Roy Mottahedeh has been Professor of Islamic History at Harvard University for the past 30 years: since 1986. He served as the Director of the Center for Middle Eastern Studies at Harvard University from 1987 to 1990 before directing its Prince Alwaleed Bin Talal Islamic Studies Program from 2006 to 2011. Prior to joining the Harvard faculty, he served on the faculty of Princeton University’s Department of Near Eastern Studies for sixteen years. He is the recipient of numerous awards – among them the Guggenheim Fellowship, which allowed him to write his first much-acclaimed book, Loyalty and Leadership in an Early Islamic Society (1980). He was also a member of one of the first groups of MacArthur fellows in 1981, which allowed him to write his second, even more widely-acclaimed book, The Mantle of the Prophet (1985). In addition to these and other books, Roy Mottahedeh has author numerous articles that demonstrate his wide range of interests from the ʿAbbāsid period in the eighth century to Islamic revival movements of the present day. His publications and interests consider such diverse topics as the transmission of learning in the Muslim world, the social bonds that connected people in the early Islamic Middle East, the theme of “wonders” in The Thousand and One Nights, the concept of jihād in early Islamic history, perceptions of Persepolis among later Muslims, as well as jurisprudence (on which he wrote a book in 2003: Lessons in Islamic Jurisprudence, an annotated translation of Muḥammad Bāqir al-Ṣadr’s Durūs fī ʿilm al-uṣūl) and judicial procedure (on which he co-taught a class in 2014).
Indeed, one of his early obsessions as he first began to think about Islamic law and history, was a tract he discovered early in his studies written by Ṣāḥib ibn ʿAbbād (d. 385/995), the celebrated vizier of the Buyids of Rayy, who authored an invaluable collection of documents that illustrate the administrative history of that northern Iranian kingdom. One of these documents was a letter appointing the prominent Muʿtazilī theologian, ʿAbd al-Jabbār, as chief judge of the Buyid kingdom of Rayy. In Roy Mottahedeh’s initial reading of it, he found it surprising that the document states that the judge should consider the opinions of the best scholars and use ijtihād, among the sources of law he must consider. It also mentions the judge’s duties with respect to several other court officials and roles that one might not ordinarily associate with regular judicial practice. It is in the spirit of al-Ṣāhib’s letter, and Roy Mottahedeh’s interest in it, that we return to convene on this theme of courts and judicial procedure in early Islamic law.
He is a member of the Academy of Arts and Sciences and the Council on Foreign Relations. He earned two BAs, one from Harvard magna cum laude, and the other from Cambridge, for which he received the E.G. Browne Prize. He earned his PhD from Harvard.
Participants
(In alphabetical order)
Antoni Abat i Ninet
Professor of Constitutional Law
University of Copenhagen
Presenting The Administration of Justice in al-Andalus and the Principles of Justice in Constitutionalism
Biography: Antoni Abat i Ninet earned his law degree at the University of Girona in 2001 and his doctorate from the University of Barcelona in 2007. He has taught Comparative Constitutional Law and Ancient Constitutionalism at the State University of New York, the Lincoln Law School of San José, and the Center for Transnational Legal Studies (CTLS) under the directorship of Georgetown at London. He was also a visiting professor at Stanford University. He was awarded the Juan de la Cierva competitive research scholarship by Spain’s Ministry for Science and Innovation. Professor Ninet currently serves on the Faculty of Law at the University of Copenhagen as a professor of constitutional law.
Selected Publications:
“The role of judiciary in Egypt´s failed transition to democracy,” in Judges as Guardians of Constitutionalism and Human Rights, Scheinin, Krunke & Aksenova (Cheltenham: Edward Elgar, 2016 forthcoming)
The Arab Spring: An Essay on Revolution and Constitutionalism (with Mark Tushnet) (Cheltenham: Edward Elgar, 2015) [Elgar Monographs in Constitutional and Administrative Law]
“Modernity, Rationality and Constitutional Law in Muslim-Majority Countries,” (Copenhagen: Danish Institute for Human Rights, 2015) [Working Paper]
Abstract: After the military occupation of the former Roman Province of Hispania, a new political entity, al-Andalus, emerged from 92/711 to 897/1492. The term al-Andalus refers the land conquered by Muslim troops in what currently belongs to Portugal, Spain and Septimania (France). Within such entity, a community with distinct legal, political, religious and cultural traits materialized, an al-Andalus umma, whose central focus was the human being. After a brief historical introduction on the Andalusian reality, and its ethnic, social and human diversity over seven centuries, and the singularities, problematics and peculiarities of al-Andalus, the paper deals with the main characters, principles of justice, and the role of judges in al-Andalus from the creation of the first (qāḍī) circa 122/740.
