The continuum approach: Multiple legal solutions to run a diverse empire
This essay first appeared as part of the Islamic Law Blog’s Roundtable on Islamic Legal History & Historiography
Two developments in the field of Islamic history are making it possible for us to look at Islamic law in exciting new ways. The first is the influence of empire studies, and the changes it has brought to our perception of how the caliphate worked. For a long time the empire that was born out of the great Arab conquests was studied as existing for and consisting of Muslims, and therefore run by Islamic customs and law, even if these were in a state of ongoing evolution. The full realization of the caliphate’s diversity, with many different communities living together and interacting as they sought to resolve disputes, address iniquities and maintain the social order, has resulted in a radical shift in the sources we use and the questions we ask of the legal systems and how they operated. The second development is the hugely increased availability of many of our sources in digital form, and the ability this gives us to connect those sources easily and endlessly to neighboring fields, crossing the institutional barriers (libraries, academies, publishers) that have tended to separate languages, historical periods and genres. Both these developments have been crucial in helping us to understand Islamic legal institutions as existing not parallel to, but in a continuum with, other legal traditions and procedures, both in terms of practice and theory. As a cultural and social historian using legal sources to understand how inhabitants of the medieval Islamic world organized their ideas about the social order and the role of centralized authority in maintaining it, this is an approach close to my heart.
An early Islamic empire located in Late Antiquity
The conquests of the seventh and eighth centuries put the Arabs in charge of a sprawling empire stretching from the Atlantic in the west to the Indian subcontinent in the east, with a highly diverse population in terms of language, religion and ethnicity. And this diversity never disappeared. For the first centuries after Islam’s advent the majority of the empire’s population were not Muslims, but (different groups of) Christians, Jews, Zoroastrians, Buddhists and Hindus. These religious groups were not self-contained units inhabiting parallel universes, but constantly and intimately interacting communities influencing each other’s behavior and thoughts. Arabic was added to the many variants of Berber and Aramaic, Himyaritic, Mehri, Greek, Coptic and Sogdian, as well as the myriad Iranian vernaculars already in use. Arabic was the language of government and became the lingua franca or even the dominant language in many places, but that took centuries and other languages, such as, most famously, new Persian and Berber, remained dominant elsewhere.
The important outcome of acknowledging the presence and participation of multiple communities in Islamic rule has been that studies into the origins and practice of normative Islamic debates are examined within a Late Antique context.
Peter Brown already knew it when he included the Islamic empire up to the Abbasids in his ground-breaking World of Late Antiquity, describing the changes that took place in the later Roman period. The Near Eastern world with its people, their religions, languages and institutions, did not disappear overnight after the Arab takeover. And if these worlds continued to exist under Islamic rule, they continued to serve their communities, even extending beyond the borders of the Islamic empire. Arietta Papaconstantinou has shown that Christians in Egypt continued to refer to the laws of the Byzantine emperors long after the Muslims had taken control. Reza Huseini has analyzed late eighth-century Bactrian documents that record how the inhabitants in Central Asia persisted in referring their legal cases to the Turkic king, even though they paid taxes to the local Abbasid ruler. Richard Payne has shown that in Iraq bishops upheld Sasanian law to a certain extent.
That does not mean that these already existing legal systems did not change. As has been shown for the Levant, Iraq (Lev Weitz), Iran (Christian Sahner) and Egypt (Ewa Wipszycka), non-Muslim religious leaders started drafting legislation for the laity under the Abbasids, which raises obvious questions about the relationship between Islamic, Jewish, Zoroastrian and Christian legal systems, which developed simultaneously and partially in the same places, such as Iraq.
