I hope everything is well with you.
I would like, if you have the time and feel for writing a little about it, to hear your opinion on the debate between the orientalists and the anti-orientalists in regards to Islamic law and its development. I’m particular thinking about Halaq’s reactions to Schacht, and the various responses to his criticism of Schacht.
Do you feel that it is a fair criticism and how do you think, if at all, that it mirrors the discourse of modern academic political discussions?
All the best
A very good and very technical question – I’m going to spend some time talking about Schacht and Hallaq and the methodological context for their work – if you want to just read my criticisms of them, skip to the end! Also, since I’m guessing a lot of my readers are unfamiliar with either author, this entry is going to be longer and have more citations than usual, because clearly nothing saying ‘three day weekend’ like lengthy quotes about the conceptual methodology behind the study of another culture! Right? Right.
Schacht and the Western approach to Islamic Law
Joseph Schacht was a German-born English legal historian who worked at Columbia in the first half of the 20th century. He was a talented Arabist, and published two books on the development of Islamic law that, along with the work on the biography of the Prophet (peace be upon him) composed by Ignac Goldziher a half-century early, became the basic texts by which many Western scholars were introduced to the study of early Islamic history.
In his work, he argued for the essential centrality of the study of Islamic law (fiqh) for understanding the development of Muslim society, but he also attempted to study fiqh in a manner equivalent to the study of common law in Europe and America, a methodology that essentially limited the full dynamic of Islamic law. In the preface to his Origins of Muhammadan Jurisprudence, he says:
“The sacred law of Islam is an all-embracing body of religious duties rather than a legal system of power; it comprises on an equal footing ordinances regarding cult and ritual, as well as poitical and (in the narrow sense) legal rules. In choosing the examples I shall concentrate as much as possible on the (proper speaking) legal sphere. This course not only recommends itself for practical reasons; it is also historically legitimate. For the legal subject-matter in early Islam did not primarily derive from the Koran or from other purely Islamic sources; law lay to a great extent outside the sphere of religion, was only incompletely assimilated to the body of religious duties, and retained part of its own distinctive quality. No clear distinction, however, can be made, and whenever I use the term Muhammad law, it is meant to comprise all those subjects which come within the sacred law of Islam.”[1, emphasis mine]
As can be seen from the citation above, one of the underlying claims of Schacht’s work was that the, as he puts it, “(properly speaking) legal sphere,” that is, family law, inheritance law, trade law and criminal law that developed in early Islam was not fundamentally derived from the Qur’an, but from outside sources, and he draws heavily on Roman common law as the potential source.
There are obviously several problems with this claim – there are aspects of family law, inheritance law and criminal law in the Qur’an, and although these passages lack any jurisprudential system to explain how these passages should be implemented, the basic tenants are there. Moreover, it’s incredibly difficult to prove borrowing in legal systems, because, as we see today in the debate surrounding the use of Sharia in American court rooms, aspects of a foreign law system can be employed without altering the essential character of the native legal system. That Muslim courts employed aspects of Roman common law does not prove that they didn’t have their own native law system – the cases we have may simply be cases where the Roman common law was particularly relevant.
Nevertheless, Schacht’s theses became integral to the study of Islamic law in the West. Much of his work was incorporated into the recent work of Norman Calder, who’s work on Islamic law is used as a text book for the study of Islamic law in several universities in the US and the UK. Calder’s work presumed the accuracy of Schacht’s thesis; as he puts it:
“In the study of early Islam, scholarship, unsurprisingly, has been concerned to break the hermeneutical nexus, and to separate history from theological construct. In the remarkable works of Ignaz Goldziher (1889-90), Joseph Schacht (1950) and John Wansborough (1970), first the hadith and then the Qur’an have been (or so it is argued) separated from the lifetime of the Prophet. Not the product of one lifetime and the cause or impetus of Islam, they emerge, in the works of these scholars, as the end-product of something like 200 years (or more) of community history and therefore, in some sense, the result of Islam, or at least part of the process of community formation. Scholarship, in effect, has situated revelation in history in a manner quite alien to that conceieved of within the theological construct, and has brought forward the community (rather than, or possibly as well as, the Prophet) as the creative agent.
