhabs (schools of law) and the corresponding developments in Imami Shi‘ism; developments in legal theory (usul al-fiqh); and the practical administration of the law. It also discusses the various forms of ijtihad and taqlid that could generate new legal rulings, along with the textual forms and real-world interactions within which legal judgments were sought and expressed. Finally, it looks at the fatwa, which consists of a legal opinion issued in response to an inquiry (istifta’).
John V. Orth
This chapter focuses on Sir William Blackstone (1723–1780), the author of the most important book in the history of the common law. The four-volume Commentaries on the Laws of England (1765–1769) and the series of lectures Blackstone delivered at Oxford from 1753, changed the way lawyers thought about the law. Blackstone’s Commentaries were read by more people, non-lawyers as well as lawyers, than any other English law book. Their influence is difficult to overstate, and extends into the twenty-first century. Almost as momentous was Blackstone’s influence on legal education. While gradual, the transfer of legal education from the law office and the courts to the university, which Blackstone pioneered, had an enormous impact on legal development, as law professors contributed to the formation of generations of lawyers and themselves came to play a significant role in legal development.
Tahirih V. Lee
This chapter begins with a brief overview of the foundations of the field of Chinese legal history. It then delves into questions of methodology and approach. Three such questions face the field now and in the near future. First, historians, law scholars, and anthropologists with their different training and bases of knowledge, ask different questions about law. Second, comparative law inextricably intertwines with Chinese legal history, and its use and abuse needs to be examined and its lessons be better learned. Third, given the sophistication for centuries of Chinese rulers’ efforts to propagate official lines about the law, it has been exceedingly difficult for scholars to pierce through it to see what was actually happening on the ground. Improvement in this will help us understand how, and the extent to which, substantive law reached the population during different periods of China’s history.
This chapter considers what the future holds for the field of Indian legal history, which has burgeoned since the late 1990s. It explores opportunities for methodological innovation through digital history, oral history, and collaboration between scholars. These approaches promise to counterbalance certain patterns that have developed to date, particularly the heavy reliance on written English-language records from the colonial period. It suggests that the future of Indian legal history looks bright, particularly if scholars are willing to experiment and re-tool. By working together, turning outward, and acquiring the skills to engage with new media and techniques, scholars can continue to re-imagine and re-invigorate the field of Indian legal history.
This article examines Ottoman law within the context of Islamic law. It first considers the fetva (Arabic, fatwa) collections as important sources shedding light on Ottoman law and their relation to kadi rulings, along with the methodological problems besetting the kadi court records as a historical source. It frames research on Ottoman law by drawing upon Max Weber, analyzing the extent to which the formal shari‘a was actually practiced in the Ottoman Empire. It considers recent research on the regulation of sexual relations and the punishment of crime. Finally, it explores the status and role of the kadi in the adjudication and professionalization of the Ottoman judiciary.
This article examines legislation as an instrument of Islamic law in the history of the Islamic world and in Islamic legal theory, with particular emphasis on the scholarly analysis of whether Islamic law can be legislated at all, and if so, how. It first reviews the scholarship on legislation in the Islamic world before the mid-nineteenth-century Ottoman reforms (tanzimat)—the “premodern” centuries. It then considers legislation after the mid-nineteenth century—the “modern” centuries—by looking at scholars’ preoccupations with the apparent novelty of modern legislation and its debatable Islamicity. It also discusses empirical dilemmas underlying these preoccupations and competing scholarly approaches to theorizing and studying the proper relationship between legislation and Islam. The article concludes by suggesting four paths forward in the analysis of legislation as an instrument of Islamic law.
This article traces the origins of mazalim, a term that refers to a specific institution, also called wilayat al-mazalim or al-nazar fi al-mazalim, which was expected to adjudicate complaints regarding “injustices.” The mazalim are usually regarded as the expression of the sovereign’s direct justice in Medieval Islam. The concept of the mazalim institution does not fall into any modern legal category, and has no equivalent in Occidental languages. This article begins by discussing problems of terminology and definition associated with mazalim, with particular emphasis on whether it is a judicial court and the extent to which the mazalim, when regarded as a judicial institution, can be compared to an appellate court. It then examines mazalim in theory and practice, along with its nature according to modern classifications. Finally, it considers the symbolic and political uses of mazalim and how it is related to ordinary justice dispensed by the qadis.
This article examines the origins and evolution of Islamic law as well as its influences. In particular, it considers four major issues of Islamic law discussed by the shari‘a experts, namely: the general conception of Islamic law; the role of pre-Islamic tribal law; Islamic substantive law and the question of interaction with non-Islamic legal systems; and the early development of Islamic legal institutions such as judgeship, market inspection, law schools, and colleges. It also discusses the relationship between state and law and the factors that contributed to the institutionalization of the Islamic judiciary. Finally, it traces the origins and evolution of Islamic law according to the approaches of the traditionalists and skeptics, along with the most important objections to each approach.
The chapter analyses the historical significance of the distinction between public and private law. Despite the precise and remote Roman origins, it was only at the beginning of the nineteenth century that such distinction became a crucial dichotomy in continental Europe, thanks to Kant’s and Savigny’s theoretical premises. Until then, public law had been following very different paths. In France, in the sixteenth century, public law ran parallel to the evolution of the national state; in Germany, the parallelism was with the Holy Roman Empire, despite its progressive decline. In Italy, the term ‘public law’ emerged only at the end of the eighteenth century, almost at the same time of the rift caused by the French Revolution. In England, the development of individual rights between the sixteenth and seventeenth centuries gave way to modern constitutionalism, but at the same time made common law intrinsically immune to the private–public law dichotomy.
Ruth A. Miller
This article examines the historical role that Islamic law has played in the Turkish Republic. It first considers multifaceted trends in scholarship on Islamic law in Republican Turkey before turning to the problem, if any, that Islamic law poses in the country with respect to the constitution and constitutional law. It then traces the formality of Islamic law in Turkey to the legacy of the Ottoman Empire and the persistent rejection or repudiation of Islamic law by the Turkish parliament and judiciary as part of the country’s secularism and republicanism. It also analyzes distinctive Republican interpretations of Islamic law and concludes by highlighting the dynamic presence of ?eriat in Turkey’s political and legal landscape.