American Society for Legal History & Renaissance Society of America

ASLH 2024 Conference info: https://theaste.org/meetings/2024-international-conference/

Session info:

Islamic Law of Property in Colonial Contexts: The Cases of Egypt, Morocco, and Crimea

Chair & Commentator: Mohammad Fadel, University of Toronto, Faculty of Law 

Samy Ayoub, University of Texas at Austin. Lost Property: Ownership, Trust, and Community

Dilyara Agisheva, University of Toronto. Legacy and Limitation: Property Adjudication in Crimean Islamic Courts under Russian Rule

Ari Schriber, Utrecht University. Testimony as Land Title? Contesting Proof of Property in Colonial-Era Morocco

RSA 2024 Conference info: https://www.rsa.org/page/RSAChicago2024f

Session info:

The Life of Legal Texts: A Comparative Approach in Islam, Christianity, and Judaism

From Correspondence to Precedent in Early Modern Rabbinic Responsa. Tamara Morsel-Eisenberg, New York University

Making and Knowing Bishops' Legislation in Early Modern Catholicism. Dr. Madeline McMahon, The University of Texas at Austin

Creativity in Continuity: Legal Treatises (al-rasāʾil al-fiqhiyya) in Islamic Law. Dr. Samy Ayoub, University of Texas at Austin

Abstract:

This paper explores how legal treatises (rasāʾil) were essential sites for the development and expansion of Islamic legal schools' (madhāhib) positions. I propose that rasāʾil were one of the prime loci where jurists had to contend with rapid social, political, and economic changes. Although these legal treatises were written to address specific sociolegal issues, I argue that the treatise––as a separate genre––provided a creative space for jurists to reaffirm, restate, or advance a new opinion in the school. I propose that legal treatises were carefully considered and extensively referenced in the authoritative works of the school for their updated legal positions, practical utility for judges in courts, and relevance for official policy purposes. To demonstrate this dynamic, I take up a close reading of one legal treatise by Maḥmūd Efendī al-Ḥamzāwī (d. 1887), a key Ḥanafī authority, judge, and the muftī of Damascus (1867–87). The treatise addresses the topic of hunting with rifles. Although the subject had been debated among jurists since the fifteenth century CE, I demonstrate how this treatise in the late nineteenth century CE expanded the legal positions of the Ḥanafī school by incorporating new justifications, qualifications, and information.