Late antique and medieval Islamic legal histories: contextual changes and comparative (re)considerations by Lena Salaymeh A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in History in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Ira Lapidus, Co-Chair Professor Beshara Doumani, Co-Chair Professor Wael Hallaq Professor Maria Mavroudi Professor Laurent Mayali Spring 2012 Copyright © 2012, Lena Salaymeh, All Rights Reserved Abstract Late antique and medieval Islamic legal histories: contextual changes and comparative (re)considerations by Lena Salaymeh Doctor of Philosophy in History University of California, Berkeley Professor Ira Lapidus, Co-Chair Professor Beshara Doumani, Co-Chair This dissertation demonstrates the contingent and contextual nuances of Islamic legal history by balancing precise legal case studies with broad-spectrum jurisprudential surveys. This work places Islamic legal history within diverse late antique (seventh to tenth centuries CE) and medieval (tenth to fifteenth centuries CE) contexts through specific comparisons with rabbinic legal traditions. By delineating intricate legal changes involving several generations of jurists, my research demonstrates the flexibility, expansiveness, and contingency of Islamic legal traditions within a meta-narrative about the transformations of law in the “Near East.” I offer a historical understanding of the ambiguous and mutable nature of law and illustrate the complexity of legal pluralism and the struggle for legal-politcal authority that underlies the formation of orthodoxy. This research challenges common reifications of “Islamic law” as an inevitable outcome or a static, monolithic whole. Introduction. This chapter provides a literature review of contemporary Islamic legal historiography and comparative studies of Jewish and Islamic law. I demonstrate that (1) Islamic law is not an independent entity with an identifiable “birth” or unchanging/fundamental characteristics and (2) Islamic and Jewish legal similarities result not from “borrowing,” but from historical instances of dialectical interchange, from shared customary traditions, and from shared contexts. The introduction outlines the dissertation’s objective of introducing critical readings of non-legal sources to Islamic legal historiography in order to reconstruct legally heterodox practices of jurists in the late antique era. Chapter 1: Legal historiography – a case study in international law. This chapter uses a variety of underused historical and legal sources (sīrah, maghāzī, muṣannafāt, masānīd) to reconstruct the treatment of prisoners of war during the Prophetic era (610-632 CE) in Medina and in the decades immediately afterward. I argue that both historical narratives and late antique juristic opinions indicate that it was likely impermissible to execute prisoners of war, a position that differs from medieval juristic rulings that generally permitted the execution of prisoners of war. This chapter proposes that medieval Muslim jurists participated in the writing of Islamic historiography – a process that inherently involved the fusion of pre-Islamic 1 traditions and a modification of the historical evidence. In so doing, these medieval jurists facilitated and created the historical bases for their legal opinions, which should be understood not as simply outcome-determinative, but as a complex process of legal norm articulation. Chapter 2: Legal heterodoxy – a case study in taxation. Building upon the first chapter, this chapter further investigates the overlapping roles of historians and jurists in Islamic late antiquity through a case study on the charity tax. This case study scrutinizes a variety of underexploited historical and legal sources in order to clarify how historiographic “certainty” can be achieved through the critical reading of heterodox (i.e. non-orthodox and legally pluralist) sources. Some late antique and medieval jurists made the charity tax incumbent on minors or others lacking full legal capacity because they conceptualized the category of “Muslim” in ways that were distinct from ritual practices. This chapter argues that Islamic charity was unique in its degree of regulation by comparing Islamic doctrines with their rabbinic counterparts. I use the category of taxation to emphasize the administrative aspects of charity and to expand conceptualization of late antique religious identity from a purely confessional model to a quasi-citizenship model, thereby expounding how legal history enriches social history. Chapter 3: Legal changes – a case study in family law. This chapter presents two chronologies of legal changes in Jewish and Islamic legal history related to wife-initiated divorce using a wide array of legal texts and documentary evidence. Interweaving these two narratives of wife-initiated divorce, I argue for a historicized, contextual understanding of law by demonstrating that the changes in each legal system were part of a regional, socio-political process of juridical professionalization. I demonstrate that the characterization of a particular Gaonic decree related to wife-initiated divorce as an “innovation” caused by Islamic “influence” is historically inaccurate and reflects a broad struggle for legal authority. In both legal systems, divorce – in terms of jurisprudence and practice – transformed from contract dissolution to contractual breach. I argue that these changes were the result of contingent socio-political contexts of empire expansion, professionalization of jurists, and elaboration of urban market structures. Conclusion. The conclusion brings together the theoretical and methodological approaches implemented in each of the dissertation’s three chapters to argue for a specific approach to the study of Islamic legal history. I advocate that overcoming contemporary Islamic legal historiography’s major weakness – the de-contextualization of late antique Islamic legal practices – requires exploring relatively unexploited historical sources and grounding Jewish-Islamic legal comparisons in actual cases. The culmination of these claims is the periodization for Near Eastern legal history that I offer as an alternative to the traditional periodization of Islamic law. By contrasting late antique Jewish and Islamic legal doctrines with medieval Jewish and Islamic legal doctrines, this conclusion reveals that both legal systems formulated a legal “orthodoxy” during roughly the same period. 