Studies in Islamic Legal Theory

Studies in Islamic Legal Theory

Studies in Islamic Legal Theory

Studies in Islamic Legal Theory

Synopsis

This volume is unique as a collection of studies devoted entirely to topics and issues in the field of Islamic legal theory and authored by fourteen scholars known for their work in this field. The studies deal with such topics as early notions of charismatic authority, hermeneutic techniques in Sh?fic?'s

"Ris?lah, uses of the term "sunnah in the ninth century A.H., evidence for the emergence of "us?l al-fiqh as a genre of legal literature in the ninth century, the function of "us?l al-fiqh in relation to legal practice, theological ramifications of issues in "us?l al-fiqh, Sh?c? attitudes to "qiy?s, the structure of juristic authority within the "madhhab, "us?l al-fiqh as an instrument of reform, the place of "qaw?cid within Islamic legal theory. These studies are followed by a discussion among the authors.

Excerpt

Within the field of Islamic legal studies, increasing attention has been given in recent times to that branch of legal learning known in Arabic as usūl al-fiqh. It is frequently called in English “legal theory.” Although it would be rash to suppose that usūl al-fiqh subsumes everything that may be regarded as Muslim legal theory in the broadest possible sense of that term, nonetheless there can be no denying that it constitutes, or came over time to constitute, the mainstream of legal-theoretical thought in Islam. It may in fact not be incorrect to say that legal theory in late pre-modern Islam is more or less identical with usūl al-fiqh, for eventually questions relating to the sources of legal knowledge (legal epistemology), the nature and locus of legal authority, the hermeneutical processes involved in the determination of the law and similar topics were discussed almost exclusively within usūl al-fiqh.

On the other hand, usūl al-fiqh does not lend itself easily to definition. For many scholars working on Islamic law, the term usūl al-fiqh conjurs up what has come to be widely called the classical Sunni theory of law. According to this theory, the law has four fundamental “roots”: the Qur'ān, the Sunnah (sayings and deeds of the Prophet Muhammad), the consensus of Muslim jurists, and analogical reasoning. The history of this particular stream of usūl al-fiqh—especially its origins and early development—is certainly fascinating and worth pursuing. Of special interest is the pressure it was able to exert upon the juristic community at large, including some Shī'ī jurists, to conform to its main principles. If one turns, however, to the period before the establishment of the classical Sunnī usūl al-fiqh, one finds oneself facing a much more fluid world of legal thought such that the task of determining precisely what constitutes usūl al-fiqh becomes highly problematic. But even within the context of the later “four sources” theory one finds considerable diversity of styles of presentation, of terminologies, of agendas, of methods of organization, and of literary forms. Furthermore, throughout the history of Muslim legal thought, the term usūl al-fiqh, as well as the abbreviated form usūl, is sometimes used to refer to something that is altogether distinct from legal theory as such, though closely related to it, namely . . .

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