The main topics under scope are the distinctive elements of the Andalusian administration of justice, beginning from the office of the judge, the activity and personality of the qāḍī in relation to other Islamic territories, and the composition and transcendence of the shūra and the mushāwarūn in the development of the judicial processes in al-Andalus. The paper analyses the multiple jurisdictions of the Islamic Andalusian Court (ḥisbarelated to the sūq and the ṣāḥib al-sūq,the ṣāḥib al-shurṭa,and theṣāḥib al-madīna) and their relation with the legitimacy of the courts and the efficiency of the administration of justice. The study also examines the role of specialized judges (qāḍī al-nașārā, qāḍī al-ʿaskar, qāḍī al-ankiḥa, qāḍī al-miyāh and wakīl) and the multiple extra-judicial competences and the analysis of other legal institutions. The paper then exposes the meaning and scope of modern principles of justice, as prescribed by Article 10 of the Universal Declaration of Human Rights and in Article 14 of the International Covenant on Civil and Political Rights and their relation with the Islamic law and al-Andalus. Despite that the former principles are contemporary, the subjects of the paper’s analysis are historical. I plan to reconcile this issue with a sort of both anachronistic dialogue and contextualizing the compared topics and realities.
Ahmed El Shamsy
Assistant Professor
University of Chicago
Presenting The Logic of Excluding Testimony in Early Islam
Biography: Ahmed El Shamsy is an assistant professor of Islamic Thought at the University of Chicago. He obtained his PhD in History and Middle Eastern Studies from Harvard University in 2009 and is the recipient of several national and international fellowships. He studies the intellectual history of Islam, focusing on the classical Islamic disciplines and their interplay with the media of orality, literacy, and print. He is currently writing a book on the reinvention of the Islamic scholarly tradition and its textual canon via the printing press in the early twentieth century.
Selected publications:
“The Wisdom of God’s Law: Two Theories,” in Islamic Law in Theory: Studies on Jurisprudence in Honor of Bernard Weiss, A. Kevin Reinhart and Robert Gleave (Leiden: Brill, 2014)
The Canonization of Islamic Law: A Social and Intellectual History(Cambridge: Cambridge University Press, 2013)
“The Ḥāshiya in Islamic Law: A Sketch of the Shāfiʿī Literature,” Oriens41 (2013): 289–315
Abstract:
This paper examines selected criteria used to exclude the testimony of certain types of witnesses in Islamic courts of the second century AH / eighth century CE. Specifically, the paper seeks to make three points:
1. In the early second century, Muslim judges presiding over court cases applied a notion of communal enmity among confessional groups as a criterion for determining the admissibility of witness statements by members of one group against those of another. This criterion was used both in cases that crossed confessional lines and in cases involving coreligionists only.
2. Over the course of the second century, this criterion fell out of use and was replaced by other criteria for interconfessional testimony. These criteria included the a priori exclusion of witness statements by members of certain groups as well as individual ascertainment of the probity of potential witnesses.
3. The oral and cryptic nature of the sources from the early second century presented significant obstacles to later scholars’ understanding of the reasoning that underpinned the early criteria. They consequently opened the way for a fundamental reconceptualization of who counted as an acceptable witness.
Maribel Fierro
Researcher
Spanish National Research Council (CSIC)
Presenting Joking Judges: A View from al-Andalus
Biography: Dr. Maribel Fierro received her doctorate degree at the Complutense University of Madrid, Spain, where she served as Associate Professor at the Department of Arabic Studies Faculty of Philology. She has served as a Fellow at the Institute for Advanced Studies at The Hebrew University of Jerusalem, a Visiting Scholar at the University of Chicago, a Herodotus Fellow at the Institute for Advanced Study at Princeton, and as a Researcher at CSIC. Dr. Fierro currently serves as a Research Professor in the history of Islam and Islamic Law at the Spanish National Research Council’s humanities branch in Madrid, Spain.
Dr. Fierro currently serves as a Research Professor in the history of Islam and Islamic Law at the Spanish National Research Council’s humanities branch in Madrid, Spain.
