Al-ʿUṣūr al-Wusṭā 26 (2018): 237-239

Book Review

This is apparently a reworking of Salaymeh’s Ph.D. dissertation (UC Berkeley, 2012). As she describes 
her vantage point, “I engage in a post-
foundationalist understanding of history 
that rejects the positivist methodologies 
of modernism and the nihilistic relativism 
of post-modernism. A postfoundational 
understanding of historical objectivity 
rejects the positivist notion that particular 
methodologies generate Truth” (15–16). I 
confess I do not follow her theory, which 
seems to veer between accepting multiple 
truths (as in refusing to take contradiction 
as a sign that one or more of the accounts 
in question are untrue) and seizing on 
unanimity (i.e. lack of contradiction) as 
a reason to believe that something did 
happen as described. My approach in 
this review will therefore be to look past 
her theory to see whether she explains 
particular early legal problems in ways 
that seem useful to a traditional historian 
of Islamic law.

One chapter, then, deals with the 
problem of whether prisoners of war may 
be executed. Reports vary but Salaymeh 
thinks the preponderant suggestion is 
that the Prophet’s precept and example 
forbade execution after a battle (although, 
as she notes, there is no report that he said 
anything explicitly). She treats Ibn ʿAbbās 
and Mujāhid’s comments on some relevant 
verses of the Qurʾān. The latter expressly 
interprets Q. 9:5 (“kill the polytheists 
wherever you find them and take them and 
confine them”—Jones transl.) as allowing 
the Muslim leader to execute, ransom, free, 
or enslave prisoners of war, but she argues 
that killing and taking treat respectively 
before and after the conclusion of combat, 
so that the Qurʾān really allows killing only 
in battle. It seems to me, to the contrary, 
useless for an historian to identify what the 
Qurʾān means. It is the nature of Scripture 
to be interpretable in multiple ways, and 
the most an historian should try to do is 
to assess why some interpretation either 
 

Lena Salaymeh, The Beginnings of Islamic Law: Late Antique  
Islamicate Legal Traditions (Cambridge: Cambridge University Press, 

2016), xiii+242 pp. ISBN 978-1-107-13302-0. Price: £64.99/$99.99.

Christopher Melchert 
University of Oxford

(christopher.melchert@pmb.ox.ac.uk)

mailto:christopher.melchert%40pmb.ox.ac.uk?subject=


Al-ʿUṣūr al-Wusṭā 26 (2018)

238  •  Christopher MelChert

did or did not catch on. Salaymeh’s survey 
of later commentators and jurisprudents 
i s  a d e q u a t e l y  w i d e - r a n g i n g ,  a n d  h e r 
conclusion agrees with my own sounding 
of the evidence: that jurisprudents of 
the Followers are commonly quoted as 
doubting whether prisoners should be 
killed, of the ninth century and later as 
leaving it completely up to the leader. 
But she implicitly dismisses retrojection 
of competing eighth-century views to 
account for the confused picture we have 
of practice in the earlier seventh.

Salaymeh next surveys the law of 
circumcision, which she finds weakly 
supported as an obligation for Muslims and 
only sometimes advocated as a boundary 
marker, distinguishing Muslims from 
others. It is as if the early community took 
circumcision so much for granted that it 
did not trouble to document its exact legal 
status. I was reminded of Norman Calder’s 
generalization about ritual purity laws:

The Rabbinic system is a complex and 
rarefied elaboration of a common 
Near Eastern set of beliefs about purity 
(complicated by its hermeneutical 
relationship to the biblical laws). 
The Muslim system is probably very 
near to that common or basic system; 
and has proved on the whole rather 
resistant to efforts at making it more 
complex.1 

Salaymeh never cites Calder, but the 
similarity of her conclusion shows that 
she proposes nothing upsetting here to 
conventional opinion.

