The Lost Oral Genesis of Classical Islamic Law The Case of an Eleventh-Century Disputation (munāẓara) on Broken Oaths

Abstract

This article places the textual production of classical Islamic law in its proper historical context. It does so by examining a transcript of an eleventh-century oral debate, or disputation (munāẓara), between the Shafiʿi and Hanafi jurists Abū al-Ṭayyib al-Ṭabarī (d. 450/1058) and Abū al-Ḥasan al-Ṭāliqānī (fl. fifth/eleventh century) on the subject of the pre-emptive expiation for broken oaths (taqdīm al-kaffāra ʿalā al-ḥinth). The comparison between the disputation transcript and al-Ṭabarī’s lengthy legal manual al-Taʿlīqa al-kubrā reveals that the complexity and argumentative detail of disputations far exceeded jurists’ writings. Even the lengthiest legal manuals of the time are shown to be highly summarized accounts of juristic thought. The article explains how these summaries were essential to the proper training of jurists in the age of ijtihād: jurists were expected to learn these summaries before exploring the law in greater depth through disputations. These disputations were rarely recorded in writing, and few survive. The disparity between the oral and written legal discourse of jurists leads to a disquieting conclusion: much of the thought that produced classical legal opinions is lost to us today. We are therefore left with access to an attenuated version of classical law.