I gave this lecture almost three years ago at the Program on Islamic Law at Harvard Law  School on the history of the Mālikī law of spousal abuse (ḍarar al-zawjayn). As I explore the topic in greater detail in what I hope will be a monograph on legal process in medieval Islamic law, it has become much clearer to me the pathways of legal change over the roughly  one thousand years that separated Mālik b. Anas, the titular eponym of the Mālikī school law, from the content of the law as it existed in the 18th century. The Mālikī doctrine of judicial divorce based on a broad conception of spousal harm was not known to Mālik but it evolved gradually over time as a result of the interaction of remedies in the law of consensual divorce settlements (khulʾ) and the practices of document writers that inserted provisions in marriage contracts giving wives the right to divorce themselves in the event their husbands treated them poorly. How this doctrine developed is an interesting case of how remedies can themselves become substantive rights. The mature doctrine — that a wife could establish harm by hearsay and obtain a judicial divorce as a result — effectively did an end run around ordinary rules of evidence that only admitted the testimony of men (at least according to the Mālikīs) to prove marriages and prove divorces. Hearsay was originally recognized as admissible solely for the purpose of allowing a woman to claim she had been unlawfully coerced  into paying her husband for a divorce on the theory that it was merely a claim for money. Because that claim was viewed solely as a property dispute and not a status dispute, evidence other than that of two men were admitted. It was only later that this became a free-standing cause of action for a judicial divorce and not simply a basis for restitution for money unjustly paid.

In 2019, the Program in Islamic Law at Harvard Law School published a new translation of the seminal Islamic legal text, the Muwaṭṭaʾ of Imam Mālik b. Anas (d. 179/795), according to the recension of the Andalusian legal scholar, Yaḥyā b. Yaḥyā (d. 234/848). This translation was the culmination of several years of work involving a team of translators from Morocco and North America. I was responsible for ensuring the accuracy of the translation from the perspective of Islamic law.

Our translation of the Muwatta is available for free download from ShariaSource, a project of the Program in Islamic Law at Harvard Law School.

In recognition of the importance of the translation, the Moroccan Ministry of Endowments and Religious Affairs invited me to give a lecture to the High Council of Religious Scholars on June 29, 2022, to discuss the work behind the translation and the methods we used. The High Council of Religious Scholars supervised the editing and publication of the Royal Moroccan Edition of the Muwatta of Yahya b. Yahya (the “RME”).

The RME was the first critical edition of the text based on the oldest North African and Andalusian manuscripts of the text. The Arabic text of the RME also includes many of the copious notes and glosses found in the marginalia of these ancient manuscripts that were left by the North African and Andalusian scholars who studied the Muwatta in the centuries after the introduction of the text to Muslim Iberia and North Africa.

For those interested in the subject of translating Arabic texts, they might find my lecture on how we approached the translation to be of interest. I also prepared slides illustrating the different stages of the translation process, and the differences between our translation and prior translations.

The Arabic text of the second edition of the RME is available on line at this link. A downloadable and (mostly) searchable pdf version of the Arabic text of the RME is available here.

Last June, at the invitation of the Moroccan Ministry of Endowments and Islamic Affairs, I gave a series of lecture at different Moroccan educational institutions. This is the text of the first lecture I gave, at the esteemed Qarawiyyin University in Fez. It was a great honor for me to give a lecture at this venue, which is arguably the oldest university in the world and without doubt one of the oldest centers for the study of Maliki law.

My lecture, which was delivered to the University President, senior administration, and graduate students in Islamic law, raised the question of the legitimacy of the modern state from the perspective of Islamic law, the sharia. I argued, contrary to certain Islamist groups and post-modern intellectuals, that there is no reason to believe that the modern state is per se illegitimate from the perspective of Islamic law.

Drawing on the Maliki tradition of Islamic law, I show that the legitimacy of decisions of rulers is not based on substantive conformity with the shari’a (or justice) as much as it is based on the consent of the ruled and the substance of the decision not being manifestly unjust. Based on this principle, I argue that states that enjoy popular legitimacy are, by virtue of that fact alone, substantially legitimate from the perspective of Islamic law. Accordingly, working toward achieving representative institutions that enjoy effective public consent is a crucial condition for the legitimacy of the modern Muslim state.

With regard to what it means for a decision not to be manifestly unjust, I also rely on Maliki authors to point out that jurists did not demand that particular decisions be in conformity with what jurists believed was the correct rule of the Shari’a, only that decisions not violate certain clear rules and principles of the Shari’a. Finally, I pointed out that what many radical Islamists take to be “ruling based on something other than what God has revealed” — and therefore is illegitimate or worse — is in fact nothing more than the state exercising its lawful discretion to organize the public interest through the issuance of positive laws. Far from undermining the shari’a, these help make the law more effective by replacing informal and discretionary methods of dispute resolution with clear rules.

Anyone who is a student of early Islamic history is familiar with the numerous controversies surrounding the rise of Islam and whether Muslim accounts of early Islamic history can be deemed to be generally reliable or whether Muslim histories of the early community should be dismissed as little more than pious accounts of sacred history.  The recently deceased Patricia Crone was probably the most famous of the “revisionist” historians who adopted an extremely skeptical stance toward the early Muslim sources.