In concrete terms this has meant a rise in scholars of early Islam learning more of the languages of the Late Antique Near East: Syriac, Coptic, Pahlavi, Sogdian, Bactrian, to name but a few. The inclusion of Syriac sources has, for example, led to a better understanding of the debate on the permissibility of dying beards and hair, as Ahmed El Shamsy has shown. Andrew Marsham and Sean Anthony have examined the practice of public execution and crucifixion in the early Islamic empire in the light of the Late Antique legal context. I myself interpreted the ‘introduction’ of the punishment of cutting hair and shaving beards in Umayyad Egypt as fitting into shared developments across the Mediterranean and Near East.
Importantly, this approach moves away from seeing Islamic legal principles and practices as either having been fully formed in Arabia or taken over in their entirety from existing Near Eastern traditions, a dichotomy which has long dominated the debate about the formation and origins of Islamic law. As recent research on pre-Islamic Arabia has made amply clear, Arabia was part of the Late Antique world. Wael Hallaq connected this to the development of Islamic law, strongly advocating that Arabia developed its own traditions, but not in isolation of broader trends. Indeed, continuity of existing traditions in the areas conquered by the Arabs and change introduced by those Arabs are both part of the story, as I have argued on the basis of administrative, governmental and legal practices in the early Islamic empire. And as Lena Salaymeh has shown, the integration of multiple traditions continued to shape Islamic law in subsequent centuries.
Empires are not run just by force from above, but are necessarily governed with the consent or at least acquiescence of those inhabiting them. That is to say, an empire exists via the many different communities that are part of it, not because it rules them. The different religious, ethnic and linguistic groups that constituted the empire were represented in its ruling and governmental structures as clients, partners, functionaries, placemen, power brokers, and providers of knowledge and expertise. Importantly, as Marie Legendre and Ahmad Tafazzoli amongst others have shown for Egypt and Iran respectively, non-Muslims continued to operate the Arab administration, and thus continued to play an important role in the running and shaping of the empire. Jurists were similarly crucial in the legitimization of Muslim imperial rule. And their authority, according to Wael Hallaq, was squarely based on knowledge and expertise. Documents in different languages, covering various genres and produced by multiple social groups, show this overlapping of different regimes and the variety of systems that together underpinned Muslim imperial rule (see also below, “Diversifying sources through digital links”). In his contribution to this roundtable Yossef Rapoport has similarly argued that law and society form a whole which should direct the study of the history of Islamic law through social history.
In short, seeing the Islamic empire for the very diverse place it was makes us realize that Islamic law formed only one, small – albeit in certain circumstances the dominant – part of the story of how social order was maintained and political control enforced.
For those in search of legal solutions to daily life problems the considerations tend to be very practical, revolving around questions of access and results. In other words, who is available to me and who can give me what I want?
Sometimes the person who gave access and could guarantee results was a government official or Islamic judge, but it could also be a local magnate, a great land-holder, a Muslim or non-Muslim religious leader, or a powerful merchant. These figures were addressed in petitions, through court cases, but also in letters and oral pleas that move into more ‘general’ forms of communication. The cases that were brought to them concerned corrupt or abusive officials and tax-collectors, confiscated inheritances, but also family disputes, civil disorder, the failure to recover or pay debts and a host of other problems. When we want to understand how early Islamic society worked and what role the law played, it is essential to consider the different options available as an integrated system – from siyāsa to sharīʿa, from official communication to informal exchanges, both Muslim and non-Muslim legal realms, as well as the solutions produced in law courts and through out-of-court settlements. A judge might send feuding parties away to find a solution through mediation rather than the law; a prisoner could ask an administrator to make a deal with his debtors; a letter to a tax-collector may well request a bit of creative accounting to help a friend in hard times; non-Arab and non-Muslim speakers could decide to have their transactions drawn up according to Islamic legal rules. My current research examines different approaches to address perceived injustices and solutions to problems as they are recorded in the documents through which help was sought. The examples listed above all refer to ‘actual’ cases recorded in papyri and paper documents from Egypt, Palestine, Iran and Tabaristan.
