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Title: A History of Islamic Legal Theories: An Introduction to Sunni usul al-fiqh by Wael B. Hallaq ISBN: 0-521-59986-5 Publisher: Cambridge University Press Pub. Date: 01 November, 1999 Format: Paperback Volumes: 1 List Price(USD): $28.00 |
Average Customer Rating: 4.5 (6 reviews)
Rating: 5
Summary: A Delightfully Comprehensive History Of Fiqh
Comment: I really enjoyed this title. Wael B. Hallaq has produced some of the most remarkable and well structured works on Islamic Jurisprudence. The first chapter here gives the student a very in depth look into the development of the juristic tradition in the first three centuries of Islam and moving into modernity. Hallaq writes with brilliance and honesty, the entire scope of this dynamic is rendered with accuracy, and it is fairly easy to comprehend. I really appreciated the last chapter entitled "The Crisis of Modernity". In it Hallaq goes over the legal reform efforts of Fazlur Rahman, Hassan Al'Turabi and my own favorite Muhammad Shahrur. I am hoping that Muhammad Shahrur's 1992 manuscript entitled "Al Kitab wa al Qur'an" will soon reach our shores in an English translation. Until then, Wael Hallaq's 7 pages dedicated to his methodology will have to suffice.
Rating: 4
Summary: A useful introduction to Islamic legal theories
Comment: This is an invaluable guide to the vast and complex field of Islamic legal theory. The author unfortunately begins his book with some rather controversial remarks. He neither subscribes to the rigidly skeptical thesis of Joseph Schacht, nor to the majority Muslim view, concerning the authenticity of Prophetic reports. He also argues that Ibn Idris al-Shafi'i was not the father of Islamic legal theory proper, an assertion that runs counter to a rather widely held view that asserts otherwise. However, these inconsequential remarks need not discourage the reader. At best, these are cautionary notes that do not impact what is otherwise a very objective and balanced treatment of the author's subject matter.
The first chapter deals with the rise of the very concept of legal theory in early Islam. The Qur'an is examined as a legal document, both in the course of its revelation and its subsequent interpretation by the early authorities of Islamic law. These authorities juxtaposed the Qur'an with the Sunna (Prophetic model) and the relationship between the two was ironed out in determining the precise bases of the law. Here, Shafi'i is presented as innovative, but neither original nor immediately influential. His articulation of legal theory apparently did not catch on until much later.
The second chapter deals with the early core concepts of legal theory. This phase was marked by the obsession over epistemology, in ascertaining certainty over what constituted the Divine law. Integral to this pursuit was the development of the elaborate discipline of authenticating Prophetic reports. The author also introduces the legal norms, as identified by Shafi'i: the obligatory, the recommended, the permissible, the repugnant, and the prohibited. Legal language is carefully treated, covering 'the clear and the ambiguous' verses and Prophetic reports, univocal language, indeterminate language, the general and its particularization, equivocal language, and linguistic implications. Here, Abu Hamid al-Ghazzali and Abu Ishaq Shirazi are cited repeatedly for their sophisticated legal theorization.
The third chapter deals with advanced legal concepts. We are introduced to the vastly important legal device of analogical reasoning (typologically divided into a fortiori and reductio ad absurdum arguments), juristic preference (istihsan), textually unregulated benefits (masalih mursala), the principle of presumptive continuity (istishab), and the validity of pre-Islamic laws (hukm al-ashya' fi al-asl); the roles of legal reasoning and its practitioners (ijtihad and mujtahids), the jurisconsult (mufti), and following authoritative opinions (taqlid).
