Despite its popularity in many of today’s discourses, the Shari'a has never been thoroughly studied as part of intellectual history. This is all the more surprising since already in 1965 an article by Wilfred Cantwell Smith argued, quite convincingly as some scholars have admitted, that the sharia did not play a notable role in the theological debates of the formative period nor did the term shari'a mean to the early theologians what it means today. Instead, he argued, that a change, which we are yet to fully conceive, in meaning as well as understanding of this concept has occurred. Little of this has been addressed in scholarship so far. Drawing on my current research project, I argue in this paper that treating the Shari'a as a ‘concept’ and studying it under conceptual premises would not only fill a gap in our knowledge of its intellectual development but would also lead to a deeper understanding of Shari'a’s characteristics, significance, and efficacy. From a linguistic perspective concepts refer to abstract or generalized ideas which shape and structure people’s intellectual world(s), influence their perception of reality and thereby affect their thinking and acting, their morals and beliefs. Hence, besides drawing attention to a much needed change of perspective in the field of Islamic legal and intellectual history, this paper will also demonstrate the gain in knowledge and in comparability of the results obtained when employing sound methodology. Using techniques from conceptual history and discourse analysis I will present some results of my research project, wherein I examine the ways in which three classical legal scholars of the 5th/11th century, al-Juwaini, al-Ghazali, al-Qadi 'Abd al-Jabbar, conceptualized the Shari'a. Ultimately, much of the Shari'a’s prominence and effectiveness seems to stem from it being used in the Mu'tazili-Ash'ari dispute to depict and disqualify Mu'tazili opinions as arising from the mind ('aqli), not disseminating from God, and therefore being susceptible to faults and weak in authority. Furthermore, there appears to be a detectable difference in meaning between the relevant terms of the concept of Shari'a (esp. shar' vs. shari'a). The above-mentioned scholars were apparently aware of those slight differences and used the terminology accordingly. Being understood as much more than law, rather as a comprehensive system of norms and values, the concept of Shari'a was used in a multitude of discourses to bolster claims and positions.

In the early 10th century, certain scholars became keen to downplay the fractured nature of the Islamic legal culture. Manuals listing legal topics that had been resolved through consensus (ijma') became tools of legal uniformity that served to extend state control and state-sponsored scholarly authority, a fact illustrated by how quickly Ibn Taymiyya (d. 1328) landed in prison for rejecting a claimed scholarly consensus on triple divorce utterances. By employing Ibn Taymiyya’s methodology of sifting through early opinion, and closely investigating legal debates prior to the onset of “consensus writing,” it is possible to challenge other consensus claims. This paper explores the role of consensus in the evolution of legal positions on a father’s ability to compel his minor daughter to marry. I explore early consensus writing (Ibn al-Mundhir, d. 930, al-Marwazi, d. 906, al-Tahawi d. 933, and Ibn 'Abd al-Barr, d. 1070) and contrast it with pre-consensus discussions of the issue (al-Awza'i, d. 774, Malik, d. 795, al-Shaybani, d. 805, al-Shafii'i, d. 820, 'Abd al-Razzaq, d. 826, Ibn Abi Shaybah, d. 849, and Sahnun, d. 855), considering in particular how child marriage rules were initially applicable for both boys and girls, and how the consensus claim eclipsed many early opinions emphasizing consent in marriage contracts. Consensus was also used as a device for determining a specific meaning for the famed report of 'A'ishah that she was married at seven and her marriage was consummated at the age of nine. Al-Shafi'i introduced this report into the debates over a father’s authority over both his children, and early 10th century jurists began claiming consensus on the report’s implications. Ultimately, the claimed consensus on a father’s right to compel his prepubescent daughter to marry functioned as legal shorthand. Jurists could not agree over the basis for female legal capacity (pubescence or sexual experience), the parameters of a groom’s “suitability” (the condition for the permissibility of a father’s compulsion), when a female child can tolerate sexual activity or the basis for her maintenance if she cannot, or the definition of childhood itself. The claim of consensus effectively circumvented all of these debates while affirming a father’s power over his daughter, even when his ability to compel his son came to be challenged. By the 13th century, little trace of the crucial--yet still unresolved-- early debates remained.

