A Critique of Joseph Schacht and Orientalist Narratives on Islamic Law

Joseph Schacht’s “Pre-Islamic Background and Early Development of Jurisprudence” traces the evolution of Islamic law from pre-Islamic Arabia to the emergence of the Sunni legal schools. Schacht argues that Islamic law did not develop in a technical sense during the first century of Islam, claiming early Muslim practice was governed primarily by custom. However, Schacht’s presentation of the development of early Islamic jurisprudence lacks a consistent criteria of evaluating whether specific aspects of Islamic society qualify as “legal” rather than customary or moral. In his analysis, his reasoning for accrediting specific time periods, figures, and schools of thought with legal authority is at times fixed by a modern standard of law, relying on criteria that change depending on the historical conclusion he seeks to advance.

From the start of the text, Schacht’s description of lawmaking and justice in pre-Islamic Arabia and early Islam emphasizes the idea that there was no unified system of law, describing law among these communities as “primitive” (Schacht 28). Schacht justifies his assessment by citing the absence of individual legal protection and a developed concept of criminal justice (Schacht 29). This frames pre-Islamic and early Islamic legal practice against what Schacht considers a modern, individualist legal standard. Furthermore, “the absence of an organized political authority” in Arab society is enough to disqualify this system from being legal despite the existence of arbitrators and structural guarantees such as securities being a part of case judgment, requiring the modern concept of a specific kind of political structure for a system to be legal (Schacht 29).

Part of this tension in Schacht’s classification of law continues in his treatment of the Prophet’s legislation and the Quran, which he characterizes as primarily moral rather than legal. Schacht illustrates the legislation of the Prophet and early Muslims as being “a system of duties” which he does not exactly ascribe to a legal system due to it “comprising ritual, legal, and moral obligations on the same footing” (Schacht 31). Similarly, Schacht argues that the Quran seeks to “arbitrate with justice” and “establish moral norms” rather than articulate a formal legal system, despite explicitly acknowledging areas such as family law and inheritance that are treated in concrete legal terms (Schacht 31-32). Schacht disqualifies certain aspects of the Quran from because they focus on “the problem of how one should act” rather than “the effects of lawful action” (Schacht 32). However, he does not explain why laws being “essentially moral and only incidentally penal” make the Quran’s discourse on actions less legal than any other theoretical text on justice. To him, in Muslim societies, “law as such fell outside the sphere of religion” and technical law was a “matter of indifference” to Muslims in general (Schacht 35). By excluding Quranic injunctions from the law based on their moral orientation, Schacht presupposes a modern separation between law and morality that the Quran itself does not necessarily recognize. This restrictive conception of law becomes even more apparent in Schacht’s evaluation of early Muslim jurists, where methodological conformity, rather than historical function, determines legal legitimacy.

In this evaluation of jurists, Schacht’s selective praise of Muslim jurists as representative of legitimate legal development depends on their methodologies. He frames adherence to sunna and custom through the assertion that “the Arabs were, and are, bound by tradition and precedent,” a characterization that presents conservatism as intellectually limiting and incompatible with legal development (Schacht 34). Within this framework, fidelity to inherited communal practice appears opposed to what Schacht understands as law.

Yet Schacht’s narrative of second century jurists complicates this valuation. He describes the period as marked by three converging tendencies: increasing systematization, growing dependence on Prophetic traditions, and the infusion of religious–ethical norms into legal reasoning (Schacht 51). In his view, other schools accepted traditions from the Prophet only as far as they agreed with their own living tradition or idealized “practice” which was to be modernized and corrected by Imam al-Shafi’i who he praises (Schacht 48). Al-Shafi’i is then lauded as a rational reformer who successfully disciplined earlier legal plurality by restricting juristic reasoning to authenticated textual authority (Schacht 54).

However, both approaches seem conservative in orientation. Each seeks legitimacy through appeal to an authoritative past, whether that be Prophetic authority in the case of Shafi’i or a continuous lived tradition in earlier schools. The distinction Schacht draws therefore does not turn on conservatism itself, but on its form. Instead, conservatism becomes acceptable only when it is formalized, textualized, and systematized in a manner that resembles a modern conception of law.

This preference becomes difficult to justify when Abu Hanifa is considered. Despite Abu Hanifa’s earlier and more systematic engagement with legal reasoning via raʾy and analogy, Schacht does not give his methodology the same jurisprudential significance. The difference lies not in the presence of reasoning or conservatism, but in the form that reasoning takes, with Schacht highlighting legal maturity as being tied to citing “formal traditions” and that invoking Prophetic authority gave groups such as Traditionists legal success (Schacht 48 and 52) . Schacht posits that Hanifa’s doctrine, “though more highly developed,” and based in reasoning “is often tentative and, as it proved to be, unsatisfactory” (Schacht 52). If systematic reasoning and legal coherence are markers of jurisprudential advancement, then Abu Hanifa’s project should occupy a central place in Schacht’s narrative. The fact that it does not suggests that Schacht’s methodology is driven more by conformity to a text-centered model of law that only crystallized later.

Taken together, these tensions suggest that Schacht’s reconstruction of early Islamic jurisprudence depends on evaluative standards that, while they offer valuable insights into the systematization of Islamic law, also reflect modern assumptions about legal form and authority that shape his interpretation of the Islamic legal tradition’s formative complexity.