Selected Publications:
The Almohad Revolution: Politics and Religion in the Islamic West during the Twelfth-Thirteenth Centuries (Burlington, VT: Variorum, 2012) [Varorium Collected Studies Series]
Abd al-Rahman III: The First Cordoban Caliph (Oxford : Oneworld, 2005)
Muḥammad b. al-Walid al-Ṭurṭūshī, Kitāb al-ḥawādith wa-l-bidaʿ. El Libro de las novedades y las innovaciones, trans. Maribel Fierro (Madrid : Confejo Superior de Investigaciones Científicas, 1993)
Abstract: Medieval Arab biographies have been proved to be often “less a factual record than a field of controversy.” The earliest biographical dictionary on Cordoban judges includes a number of anecdotes showing judges displaying their sense of humour and indulging in practical jokes in a variety of situations. While similar stories can be found in similar types of works written in other regions of the Islamic world and in other periods, they cannot be taken for granted as a permanent feature of the genre. In my paper I will analyse such early anecdotes on joking judges, compare them with those found in other sources, and examine why they were included within the general framework, on the one hand, of the debate on humour and seriousness, and on the other hand, of the construction of the ideal qāḍī figure.
Baber Johansen
Professor of Islamic Religious Studies
Harvard Divinity School
Presenting The Introduction of Professional Witnesses in Egypt’s Judiciary (755-815): The Reactions of the Urban Public of Fustat
Biography: Baber Johansen was appointed Professor of Islamic Religious Studies at Harvard Divinity School in 2005. Prior to his appointment, he served as Directeur d’études at the Ecole des Hautes Etudes en Sciences Sociales (Centre d’étude des normes juridiques), Paris (1995–2005), and Professor for Islamic Studies at the Freie Universität Berlin (1972–1995). In 2006 he was appointed an affiliated professor at Harvard Law School and acting director of its Islamic Legal Studies Program for 2006 to 2010. In 2007 he was affiliated with the Department of Near Eastern Languages and Civilizations, and from July 2010 to June 2013, he was the director of the Center for Middle Eastern Studies. He is also a faculty associate of Harvard’s Weatherhead Center for International Affairs and a member of its Executive Committee.
Selected Publications:
ed. (Islamic Law), Oxford Encyclopedia of Legal History (Oxford: Oxford University Press, 2009)
Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill, 1999)
Islamic Law on Land Tax and Rent: The Peasant’s Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods (London: Croom Helm, 1988)
Abstract: The creation, in the 8th and 9th centuries CE of a professional group of certified witnesses (ʿudūl) and its function for and effects on the Sunnī Muslim court system has been the object of a number of important studies over the last decades. The most important contributions are the pioneering work of Émile Tyan (1960), followed by Raif Georges Khoury (1981), Nurit Tsafrir (2004), and Wael Hallaq (2005). I have myself published a 90-page article on “Wahrheit und Geltungsanspruch: Zur Begruendung und Begrenzung der Autoritaet des Qadi-Urteils im Islamichen Recht” in La Giustizia Nell’Alto Medioevo (Secoli IX-XI) [Centro Italiano di Studi sull’Alto Medioevo] in 1996, and another essay on “Formes de Langage et Fonctions Publiques: Stéréotypes, Témoins et Offices dans la Preuve par l’Ecrit en Droit Musulman” (Arabica, tome XLIV, pp. 333-376) in 1997.
Tyan was the first author to see the importance of the authority of the qāḍīappointment for the role of the judiciary. Nurit Tsafrir provided us with the most detailed lists of qāḍīs for the major cities of the Muslim Empire under the Umayyads and the early ʿAbbāsids that is immensely useful for any discussion of this subject. The authors mentioned above all agree on the social and doctrinal importance of the development of a privileged group of truth-sayers in support of the qāḍīs, but they are interested in different aspects of it. In my two articles mentioned above, I discuss the growing importance of writing, the use of documents as evidence, but also the privileged role that such a development assigns to witnesses of certified credibility. I ask how their transformation into a clientele group of the qāḍī changes the qāḍī’s political and social status as well as his role of a truth finder. I was – and still am – particularly interested in the question of how urban Muslims of the period under discussion reacted the status change of the certified witnesses and which role ethnic affiliations played in this transformation.
Wael Hallaq is interested in assigning to the formation of this particular professional group a long history based on logical and sociological assumptions. Nurit Tsafrir is more interested in the theological aspects of this process. Khoury follows, like we all do, Émile Tyan in the investigation of the role that the appointing authority – caliph, governor, local political authorities – played for the appointment of judges, the spread of law schools, the universalization of Muslim law. In my paper, I will focus on my differences with some of these authors’ conclusions.
