Maqasid and the Challenges of Modernity

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

The Logic of Legal Reasoning in Religious and Non-Religious Cultures: The Case of Islamic Law and the Common Law

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

Muslim Rage and Islamic Law

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

Uṣūl al-Fiqh and Shāfiʿī’s Risāla Revisited

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

Qāḍīs communicating: legal change and the law of documentary evidence

A study of two seventh/thirteenth century model legal manuals, one from Syria, the other from al-Andalus, show that the discourse about the modalities of written communication prescribed for judges (kitāb al-qāḍī ilā al-qāḍī) reflects an intimate relationship between doctrine and the realia of legal practise. One aspect of this relationship is the change that discursive doctrine had to undergo under the pressure of juridical practises of everyday life.El estudio de dos formularios notariales del siglo vii/xiii, uno sirio y el otro andalusí, muestra que el discurso sobre las modalidades de comunicación escrita preceptuadas para los jueces (kitāb al-qāḍi ilà al-qāḍi) refleja una estrecha relación entre la doctrina y la realidad de la práctica legal. Uno de los aspectos de esta relación es el cambio que tuvo que experimentar la doctrina discursiva bajo la presión de las prácticas judiciales cotidianas