The forth chapter concerns the theoretical constants of the law, by which legal theorists sought to guide the development of Islamic substantive law. This process involved identifying the 'rationale' behind the law, so as to pass verdicts in new legal cases in a manner consonant with Divine will. It goes without saying that attempting to second-guess the mind of God was a matter of no small consequence. It was rather a wildly controversial, albeit imminently necessary, endeavor to construct positive law in the face of evolving social circumstances. Here, we encounter the brilliant legal theories of the Malikite Shihab al-Din Qarafi and the Hanbalite Najm al-Din Tufi. We also learn that the bulk of classical Islamic legal theories were rooted in Ash'arite theology, indicating just how widespread was the following of this particular theological school. The author introduces his argument that the 'gates of ijtihad' were not closed in 1258, the reasoning behind which is readily palatable for the critical reader.
The fifth chapter deals with social reality and the response of theory. Here, we focus on one theorist in particular, Abu Ishaq al-Shatibi. The role of the legal theorist is not the mindless application of the law, but rather perpetually "discovering the law". Shatibi is novel in that he attempted "in his theory to answer the particular needs of his time by showing how it was possible to adapt the law to the new social conditions". Without going into the very detailed discussion of Shatibi's theory, it is interesting to note his criticism of the Sufis of his time. Apparently, these Sufis were so rigid in their interpretation of the law, preferring the most difficult and challenging legal opinions, that they burdened ordinary believers. Shatibi describes this doctrinaire group as "pseudo-Sufis", who could not appreciate the leniency inherent in Islam. He explicates how the law is equipped with dispensations to facilitate the conduct of spiritual and civil affairs.
The sixth chapter deals with the crisis of modernity, and the pressing debates concerning the future of legal theory. It is safe to say that the advent of modernity (I refrain from using the now-outdated, empty, and thoroughly useless term "postmodernism") has brought unprecedented challenges for Islam. The rise of nation-states, the scientific revolution, the rise of natural law, the discourse of human rights, the communications revolution, the revolution in arms and warfare, globalization, etc., have fundamentally changed human societies from what they were for the larger duration of Islamic history, to say nothing of seventh century Arabia. It is obvious that Islamic law has failed to deal with the challenges of modernity, not because of a bankruptcy in law proper, but rather in legal theory, out of which positive law is constructed. In this chapter, we encounter the reforming ideas of Muhammad 'Abduh, Rashid Rida, 'Abd al-Wahhab Khallaf, 'Allal al-Fasi, Hasan Turabi, Muhammad Sa'id 'Ashmawi, Fazlur Rahman, and Muhammad Shahrur. Sadly, it is made clear that none of these figures have managed to introduce a valid legal methodology to meaningfully deal with the challenges of modernity. Perhaps the poverty of their collective endeavor is symbolized by the author's conclusion that Shahrur, an engineer with no formal legal training, has proposed the most convincing solution to the crisis of modernity.
This book is, overall, a fine study. Though not a comprehensive history, its main utility lies in simplifying for the ordinary reader a rather intimidating (and confusing) topic. If one is searching for clues to answer the crisis of contemporary Islam, however, it is certainly not to be found in this book.
Rating: 5
Summary: Extremely Well Written
Comment: In addition to the existing comments:
This book is extremely well written. Although it reads like a textbook, this merely reflects the high level of scholarship the author brings to his subject. The analysis is precise, thorough, and clearly explained. He touches a point once, addresses it completely, and then moves on. An essential read.
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Title: Introduction to Islamic Theology and Law by Ignaz Goldziher, Andras Hamori, Bernard Lewis ISBN: 0691100993 Publisher: Princeton Univ Pr Pub. Date: 01 April, 1981 List Price(USD): $19.95 |
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Title: Encyclopedia of Islamic Law: A Compendium of the Major Schools by Laleh Bakhtiar, Kevin Reinhart ISBN: 1567444989 Publisher: Kazi Publications Pub. Date: October, 1996 List Price(USD): $39.95 |
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Title: The Place of Tolerance in Islam by Khaled Abou El Fadl, Joshua Cohen, Ian Lague ISBN: 0807002291 Publisher: Beacon Press Pub. Date: 08 November, 2002 List Price(USD): $15.00 |
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