Mahmood Kooria
Doctoral Candidate
Leiden University
Presenting Words of ʿAjam in the World of Arab: Translation and Translator in the Early Islamic Judicial Procedures
Biography: Mahmood Kooria received his M.A. and M.Phil. in History from the Centre for Historical Studies, Jawaharlal Nehru University, New Delhi. Mahmood is currently a doctoral candidate at Leiden University in the Netherlands. His doctoral thesis is concerned with historical circulation of Islamic legal ideas and texts across the Indian Ocean and eastern Mediterranean worlds between the thirteenth and nineteenth centuries.
Selected Publications:
Tahrid: Ahl al-Iman — An Indigenous Account against Early Modern European Interventions in the Indian Ocean World by Sheikh Zainuddin b. ‘Ali, trans. Mahmood Kooria et al. (Calicut: Other Books, 2012)
Abstract: Within a hundred years after the death of the Prophet Muḥammad, the size of Islamic world had tripled the size of the Arab lands. The new abode of Islam from the shorelines of the Atlantic to the Indian subcontinent and beyond took a vast majority of non-Arab populations under its tutelage. Although Arabic developed as a lingua franca in the medieval Islamic lands, it never achieved being the sole medium of communication in the everyday lives of the new subjects. This reality on the ground created a procedural predicament for Muslim jurists who have been setting new rules and regulations based on Islamic scriptures and socio-cultural norms since the eighth century. This development was contemporaneous to the socio-political processes in which many Muslims from non-Arab lands had begun to rule over their own or adjacent lands. The Islamic legal historiography has rarely addressed this Arab and non-Arab language dichotomy, despite the fact that the latter had formed the biggest population of the Islamic world by the ninth century itself. From a few patchy references, we do know that even the non-Arab non-Muslims (such as those livig in seventh- and eighth-century Egypt) preferred the Arab Muslim courts over the existing local, say, Greek or Coptic legal structures. Yet, language remained a major issue in the court proceedings, as most Muslim judges and law-givers were Arabs in contrast to their plaintiffs or defendants, who spoke languages other than Arabic. Against this backdrop, I inquire as to how did the Muslim jurists address this issue. I argue that they were reluctant to give room in court-proceedings for languages other than Arabic, and that they theoretically denied access to non-Arabs unless they found a translator who also was supposed to be a Muslim free male. The jurists always stressed the primacy of Arabic (not just in its theological supremacy in Islam, but also as a valid language of law), and stressed that the judge is obliged to initiate the proceedings only if he avails a translator. The position of translator becomes even more problematic with regard to an additional consideration of him as a witness.
I investigate such complexities of language and translation in the early histories of Islamic courts by accommodating two sorts of sources: legal manuals and non-legal historical materials. In the legal manuals, I focus on the Shāfiʿī texts, including sources for which a) the changes of opinions over time are very evident, and b) the school had a wider appeal in the non-Arabic speaking lands of Islam up to the Iranian, Indian and Malay subcontinents before and after 1250 CE. Hence, I focus on al-Umm of Shāfiʿī, the eponymous founder of the school; the Mukhtaṣar of Muzanī; Nihāyat al-maṭlab of Juwaynī; and Adab al-qāḍī of Māwardī. In the second category of non-legal materials, I amass all sorts of contemporary sources from or on the non-Arabic lands of Islam up to the end of the thirteenth century as long as those deal with the Islamic legal practices and the question of language. As the early legal histories of regions outside the central Islamic [Arab] heartlands remain largely untouched, I try to gather all available evidence on the theme from an array of languages, including Persian, Sanskrit, Chinese, Malay, Malayalam and of course Arabic.
Combining these primary sources, I explore the following questions: How did the legal practices in the Islamic world resolve the issue of language, to what extent did the “translator” stand as a legitimate intermediary between the Arab speaking judge and non-Arab speaking litigants, and how did the notions of “translator” and “language” become more flexible in the legal formulations of Arab Shāfiʿī jurists for the expanding lands of Islam, giving access to the courts to more people who otherwise were excluded?
Christian Lange
Professor of Arabic and Islamic Studies
Utrecht University
Presenting The Judge vs. the judge: The Heavenly and Earthly Court of Justice in Early Islam
Biography: Christian Lange received his PhD at Harvard University. He has taught Islamic Studies at Harvard University and Edinburgh University. He is currently a professor of Arabic and Islamic Studies at Utrecht University.