2 dedication for amjad, whose absence is painfully ever-present and whose ephemeral presence was my supreme lesson in the essence of being i Table of Contents Preface ............................................................................................................................................................................ iv Acknowledgements ........................................................................................................................................................ v Introduction .................................................................................................................................................................... 1 I. Limitations of contemporary Islamic legal historiography ....................................................................... 3 Misconstruing “Islam” 5 Misjudging law 10 Misunderstanding historical change 12 Mistaking methodologies as truth-generating 13 II. Alternatives to contemporary Islamic legal historiography ................................................................... 17 Re-conceptualizing Islamic society 17 Redefining “law” 18 Re-reading the sources: textual criticism, contextualization, and protagonist voices 19 III. Intersections: Jewish and Islamic comparative law .................................................................................. 20 Social context, instead of textual focus 23 Relationships, instead of similarities and differences 24 Legal systems, instead of doctrine 25 IV. Sources in the dissertation case studies ....................................................................................................... 26 Chapter 1: Legal historiography – a case study in international law .................................................................. 29 I. Prisoners of war in Islamic history: the Prophetic period ........................................................................ 30 II. Late antique jurists ........................................................................................................................................... 35 III. Professional Islamic legal discourse .............................................................................................................. 37 Silent authority and precedents of “professional” jurists 38 Qurʾān and precedents in “professional” Islamic legal discourse 40 IV. Prisoners of war in Qurʾān and its exegesis ................................................................................................. 43 V. Slippage: the complexity of historical categorization ............................................................................... 45 VI. Historical exegesis of the Qurʾān? ................................................................................................................. 48 VII. Another possibility ........................................................................................................................................... 50 VIII. Conclusion .......................................................................................................................................................... 51 Chapter 2: Legal heterodoxy – a case study in taxation ........................................................................................ 53 I. Introduction ....................................................................................................................................................... 53 II. What is the charity tax? .................................................................................................................................. 54 The charity tax in the Qurʾān 55 The Prophet’s imposition of a charity tax 58 III. How much is the charity tax? ........................................................................................................................ 59 Late antique Muslim jurists 62 Rabbinic charity taxation 64 IV. Who should receive the charity tax? ............................................................................................................ 65 V. Who should pay the charity tax? .................................................................................................................. 66 Late antique Islamic precedents: muddle on minors and silence on slaves 67 Legal capacity: the majority opinion of professional jurists 68 Legal capacity: the minority opinion of professional jurists 70 Legal ownership: Islamic juristic debates on slaves 72 ii Rabbinic legal practices 73 Islamizing near eastern charity tax? 73 VI. Who does not pay the charity tax? ................................................................................................................ 74 VII. Why is the charity tax significant? ............................................................................................................... 76 VIII. Taxing as identifying: paying to be Muslim ................................................................................................ 