Salaymeh’s survey of wife-initiated 
divorce in Jewish and Islamic law turns up 
much variation earlier on, then a certain 

1.  Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press, 1993), 212.

convergence on allowing judges to dissolve 
marriages for specified reasons and wives 
to dissolve marriages with some reduction 
of the normal settlement. She also detects 
a certain shift from considering divorce 
a sort of emancipation to considering it 
a breach of contract. The Jewish parallel 
is interesting. In this case, it was Jewish 
jurisprudents who rejected earlier practice 
on the grounds that it reflected external 
influence, presumably Islamic. However, 
although Salaymeh is sure that influence 
and borrowing are bad concepts, she 
offers only the vaguest generalities such 
as “a shared social space and historical 
t r a d i t i o n ”  ( p .  1 9 3 )  t o  e x p l a i n  t h e 
similarities.

A theoretical chapter against the idea 
of identifiably Aryan or Semitic origins 
of Islamic law seems mostly an exercise 
in knocking down straw men. Another 
chapter proposes to identify the following 
stages of legal history: “Legal circles and 
networks (c. 610–800 CE), Islamic legal 
beginnings; Professionalization of legal 
schools (c. 800–1000 CE); Consolidation 
a n d  f o r m a l i z a t i o n  (c .  1 0 0 0 - 1 2 0 0  C E ) ; 
Technocratization (c. 1200-1400 CE)” (pp. 
147–48). The obvious difference between 
Salaymeh’s scheme and, for example, 
Marshall Hodgson’s is that she simply 
marks out periods of 200 years, whereas 
he implicitly points to political changes as 
major pivots: the advent of the Marwānid 
caliphs to mark the end of the “Primitive 
Period,” the advent of the Būyads (my 
spelling) to mark the end of the “High 
Caliphal Period,” the Mongol conquest of 
Baghdad to divide two “Middle Periods.” 
One point of Salaymeh’s scheme is to stress 
the arbitrariness of any periodization. This 



Al-ʿUṣūr al-Wusṭā 26 (2018)

Lena Salaymeh’s The Beginnings of Islamic Law  •  239

seems to me easy to concede but minor 
inasmuch as all classifications break down 
at the margins. Contra Salaymeh, a scheme 
like Hodgson’s that turns on political 
events does not downplay contingency. 
Rather, it stresses what a difference politics 
can make (and indeed dynasties play 
major roles in Salaymeh’s own detailed 
description of the evolution of Islamic 
law, as by judicial appointments). More 
original, at least for a professed history of 
Islamic law, is the following periodization 
of Jewish legal history, identifying similar 
developments in each of her 200-year 
periods.

Minimally, I would say that Salaymeh 
offers credible sketches of how discussions 
of rules changed over time with relation 
to the three problems of killing prisoners, 
circumcision, and wife-initiated divorce. 
The second seems the most successful, 
b u t  a n y o n e  w i s h i n g  t o  m a k e  m o r e 
thorough surveys will wish to consider 
these chapters as starting points. On the 
other hand, I do not see that she offers 
c r e d i b l e  a l t e r n a t i v e  e x p l a n a t i o n s  t o 
existing ones based on supposedly faulty 
historiographical theories. Maximally, 
I would venture that her ambitions are 
thwarted by systematically looking away 
from conflict among classes and status 
groups in the premodern Middle East. 
She admits a conflictual understanding 

of divorce law, men asserting control 
over women, while expressing regret 
that evidence is lacking to show exactly 
the basis of women’s power to resist. 
(I do not object except for the contrast 
with Salaymeh’s earlier scorn for those 
who say we sorely lack evidence from 
the seventh century and so can say little 
with certainty.) But this is more typical: 
“Interpretive communities give meaning 
to legal texts in ways that cut across social, 
geographic, or confessional boundaries” 
(p. 203). More credible, to my mind, is 
that the medieval legal texts on which 
Salaymeh relies (like the rest of us) reflect 
the interests and views of particular, 
aristocratic interpretive communities 
intent on protecting their own moral and 
material interests.

Transliteration is accurate. Dates are 
given in CE only, sometimes carefully 
split, sometimes not; e.g., al-Awzāʿī said 
to have died precisely in 774, whereas 
he is most often said to have died in 157, 
which overlapped 773 and 774, but also 
155, 151, 156, and 158, and never with a 
month. The bibliography usually includes 
editors’ names but sometimes alphabetizes 
strangely; e.g.. Mālik under i for Ibn Anas, 
Muslim under q for al-Qushayrī. Also 
strange is its identification of al-Muzanī as 
the editor of al-Umm.