The Curious Case of Bughaybigha, 661–883: Land and Leadership in Early Islamic Societies
Justice and Leadership in Early Islamic Courts, 2017
26 Pages Posted: 2 Aug 2019
Date Written: November 15, 2017
This chapter in Justice and Leadership in Islamic Societies examines questions of discretion and judicial procedure in early Islamic law (7th-9th centuries). This reported property law case (reported in 9th-century sources for a 7th-century case) case vividly displays the extent to which discretionary use of judicial procedure drove substantive outcomes in ways little-recognized by conventional accounts of early Islamic law. I argue that the dispute over Bughaybigha, together with the dueling canons attached to it, demonstrates how procedure came to play a critical role in the development of early Islamic law. Procedure also intervened in questions of legitimacy on disputes of land and leadership in that period. Conventional accounts of Islamic law tend to discount the between caliphs and jurists. However, the relationship between caliphs and jurists was often mediated through courts — courts laden with procedure. No account of early Islamic law so far shows the centrality of procedure to had for questions of legitimacy, land, and leadership.
Suggested Citation: Suggested Citation