77 Chapter 3: Legal changes – a case study in family law .......................................................................................... 79 I. Defining wife-initiated divorce ....................................................................................................................... 81 II. A Jewish chronology of wife-initiated divorce ............................................................................................ 82 Rabbinic (70-620 CE) 82 Gaonic (620-1050 CE) 85 Rishonim (1050-1400 CE) 87 III. An Islamic chronology of wife-initiated divorce ........................................................................................ 90 Legal circles (610-750 CE) 90 Professionalization of legal schools (750-1050 CE) 91 Consolidation (1050-1400 CE) 94 IV. Disenchanting the orthodox narratives ....................................................................................................... 96 Challenging the conventional narrative: reevaluating causal influence 98 Challenging the conventional narrative: giving voice to the Gaonim 101 Which context? 102 V. An interwoven narrative of wife-initiated divorce .................................................................................. 103 Antiquity and late antiquity (up to 850 CE) 104 Medieval era (850-1400 CE) 106 VI. Speculating on the interwoven narrative .................................................................................................. 108 VII. Conclusions ....................................................................................................................................................... 109 Conclusion .................................................................................................................................................................... 112 I. Comparative legal historicism of the “Near East” ................................................................................... 112 II. Orthodox narratives of Jewish and Islamic legal histories ..................................................................... 113 III. The orthodoxy of scholarship ....................................................................................................................... 114 IV. Consequences of orthodox narratives ......................................................................................................... 115 V. An unorthodox historical narrative ............................................................................................................ 115 Diffusion and diversity of legal conventions (roughly 610–800 CE) ................................................ 116 Synthesis and systematization (roughly 800–1000 CE) ...................................................................... 117 Legal structure (roughly 1000-1200 CE) ............................................................................................... 118 Legal autonomy (roughly 1200–1400 CE) ............................................................................................. 119 VI. An alternate story of near eastern law ....................................................................................................... 119 VII. Further directions ........................................................................................................................................... 120 Post-script .................................................................................................................................................................... 122 Selected Bibliography ................................................................................................................................................ 123 Appendix I .................................................................................................................................................................... 145 Appendix II .................................................................................................................................................................. 150 iii Preface A significant challenge of interdisciplinary research and writing is “speaking” to distinct audiences simultaneously. Different readers will find diverse sections of this dissertation to be “simplistic” or “stating the obvious.” I have chosen to emphasize clear explanations, at times at the cost of redundancy for expert readers, in order to facilitate accessibility for a broader audience. This dissertation is not intended to be read by specialists in only one field and, therefore, it will be read differently by individual scholars. In this dissertation, the reader will notice I avoid identifying Islamic and Jewish legal systems as “religious law.” This is because I am interested in problematizing the very assumptions that underlie the category of “religious law” by demonstrating how “legal” and how quintessentially “human” both legal systems were and continue to be. iv Acknowledgements We stand on the shoulders of giants. Professor Emeritus Ira Lapidus has been my mentor in the truest sense, not only encouraging me to think about broad historical changes, but also cultivating my career development and offering his sage advice. I am particularly grateful for his willingness to listen attentively and patiently when I consulted him about myriad impediments and challenges along this path. He is a paradigmatic mentor and he truly earned the Middle Eastern Studies Association (MESA) Mentoring Award (2011). I thank Laurent Mayali for teaching me Roman law, guiding me in comparative legal studies, and, by his example, showing me that scholars can be honest, kind, and thoroughly decent; I am also grateful for his generous support and confidence. I thank Wael Hallaq for paving