How in- and out-of-court settlements flow into each other has been very well brought out by the work of Mathieu Tillier, and the mutual dependency of maẓālim courts and sharīʿa has also been pointed out. The role of mediators, especially how indigenous elites continued to fulfil this role under Islam, has received attention as well.
How minority and mainstream Muslim legal institutions worked together, however, has been less examined in the earliest period. The existence of multiple social groups producing their own figures of authority and systems of organization meant that there were alternatives to the qāḍī or amīr when legal issues had to be solved. Bishops might no longer have managed their own prisons, but they still exerted significant power via their communities by initiating laws, operating as mediators, and wielding powerful instruments such as excommunication. This was true also for another religious community: the Shīʿa. As Robert Gleave has argued in his contribution to this roundtable, it is time the Shīʿa are considered for more than their theological debates. Ed Hayes has been doing fantastic work in reconstructing the governance, administrative, and economic infrastructures that underpinned the imamate. The Imāms and their representatives had their own mechanisms for implementing Shīʿī law, similarly involving a lot of down-to-earth work by secretaries, messengers, law-enforcers and executioners. Intisar Rabb’s discussion of Shīʿī scholars debating criminal law options likewise supports the existence of executive instruments.
Besides turning to their own legal institutions, minorities made use of Islamic legal infrastructure. And sometimes they were, of course, forced to do so. A couple of tenth-century Arabic legal documents registering property transfers in the Fayyum in Egypt were, as it says in the documents, “read in Coptic” (al-lugha al-ʿajamiyya) to the parties involved. At this time Coptic legal documents were still produced in Egypt. The women and men involved in the property transfer opted for an Arabic scribe to record their transactions because they felt it offered more security or validity. No law court was needed to produce these documents (of course, one does not need a qāḍī for any of this, even an Islamic marriage is easily conducted with a couple of witnesses and an informed Arabic scribe), but these Arabic-Islamic deeds made a future visit to a court, where the transaction could be validated, defended or fought, possible. Uri Simonsohn has brought out another motive for non-Muslims to turn to Islamic courts, namely as a weapon in interreligious competition. Ed Hayes has found that on occasion Imāmī officials called in the help of the authorities to address transgressors against Shīʿī norms. All this shows that there were no rigid boundaries between these different legal systems, but that the one flowed into the other and that (the same) people made use of all of them.
Diversifying sources through digital links
Our field has been benefiting from the development of multiple online tools. The Arabic Papyrology Database (APD) is one such online tool, and it contains a lot more than Arabic papyri. As it does not make sense historically nor for research purposes to exclude Arabic documents written on other materials, most notably paper, the APD now contains more than twelve thousand Arabic documents, including the earliest Arabic-Greek bilingual papyrus, dating to the year 22 AH (643 CE), Arabic deeds from eleventh-century Christian Toledo, Mamlūk diplomatic letters sent to the Venetian doges, and Abbasid Arabic texts from Khurasan. Legal documents appear here side by side with other kinds of documents, such as lists, letters (official decrees, petitions, business and private letters), receipts and demand notes, making it clear how apparently different genres of texts are interlinked and overlap. Marina Rustow discussed in her contribution to the roundtable how closely linked contemporary Arabic and Judeo-Arabic documents are; they show parallel formulae and are found together in the Geniza, sometimes even on the same piece of paper. The material in the APD is linked to the database of the Princeton Geniza Project as well as Trismegistos, the monster database of integrated prosopographical, geographical, textual and historical information from documents from the ancient world, defined chronologically up to the year 800 CE, but including later materials. In our own Material Sources for Early Islam and Late Antique Near East we offer an overview of resources about textual (documents, inscriptions, manuscripts) and other kinds of materials (archaeology, coins, artefacts). And there are still lots of potential connections to be made. Linking the written sources, documents and books, to prosopography databases would for example allow for easier comparison across different linguistic domains. Connecting documents to literary texts would offer important insights into the degree of dependency between theoretical discussions and the practice of Islamic law or governance, but can also help us to evaluate documents, such as letters, decrees and legal documents cited in our historical texts in a more systematic way and on a larger scale than has already been fruitfully done on the basis of individual cases. Combining images with texts, which is already the case in some databases, allows for debates on the materiality of documents.
