Select Articles
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A systematic and chronological study of the original legal sources reveals that these views on the history of ijtihad after the second/eighth century are entirely baseless and inaccurate. In the following pages, I shall try to show that the gate of ijtihad was not closed in theory nor in practice. To do so, I shall first demonstrate that ijtihad was indispensable in legal theory because it constituted the only means by which jurists were able to reach the judicial judgements decreed by God. In order to regulate the practice of ijtihad a set of conditions were required to be met by any jurist who wished to embark on such activity. An exposition of these conditions will prove that, unlike the often-held view, the demands of legal theory were relatively easy to meet and they facilitated rather than hindered the activity of ijtihad. Further, it will enhance our thesis to examine the relationship between this theory, in which ijtihad was deemed a perennial duty, and the actual practice of Muslim jurists. Such an inquiry will disclose that ijtihad was not only exercised in reality, but that all groups and individuals who opposed it were finally excluded from Sunnism.
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In this article I propose to study the political thought of ʿAbd al-Malik b. ʿAbd Allāh b. Muḥammad al-Juwaynī in light of his newly published treatise Ghiyāth al-Umam fī Iltiyāth al-Ẓulam. Thus far, our knowledge of Juwaynī’s political views has been based primarily upon the brief chapters on the imamate in such theological works as al-Irshād and al-Lumaʿ. The brevity of these chapters not only makes an adequate study of Juwaynī’s theory impossible, but also conceals the subtleties and characteristics peculiar to the doctrine of our author. Unlike his theological accounts of the imamate, which seem to resemble accounts of other theologians, Ghiyāth al-Umam carries a unique message unprecedented in the history of Sunni Islam.
This article attempts to demonstrate that Juwaynī was an independent thinker who formulated a theory, the purpose of which was different from, and independent of, any other theory propounded by fourth/tenth- and fifth/eleventh-century scholars. Although he was a Sunni jurist and theologian, Juwaynī did not subscribe to the idea of preserving the ʿAbbasid house. It will become clear that the generally accepted view that the aim of Sunni political theory was “to give support to the ʿAbbasid caliphs in their struggle against both Sunni and sectarian … challenges” certainly does not apply to Juwaynī. The latter, while still clinging to the institution of the imamate in general, had ardently advocated the Saljūqs and their vizier Niẓām al-Mulk, and in his Ghiyāth al-Umam he persistently militated against the waning ʿAbbasids.
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Limited to the view that the function of Islamic legal theory was merely to provide the jurist with the means for discovering what God had ordained in the sources, modern scholars approached legal theory with the assumption that it remained substantially unchanged and thus there is little to be gained in tracing its juristic output. An analysis of the functions of this theory and a chronological study of some of its fundamental aspects reveal that this theory (i) played an important role in rationalizing the positive law that had frequently been characterized by arbitrariness and lack of coherence. Systematizing the methods by which judicial judgments were reached and bestowing on them the mantle of logic was a prerequisite to a successful attempt at rationalization; (ii) proved to have been responsive to change within the domain of the Shari’a-though the same cannot be said of secular developments that opposed the fundamental principles and spirit of religious law. Methodologically, this bears much significance for the Islamicist for it teaches that despite the religious boundaries in which it operated, legal theory was constantly changing.
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EXCERPT: “It is only reasonable to assume that dissimilar legal systems possess dissimilar patterns of legal reasoning. Inasmuch as two legal systems differ in their structure and function, they also differ in the types of arguments they employ in their service. It may well be argued that law is, in the final analysis, the product of the premises and methods from and through which it is derived. Two such legal systems which display a vast difference in their overall structure and function are Islamic law and the common law. This paper proposes to shed some light on the logic of legal reasoning in both orders as well as to analyze the reasons and background which give rise to differences and similarities in their methods of reasoning. This will be done with the intent of bringing out some of the major factors which operate on the level of the judicial process and which contribute to the creation of differences in legal orders. The focal comparison in such a study must be the relationship between the logic of the law and the amount of emphasis given to social change in secular and religious cultures.”