Joseph Schacht, following the methodological and historical presumptions of Goldziher, in his study of early Muslim jurisprudence (1950), broke the historical link between hadith and fiqh. He argued, against the implications of the Muslim hermeneutical tradition, that the structures of fiqh were initially independent of (and so, in time, provoked) the major corpus of hadith literature. The real origins of fiqh, for him, lay in the ‘living traditions’ of the local schools, i.e. in the juristic adaptation of real social norms, which was only graduate transformed into the structures of the classical hermeneutical texts.” [2, emphasis mine]
As I think is apparent from this citation, Calder, in many ways, stands at the center of a late-twentieth century Western tradition that saw alienating itself from Muslim tradition was essentially a positive, and here Calder speaks warmly of the earlier scholars’ capacity for ‘breaking the hermeneutical tradition’ of Islam. At the same time, he marks a continuation of Schacht’s work in that he also continues to assume that the study of Islamic law can be separated from the study of Islam as a religion – indeed, he goes so far as to suggest that this is necessary, in order to rescue the ‘real’ history of early Islam from religious tradition.
Hallaq and the post-Orientalist response
Despite the centrality of Schacht’s work for the study of Islamic law in the West, there have been a few responses to his work. The first was by Muhammad Mustafa al-A’zami, who, in the late twentieth century reviewed and revised much of the standard Islamicist history of the hadith, attempting to defend the Muslim tradition of the oral transmission of the hadith across the first century of Islam and its accurate transmission into written texts, eventually resulting in the creation of the early hadith collections. However, much of al-A’zami’s work has been purely apologetic, and therefore his academic work tended to be largely ignored or rejected by the larger community of Islamicists as polemic.
A more resonating critique of Schacht has been produced by Wael B. Hallaq, a Palestinian-born scholar who works predominately in North America, and writes extensively on both the history of Islamic law and the history of the study of Islam, with reference to colonialism. Hallaq is, undeniably, a post-Orientalist historian, meaning he accepts the thesis of Edward Said’s Orientalism that much of the study of Islam in the West has been corrupted by the 19th and 20th century imperialist conceptions of Muslims and the Middle East.
He makes the point quite clearly in his Origins and Evolution of Islamic Law, in which, although he doesn’t mention Schacht by name, he addresses the general schools of Western thought on Islamic law as being Orientalist:
“Far more complex than plotting the end-point of the formative period [of classical Islamic law] is the determination of its beginning. It is no exaggeration to say that of all the major questions in Islamic legal history, the issues involved in studying these beginnings have proved the most challenging. The problems associated with ‘beginnings’ have for long stemmed more from unproven assumptions than from any real historical evidence. Hence, the classic Orientalist creed that the Arabia of the Prophet was a culturally impoverished region, and that when the Arabs built their sophisticated cities, empires and legal systems, they could not have drawn on their own vacuous cultural resources. Instead, it is maintained, they freely absorbed the cultural elements of the societies they eventually conquered, including (but especially) the Byzantino-Roman and Sasanid civilizations. In this account, Syria and Iraq become the loci of legal traditions.” [3, emphasis mine]
Hallaq has even gone farther in his rejection of the existing scholarly tradition of the study of Islamic law; for example, in an article he wrote for the UCLA journal of Islamic law, in which he attempted to link the study of Islamic law directly to Western imperialism:
“Islamic law has long been recognized by Orientalism as a central and strategic field of enquiry – one so vital that it lay at the heart of the European colonialist enterprise. Unlike theology, mysticism and Arabic philosophy, it was considered at once both a theoretical and a practical field, although its practicality was necessarily seen – at least for discursive purposes – as highly circumscribed. Whereas the first three fields had no immediate or direct pragmatic relevance, Islamic law had governed the lives of Muslim societies for over a millennium in ways as numerous and as extensive as one would care to attribute to what defines a society. Without a full, or even adequate, understanding of theology, mysticism or Arabic philosophy, the colonialist enterprise could have still been carried on, but without intimate familiarity with the law of Islam, this enterprise, or at least its ultimate success, might have been called into question. When Joseph Schacht, in one of the most famous statements opening his influential An Introduction to Islamic Law [hereinafter An Introduction], characterized Islamic law as the ‘most typical manifestation of the Islamic way of life, the core and kernel of Islam itself,’ he was making a statement not so much about what Muslims themselves thought, as about what the Orientalist doctrine had for long been.” 
