RSS Feed (xml)
As the title shows us, the present essay is about Islamic law (fiqh) and Muslim society within the framework of Islamic history. Precisely, it deals with the use of Islamic law as a source for the study of social history of Muslim society. This essay discusses the reasons, possibilities, examples, forms and liabilities of Islamic law as a potential source for reconstructing social history of Muslim societies.
Islamic law is the very good source to refer in dealing with Muslims Society's social and economical life. Unfortunately, many, if not majority of historian of Islam, still hesitate to use this kind of source. At first, it is doe to their great interest in the theoretical aspect of Islamic jurisprudence; otherwise the attention to the practical application of its principles is lacking or even neglecting. Secondly, to some extant it is also because of the characteristic of Islamic law it self that encompasses all aspect of every day affairs of Muslims believer and makes no distinction between act which have concrete legal consequence and those which can only be judged by God, as often stated by many Western scholars, such as C. Snouck Hurgronje and Joseph Schacht –just to mention some names-- upon which Humphreys bases his ideas. Unfortunately, this character led them to misperception of fiqh as something out of practice in the social daily life.
However, this character in it self does suggest that Islamic law was and is rooted in social ideals as well as social reality. This is the reason why, Humphreys argues, Islamic law could be a source for social history. The close relationship between Islamic law and reality has been characterizing this law from its very beginning up to the present days. There is a constant interplay between the pragmatic demand for social reality and the transcendent ideals of scripture in Islamic law. In short, the balance between idealism and realism always exists which is of course varies greatly between schools and individuals scholars. The works of Robert Brunschvig and also Claude Cahen on realistic aspect of fiqh are of peculiar interest to read, Humphreys writes.
In addition, the method of fiqh, which is scholastic and casuistic in nature, reflects its response to social reality surrounding it. It is scholastic because fiqh was primarily the product of private-independent and religious scholars who did not belong to the state. Moreover, much of its subject matter is hypothetical. On the other hand, fiqh is casuistic for it is elaborated through an examination of cases that may occur to a faqih (an expert of Islamic law).
How Study of fiqh as a historical source?
The rest of this essay discusses the way to study fiqh as a historical source. To begin with, it suggest to use the work of Joseph Shacht, Noel James Coulson, Madjid Khaddury and H.J. Liebesny for general introduction and Hossein Modarresi Tabataba’i for introduction to Shi’i law as also recommended by Humphreys.
Furthermore, to come to grips with Arabic legal text Humphreys recommends us to study at first the digests of Islamic positive law that are available in annotated translations, such as al-Tanbih of al-Shirazi by G.H. Bosquet, al-Umda of Ibn Qudama by Henry Laoust, and al-Mukhtasar of Ibn Ishaq by I. Guidi and D. Santillana. In addition, to acquaint with the method of fiqh and its legal reasoning the works of Robert Brunschvig, D. Santillana and Chavic Shehata are particularly helpful and high value to study.
Now, we can turn to the texts of fiqh to know what these texts have or do not have of historical information and value of Islamic society. Of particular interest and that have to be examined are the great compilations of fiqh composed around 2nd /8th and 7th/13th centuries, such as al-Mabsut of al-Sharakhsi, Mudawwana al-Kubra of Sahnun, al-Asl of al-Shaybani, al-Mughni of Ibn Qudama. No less important are the treatises on special topic, such as al-Kharaj by Abu Yusuf, Waqf (religious endowment) in the works of Hilal al-Ra’y and Khassaf, Faraid (Islamic inheritance), Hilah (Islamic legal fiction), Hisbah (market inspection and the cencorship of public moral) and the collections Fatwas and also the treatise on contracts. All of these sources are literature materials.
In addition to the literature material, Islamic legal system produced very enormous documents that are of high value to study. These documents can be divided into three groups, namely the document on Shari’a court record including court hearing and qadis decicions), the document on Waqf and the document on contracts. Unfortunately, they are badly scattered and only fragment for the periods of 600-1500 centuries. Humphreys him self can only give secondary literature to study those documents.
The discussion mentioned above does suggest that many aspect of life, such as family structure, property ownership, and social stratification etc. can be studied by the use of Islamic law, its literatures and documents. We can treat the theme of trade and commerce in fiqh. But, it is precisely the limitation of fiqh as a historical source. Fiqh could not tell us about concrete realities such as products of exchanges, trade routes, centre of production and distribution etc. Fiqh also could not tell us the historical change in commercial institution of Islam simply because fiqh establishes rules of conduct which are binding for all times. For both reason, external evidence is essential, such as legal documents where these exist or otherwise non legal documents, including letters, invoices, letters of credit etc.