What is so useful about these databases where diverse textual and other material – in multiple languages, belonging to different genres, combining text and object – are linked is that they restore the medieval world of intertwined legal practices and thought in multiple languages, geographical, and religious domains. The texts that once formed the written repository of this society in all its facets, have since been pulled apart, stored on different floors in research libraries or museum collections according to the language they are written in (Arabic separate from Coptic and Bactrian), the topic they deal with (law separate from history and literature) or the cultural realm they are supposed to represent (Islamic separate from Roman or Persian). In other words these databases recreate the Islamic empires’ diversity even if individual scholars do not master the linguistic skills and disciplinary training to handle all items gathered there.
These developments show that Islamic law, its institutions and normative debates, fitted into a range of legal activities initiated by and serving the very diverse population that the Islamic empires enriched. Approaching Islamic law within the diverse Near Eastern landscape of legal institutions, solutions, and personnel offers an exciting and more reliable view on how this system was situated in and reacted to the society that gave it life.
 Blain Auer and Ingo Strauch, eds., Encountering Buddhism and Islam in Premodern Central and South Asia (Berlin/Boston: De Gruyter, 2019); Patricia Crone, The Nativist Prophets of Early Islamic Iran: Rural Revolt and Local Zoroastrianism (Cambridge: Cambridge University Press, 2012); Fred M. Donner, “Living Together: Social Perceptions and Changing Interactions of Arabian Believers and Other Religious Communities during the Umayyad Period,” in The Umayyad World, ed. Andrew Marsham (London: Routledge, 2020), 23-38; Robert G. Hoyland, ed., The Late Antique World of Early Islam Muslims among Christians and Jews in the East Mediterranean (Princeton: Darwin Press, 2015); Derryl MacLean, Religion and Society in Arab Sind (Leiden: Brill, 1989); Jack Tannous, The Making of the Medieval Middle East: Religion, Society, and Simple Believers (Princeton: Princeton University Press, 2018).
 Peter Brown, The world of late antiquity: AD 150-750 (New York: Norton, 1989). Available online in Open Access: https://archive.org/details/worldoflateantiq0000brow.
 Arietta Papaconstantinou, “What remains behind: Hellenism and Romanitas in Christian Egypt after the Arab conquest,” in From Hellenism to Islam: cultural and linguistic change in the Roman Near East, eds. Hannah M. Cotton, Robert Hoyland, Jonathan J. Price and David J.Wasserstein (Cambridge: Cambridge University Press, 2009), 447-66. Available online in Open Access: http://centaur.reading.ac.uk/25286/.
 Said Reza Huseini, “Between the Arabs and the Turks in early Abbasid Bactria (750-772). The family of Mir b. Bek al-Bamiyāni,” in The Ties that Bind, eds. Edmund Hayes and Petra M. Sijpesteijn (forthcoming). See also Maria Macuch, “The Legal Context of the Tabaristān Court Records (TAB. 1-8,10),” in Words and Symbols: Sassanian Objects and the Tabarestān Archive (Res Orientales XXIV), ed. Rika Gyselen (Leuven: Peeters, 2016), 145-70; Dieter Weber, “Pahlavi Legal Documents from Tabaristan: Two claims and re-evaluation of Crop Yields: A Philological Study of TAB. 21, 22 and 24,” in Sasanian Persia and the Tabarestan Archive (Res Orientales XXVII), ed. Rika Gyselen (Louvain: Peeters, 2019), 91-116.
 Richard Payne, “East Syrian Bishops, Elite Households, and Iranian Law after the Muslim Conquest,” Iranian Studies 48 (2015): 5-32.