Hallaq’s claim that the study of Islamic law has rested unnecessarily excessively on the world outside of Islam, rather than on Arabian history, has been met with mixed response. In some cases, the rejection of his claims has been fairly obviously personal – oddly enough, scholars generally don’t like it when you tell them that a century’s worth of research has been based on prejudice rather than evidence – but some scholars have also pointed to the methodological weaknesses of Hallaq’s argument, most importantly the limited sources from the Arabia of the 6th and 7th centuries, and the difficulty in recreating any kind of picture of what the “Arabia of the Prophet” did look like.
My Opinions on the Subject
As will probably surprise no one, I fall closer to Hallaq on the study of Islamic law than Schacht – I agree with him that much of the basis for Schacht’s work was unproven, and that he understanding of the character of Islamic culture and society shaped his reading of the evidence, and not the other way around.
However, as primarily a religious and intellectual historian, my bigger problem with Schacht is the starting point of his analysis, and his attempt to separate religious law from ‘proper’ law. In the 6th and 7th century, there were already at least six pre-existing systems of religious law that I can think of (Jewish, Zoroastrian, Manichean, and three separate Christian traditions – Melkite, Monophysite and Nestorian, all of which produced their own canon law). All of these legal systems integrated religious and ‘proper’ law, to varying degrees, so if the evidence of Islamic law didn’t loan itself to a methodology already, there were, I would argue, more obviously related systems to reach out to for methodological standards without going as far as Roman common law.
Unfortunately, Hallaq doesn’t entirely escape this criticism either. Indeed, in the UCLA article, I would say Hallaq ends up hoist with his own petard – he accuses the rest of the field of Islamic law of depending too heavily on outside sources, particularly Christian sources, but in his examples, he can only point to cases where the other scholars have cited Byzantine sources. I’ve read all of the things he cites, and I can say with a fair level of certainty that neither he nor the works he’s criticizing ever make use of Syriac, Aramaic, or Christian Arabic works. For me, assuming that the traditions in Syria and Iraq are basically Byzantine and Persian, representative, is as problematic as assuming that Arabia was a cultural vacuum.
As for the relevance of all of this to modern politics, I think both Schacht’s and Hallaq’s work are equally problematic. Indeed, it’s possible to read Hallaq’s writing as arguing that Sharia as a concept was completely invented by Orientalists, which I think is both a.) indefensible based on the existing evidence and b.) deeply insulting to Muslims around the world. However, much of Schacht-school perspective on Islamic law was integrated into the writing of the 20th-century Middle Eastern nation’s constitutions, so from that perspective, Hallaq is totally correct – the Western conception of Islamic law has been reverse-engineered into the Middle Eastern conception.
I think the bigger question that needs to be addressed now is – what do we do about it? It might be possible to eliminate both Schacht’s and Hallaq’s theses from the existing narrative of the study of Islamic law, but it would basically decimate the field, at a time in which many Muslim and Middle Eastern nations are again attempting to define their national identity. Unfortunately that one I don’t have an answer to, but I think the starting place has to be re-examining both the source material and the secondary literature with a cautious eye, a process that has begun, but which is nowhere close to concluded.
 Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford, 1950), preface.
 Norman Calder, Studies in Early Islamic Jurisprudence (Oxford, 1993), p. vii.
 Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge, 2005), pp. 7-8.
 Hallaq, “The Quest for Origins or Doctrine? Islamic Legal Studies as Colonialist Discourse”, UCLA Journal of Islamic and Near Eastern Law 2002/3, pp. 1-2.