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Sunni Islam recognizes four sources from and through which the laws governing its conduct are derived. These are the Qur'an, the Sunna of the Prophet, the consensus (ljmā') of the community and its scholars, and qiyās, the juridicological method of inference. The first two sources provide the jurist with the material from which he is to extract through qiyas and ijtihād (the disciplined exercise of mental faculty) the law which he believes to the best of his knowledge to be that decreed by God. Except for a relatively limited number of cases where the Qu'an and the Sunna offer already-formulated legal judgments, the great majority of furū' cases, which constitute the body of positive and substantive law, are derived by qiyas. Thus, qiyas may be used to “discover” the judgment of a new case provided that this case has not already been solved in the two primary sources. The process of legal reasoning which qiyas involves is charged with innumerable difficulties not the least of which is finding the circle of common similarity, the 'illa, between the original case in the texts and the new case which requires a legal judgment. Since finding the 'illa entails a certain amount of guesswork (zann) on the part of the jurist and since it is highly probable that the 'illa is extracted from a text which is not entirely reliable or a text capable of more than one interpretation, Sunni jurists deemed the results of qiyas to be probable (zannī). It is only at this point that consensus may enter into play in the legal process. Should Muslims, represented by their jurists, reach an agreement on the validity of a zanni legal judgment, such judgment is automatically transferred from the domain of juristic speculation to that of certainty (qat', yaqīn). Consensus then renders this judgment irrevocable, not to be challenged or reinterpreted by later generations. Furthermore, this judgment, being so irrevocable, acquires a validity tantamount to that of the Qur'an and the highly reliable traditions embodied in the Sunna of the Prophet. Thus, such a case with its established judgment becomes a precedent according to which another new legal question may be solved. It is only in this sense that consensus functions as a source of law, a source which is infallible.
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This article is concerned with the question of why the issue of the continuity of ijtihād and the existence of mujtahids rose in Islam? In attempting to answer the question, Joseph Schacht argued that by the beginning of the fourth/tenth century, Islamic law had been elaborated in detail and thus Muslim scholars came to the conclusion that all essential questions had been thoroughly discussed and finally settled. This, Schacht believed, was the reason for raising the question of who was qualified to practice ijtihād and who was not and, above all, the reason for the closure of the gate of ijtihād. For a number of reasons, this argument hitherto widely accepted by scholars, must now be revised.
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EXCERPT: “The following pages form an outline of the historical development of one of the most central concepts of usul al-fiqh; the concept of illa (cause, ratio legis; in syllogistics "the middle term). The centrality of the concept stems from its being the vehicle of legal reasoning. No deductive or inductive — analogical — argument can be valid without the middle term. To justify a conclusion the middle term must not only be distributed in one of the premises but its logical validity must be established as well. The only conceivable means for proving the divine origins of law was through the creation of a valid connection between the positive or ubstantive legal judgement and God's Intention as revealed in the religious texts…”
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Abū al-Ḥusayn al-Baṣrī's (d. 436/1044) Kitāb al-Qiyās al-Sharʿī, translated here as the Book of Juridical Qiyās, represents one of the earliest extant writings on juridical dialectic (al-jadal al-fiqhī) in Islam. The author's Ḥanafī-Muʿtazilī persuasion lends the work further importance, as the combination of these two particular schools of thought seems to have been of rare occurrence among authors of works on juridical dialectic. In this treatise al-Baṣrī draws significantly upon his magnum opus al-Muʿtamad fī Uṣūl al-Fiqh which was to become a milestone in the later development of legal theory.⁴ The subject of the treatise is rather complex and therefore warrants a brief introduction into the nature, form, and methods of juridical dialectic and its relationship to legal theory which provided the premises and points of departure for dialectic.
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The term 'qarina' is a pivotal concept within Islamic legal discourse, yet its complexities and varied meanings remain underexplored in existing dictionaries. This work delves into the multifaceted roles of 'qarina' in linguistic interpretation and the epistemic assessment of Prophetic traditions. Highlighting the division between its verbal and circumstantial dimensions, the analysis demonstrates the necessity of 'qarina' for resolving ambiguities in legal terminology and achieving a more profound understanding of Islamic texts.
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Abstract unavailable.