 Lev Weitz, Between Christ and Caliph. Law, Marriage, and Christian Community in Early Islam (Philadelphia: University of Pennsylvania Press, 2018).
 Christian Sahner, “Zoroastrian law and the spread of Islam in Iranian society (ninth–tenth century),” Bulletin of the School for Oriental and Asian Studies 84 (2021): 1-27.
 Ewa Wipszycka, Les ressources et les activités économiques des églises en Égypte du IVe au VIIIe siècle (Papyrologica Bruxellensia 10) (Bruxelles : Fondation Égyptologique Reine Élisabeth, 1972).
 Ahmed El Shamsy, “The Curious Case of Early Muslim Hair Dyeing,” in Islam at 250: Studies in Memory of G.H.A. Juynboll, eds. Petra M. Sijpesteijn and Camilla Adang (Leiden: Brill, 2020). Available online in Open Access: https://brill.com/view/title/56981.
 Andrew Marsham, “Public Execution in the Umayyad Period: Early Islamic Punitive Practice and Its Late Antique Context,” Journal of Arabic and Islamic Studies 11 (2011): 101-36.
 Sean Anthony, Crucifixion and Death as Spectacle: Umayyad Crucifixion in Its Late Antique Context (New Haven: American Oriental Society, 2014).
 Petra M. Sijpesteijn, “Shaving Hair and Beards in Early Islamic Egypt: An Arab Innovation?,” Al-Masāq, 30 (2018): 9-25.
 See Patricia Crone, Roman Provincial Law: The Origins of the Islamic Patronate. (Cambridge: Cambridge University Press, 1987) and Wael Hallaq’s review “The Use and Abuse of Evidence: The Question of Provincial and Roman Influences on Early Islamic Law,” Journal of the American Oriental Society 110 (1990): 79-91. See also the juxtaposition of an Arabian (Harald Motzki, Analysing Muslim Traditions: Studies in Legal, Exegetical and Maghāzī Ḥadīth [Leiden: Brill, 2010]) or Mediterranean (Irene Schneider, Kinderverkauf und Schuldknechtschaft [Stuttgart: Franz Steiner, 1999]) origin for Islamic jurists’ attitudes towards debt bondage for which Robert Hoyland proposes a model of multiple synchronized influences in a forthcoming publication.
 Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 25 ff.
 Petra M. Sijpesteijn, “A Request to Buy Silk from Early Islamic Egypt,” in Gedenkschrift Ulrike Horak: Papyrologica Florentina XXXIV, eds. Hermann Harrauer and Rosario Pintaudi. (Florence: Edizioni Gonelli, 2004), 255-72; “Expressing New Rule: Seals from Early Islamic Egypt and Syria (600-800),” The Medieval Globe 4 (2018): 99-148; “New Rule over Old Structures: Egypt after the Muslim Conquest,” in Regime Change in the Ancient Near East and Egypt: From Sargon of Agade to the Seljuks (Proceedings of the British Academy 136), ed. Henriette Crawford (London: British Academy Publications, 2007), 183-202.
 Lena Salaymeh, The Beginning of Islamic Law: Late Antique and Islamicate Legal Traditions (Cambridge: Cambridge University Press, 2016).
 Marie Legendre, “Aspects of Umayyad Administration 1,” in The Umayyad World, ed. Andrew Marsham (London: Routledge, 2020), 133-57; Ahmad Tafazzoli, Sasanian Society. I Warriors II Scribes III Dehqāns (New York: Bibliotheca Persica Press, 2000).
 Wael Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001); Sharīʿa: Theories, Practice, Transformations (Cambridge: Cambridge University Press, 2009).