The genre of furuq (sg. farq) writing within Islamic law began in the 10th century and became widespread only in the 13th; it blossomed in what is referred to as the post-formative period. A farq fiqhi, a legal distinction, aims at explaining the difference(s) between situations or actions which are apparently identical yet lead to differing legal outcomes. My paper will study the prehistory and early development of the concept of the farq fiqhi and will delineate how the furuq literature helped drive innovation in Islamic law. This was innovation through interpretation, thus it did not manifest itself in either books of legal theory or legal compendia. The study of medieval Islamic law focuses primarily on these two genres, and therefore past scholars have tended to deemphasize the legal change that occurred in the post-formative period. The prehistory of the legal furuq lies in the field of lexicographical furuq literature. This linguistic writing sought to explain the differences between supposed synonyms, therefore negating their synonymity. The debate over the existence of synonyms in Arabic went to the heart of the debate about the nature of the Arabic language. By denying the existence of true synonyms, these scholars also denied the existence of superfluous elements in Arabic and thus affirmed the perfection of the language. I argue that the composition of works on legal distinctions grew directly out of this lexicographical tradition. For this purpose, my paper will study the two earliest extant works in this tradition, those by al-Qadi ‘Abd al-Wahhab al-Baghdadi and ‘Abd Allah ibn Yusuf al-Juwayni. I will analyze these texts in two ways. First, I analyze their organization and structure in order to show how these two works grow directly out of the linguistic furuq tradition. Further, I analyze their understanding and deployment the concept of a farq. I argue that the farq fiqhi does more than merely explain a ‘legal distinction;’ it also creates a space in which jurists can begin to change, adapt, and alter Islamic law. The usage and discussion of such distinctions show the large interpretive work that furuq performed in the development of Islamic law. Jurists employing legal furuq could effect this change through interpretation while maintaining a façade of normative stability and constancy. It is by studying the concept of a farq fiqhi that this aspect of Islamic law emerges and the agency which a ‘distinction’ held is made manifest.

The aim of this paper is to show how Islamic legal institutions (e.g. hajj, wudu, hadd penalties) and Islamic legal principles (e.g. that the burden of proof falls on the party not currently in possession of the contested good) can become so embedded in the mind of a jurist that he imagines other religious legal systems must simply be variations on these institutions and principles. The Kitab al-Bad' wa-l-Ta'rikh of al-Maqdisi, a 10th-century historiographer about whom we know practically nothing, contains a short but surprisingly rich description of Jewish religious praxis. Previously translated by Camilla Adang but never thoroughly investigated, this description is remarkable for a number of reasons. First, it is one of only two or three medieval Islamic texts which purport to describe Jewish practice both neutrally and systematically; by contrast, polemical accounts of Jewish activities and discussions of heretical Jewish beliefs are significantly more common. Second, al-Maqdisi seems to know not just what Jews do, but why they do it; that is, he provides us with Jewish legal concepts and not just ethnographic jottings. What is most striking about the text, however, is that al-Maqdisi’s perception of halakhah is heavily affected by his Islamic legal training. Not only does he highlight practices that would be of interest to Muslim jurists, but the description itself is ordered like a medieval Islamic code— an order foreign to Jewish legal codes. On several occasions, al-Maqdisi projects onto Judaism concepts which exist only in Islamic law, leading him to make several false claims. Furthermore, al-Maqdisi, whose knowledge of Hebrew was most likely limited, frequently uses quotations from hadith as substitutes for imagined Hebrew counterparts, some of which did exist and some of which did not. The result, marvelously, is a decent description of Jewish practice as seen through a Muslim jurist’s eyes. Legal institutions which Judaism and Islam share have the potential to be over-correlated, while concepts or rituals unique to one or the other are sometimes incorrectly correlated — or ignored all together. This description, along with a similar but shorter description in al-Ya’qubi’s universal history, highlights some of the ways in which medieval Islamic jurists understood all religious legal systems to be structured.