Selected Publications:
Paradise and Hell in Islamic Traditions (Cambridge: Cambridge University Press, 2015)
ed., Locating Hell in Islamic Traditions (Leiden: Brill, 2015)
Justice, Punishment and the Medieval Muslim Imagination (Cambridge: Cambridge University Press, 2008)
Abstract: M. Bravmann once noted that God as Judge in the Qurʾān is described in terms akin to a pre-Islamic king, enjoying absolute liberty to punish or forgive. In this paper, I would like to test the hypothesis that the exegetes of the early centuries of Islam, without undermining the idea that God is omnipotent, sought to contain this issue by framing the imagery of the heavenly courtroom in ways that made it look like an orderly courtroom on earth. For example, one might expect the exegetes to have stressed certain commonalities in the spatial and procedural protocol followed in both the heavenly and the earthly court. I plan to look at various exegetical works from the High ʿAbbāsid, Būyid and Saljūq periods (starting with Ṭabarī, Māwardī, and Baghawī) to see how the imagery of the heavenly court interacts with that of the mundane court, and whether any meaningful differences or developments over time can be detected.
Louise Marlow
Professor of Religion
Director of Middle Eastern Studies Program
Wellesley College
Presenting Justice and Law in Some Mirrors for Princes of the Middle Period
Biography: Louise Marlow received her M.A. from Cambridge University and a PhD from Princeton University. She is currently the Program Director of Middle Eastern Studies at Wellesley College.
Selected Publications:
Counsel for Kings: Wisdom and Politics in Tenth-Century Iran: TheNaṣīḥat al-mulūk of Pseudo-Māwardī (Edinburgh: Edinburgh University Press, 2016).
Writers and Rulers: Perspectives on Their Relationships from Abbasid to Safavid Times, co-edited with Beatrice Gruendler (Wiesbaden: Reichert Verlag, 2004).
Hierarchy and Egalitarianism in Islamic Thought(Cambridge: Cambridge University Press, 1997).
Abstract: A prominent characteristic of the Arabic and Persian mirrors for princes literature is its emphasis on the quality of justice: presented at times as the sum of the cardinal virtues or as the point of equipoise between polar vices, at times in terms of the maintenance of balance among the disparate interests of a hierarchy of social constituencies, at times in terms of the ruler’s symbolic role as his subjects’ ultimate recourse against injustice — including and perhaps especially the injustice perpetrated against them by the ruler’s own agents. The theme of justice appears prominently in virtually all examples of the genre. Among the contributing elements to this varied and multi-dimensional portrayal of royal justice, which reflects the often highly cosmopolitan outlooks of authors and their audiences, is the ruler’s relationship to and responsibility for observing and upholding the law. In an early example, recently described by Joseph Lowry as ‘the first Islamic legal theory’, Ibn al-Muqaffaʿ’s advice to the ʿAbbāsid caliph regarding the structure of the law and the location of authority in matters of legal interpretation has usually been seen as a one-of-a-kind phenomenon. As Lowry has indicated, however, Ibn al-Muqaffaʿ in some respects anticipated later conceptions of legal theory. This paper will argue that at least one later Arabic mirror, the Naṣīḥat al-mulūk of Pseudo-Māwardī, recalls certain aspects of Ibn al-Muqaffaʿ’s conception of the law: the author imagines an arena in which the properly qualified ruler should exercise a degree of juristic authority, in the context of disparate legal issues likely to be brought to his attention. After consideration of the mirrors of Ibn al-Muqaffaʿ and Pseudo-Māwardī, the paper explores the interplay of adab and juristic discourse in a third mirror, the Tashīl al-naẓar wa-taʿjīl al-ẓafar of the Chief Judge Māwardī (364-450/974-1058).
Intisar Rabb
Professor of Law and History
Co-Director of the Islamic Legal Studies Program
Harvard Law School
Presenting The Curious Case of Bughaybigha: Property Takings in Judicial and Caliphal Courts
Biography: Intisar A. Rabb is a Professor of Law at Harvard Law School, and Professor of History at Harvard University, a Director of ILSP, and founding editor-in-chief of SHARIAsource. She currently serves as Susan S. and Kenneth L. Wallach Professor at the Radcliffe Institute for Advanced Studies at Harvard University. She holds a PhD in Near Eastern Studies from Princeton University, a BS from Georgetown University in Government and Arabic, an MA in Near Eastern Studies from Princeton and a JD from Yale Law School. She is a co-chair of this conference.
