Do you look at historical context when reading historical scholars?

Salaam alykum,

That is an interesting and difficult question. It’s really a “yes and no” sort of situation.

To a certain degree, it is “yes” because there are perceptions and assumptions that the historical Islamic scholars provide. Their perception of the duties of a government or what constituted “violence” is very different towards our’s. The way that Shariah dealt with murder, for instance, was as a tort, an offense that causes the individual harm, but not necessarily an offense against the State. What this functionally meant was that the judge (Qadi) would not issue a sentence, his job was to determine guilt or innocence, and while the Qadi may recommend to the family what sentence to inflict upon the guilty party, the family are the ones who determine this.

This is very different towards our understanding of the law, how it works, and what are the confines of several assumptions that we have in our worldviews.

On the other hand, it is also “no” because people have not changed, we still are subject towards being treated poorly by others, slandered, we can be victims of theft, and so on and so forth. The means might change, we may be slandered via text message or have money stolen electronically, but ultimately, our human experience is not actually different to those before us.

What we must consider is that the assumptions of their society, in which their similar experiences (to our own) occur, is what creates the differences of context and therefore what we must account for emerges when we are trying to understand their teachings relative towards our current situation.

I think when you account for their historical interests, then you can understand why they would argue for one thing and not another.

For instance, the State was much less powerful than the modern nation state. A powerful nation state can extract so much from its citizens in ways that the historical state could only dream of. Look at sales tax in America, for example, every time a sale occurs, the government charges a sales tax. Do you realize how difficult it is to enforce that?

I mean, take a country like India, where the government has difficulties in enforcing consumption taxes (like a sales tax, VAT, etc), as do many other nations, even if they are able to do this on some businesses, they are unable in many other cases. The point being that the strength in state institutions to collect sales taxes from businesses, as an example, was a level of power that neither the Ottomans or the Fatimids, or any historical empire for that matter, could ever conceive of.

So, from a legal perspective, there are new challenges in how we are to understand the historical procedures in light of our new technological context, rather than the idea that we are in this “constant state of change.” Theft is theft, slander is slander, etc the only difference is the modes in which these things happen.

There are new issues, such as abortion, for instance, but the overwhelming corpus of the Tradition deals with interpersonal relations, and so, the challenge we face is in being able to make the appropriate parallels between the contexts of the historical sources and our modern considerations and arrangements.

I hope this makes sense, and if anyone has anyone has any questions, please make sure to ask me, insha Allah, as these are the sorts of questions that I greatly prefer.

I pray this reaches you and your families in the best of health and Iman, insha Allah.