 Especially the two thematic journal issues he edited: Arbitrage et conciliation dans l’Islam médiéval et moderne; Revue des Mondes Musulmans et de la Méditerranée 140 (2016); Le pluralisme judiciaire dans l’Islam prémoderne, Bulletin d’Études Orientales 63 (2014). But also in his book L’invention du cadi. La justice des musulmans, des juifs et des chrétiens aux premiers siècles de l’Islam (Paris: Publications de la Sorbonne, 2017).
 Maaike van Berkel, “Abbasid Maẓālim between Theory and Practice,” Le pluralisme judiciaire dans l’Islam prémoderne, dossier thématique du Bulletin d’Études Orientales, 63 (2014): 229-41. Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 99-101.
 Arietta Papaconstantinou, “’Great Men, Churchmen and the Others,” in Village Institutions in Egypt in the Roman to Early Arab Periods (Proceedings of the British Academy 231), eds. Micaela Langellotti and D. W. Rathbone (London: British Academy, 2020), 178–89; Petra M. Sijpesteijn, “Establishing Local Elite Authority in Egypt through Arbitration and Mediation,” in Regional and Transregional Elites: Connecting the Early Islamic Empire (Studies in the history and culture of the Middle East 36), eds. Stefan Heidemann and Hannah-Lena Hagemann (Berlin: De Gruyter, 2020), 387-406; Philip Wood, The Imam of the Christians: The World of Dionysus of Tel-Mahre, c. 750-850 (Princeton: Princeton University Press, 2021).
 See the forthcoming special issue comparing Christian, Jewish, Muslim, Sunnī and Shī‘a forms of excommunication edited by Edmund Hayes (Acts of Excommunications in the Late Antique and the Early Islamic Middle East, al-ʿUsur al-Wusta. The Journal of Middle East Medievalists).
 Edmund Hayes, Agents of the Hidden Imam: Forging Twelver Shiʿism, 850-950 CE. (Cambridge: Cambridge University Press, forthcoming). Hossein Modarressi also mentions the role of messengers, secretaries and financial agents in running the early imamate in Crisis and Consolidation: Abū Jaʿfar ibn Qiba al-Rāzī and His Contribution to Imāmite Shīʿite Thought (Princeton: Darwin Press, 1993), 12-18 and throughout.
 Intisar Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2014), 260-312.
 Gladys Frantz-Murphy, “A comparison of Arabic and earlier Egyptian contract formularies: Part I: The Arabic Contracts from Egypt 3d/9th-5th/11th centuries,” Journal of Near Eastern Studies 40 (1981): 203–25; 355-56, nos. 1-2; ʿAbd al-Raḥmān Fahmī Muḥammad, “Waṯāʾiq li-l-taʿāqud min fajr al-Islām fī miṣr,” Bulletin de l’institut égyptien 53-54 (1974): 1–58, no. 9.
 Uriel Simonsohn, A Common Justice: The Legal Allegiances of Christians and Jews Under Early Islam (Philadelphia: University of Pennsylvania Press, 2011).
 Wadad al-Qadi, “An Umayyad Papyrus in al-Kindī’s Kitāb al-Quḍāt?,” Der Islam 84 (2008): 200-45; Andrew Marsham and Chase Robinson, “The Pact (Amana) between Mu‘awiya ibn Abi Sufyan and ‘Amr ibn al-‘As (656 or 658 CE): ‘Documents’ and the Islamic Historical Tradition,” Journal of Semitic Studies 57 (2012): 69–96.
(Suggested Bluebook citation: Petra Sijpesteijn, The continuum approach: Multiple legal solutions to run a diverse empire, Islamic Law Blog (Feb. 18, 2021), https://islamiclaw.blog/2021/02/18/the-continuum-approach-multiple-legal-solutions-to-run-a-diverse-empire/)
(Suggested Chicago citation: Petra Sijpesteijn, “The continuum approach: Multiple legal solutions to run a diverse empire,” Islamic Law Blog, February 18, 2021, https://islamiclaw.blog/2021/02/18/the-continuum-approach-multiple-legal-solutions-to-run-a-diverse-empire/)