Rhetoric in the Court: Averroes on Testimonial Witnessing and Oaths (original) (raw)
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Journal of American Oriental Society (JAOS), 2021
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 Shafi!i 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 !alā al-ḥinth). The comparison between the disputation transcript and al-Ṭabarī’s lengthy legal manual al-Ta!līqa 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.
Journal of Arabic and Islamic Studies, 2016
Abū Bakr al-Bāqillānī (d. 403/1013) was a preeminent scholar and an influential participant in a diverse range of Islamic discourses including the Ashʿarī school of theology and the Mālikī school of law. Al-Bāqillānī's texts are often studied within the context of individual disciplines, but this article demonstrates that an interdisciplinary reading of his scholarly production uncovers significant areas of overlap. These intersections bring to light topics of sustained concern for al-Bāqillānī that crosscut his work and allow him to draw together various Islamic intellectual discourses. Through looking at three such intersections, on the topics of bayān, muḥkamāt and mutashābihāt, and the so-called Mysterious Letters, this article shows that al-Bāqillānī's argument in favor of the clarity and eminent understandability of language, including all of the Qurʾān, is best understood through a cross-disciplinary reading of al-Bāqillānī's oeuvre. Bringing together al-Bāqillānī's thought in the two seemingly disparate genres of uṣūl al-fiqh (legal theory) and iʿjāz al-Qurʾān (the inimitability of the Qurʾān) serves the dual purpose of examining the relationship between these fields and shedding light on al-Bāqillānī's work across disciplines. It thus contributes to a more complete picture of the identity of a scholar who was concerned with providing a consistent and multifaceted theory of language within a broader synthesis of Islamic thought.
Debating the Imperative Mood in Uṣūl al-Fiqh: Collective Deliberation and Legal Validity
This article offers an analysis of the way a number of classical Muslim scholars treated the question of the normative impact of statements in the imperative mood. This question, which was standard in classical works of legal theory, is noteworthy for its direct implication in establishing links between linguistic forms and normative positions. It reveals to us with some clarity the logic of norm-formation in part of the tradition. It will be argued that the debates surrounding the normative impact of the imperative mood reflect a logic of collective deliberation that highlights a reliance on the authority of the community of jurists as a foundation of validity of jurisprudential principles. Establishing the validity of legal norms and processes that lead to their formulation is a common concern among legal systems. In the study of classical Islamic law, it is commonly assumed that the jurists derived substantive norms from revealed sources using the tools and methods of Islamic legal theory. This assumption locates the validity of legal norms and their formulation exclusively in divine will as expressed in revelation. This study suggests that we can view debates in legal theory as efforts in grounding legal validity in various sources of authority, including revealed language and the collective authority of the scholars. This corresponds to what has been described in analytic jurisprudence as a secondary rule of recognition.
This essay examines qur’anic "exhortation" and "legal paraenesis" in light of pre-Islamic Arabic poetry and late antique biblical traditions. It analyzes the verb waʿaẓa and related forms in narrative and legal/legislative sections of suras that can be assigned to different chronological stages of the Qur’an's textual genesis. Qur’anic exhortations initially occur in narratives about messengers sent to unbelieving peoples. The word mawʿiẓa then becomes part of the self-referential vocabulary of the Qur’an and is used to characterize the contents of Moses' Tablets. This linguistic development anticipates a process of legal and regulatory actualization, specification, and exposition: in the Medinan period, legal discourse is framed with the verb waʿaẓa. The emerging Medinan legal paraenesis puts emphasis on social applicability, but it is neither parochial nor does it break with Meccan ethics. Instead, it connects the communication and implementation of laws, rulings, and commands to human volition in a specific social context.
