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Locating the Sharīʿa Studies in Islamic Law and Society Founding Editor Bernard Weiss Editorial Board Ruud Peters A. Kevin Reinhart Nadjma Yassari VOLUME 48 The titles published in this series are listed at brill.com/sils Locating the Sharīʿa Legal Fluidity in Theory, History and Practice Edited by Sohaira Z.M. Siddiqui LEIDEN | BOSTON Library of Congress Cataloging-in-Publication Data Names: Locating the Sharīʿa (Conference) (2014 : University of California,  Santa Barbara). | Siddiqui, Sohaira Zahid, editor. Title: Locating the sharīʿa : legal fluidity in theory, history and practice  / edited by Sohaira Z.M. Siddiqui. Description: Leiden ; Boston : Brill Nijhoff, 2019. | “The genealogy of this  volume begins, as many volumes do, at a conference at the University of  California Santa Barbara in February 2014 titled “Locating the Sharīʿa :  Creating New Sources for Knowledge and Inquiry”—ECIP introduction. |  Includes bibliographical references and index. Identifiers: LCCN 2019000988 (print) | LCCN 2019001419 (ebook) |  ISBN 9789004391710 (ebook) | ISBN 9789004377103 (hardback : alk. paper) Subjects: LCSH: Islamic law—Congresses. Classification: LCC KBP15 (ebook) | LCC KBP15 .L63 2019 (print) |  DDC 340.5/9—dc23 LC record available at https://lccn.loc.gov/2019000988 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1384-1130 isbn 978-90-04-37710-3 (hardback) isbn 978-90-04-39171-0 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner. Contents Notes on Contributors vii Introduction 1 Part 1 Reflections on the Study of the Sharīʿa 1 The Roots of Persuasion and the Future of Sharīʿa 13 Khaled Abou El Fadl 2 Sectarianism and Integration Contemporary Categories and the Prospects for Islamic Legal Studies 28 Robert Gleave 3 Gender and Legal Fluidity 46 Marion Katz 4 Translating The Fatigue of the Sharīʿa 63 Ahmad Atif Ahmad Part 2 Study of the Sharīʿa in the Classical Period 5 Qurʾānic Jihād Refracted through a Juridical Lens An Exercise in Realpolitik 75 Asma Afsaruddin 6 Al-Ḥadīth al-Mashhūr A Ḥanafī Reference to Kufan Practice? 89 Sohail Hanif 7 Taking a Theological Turn in Legal Theory Regional Priority and Theology in Transoxanian Ḥanafī Thought 111 Dale J. Correa vi Contents 8 Maṣlaḥa as a Normative Claim of Islamic Jurisprudence The Legal Philosophy of al-ʿIzz b. ʿAbd al-Salām 127 Rami Koujah Part 3 Study of the Sharīʿa in the Modern and Contemporary Periods 9 A Conservative Jurist’s Approach to Legal Change Ashraf ʿAlī al-Thānawī on Women’s Political Rule 153 Salman Younas 10 Legislating Morality and Other Illusions about Islamic Government 176 Asifa Quraishi-Landes 11 Relocating Dār al-Islām Contemporary Islamic Perspectives on Territoriality 205 Sarah Albrecht 12 Religion, Politics, and the Anxiety of Contemporary Maṣlaḥa Reasoning The Production of a Fiqh al-Thawra after the 2011 Egyptian Revolution 226 David H. Warren 13 Whither Islam? Western Islamic Reform and Discursive Density 249 Ovamir Anjum Index 267 Notes on Contributors Khaled Abou El Fadl is the Omar and Azmeralda Alfi Distinguished Professor of Law at the Uni- versity of California at Los Angeles (UCLA) School of Law. He is the author of Reasoning with God: Reclaiming Shari’ah in the Modern Age (Rowman and Littlefield, 2014); Speaking in God’s Name: Islamic Law, Authority and Women (Oneworld Press, 2001); Rebellion and Violence in Islamic Law (Cambridge Uni- versity Press, 2001); The Search for Beauty in Islam: A Conference of the Books (Rowman and Littlefield, 2006); The Great Theft: Wrestling Islam from the Ex- tremists (HarperSanFrancisco, 2005), among others. Asma Afsaruddin is Professor of Near Eastern Languages and Cultures in the Hamilton Lugar School of Global and International Studies at Indiana University, Blooming- ton, USA. She is the author and editor of seven books, including Contemporary Issues in Islam (Edinburgh University Press, 2015); and Striving in the Path of God: Jihad and Martyrdom in Islamic Thought (Oxford University Press, 2013) which won the World Book Award in Islamic Studies from the Iranian govern- ment (2015) and is being translated into Bahasa Indonesian. Among others, her research has been funded by the Harry Frank Guggenheim Foundation and the Carnegie Corporation of New York. Ahmad Atif Ahmad is a Professor of Religious Studies at the University of California in Santa Barbara (UCSB). He also serves on UCSB’s ‘Council on Faculty Issues and Awards’ and the UC-System wide Academic Advisory Committee. He previous- ly served as associate director of the University of California Center in Wash- ington, and Sultan Qaboos Chair of Mideast Studies at the College of William and Mary. The author of five books including, Islamic Law: Cases, Authorities, and Worldview (London: Bloomsbury, 2017), The Fatigue of the Shariʿ̄a (NYC: Palgrave, 2012), and Structural Interrelations of Theory and Practice in Islamic Law (Leiden: Brill, 2006), Ahmad teaches courses on Islamic legal reasoning in medieval Islam and early modern Egypt. Sarah Albrecht PhD, is a lecturer and research associate at Freie Universität Berlin. She is the author of Dār al-Islām Revisited. Territoriality in Contemporary Islamic Legal Discourse on Muslims in the West (Brill 2018) and Islamisches Minderheitenrecht: viii Notes on Contributors Yūsuf al-Qaraḍāwīs Konzept des fiqh al-aqallīyāt (Ergon 2010) and the co-editor of Conceptualising Muslim Diaspora (Special Issue of the Journal of Muslims in Europe 2016). Ovamir