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In her monograph Roman, Provincial and Islamic Law, Patricia Crone argues that provincial legal practice in Syria, the capital of the nascent Islamic state, influenced the Shari'a no less than did Roman law. She takes as an example of such influence the institution of the patronate and attempts to prove that its crucial features derive from provincial and Roman law, rather than from pre-Islamic Arab society. The present article examines the author's assumptions and evidence as well as the methodology she adopts to establish her thesis.
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The paper explores the integration of formal logic into Islamic legal theory, specifically through the lens of Sunni jurisprudence from the fifth/eleventh century onward. It highlights how arguments based on Aristotelian logic, particularly Istidlal, were initially met with resistance but gradually became incorporated into legal texts and teachings, especially by influential scholars such as Ghazali and Ibn Hazm. The research emphasizes the evolution of legal reasoning and the importance of logic in shaping jurisprudential thought within the context of Islamic law.
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This paper explores the concepts of inductive corroboration, probability, and certainty in the context of usul al-fiqh, the principles of Islamic jurisprudence. It discusses the nature of inductive reasoning, highlighting how conclusions drawn from limited evidence lack the same certainty as deductive inferences. By analyzing historical perspectives, including those of Aristotle and Hume, it argues that while inductive reasoning can strengthen claims, it does not provide definitive proof, instead offering a probabilistic understanding of conclusions based on incomplete evidence.
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The reader of Ibn Taymiyya's works is initially struck by the simplicity of his discourse about the existence of God. Ibn Taymiyya believed that God's existence is self-evident and that any believer of sound disposition knows that God exists without any reflection. This may explain why he never made the slightest effort to expound a structured and complete argument for God's existence. Nowhere in his treatises does he make more than a brief comment on the issue, and this he does only with reference to other problems under discussion. Furthermore, and to render his arguments even more difficult to reconstruct, Ibn Taymiyya's discourse is highly polemical and refutative, and is thus generally stated in the negative. When he asserts that a certain philosophical or theological argument is false or lacks validity, he does not always provide us with what he thinks to be a valid alternative. This is particularly true in the instances where the issue of God's existence is treated.
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Abstract unavailable.
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EXCERPT: The assumption of this continuity, and of Shafiʿi as the master architect of legal theory, turns out, upon a close examination of the sources, to be seriously flawed. Historical evidence in the early and medieval sources is not only discordant with this assumption but, in its aggregate effect, also seems to contradict it. In the following pages I shall attempt to show that we have no good reason to believe that such a continuity ever existed; that Shafiʿi’s Risāla and the theory that it embodied had very little, if any, effect during most of the 9th century; and that the image of Shafiʿi as the founder of uṣūl al-fiqh was a later creation.
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Modern Islamicist scholarship maintains that after the formative period Islamic substantive law became increasingly rigid, eventually losing touch with political, social, and economic developments. This view has remained in force despite the fact that some scholars have acknowledged that fatwās dealing with new issues were incorporated into subsequent manuals of substantive law. Against this view, I argue that primary and secondary fatwās not only were incorporated on a regular basis into these manuals, but also were instrumental in bringing about legal change by updating the corpus of substantive law. Drawing on a wide range of legal texts emanating from the Ḥanafī, Mālikī, and Shāfiʿī schools, I establish a strong connection between fatwās and their social background; define the methods and procedures by which fatwās were incorporated into positive law; and analyze the reasons for their selective incorporation. In the conclusion, I tentatively suggest that the evidence of the muftī’s and the proto-muftī’s activity in early Islamic times tends to undermine Schacht’s thesis regarding the relatively late origins of Islamic jurisprudence.
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The relationship between documents emanating from the world of judicial practice and model formulae recorded in juristic manuals has been viewed differentially by modern scholars. Whereas Joseph Schacht posited the existence of a close relationship between the the realia of judicial practice and juristic manuals, others did not. Going one step beyond Schacht, I argue that the relationship between model shurūṭ and documents originating in practice was dialectical, involving complex processes of editing, interpolation and selection, processes that functioned—almost imperceptibly—within the conventional legal dynamics of the madhhab. If this view is accepted, it follows that the conventional wisdom regarding a gap between Islamic legal doctrine and judicial practice is untenable, at least in the areas of the law covered by shurūt manuals.
