The Oxford Handbook of Islamic Law PDF
Preview The Oxford Handbook of Islamic Law
The Oxford Handbook of ISLAMIC LAW The Oxford Handbook of ISL AMIC L AW Edited by ANVER M. EMON RUMEE AHMED 1 1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2018 The moral rights of the authors have been asserted First Edition published in 2018 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. 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Contents Editors’ Introduction ix Notes on the Contributors xiii PART I DISCIPLINE AND CRITIQUE A. ISLAMIC LEGAL STUDIES: DISCIPLINE AND CRITIQUE 1 Islamic Legal Studies: A Critical Historiography 5 Ayesha S. Chaudhry 2 On Reading Fiqh 45 Anver M. Emon 3 Islamic Law and Gender 75 Saadia Yacoob B. ISLAMIC LEGAL STUDIES: DISCIPLINARY APPROACHES 4 Islamic Law and Theology 105 Rumee Ahmed 5 Anthropology and Islamic Law 133 John R. Bowen 6 Falsafa and Law 149 Andrew F. March vi contents PART II LEGAL THEORY AND INSTITUTIONS A. LEGAL THEORY 7 Ijtihad 181 Anver M. Emon 8 Imami Shi‘i Legal Theory: From its Origins to the Early Twentieth Century 207 Robert Gleave 9 Custom in the Islamic Legal Tradition 231 Ayman Shabana 10 The Historiography of Sunni Usul al- Fiqh 249 Youcef Soufi 11 Ijma‘ 271 Mairaj U. Syed B. INSTITUTIONS 12 Al-Qadi 301 Mohammad Fadel 13 Hisba and Muhtasib 327 Kristen Stilt and M. Safa Saraçoğlu 14 The Mazalim in Historiography 357 Mathieu Tillier PART III ORIGINS, EMPIRES, AND STATES A. HISTORICAL STUDIES 15 Origins of and Influences on Islamic Law 385 Benjamin Jokisch contents vii 16 The Classical Period: Scripture, Origins, and Early Development 403 Mariam Sheibani, Amir Toft, and Ahmed El Shamsy 17 The Age of Development and Continuity, 12th– 15th Centuries CE 437 Marion Katz 18 The Historiography of Islamic Law During the Mamluk Sultanate 459 Matthew B. Ingalls 19 Law in the Ottoman Empire 475 Haim Gerber 20 A Historiography of Islamic Law in the Mughal Empire 493 M. Reza Pirbhai 21 Delivering Justice: The Monarch’s ‘Urfi Courts and the Shari‘a in Safavid Iran 511 Rula Jurdi Abisaab 22 Anglo- Muhammadan Law 537 Syed Adnan Hussain 23 Legislation as an Instrument of Islamic Law 551 Leonard Wood PART IV REGIONAL VARIATIONS A. MUSLIM-M AJORITY STATES 24 Islamic Law and Society in Southeast Asia 589 Melissa Crouch 25 Islamic Law in Post- Revolutionary Iran 609 Antonia Fraser Fujinaga 26 The Turkish Republic 653 Ruth A. Miller 27 Islamic Law in South Asia: A Testament to Diversity 673 Jeff Redding viii contents B. MUSLIM MINORITIES 28 The Incorporation of Shari‘a in North America: Enforcing the Mahr to Combat Women’s Poverty Post- Relationship Dissolution 699 Natasha Bakht 29 Islamic Law in Western Europe 725 Mathias Rohe 30 Shari‘a in Australia 751 Abdullah Saeed PART V SUBSTANTIVE LEGAL AREAS A. CASE STUDIES 31 Islamic Law and Constitutions 779 Nathan J. Brown and Mara Revkin 32 Islamic Law and Human Rights 819 Shannon Dunn 33 Islamic Law and Finance 843 Anver M. Emon 34 Animals 861 Kristen Stilt 35 A Historiography of Islamic Family Law 885 Lynn Welchman Index 933 Editors’ Introduction The idea for this project took root many years ago. As scholars based in the North American academy, we regularly confront artificial limits imposed by the disci- plinary formation(s) of Islamic legal studies. Those limits not only affect the kind and range of debates possible within the academy, but also constitute the outer boundaries of what others (e.g. journalists, politicians, and pundits) represent Islamic law to be. Of course, these limits are not unique to Islamic legal studies; rather they are found in the study of Islam broadly. We focus on Islamic legal studies both because of our specialization and because of the way it captures myriad Islamic legal fantasies, some of which would be utterly humorous if it were not for the fact that they inform actual state policies that target the civil liberties of Muslim cit- izens across the North American continent, Europe, and elsewhere. The spate of bills across states in the USA that, for instance, seek to “ban Shari‘a,” are but one ex- ample; there are others across Europe and elsewhere whose formulation reveals the limits in the imagination and scope of Islamic legal scholarship. While humanities scholars are often loath to discuss what their scholarship is “for,” we strenuously hold that our small subsection of the humanities and social science scholarly com- munity can no longer thumb our noses at the larger world to which our scholarly legacy directly or indirectly contributes. It is time that those of us in Islamic legal studies take stock of the scholarship on Islamic law, mark the limitations of its disci- plinary formation(s), and identify the interstices, gaps, and ambiguities that remain fertile sites for further inquiry and scholarship. This is not only an academic need given the fast- evolving state of the field, but a moral imperative given the immediate political implications and uses of our academic work. We are of course not alone in this aspiration. In recent years, scholars of Islamic studies more broadly have carved out spaces for more reflective analyses of what Islamic studies are or might yet be. There is a sense among many scholars, in particular those who both demand greater scholarly positionality and value interdisciplinarity, that a turning point has come where the long-s tanding paradigms that have informed Islamic studies generally, and Islamic legal studies specifically, can no longer occupy an unaccounted for, uncritiqued, or unchallenged privileged status. Of course, not all of those in the field of Islamic legal studies will agree with our assessment. Indeed, for many in the field, the status quo of disciplinary forma- tion has been more than beneficial. We respect those who have built their careers
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