Written and Oral in Islamic Law: Documentary Evidence and Non- Muslims in Moroccan Shari'a Courts
This article begins from the premise that the margins can shine light on the center, and uses the experience of Jews (thought of as marginal in the Islamic world) in Moroccan courts (similarly thought of as marginal in Islamic history) to tell a new story about orality and writing in Islamic law. Using archival evidence from nineteenth-century Morocco, I argue that, contrary to the prevailing historiography, written evidence was central to procedure in Moroccan shari‘a courts. Records of nineteenth-century lawsuits between Jews and Muslims show that not only were notarized documents regularly submitted in court, but they could outweigh oral testimony, traditionally thought of as the gold standard of evidence in Islam. The evidentiary practices of Moroccan shari‘a courts are supported by the jurisprudential literature of the Mālikī school of Sunni Islam, the only one prevalent in Morocco. These findings have particular relevance for the experience of non-Muslims in Islamic legal institutions. Scholars have generally assumed that Jews and Christians faced serious restrictions in their ability to present evidence in shari‘a courts, since they could not testify orally against Muslims. However, in Morocco Jews had equal access to notarized documents, and thus stood on a playing field that, theoretically at least, was level with their Muslim neighbors. More broadly, I explore ways in which old assumptions about the relationship of the written to the oral continue to pervade our understanding of Islamic law, and call for an approach that breaks down the dichotomy between writing and orality.
Journal of Eastern Christian Studies, 70 (2018), p. 227-240.
From the seventh century C.E. on, canonical East-Syrian law developed in the shadow of Islamic rule as Islamic courts imposed new standards for dispute resolution. Yet, interactions between Muslim practices and East-Syrian law in the first centuries of Islam remain little studied. This article examines the evolution of East-Syrian canon law regarding oath-taking up to the early ninth century. It argues that formal oath prohibition, formulated by canon law based on the Gospel of Matthew, became controversial among jurists. At the end of the eighth and the beginning of the ninth century, Ishoʿ bar Nūn authorized this procedure, while Ishoʿbokht gave it theoretical foundations by assessing the historical significance of Jesus’s requirements and by appealing to the concept of necessity. The integration of oath-taking into the East-Syrian judicial process can therefore be interpreted as a response to its widespread use in Islamic courts, allowing Christians to better defend their cases.
The Rhetoric of Legal Disputation Neo-Ahl al-Ḥadīth vs. Yūsuf al-Qaraḍāwī
Islamic Law and Society, 2015
The essay deals with the bitter polemics between Neo-Ahl al-Ḥadīth and Sheikh Yūsuf al-Qaraḍāwī, a well-known legal scholar in the contemporary Muslim Sunni world. In addition to analyzing the substantial claims made by one party against the other one, the essay focuses on the rhetorical devices used by both parties. It analyzes these devices in light of theories of Pragmatics in the field of discourse analysis, with special attention to the distinction between a " discussion " and an " argument. " My main finding is that Qaraḍāwī's critics seek to ruin his public " face " because, in their view " modernist-reformist " religious figures like Qaraḍāwī are agents of Western-oriented secularization, camouflaged by a pseudo-orthodox juristic dress.
Narratives of Truth in Islamic Law: Introduction
2007
This book addresses the issue of legal truth. Such an issue is two folded. On the one hand, there is the legal truth as it is told, produced, transformed and made relevant for legal purposes, from within the legal system and its actual functioning. The ways in which these stories about ‘what happened' are told largely depend on and are oriented to, the relevancies and technicalities of the specific context of law practice. On the other hand, legal truth is also what is told 'about the law,' from outside the legal body. These are stories of what people think and say about legal happenings, and they are told in the performance of some other activity than the law, for different practical purposes. In a broader sense, therefore, this book addresses the production of narratives 'in the law' and 'about the law.'
Legally speaking, an oath (Al-Yamin) is regarded as apart of the legal mechanism of proving the innocence of the offender by virtue of the Islamic jurisprudence as a whole. In fact, in order to be admissible in the eyes of the judicial institutions, there are certain guidelines and procedures to be fulfilled by the parties accordingly. Indeed, from the Islamic legal point of view, swearing an oath must be in accordance with the realization of benefits to the people, concerning their affairs both in this world and the hereafter; particularly as an essential element of protecting dignity. Thus, this paper is aimed at analyzing the concept of an oath by virtue of Islamic jurisprudence (usul fiqh). On the other hand, this paper will observe the relevancy of an oath as apart of the evidences from the Islamic law of evidence. It is hoped that; throughout this paper, there will be a better understanding pertaining to the status of an oath to prove the facts which are relevant for the judgment of a court accordingly.