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Since its beginnings, Islamic legal theory has concerned itself with the establishment of principles and precepts that govern the procedure of ijtihad, or legal interpretation, from the initial stages of juridical reasoning and legal causation down to the promulgation of rulings and their implementation. The institution of iftaʾ and its practitioner, the mufti, were central to that part of legal theory that dealt with the modalities of transmitting the outcome of ijtihad from the domain of the legal profession, down to the public. For it was chiefly in their capacity as muftis that the jurists of Islam could communicate the mundane results of their legal constructions to the mukallafūn, those on whom the observation of the law was incumbent, and without whom the law would have had no existential purpose.
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Studies on Ottoman society and law through the so-called court sijills have lately proliferated, surpassing in volume all previous studies based on other archival sources, including tax and land registers. The comparatively massive size of these sijills, and the fact that their majority did survive, even in a good state, have led some scholars to the conclusion that only the Ottoman qāḍīs kept records of their court proceedings in a systematic fashion, and that they were the first to establish the sijill as a formal institution. Even those who do not share this view of a uniquely Ottoman achievement seem in no sense clear as to the pre-Ottoman history of this important institution. My purpose in this article, therefore, is to attempt to unravel some important aspects of the sijill's history, including the less consequential issue of the terminological confusion which has engulfed it in modern scholarly discourse.
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The dialectical relationship between model shurūṭ works and juridical practice represents one fundamental instance in which juristic doctrine and the realia of practice conflate to produce a constant modification of the law, both as an abstracted doctrine recorded in legal manuals and as practiced in a worldly social context. Being an integral segment of the less specialised adab al-qāḍī literature, the shurūṭ, I propose, are no less subject to the rules of this dialectical relationship than the larger textual context of which it constituted such an organic part. In this article I discuss the modalities of written communication prevalent among the qāḍīs, a subject that occupies space in both adab al-qāḍī works and the shurūṭ manuals.
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The most central problem associated with Prophetic hadith has undoubtedly been their authenticity. This issue occupied Muslim specialists since the early classical period, and has continued to command the intense attention of western scholars since the middle of the last century. Gustav Well was one of the first, if not the first, to suggest, as early as 1848, that a substantial bulk of the hadith should be regarded as spurious. In 1861, Aloys Sprenger in effect argued the same point. But it was Ignaz Goldziher who inaugurated the critical study of the hadith's authenticity. Concerned with the early evolution of Islamic dogma and theology, Goldziher concluded that the great majority of the Prophetic hadith constitute evidence not of the Prophet's time to which they claim to belong, but rather of much later periods. Goldziher's critical approach to hadith was taken further, and indeed refined, by Joseph Schacht who insisted that insofar as legal hadith are concerned, they must be assumed fictitious until the contrary is proven.
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Western scholars have long regarded the legal history of the second/eighth century and the early part of the third/ninth as being dominated by the so-called geographical schools. Since scholars also hold that the later schools of law were personal in nature, it is widely assumed that a transformation took place from geographical schools to personal schools. In this article, I question these views, arguing (1) that geographical schools never existed; (2) that the later schools were not personal; and (3) that a transformation did in fact take place, albeit from individual juristic doctrines to doctrinal schools.
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This article examines the role of the author-jurist in effecting legal change within the framework of traditional Islamic law. Challenging the widespread assumption that premodern Islamic law was rigid, static, and dominated by taqlīd (imitation), the study argues that legal dynamism was embedded in the very structure of juristic authorship. Through an analysis of legal texts, genres, and methods of doctrinal development, the article demonstrates how jurists exercised interpretive authority by rearticulating, reorganizing, and selectively reformulating inherited legal doctrines. The author shows that legal change occurred through subtle processes of textual production, commentary, and doctrinal synthesis that preserved continuity while allowing adaptation. By foregrounding the author-jurist as a central agent of change, the article redefines the mechanisms of legal authority in Islamic law and calls for a reassessment of modern historiographical narratives that portray the classical legal tradition as stagnant.
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This chapter represents a product of a larger study that aims to go beyond [the question of change in Islamic law]. Ibn ‘Abidın’s discourse is identified here as the work of the author-jurist, a hitherto overlooked juristic category or role that was conducive to legal change as a structural function. In other words, while showing that episodic change in the law is, in and of itself, a worthy quest, this chapter aims, in part, to demonstrate not only that the mechanisms of legal change constituted a structural feature of the law but that the discourse of the author-jurist—as a manipulator of the discursive tradition—was necessarily an integral part of these structural mechanisms. More specifically, and within the parameters set by the present volume, this chapter attempts to show that through these mechanisms—of which one tool was the discursive strategies of the author-jurist—a fundamental reformulation of legal methodology and theory was effected.