Anjum is the Imam Khattab Endowed Chair of Islamic Studies at The University of Toledo in Philosophy & Religious Studies Department, and affiliated faculty in History. His work focuses on the nexus of theology, ethics, politics, and law in classical and medieval Islam, with comparative interest in Western thought. Besides his monograph, “Politics, Law and Community in Islamic Thought: The Taymiyyan Moment” (Cambridge University Press, 2012), he has authored numerous articles and speaks internationally, and is the editor of the Ameri- can Journal of Islamic Social Sciences. His forthcoming works include a mono- graph on violence and rebellion in Islamic political thought, a general survey of Islamic history, and a translation of Ibn al-Qayyim’s Madārij al-Sālikin̄ (Ranks of Divine Seekers). Dale J. Correa PhD, is Middle Eastern Studies Librarian and History Coordinator at the University of Texas at Austin. Dr. Correa specializes in Islamic legal theory, theology, and philosophy, with a particular interest in the intellectual tradition of the eastern regions of the Islamicate empire (namely, Transoxania, which is today in Uzbekistan/Tajikistan). Her current project examines the develop- ment and flourishing of the Transoxanian approach to testimony, or commu- nication—that is, the transmission of knowledge of a past event by agents over time and space. Dr. Correa currently serves as Vice President/President-Elect of the Middle East Librarians Association. Robert Gleave is Professor Arabic Studies at the University of Exeter, UK. He is principal investigator of the European Research Council advanced award “Law, Learn- ing and Authority in Imami Shi’ite Islam” in which Shī’ī legal thought it set within the wider context Islamic legal development. He is author of Inevitable Doubt: Two Shīʿī Theories of Jurisprudence (Brill, 2001), Scripturalist Islam: The Thought and Doctrines of the Akhbari School of Imāmī Shiʿism (Brill, 2007) and Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory (Edinburgh University Press, 2012). Notes on Contributors ix Sohail Hanif is a Lecturer in Islamic Studies at the Cambridge Muslim College where he also manages the BA program in Islamic Studies. He works on Islamic legal theory with a focus on the Ḥanafī school of law. He received an MA and DPhil from the University of Oxford with a doctoral thesis entitled “A Theory of Early Clas- sical Ḥanafism: Authority, Rationality and Tradition in the Hidāyah of Burhān al-Dīn ‘Alī ibn Abī Bakr al-Marghīnānī (d. 593/1197).” His publications include “A Tale of Two Kufans: Abū Yūsuf’s Ikhtilāf Abī Ḥanīfa wa-Ibn Abī Laylā and Schacht’s Ancient Schools,” Islamic Law & Society, 25 (2018): 173–211. Marion Katz is a Professor of Middle Eastern and Islamic Studies at NYU. She received a BA from Yale and a PhD from the University of Chicago. She has taught at Franklin and Marshall and Mount Holyoke College. Her research revolves around issues of Islamic law, gender, and ritual. Her publications include Body of Text: The Emergence of the Sunni Law of Ritual Purity (SUNY Press, 2002), The Birth of the Prophet Muhammad (Routledge, 2007), Prayer in Islamic Thought and Practice (Cambridge, 2013) and Women in the Mosque (Columbia Univer- sity Press, 2014). Rami Koujah is a PhD candidate at Princeton University’s Near Eastern Studies department. He earned his JD from Stanford Law School, MSt in Oriental Studies from the University of Oxford, and graduated as a Departmental Scholar in Islamic Studies from the University of California, Los Angeles. Asifa Quraishi-Landes is a Professor of Law at the University of Wisconsin Law School, specializing in comparative Islamic and U.S. Constitutional law. She is a 2009 Carnegie Scholar and a 2012 Guggenheim Fellow. She is currently working on a book project, presenting a non-theocratic and non-secular model of Islamic consti- tutionalism for today’s Muslim-majority countries. Salman Younas is a PhD candidate at Oxford University. He graduated from Stony Brook University with a degree in Political Science and Religious Studies. After com- pleting his undergraduate degree, he moved to Amman, Jordan, where he studied spent an extensive period studying Arabic and the traditional Islamic sciences. In 2013, completed his MA in Oriental Studies at Oxford University x Notes on Contributors with honors. Currently, he is a final-year doctoral student at the University of Oxford investigating the evolution of Islamic law in the late formative period with a specific focus on the Hanafi school. David H. Warren is a Postdoctoral Research Fellow at the University of Edinburgh, focusing on the role of the ʿulamāʾ as actors and theorists during the Arab Spring and its aftermath. His current book project is titled, For the Good of the Nation: The Contest Over the Egyptian Revolution Among the Sunni ʿUlamāʾ and his recent publications include “Cleansing the Nation of the ‘Dogs of Hell’: ʿAli Jumʿa’s Na- tionalist Legal Reasoning in Support of the 2013 Egyptian Coup and its Bloody Aftermath,” International Journal of Middle East Studies 49:3 (2017): 457–77.

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The study of the sharīʿa has enjoyed a renaissance in the last two decades and it will continue to attract interdisciplinary attention given the ongoing social, political and religious developments throughout the Muslim world. With such a variety of debates, and a corresponding multitude of theore
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