Islamic Law and Culture, 1600-1840

By Haim Gerber | Go to book overview
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This study was undertaken in an attempt to build a general picture of Islamic law in the last phase of its existence as part of classical Islam properly speaking (the sixteenth to eighteenth centuries). This was done on the basis of the work of three major muftis who lived in this period—Ebu Suud Efendi, the sixteenth-century Ottoman Şeyhülislam; the seventeenth-century Palestinian mufti Khayr al-Dīn al-Ramlī; and the early nineteenth-century Damascene mufti Muḥammad Amīn Ibn ʿĀbidīn. These muftis were selected because of their recognized juristic stature and because of the often detailed fatwas which they wrote, fatwas which allow a penetrating and close-range look into the structure of contemporary legal thought in Islam.

Some of the characteristics of Islamic law at this time are specific to the period, while some are continuations of characteristics directly derived from classical Islam. In the latter context I encountered some serious disagreements between what I found in the original materials and older descriptions of Islamic law. I therefore found it useful to posit the main points of the older Orientalist literature on Islamic law as the organizing framework of this study, starting with a number of questions raised in this literature. One such question is whether Islamic law should be understood as a list of duties incumbent on the believer and nothing more. Another is whether indeed Islamic law had nothing whatsoever to do with the world of social practice, towards which the jurists only nursed bitter feelings of resentment and even abhorrence. A third question deals with the relations between Islamic law and the state, and more specifically with the argument that these relations were soured beyond repair, since Islamic law, being a jurists' law, had no connection to the state in terms of its origins; hence the jurists resented the state, though sometimes, out of fear and despair, they preached obedience to it. In the context of the fourth question we considered the claim that after the final establishment of the schools of law in the third/ninth century Islamic law became ossified and paralyzed, based on pure imitation, taqlīd, which came in place of ijtihād, free thinking. The fifth question is concerned with the argument that Islamic law lacked sophisticated reasoning, and was based rather upon a simple logic of trying to


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