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study of law in the Islamic world was once relegated to the analysis of legal literature written by
jurists, the past few decades have witnessed a surge in research on law in action. 13 This
historiographical turn was both spurred and facilitated by the opening of Ottoman archives to
researchers over half a century ago. 14 The relative wealth of archival sources from the Ottoman
Empire has also meant that the majority of research on law as it was practiced (rather than as it
was imagined by jurists) has been conducted by Ottomanists.
Nonetheless, the study of law in Morocco has spurred an important debate whose
implications for scholarship extend beyond the Maghrib. The principal participants are
Lawrence Rosen, who conducted ethnographic research on the sharī‘a court in Sefrou in the
1960s and 1970s, and David Powers, whose research has focused on a collection of fatāwā (legal
responsa) by the jurist Aḥmad b. Yaḥyā al-Wansharīsī (d. 1508). 15 Both structure their work in
part as a response to Max Weber’s conception of Islamic law as a paradigm of arbitrary justice
(what he terms “kadijustiz”). Rosen rejects the view of the qāḍī (Islamic judge) as inherently
arbitrary, asserting that Islamic law follows “a logic and order of its own” which lies “in the fit
between the decisions of the Muslim judge and the cultural concepts and social relations to
13
For many years the most influential work on Islamic law was that of Joseph Schacht (esp. Joseph Schacht, An
Introduction to Islamic Law (Oxford: Clarendon Press, 1964)), which remains an important reference. Of course,
the study of Islamic jurisprudence has by no means been eclipsed. In more recent years, the historiography of
Islamic jurisprudence has in large part focused on the extent to which jurists engaged in independent legal reasoning
after the medieval period, rather than simply following the precedent of previous generations (often referred to as
the closing of the gates of ijtihād): on this, see, e.g., Wael B. Hallaq, “Was the Gate of Ijtihad Closed?,”
International Journal of Middle East Studies 16, no. 1 (1984); Sherman A. Jackson, “Taqlīd, Legal Scaffolding and
the Scope of Legal Injunctions in Post-Formative Theory Muṭlaq and ‘Āmm in the Jurisprudence of Shihāb al-Dīn
al-Qarāfī,” Islamic Law and Society 3, no. 2 (1996).
14
For an early introduction to Ottoman archival sources, see Stanford J. Shaw, “Archival Sources for Ottoman
History: The Archives of Turkey,” Journal of the American Oriental Society 80, no. 1 (1960).
15
See esp. Lawrence Rosen, The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge:
Cambridge University Press, 1989) and David S. Powers, Law, Society, and Culture in the Maghrib, 1300-1500
(Cambridge; New York: Cambridge University Press, 2002). The work of Rosen in particular has spurred responses
from historians of law in the Ottoman Empire: see, e.g., Haim Gerber, State, Society, and Law in Islam: Ottoman
Law in Comparative Perspective (Albany: State University of New York Press, 1994), Introduction and idem,
Islamic Law and Culture, 1600-1840 (Leiden: Brill, 1999), Introduction.
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