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EXCERPT: “Islamic law has long been recognized by Orientalism as a central and strategic field of enquiry - one so vital that it lay at the heart of the European colonialist enterprise. Unlike theology, mysticism and Arabic philosophy, it was considered at once both a theoretical and a practical field, although its practicality was necessarily seen—at least for discursive purposes—as highly circumscribed. Whereas the first three fields had no immediate or direct pragmatic relevance, Islamic law had governed the lives of Muslim societies for over a millennium in ways as numerous and as extensive as one would care to attribute to what defines a society. Without a full, or even adequate, understanding of theology, mysticism or Arabic philosophy, the colonialist enterprise could have still been carried on, but without intimate familiarity with the law of Islam, this enterprise, or at least its ultimate success, might have been called into question. When Joseph Schacht, in one of the most famous statements opening his influential An Introduction to Islamic Law [hereinafter An Introduction], characterized Islamic law as the "most typical manifestation of the Islamic way of life, the core and kernel of Islam itself," he was making a statement not so much about what Muslims themselves thought, as about what the Orientalist doctrine had for long been.”
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In this lecture, it is argued that a significant factor behind the recent rise of so-called Islamic "fundamentalism," in both of its violent and nonviolent forms, is the structural uprooting of the Islamic legal institutions during the middle of the nineteenth century and thereafter (a factor neglected by analysts). When the colonialist powers induced western legal "reforms" that came to displace traditional and indigenous Islamic law, little did they realize that such a process of aggressive change was in the long run to lead to both brutal military dictatorships (during the past half century) and, more recently, to violent reactions in the heart of western commercial and political power. The current U.S. foreign policies toward the Muslim world, it is furthermore argued, can only nourish these reactions.
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To say that authority is the cornerstone of any law or legal system is to state the obvious. Authority not only defines the law but in effect constitutes it formally and substantively. There can be no functioning law or legal system without an underlying structure of authority that may in turn derive from another power-based or authority-based substrate, such as a state. This much we take for granted.
Although it is commonplace for the Western lawyer or jurist to view the state as a body wielding and exercising legal authority, such a view is neither obvious nor normative for his Muslim counterpart, and even less obvious by far to the Muslim masses around the world. Yet, paradoxically, the great majority of today's Muslim countries run their legal systems on the operative—and very concrete—assumption that it is the state that produces legal authority. In other words, within the national body politic of each modern Muslim country there lies a source of legal power that presumably legitimizes and enforces both the public actions of the law and the provisions that govern the private sphere.
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Abstract unavailable.
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By reevaluating modernist assumptions in Islamicist scholarship and in Western moral and legal philosophy, I arrive at the conclusion that the Qur'ān was a source of Islamic law since the early Meccan period, when the Prophet Muhammad began to receive the Revelation. This conclusion, supported by extensive evidence from the Qur'ān itself, compels a modification in the standard narrative about the genesis of Islamic law.
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If we must refer to the sharῑʿa as ‘Islamic law’, then we must do so with considerable caution. The latter expression bears a connotation that combines modern notions of law with a particular brand of modern politics, both of which were largely – if not entirely – absent from the original landscape of the sharῑʿa we are considering here. Throughout the last three or four centuries European modernity has produced legal systems and legal doctrines that are almost exclusively the preserve of the equally modern nation-state. Intrinsic to its behaviour, the modern state is systemically and systematically geared towards the transformation and homogenisation of both the social order and the national citizen, features that have a direct bearing on law. To accomplish these goals the state engages in systemic surveillance, discipline and punishment. Its educational and cultural institutions, among others, are designed to manufacture the citizen who is respectful of law, submissive to notions of order and discipline, industrious and economically productive. Without the law and its tools of surveillance and punishment, no state apparatus can exist. Ergo the centrality, in the definition and concept of the state, of the element of violence, and of the state’s exclusive right to threaten its use.
