Islamic law as applied law

The comparative analysis of legal documents opens new research perspectives on applied law in premodern Muslim societies, a hitherto neglected aspect in Islamic legal studies. All authentic deeds are relics of applied law as they were issued in real cases for individual persons in order to safeguard their rights or to define their obligations within the legal order of their time.

This means that such documents, to a greater extent than normative literatures, provide direct insight into quasi legal practice notarial manuals (šurūṭ) and responsae-collections (fatāwā). Known for representing the “practical aspect” of legal thinking (fiqh), these bodies of literature are generally understood to have played a role within applied law, but this assumption cannot be substantiated to the same degree for all sources or information. There is always the suspicion that certain fatāwā were conserved for the sake of juridical argumentation, and not because their application was compulsory for the qadi courts of law.

Again, with authentic legal documents, there are generally no suspicions as to their having been applied in practice. The question regarding these documents is rather: how do their texts and authentication show their connectedness with Muslim jurisprudential thinking (fiqh)?

Recently, the comparative study of legal documents within CALD has furnished evidence for this: Muslim legal thinking became a major normative reference for notarial practice from the 10^th century CE, not only in substantive law, but also for procedures that led to a formal qadi-judgement (ḥukm).¹ This finding contradicts “common knowledge” on the theory-practice paradigm within Islamic law (Schacht, Tyan and others).²

The systematic comparison of Arabic documents that refer to attestations, either within the text or as separate witness annotations, shows up significant changes in our source material from the 8^th century onwards.³ In short, the attestation of witnesses to a document was apt to confirm its legal content in the qadi court of law. The use of writing as an instrument of proof was made possible by a legal theory that split the attestation (šahāda) into two distinct steps, where the “assumption of testimony” (taḥammul al-šahāda) created a legal obligation for the witness to “perform the testimony” (adāʾ al-šahāda) whenever this was demanded from him by the judge.

As a result of this finding, we need to consider the documents that Muslim notaries and qadis issued as products of a legal system that referred to the jurists’ legal thinking as a normative reference. This dovetails with the widely confirmed historical fact of notaries being professional witnesses with accredited “honourability” (ʿadāla) throughout the premodern period.

Hence, as Muslim legal thinking (fiqh) was more than juridical deontology, its function of normative reference in applied law can become the point of departure for further research perspectives. The comparative study of legal documents allows for the identification of changes in formulations that relate with evolutions in contemporary legal thought. The contours of the various fields of law, together with its extensions and limitations, within fiqh, will enable us to analyse legal tradition in the service of applied law. The fuqahāʾ are jurists, not theologians, and they act as such. Their “legal practice” was grounded on the traditions of the various law-schools’ as legitimation, and extended to contemporary juridical methods and case evaluations. Both are part and parcel of what may be termed a “jurists’ law”. Many famous jurists authored juridical works on legal hermeneutics (uṣūl and other topics), substantive law-collections (commentaries), treatises (rasāʾil) and personal responsae (fatāwā). This rewriting process of the jurists’ law continued over centuries and will reveal its secrets only when studied in detail. However, a major shift occurred during the 13^th century with what I have termed the “shariatic turn” in Islamic law.⁴, when the casuistry of the surviving four Sunnī schools of law became formally identified as sacred law and called “purified sharia”. This change influenced notarial practices and the status of the jurists’ law became independent from caliphal authority. The fall of the Bagdad caliphate in 1258 only served to seal this development. During Mamluk and Ottoman times, the jurists’ šarīʿa-law was applied by the qadi courts, as surviving legal documents and court registers attest. Numerous juridical writings of various types illustrate the great vivacity of contemporary legal thinking when compared with other fields of “Islamic sciences”. We may take this also as a sign that Muslim legal thinking constituted not only a theoretical concept of Islamic normativity, but anchored the important function of applied law within premodern Muslim societies.

1. Müller, Christian, “The Power of the Pen : Cadis and Their Archives. From Writings to Registering Proof of a Previous Action Taken”, in Manuscripts and Archives. Comparative Views on Record-Keeping, eds. Alessandro Bausi and alii, (Studies in Manuscript Cultures 11), De Gruyter Berlin 2018, 361-385. [↩]
2. Schacht, Joseph, An introduction to Islamic law, Oxford 1964, Tyan, Émile, Le notariat et le régime de la preuve par écrit dans la pratique du droit musulman, Beirut ²1959. [↩]
3. Müller, Christian, “The Power of the Pen: Cadis and Their Archives”, 366-371, 374-380. [↩]
4. Müller, Christian, “Islamische Jurisprudenz als Gottesrecht: Die schariatische Wende des 12. Jahr­hunderts”, in Islamische und westliche Jurisprudenz des Mittelalters im Vergleich, Ch. E. Lange, W. P. Müller & Ch. K. Neumann (eds.), Mohr Siebeck, Tübingen 2018, 57-83, and Müller, Christian, “La fabrique de la charia en Islam : actes notariés et épistémologie juridique à l’épreuve de l’histoire”, in: 80 ans de l’Institut de recherche et d’histoire des textes, Francois Bougard and Michel Zink (eds), Paris 2019, 51-62. [↩]

---

---