The Inner Morality of Sharīʿa: Arguments from Reasonableness in Early Islamic Jurisprudential Debates on God’s Commands (original) (raw)
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Cambridge University Press, 2021
and Theology is a detailed and principled account of classical Islamic theologians and legal specialists who discussed divine revelation and the construction of norms of human actions. While there have been recent publications on Islamic ethics, Ash'arī and Mu'tazilī thought, and divine command theory, 1 Farahat's book provides a welcome addition to the classical scholarship on the subject of divine commands and natural law theories, addressing many of the nuances of Ash'arī and Mu'tazilī theological and legal intricacies. By covering a broad chronological and disciplinary range, Farahat deftly analyzes two intertwined yet seemingly irreconcilable streams within the Islamic theological tradition as studied by some of the most important Ash'arī and Mu'tazilī thinkers. The book has two parts, each with three chapters. In the first part, Farahat's primary concern is the metaphysical and epistemological questions on the notion of divine speech in the works of kalām (systematic theology). In these three chapters, Farahat discusses the epistemology of divine speech, its metaphysics, and its nature in classical theology, respectively. In the second part of the book, Farahat dissects linguistic manifestations of divine commands and their normative statements in the works of uṣūl al-fiqh (methodology of Islamic jurisprudence), addressing in the three chapters the nature of divine commands in classical legal thought, divine command in linguistic and semantic forms in the language of revelation, and the position and role of legal obligations through their imperative form. Both fields, kalām and uṣūl al-fiqh, are concerned with a wide range of debates about divine command theories and natural law theories. Being part of a "single intellectual project" (22) and as such inseparable in understanding and defining moral positions based on theological precepts and virtues, both kalām and uṣūl al-fiqh are hence integrated in the development of moral epistemology, metaphysics, and the notion of divine speech and justice. Farahat aims to answer the question of "why and how do we rely on divine revelation in guiding our actions" (1) in the context of classical Islamic thought. While the prevalent view
Bridging the Gap: Two Early Texts of Islamic Legal Theory
This article presents two short but complete treatises on legal theory (uṣūl al-fiqh). The first was written by Ibn Surayj (d. 306/918) as an addendum to his compendium on Shāfiʿī law, al-Wadāʾiʿ, and the second by Abū Bakr al-Khaffāf (fl. early fourth/tenth century), who included it as an introduction to his legal text al-Aqsām wa-l-khiṣāl. An analysis of these texts reveals the existence of a self-conscious legal-theoretical discourse around the turn of the fourth/tenth century that connects al-Shāfiʿī's (d. 204/820) Risāla with the so-called mature uṣūl tradition known from the late fourth/tenth century onward. The analysis also sheds considerable light on developments in legal theory in this period, such as the emergence of the term ʿilla (cause), the parallel rise of legal dialectics (jadal), the consequences of adopting the idea of waḍʿ (linguistic coinage), and generally the inclusion of theological concerns in legal theory.
The Principle of Jurisprudence (Usul al-Fiqh)
I. Apart from the fact that the existing works on Islamic Jurisprudence in the English language do not offer an exclusive treatment of usul al-fiqh, there is also a need to pay greater attention to the source materials, namely the Qur'an and sunnah, in the study of this science. In the English works, the doctrines of usul al-fiqh are often discussed in relative isolation from the authorities in which they are founded. Furthermore, these works tend to exhibit a certain difference of style and perspective when they are compared to the Arabic works on the subject. The usul al-fiqh as a whole and all of the various other branches of the Shari'ah bear testimony to the recognition, as the most authoritative influence and source, of divine revelation (wahy) over and above that of rationality and man-made legislation. This aspect of Islamic law is generally acknowledged, and yet the relevance of wahy to the detailed formulations of Islamic law is not highlighted in the English works in the same way as one would expect to find in the works of Arabic origin. I have therefore made an attempt to convey not only the contents of usul al-fiqh as I found them in Arabic sources but also the tone and spirit of the source materials which I have consulted. I have given frequent illustrations from the Qur'an, the Sunnah and the well-recognised works of authority to substantiate the theoretical exposition of ideas and doctrines.
2014
Author(s): Temel, Ahmet | Advisor(s): Ahmad, Ahmad A | Abstract: The 3rd/9th and 4th/10th centuries witnessed significant developments in Islamic intellectual history. Most of the hadith collections that later came to be recognized as canonical were compiled in this period and the major schools of law and certain theological schools also completed their formation during the same period. Despite this continuous progress in other fields of religious sciences, there is an unusual lapse of time between what is widely considered the first work in usul al-fiqh (Islamic legal theory) al-Risala by al-Shafi`i (204/819), and what is recognized as the second work al-Fusul fi-al-usul by al-Jassas (370/981). Due to the absence of a major work devoted solely to usul al-fiqh from this period, the majority of contemporary scholars considered it as a period of history during which there was little or no intellectual activity in the field of usul al-fiqh and where no significant developments took pla...