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In engaging with my work on the early formation of Islamic law, David Powers has in effect reproduced a paradigmatic account that exemplifies the dearth of theory and hermeneutical self-consciousness in the field of legal Orientalism. This article proffers, first and foremost, a prolegomenon to some of the fundamental theoretical issues with which this field has yet to reckon; and, secondarily, a response to the concrete claims that Powers has made.
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A central feature of public Muslim discourse over the past three decades has been the call to restore the Shari‘a in one form or another. Some reformers have proposed a new theoretical underpinning for this restoration, arguing for the adoption of foundational concepts that bear little, if any, resemblance to their pre-modern counterparts. A central question that ineluctably emerges in this aporia is: What narrative must be adopted as the representation of the historical Shari‘a, the Shari‘a that prevailed until the early portion of the nineteenth century? If the colonial narrative is ipso facto programmatic and teleological, and if it served and still serves the purposes of all but those of the subaltern majority, then what other narrative must be adopted in the project of creating the new symbiosis? And if the jural voices of the subaltern are to come in for serious consideration, then how are we to represent them, if we can at all? And if we cannot, then into what espistemic predicament, if not a perennial aporia, does this throw both the privileged scholar and the reformer/intellectual? This article does not provide answers to these questions but rather addresses the problematics that these and related questions raise in dealing with the challenge of introducing into the modern Muslim condition one form of Islamic law or another.
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A sequel to earlier publications on the subject, this article argues that the Qur’ān not only saw itself and was seen as exclusively au- thorized to adjudicate matters in the social realm but also that it was directly responsible for the origination of constitutive epistemic and political structures in the Sharī‘a. Speciically, through a study of certain paradigmatic concepts, it attempts to show that the Qur’ān laid the foundations for three constitutive features of the Sharī‘a, namely, (1) its constitutional organization and the practice of the rule of law; (2) its landmark features of jurists’ law and ijtihādic apparatus; and (3) its moral governmentality.
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The content and enduring effects of Magna Carta are addressed by other contributors to this volume. For this chapter, I only wish to invoke the most widespread understanding of this instrument, namely, that it came to be regarded as one of the primary catalysts in the emergence of the rule of law in England and later in much of the liberal democratic world. My aim is to show that a comparable yet far more powerfully structuring event in the constitutional history of Islam was the Qur'ān itself, the most authoritative voice in that tradition, past and present. Islam's robust system of the rule of law, which lasted until the nineteenth century, is in great measure due to Quranic teachings; or at least originated therefrom.
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The shari concept of Haqq navigates the cosmological-sociological spectrum robustly, from one end to the other. Haqq is not only the Truth of the divine as ontology, but also the theological and supra-deontological source of that which is socially just, right, and equitable. Haqq is God as one and many, this being a ‘dualistic’ presence of his saturating the world in its unity, plurality and particularity. The Hanafi doctrine seems more concerned with fairness towards the defendant than with even preserving the integrity of the individual’s proprietary rights, however inviolate these latter were. Historical analysis might legitimately make demands on legal analysis of doctrine and reasoning, in that rationalization of doctrine must be recognized to have come subsequent to particular and often isolated historical developments. Both qisas and qadhf acquired their substantive content and formal shape prior to the rise of the doctrinal distinction between huquq Allah and huquq al-'ibad'.
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In an article published in 1993, I argued that Muḥammad Ibn Idrīs al-Shāfiʿī (d. 204/820) was not, as commonly thought, the architect of uṣūl al-fiqh and that this discipline emerged only after the main battles over what became the Sunnite sources of the law were won. I had dated the emergence of writings on uṣūl al-fiqh to the last part of the third/ninth century and the first half of the fourth/tenth, pointing to Ibn Surayj (d. 306/918) and his students as amongst the earliest exponents of this type of literature. The article contributed to the rise of a considerable controversy in the field, in which a number of critics reasserted earlier origins of the discipline. In this writing, I reply to some of these critics, while confirming the main conclusions of that article and expanding and refining its arguments. In light of new evidence, empirical and interpretive, I maintain that uṣūl al-fiqh proper arose slightly later than my initial estimate. I also provide an analytical description of this theoretical science and situate it within a periodizing schema that charts its development from its prehistory down to the present.