a path in Islamic legal studies for me to follow; I have long considered his work as my starting point. I thank Maria Mavroudi for introducing me to late antique studies, for encouraging me to merge philological rigor with historical thinking, and for providing me with detailed and incisive feedback on this dissertation. I thank Beshara Doumani for illuminating the absurd politics of academic knowledge production. I owe profound gratitude to Chava Boyarin and Daniel Boyarin for nurturing my interests in Jewish studies, welcoming me to their dinner table for lively meals, and creating a warm and intellectually stimulating Jewish studies family. Chava and Daniel have taught me for more than a decade and I sincerely appreciate their unparalleled generosity. If it were not for a bureaucratic technicality, Daniel Boyarin would have been a member of my dissertation committee; he is present in these pages more than my citations to his works suggest. I have had the honor of learning from teachers to whom I owe intellectual debts: Hamid Algar, Mark Bevir, David Lieberman, Charlotte Fonrobert, and Hossein Modarressi. I benefitted from the feedback, mentorship, and advice of Malick Ghachem, Christine Hayes, Chibli Mallat, William Ian Miller, Harry Scheiber, David Tanenhaus, Christopher Tomlins, and James Whitman. I owe special thanks and appreciation to my writing partner, Rhiannon Graybill, who provided regular feedback on my writing, overall support during the final years of my graduate experience, and inspiration to overcome any professional obstacle. Our meetings were always the highlight of my week and her encouragement, advice, and friendship were my sustenance; I cannot imagine having finished without her. For his meticulous reading of parts of this dissertation and for being a thoughtful host in Princeton, I thank Amr Aly Sayed Osman. I thank Intisar Rabb for being a friend and colleague for many years, during which time we have collaborated on projects, read each other’s writing, and imagined a different kind of future for our field. I thank Zvi Septimus for answering all my questions on everything rabbinic, regularly entertaining me with his phenomenal story-telling skills, and sharing his unique perspectives. I thank Sam Thrope, who has been my comrade since we began graduate school, for emboldening me to delve into Jewish studies; our regular conversations were always comforting. v I am grateful for my strong support system of wonderful friends and loving family. I thank Murat Dagli, Mohammad Fadel, Emily Gottreich, Sarah Levin, Lital Levy, Austin Linnane, David Moshfegh, Keramet Reiter, Shaden Tageldin, Jack Tannous, Moulie Vidas (who was also my superb Talmud teacher), and Holger Zellentin. Claire guided me to exceed my own expectations in balance, flexibility, and strength with her exceptional yoga mentorship. Ahmad A. has been a sincere and reliable friend for many years, creating my website and assisting me with various technology issues. Jonathan F. is a mensch who always had spiritually meaningful insights to offer and consistently urged me to find happiness within the complexities of living ethically. I have only gratitude for Yūsif’s unconditional love and unfaltering support. Nima has been my confidante and boosted me through my greatest challenges; I cannot imagine a more reliable friend. I am indebted to my father for consistently supporting my goals and for giving me the freedom to follow my dreams. I am forever beholden to my mother and to my sister for bearing me when I was truly unbearable – as well as keeping me well-fed, laughing, and in-touch with reality during graduate school. The research for this dissertation has been generously funded by a Javits Fellowship, as well as the Al-Falah Program and the Sultan Program at the Center for Middle Eastern Studies (UC Berkeley). I am grateful to have had these funding sources. My dissertation project was also aided by my participation in the Social Science Research Council (SSRC) Religion and International Affairs Dissertation Workshop in Pacific Grove, California (June 5-9, 2011). For their engaging comments and questions, I thank my co-panelists and audiences at the conferences where I presented parts of this dissertation: Legal Regimes and Legal Change in Antiquity at UC Berkeley (April 14, 2012); “Law As…” (II): History as Interface for the Interdisciplinary Study of Law at UC Irvine School of Law (March 9, 2012); Association for Jewish Studies annual conference in Washington, D.C. (December 20, 2011); American Academy of Religion annual meeting in San Francisco (Nov. 21, 2011); Law and Society Association annual meeting in San Francisco (June 4, 2011); Association for the Study of Law, Culture and the Humanities annual conference in Las Vegas (March 12, 2011); 6th Annual American Society of Comparative Law Works-in-Progress Workshop at Yale Law School (February 12, 2011); Cross Currents: Jewish and Islamic Cultural Exchange, 600-1250 CE, a symposium at the Graduate Theological Union and UC Berkeley (October 14, 2010); Muslims and Jews Together: Seeing from Without, Seeing from Within, an international workshop at the University of California at Berkeley and at Davis (April 29, 2010); Middle Eastern Studies Association annual meeting in Washington, D.C. (November 23, 2008); American Society for Legal History annual meeting in Ottawa (November 15, 2008); Symposium on Law, War, and History organized by UNLV School of Law and Institute for Legal Research at Berkeley Law (February 16, 2007). I encountered many obstacles and deceptions. I confronted many detractors and resistors. For them, this dissertation serves as proof that the scholarly project they challenged is possible. And this is just a beginning. vi