Selected Publications:
Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law, Cambridge Series in Islamic Civilisation(Cambridge Univ. Press 2015).
“The Least Religious Branch? The New Islamic Constitutionalism after the Arab Spring,” 17 UCLA J. Int’l L. & Foreign Aff.75 (2013).
“We the Jurists’: Islamic Constitutionalism in Iraq,” 10 Pa. J. Const. L.527 (2008).
Abstract: During the time of the Prophet and the expansion of the young Islamic empire immediately after his death, a number of land tracts were distributed to the Companions and Family members of the Prophet. One of them was a fertile farm called Yanbuʿ just northwest of Medina, which contained what was later to become a spring and much-coveted date-palm orchard called Bughaybigha. The land was given to ʿAlī who, upon discovering the spring, immediately turned it into a charitable endowment to serve the poor, travellers, and members of his family in need of it. But not soon after his death, chaos and confusion ensued and took shape as a generations-long battle over Bughaybigha. Muʿāwiya and succeeding Umayyads succeeded after various ploys to wrest the land away from Ḥusayn and ʿAlī’s descendants. And the sources then feature constant contestations over the land in the caliphal courts, often initiated by the descendants of ʿAlī seeking return of the land throughout Umayyad and ʿAbbāsid times. In one episode, the matter ended up in a qāḍī court, featuring a contest between two procedural rules that tracked the historical dispute. This essay, in addition to examining tenth-century perceptions of some of the legal aspects of establishing and maintaining the trust in this early period, will explore some of the procedural aspects of the contestations of the property in the judicial and caliphal courts as they extend from and were shaped by the social and political history of the time.
Nahed Samour
Post-Doctoral Research Fellow
University of Helsinki
Faculty of Law
Humboldt University Berlin
Presenting A Critique of Adjudication: Formative Moments in Early Islamic Legal History
Biography: Nahed Samour has studied law and Islamic studies at the universities of Bonn, Birzeit, London (SOAS), Humboldt Berlin, Harvard and Damascus. She was a doctoral fellow at the International Max Planck Research School for Comparative Legal History in Frankfurt/Main. She clerked at the Higher Court of Appeals in Berlin. In 2015, she was Junior Faculty for Islamic Law and Policy at Harvard Law School’s Institute for Global Policy and Law. Her work focuses on Islamic law, public law, and the history of international law.
Selected Publications:
“From Imperial to Dissident: Approaches to Territory in Islamic International Law,” in International Law and Religion, ed. Martti Koskenniemi (Oxford: Oxford University Press forthcoming 2016)
“Al-Shāfiʿī und Kelsen: Über die formale Rechtsordnung,” Die Normativität formaler Ordnungen und Prozeduren in der Antike – Mathematische und rechtliche Regelsysteme im Vergleich, ed. by A. Warner, G. Pfeifer, D. Bawanypeck (Frankfurt/Main, forthcoming 2016)
“Is There a Role for Islamic International Law in the History of International Law?,” European Journal of International Law 25, 1 (2014): 313-319
Abstract: Islamic legal doctrine encouraged a judge who was confronted with particular legal difficulties, or uncertainties, to solicit consultation from an extrajudicial authority, a muftī-scholar, before issuing a judicial decision. The Qurʾānic verse 3: 159, in which the Prophet himself is urged to “consult them in the matter; and when you have decided, place your trust in God,” became the basis for the jurisconsults’ authority in the Islamic judicial system.
This principle of judicial consultation (mushāwarā) emerged as a crucial entry point for critiquing Islamic adjudication. Studying examples of mushāwarā shows how the concept of critique was applied in Islamic courts, and how critique was practiced by legal personae to either argue for the status quo (when judges were seen to engaged in judicial activism beyond text) or for change (when judges were seen to obstruct much-needed change). Jurists were then not only arguing over what Islamic law was (as jurists’ law), but also what Islamic adjudication was meant to become (as judges’ law). Jurists made sure they had a say in adjudication.
My focus is on muftī-jurists engaging with adjudication, concurring and rejecting adjudication. How was critique conceptualized in the sphere of adjudication, the sphere of law in its binding, sanctioning, enforceable, and – for the litigants – final form, where the normativity of law was backed by the power and force of the state to put law into practice? What space for critique was acknowledged when the judge as state functionary encountered his critics?
