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Beyond Relevance or Irrelevance: The Social Function of Law and Jurists in Late Medieval Egypt
Abstract by Dr. Thomas Carlson On Session   (Representing the State)

On Thursday, November 14 at 2:30 pm

2024 Annual Meeting

Abstract
Joseph Schacht argued that the elaboration of precise rules in the sharīʿa (the furūʿ al-fiqh) was an intellectual exercise divorced from social reality, and thus irrelevant for society. Generations of scholars (including Wael Hallaq, among many others) have now rightly refuted Schacht’s argumentation by demonstrating that the furūʿ al-fiqh continued to be elaborated in dialogue with social realities, and therefore, they concluded, the sharīʿa is relevant to society. Shifting the question from relevance to function has potential to clarify legal dynamics in medieval society. But the normative writings of the fuqahāʾ, used by Hallaq and others as primary sources, are perhaps not the most reliable evidence to their own social relevance and role. Kristen Stilt’s framework of “Islamic law in action,” for her study of the muḥtasib in Mamluk Egypt, advances Islamic socio-legal history by using descriptive rather than prescriptive sources to determine the relevance of Islamic law “on the ground.” But she still presumes the accuracy of a normative framework in which the rulers’ decisions (siyāsa) were constrained and circumscribed by the sharīʿa as articulated by the scholars. At the same time, scholars such as Lev Weitz are beginning to investigate the role of the Coptic Christian minority in Egypt in the articulation of Islamic law. This paper will extend Stilt’s approach (in dialogue with socio-legal theory more broadly, such as the work of Sally Falk Moore) and Weitz’s insights to draw new conclusions based on both Muslim and Christian Arabic sources from late medieval Egypt (e.g. Ibn Taghribirdi, the History of the Patriarchs). In particular, the various iterations and alterations of discriminatory regulations on non-Muslims indicate that sultans only occasionally felt constrained by the dictates of the fuqahāʾ. Historical anecdotes about the successes and failures of qāḍīs in enforcing their views of the sharīʿa show that siyāsa constrained the practical implementation of fiqh more than vice versa. Indeed, to use Sally Falk Moore’s definition of legal pluralism, it seems that the fuqahāʾ did not constitute a “semi-autonomous social field” necessary for jurisprudential independence. Thus, we might more accurately understand the social role of Islamic legal scholars if we picture them as lobbyists seeking to influence the ruling class, rather than as legislators whose decisions constituted “Islamic law,” or even as jurisprudents elucidating a law independent of the sultans’ own decisions.
Discipline
History
Geographic Area
Egypt
Sub Area
None