The making of law in Islam: fiqh as delivery of verdicts
2024
This article deals with the logic of fiqh as the understanding of Šarī'ah. Its core argument is that the distinctive nature of fiqh, as a specific type of law making, consists of the delivery of verdicts. To support this theory, the article preliminarily focuses on the tenets of Muslim cosmology/legal theology (the 'religion of fiqh'), where the real (ḥaqq) is conceived as the immediate result of God's decree/decision (ḥukm). Within this semantic universe, if the prescribed rule (ḥukm) has been revealed through Šarī'ah in its transcendental dimension, its human understanding (the 'law of fiqh') necessarily proceeds by means of verdicts (from the late Latin vere dictum, 'to say, to report, to make explicit the truth/real' of Šarī'ah) in order to describe the right (again, ḥaqq) in its empirical/worldly manifestations. Accordingly, if by delivering the truth of Šarī'ah, the right (ḥaqq) realises (in the specific sense of 'making real') God's decree/decision (ḥukm), the notion of verdict becomes crucial to define fiqh as the law making par excellence in the Muslim civilisation, as well as to foster a more critical view of the idea of Islamic law from a comparative approach.
The Birth of Islamic Law: From the Intervention of the Prophet to the Evolution of Fiqh
Oyunul-Mesail Journal, 2023
The development of Islamic law encompasses a continuum from the Prophet’s intervention to the evolution of fiqh. Fiqh serves as the expression of legal knowledge and accumulated information on legal matters within the Muslim community. This article places emphasis on the significance of fiqh, presenting insights into its utilization during the inception of Islam. Furthermore, it acknowledges that fiqh constitutes a distinct system compared to modern legal frameworks. Sharia is defined as a set of rules established by God for guiding humanity, and the article delves into the relationship between Sharia and fiqh, highlighting fiqh as the pursuit of comprehending and applying these Sharia rules. Additionally, the article elucidates a threefold hermeneutic process, encompassing understanding, interpreting, and the hermeneutic process, and discusses its role in the field of fiqh. Addressing the role of the Prophet (p.b.u.h) and legal interventions, the narrative explores the historical evolution of fiqh and the contributions made by Abū Ḥanīfah. Finally, the challenges encountered in the historical evolution of fiqh are examined, underscoring how traditions, while contributing positively, can also exert negative influences by becoming inflexible and stagnant over time, potentially diminishing the dynamism of fiqh. Key words: Abū Ḥanīfah, Fiqh, Hermeneutic, Islamic law, Muslim community, Modern legal frameworks, Sharia, Significance of Fiqh
The Development of Laws and Jurisprudence in Islam: Religious and Imperial Legacies
Stato, chiese e pluralismo confessionale, 2020
ABSTRACT: This article analyzes several open scholar debates regarding the Muslim legal system, from the conventional narrative of its formation and the triumph of the Traditionalist movement to the disputed question of reciprocal legal influences with other religious and secular juridical systems. This research tries to avoid two epistemological risks: first, the dangers of a simplistic binary debate like traditionalists v. revisionists, religious v. secular, or even Sunnis v. Shiite reducing the analysis to an ideologically polarized and ineffective dispute; and second, the improper use of juridical neologisms applied to the Islamic legal system, mainly from codified European continental law and English common law as a result of the Orientalist, colonialist, and secularist mentalities that, instead clarification create confusion. From a hermeneutical point of view, two characteristics to keep in mind: 1) the notion of divine law and its legal implications; and 2) the relationship between law and theology that is not correlative to the connection between secular legislation and ideology. From a comparative point of view, three challenging questions to address: 1) the distinction between Usul al-fiqh and Usul al-qanun often blurred in practice showing the complexities of the relationship among religious, legal, and political structures under Muslim ruling; 2) the intertwined relationship among Sharia, fiqh, and siyasa with pre-Islamic administrative, legal, and judicial traditions; 3) Jurisdictional pluralism in the Islamic legal practice concerning non-Muslim minorities.
The Origins of Islamic Legal Theory: The Traditionalist and Western Perspectives
Islamic law is both immensely important to those living in the modern Middle East and consistently misunderstood by those living outside of it. The way that individual Middle Eastern nations interpret and apply Islamic law directly impacts the lives of their citizens, but for years the origins of Islam (and Islamic law) closely mirrored the narrative presented in the Qur’an. While it is odd that the origins of Islamic law escaped scrutiny for years, the current state of scholarship is one of tension and excitement. Western scholars (primarily from Germany) have applied rigorous historical methodology to ancient sources and have challenged the traditional narrative. Traditionalist scholars (primarily from the Middle East) have noted that Western attempts to define the Middle East often mirror the pattern laid out by Edward Said’s Orientalism, and counter with Arabic sources ignored by the West. The end result is a tense academic standoff, as Western scholars attempt to duck charges of Imperialism and repeatedly point to the intriguing questions brought up by their sources, while Traditionalist scholars give ground on some pieces of the Qur’anic narrative but not others. This paper breaks down the research and arguments of key scholars from each group. Wael Hallaq’s work represents the most nuanced of the Traditionalist school, and his research is placed alongside the combined work of Joseph Schacht, Patricia Crone, and Benjamin Jokisch. It is important to note that these two schools should not be viewed as oppositional, despite the natural inclination to do so. This paper will show that they are, in effect, arguing with very specific goals in mind. The Traditionalist approach demands that Middle Eastern scholars be allowed to participate in the creation of their own historical narrative, and rightfully bristle at Western attempts to place Islam in a larger context, as this contextualization often places Islamic culture in a position subservient to the West. The Western approach attempts to bring new sources into the discussion of Islamic legal origins and, if it is done correctly, carefully separates this research from the historia sacra of Islamic tradition.