Delfina Serrano
PhD Tenured Researcher
Spanish National Research Council (CSIC)
Presenting Judicial Procedure and Legal Practice on Li`ān (imprecatory oath) in Andalus: The Evidence of Model Shurūṭ Collections (11th to 12th centuries C.E.)
Biography: Delfina Serrano is PhD Tenured Researcher at the Spanish National Research Council (CSIC) in Madrid. She is a member of the research group “Islamology: Past and Present of the Shari`a through its Textual Tradition”. She focuses on Islamic law and the intellectual history of the pre-modern Islamic west, including the relationship between fiqh and other Islamic religious sciences like kalām and Sufism, as well as the relevance of theory and practice of classical Islamic jurisprudence to contemporary Muslim societies. She is currently the chief editor of the CSIC series Estudios Árabes e Islámicos.
Selected Publications:
“Explicit Cruelty, Implicit Compassion: Judaism, Forced Conversions and the Genealogy of the Banū Rushd,” Journal of Medieval Iberian Studies 2, 2 (2010): 217-233
al-Qāḍī ʿIyāḍ, Madhāhib al-ḥukkām fī nawāzil al-aḥkām = La actuación de los jueces en los procesos judiciales, trans. Delfina Serrano (Madrid: CSIC, 1998)
Crueldad y compasión en la literatura árabe e islámica (Cruelty and Compassion in Arabic and Islamic Literature), ed. Delfina Serrano (Madrid: CSIC, 2011)
Abstract: This paper looks at legal documentary practice on liʿān or imprecatory oath as reflected in two of the earliest Andalusī “model shurūṭ” collections that address the topic, in search for reflections of the procedure actually followed by Andalusī qāḍīs when having to deal with a contingency which, a priori, they are presumed to have confronted only exceptionally. In contrast to that assumption, Andalusī model shurūṭ works contain a number of interesting templates related to a man’s denial of the paternity of the child expected by his wife (or by his slave), and, in the case of the former, the ensuing need to pronounce the liʿān oath for him to be freed of the accusation of calumny and for her to become exempted from the charge of zinā. The templates, and the clarifications that used to follow immediately afterwards under the heading of fiqh, illuminate the relevant judicial procedure as well as how this procedure, as established by male jurists, contributed to protecting women from unfounded accusations of zinā made by their husbands. It also protected women from the latter’s attempt to free themselves of their family responsibilities in an institutional context in which the Mālikī legal school was predominant (with the admission of pregnancy as valid evidence of zinā in case of a lack of four upright witnesses or of confession by the accused). At the same time, the paper aims to fill a gap in the scholarly treatment of liʿān, which has so far ignored the evidence of model shurūṭ works. Ultimately we will consider to what extent legal doctrine on liʿān, especially the established procedure and the ensuing document typology to which it gave rise, were a response to a pressing need for local qāḍī courts to address the issue efficiently and served as a deterrent to breaching the “al-walad lil-firāsh (the offspring belongs to wedlock)” principle or both, and therefore, what is meant by those pre-modern Muslim jurists and historians who asserted that liʿān was hardly ever put into practice.
Moderators
Abbas Amanat
Professor of History and International Studies
Yale University
Director of the Yale Program in Iranian Studies
Yale MacMillan Center for International and Area Studies
Moderator of Panel 2: Imagining and Enacting Justice in the Abbasid Period and Beyond
Abbas Amanat received his BA at Tehran University and his Doctorate in Philosophy at the University of Oxford. He is a consulting editor and longtime contributor to Encyclopedia Iranica. His major entries include: “Constitutional Revolution” (1994); “Great Britain in Qajar Persia” (2002); “Hajji Baba of Ispahan” (2003); “Historiography of Qajar Iran” (2004); “Historiography of Pahlavi Iran” (2004) and “Islam in Iran: Messianism” (2007). He was a Carnegie Scholar of Islamic Studies (2005-2007) and the recipient of the Mellon-Sawyer Grant for comparative study of millennialism (1998-2001). He served as Editor-in-Chief of Iranian Studies, the journal of the International Society for Iranian Studies from 1991 to 1998 and as Chair of the Council on Middle East Studies at Yale University from 1993 to 2004. He is the moderator of Panel 2: “Imagining and Enacting Justice in the Abbasid Period and Beyond.”
Selected Publications:
Apocalyptic Islam and Iranian Shi’ism (London: I.B. Tauris, 2009).
Pivot of the Universe: Nasir al-Din Shah Qajar and the Iranian Monarchy, 1831-1896 (Berkeley: University of California Press, 1997, paperback: London and New York, 2008; Persian translation: Tehran, 2004).
Resurrection and Renewal: The Making of the Babi Movement in Iran, 1844-1850 (Ithaca: Cornell University Press, 1989; paperback: Los Angeles, 2005).
Abigail Balbale
Assistant Professor of Islamic History, Art and Material Culture
Bard Graduate Center
Moderator of Panel 3: Legal Perspectives from the Islamic West
Abigail K. Balbale is currently Assistant Professor of Islamic History, Art and Material Culture at Bard Graduate Center, where she was the Postdoctoral Fellow in Islamic Art and Material Culture from 2012 to 2014. Before she returned to Bard, she was an assistant professor of medieval Mediterranean history at U-Mass Boston. She earned her PhD in History and Middle Eastern Studies in 2012 from Harvard, where she focused on the cultural history of medieval Iberia and North Africa, and received her undergraduate degree in 2003 from Yale. She is the co-author, with Jerrilynn Dodds and María Rosa Menocal, of the award-winning book, The Arts of Intimacy: Christians, Jews and Muslims in the Making of Castilian Culture (Yale, 2008). She is a co-chair of this conference, and is moderator of Panel 3: “Legal Perspectives from the Islamic West”.
Selected Publications:
Spanning the Strait: Studies in Unity in the Western Mediterranean (with Yuen-Gen Liang, Andrew Devereux, and Camillo Gomez-Rivas) (Leiden: Brill, 2013)
“Cacophony,” Journal of Medieval Iberian Studies 5, 2 (2013): 123-28
The Arts of Intimacy: Christians, Jews and Muslims in the Making of Castilian Culture (with Jerrilynn D. Dodds and María Rosa Menocal) (New Haven: Yale University Press, 2008). Winner, Outler Prize of the American Society for Church History, 2010. Short-listed for the ACE/Mercers’ International Book Award, 2009. A Times Literary Supplement Book of the Year, 2009.
William Graham
Professor of Middle Eastern Studies
Harvard University
Moderator of Panel 1: The Formation of Early Islamic Judicial Procedure
Dr. William Graham received a BA at the University of North Carolina and his AM and PhD at Harvard University. He has been a member of the Harvard Faculty of Arts and Sciences since 1973 and a member of the Faculty of Divinity since 2002. He has served as director of the Center for Middle Eastern Studies, and chair of the Department of Near Eastern Languages and Civilizations, the Committee on the Study of Religion, and the Core Curriculum Committee on Foreign Cultures at Harvard. He is also former chair of the Council on Graduate Studies in Religion (North America). He received a BA at the University of North Carolina and his AM and PhD at Harvard University. He will serve as Moderator of Panel 1: “The Formation of Early Islamic Judicial Procedure.”
In 2000 he received the quinquennial Award for Excellence in Research in Islamic History and Culture from the Research Centre for Islamic History, Art and Culture (IRCICA), the research institute of the Organization of the Islamic Conference. In 2012, he received the Lifetime Achievement Award of the Journal of Law and Religion. He has held John Simon Guggenheim and Alexander von Humboldt research fellowships and is a fellow of the American Academy of Arts and Sciences. His book Divine Word and Prophetic Word in Early Islam was awarded the American Council of Learned Societies History of Religions Prize in 1978.
Selected Publications:
The Heritage of World Civilizations (with Craig Albert and Donald Kagan) (Prentice Hall/Pearson; 10th rev. ed., 2014)
Beyond the Written Word: Oral Aspects of Scripture in the History of Religion (Cambridge: Cambridge University Press, 1987, 1993).
Divine Word and Prophetic Word in Early Islam: A Reconsideration of the Sources, with Special Reference to the Divine Saying or Hadîth Qudsî (The Hague: Walter De Gruyter, 1977).
Organized by the Islamic Legal Studies Program (ILSP), Harvard Law School, and SHARIAsource (with support from the Luce and MacArthur Foundations). Co-Sponsored by Harvard University’s Radcliffe Institute for Advanced Study, Center for Middle Eastern Studies (CMES), Prince Alwaleed bin Talal Islamic Studies Program, and Department of History.
Delfina Serrano
Abbas Amanat
Abigail Balbale 
William Graham