Narratives of Islamic legal theory

189 Pages·2012·1.24 MB·English

by  Ahmed

OXFORD ISLAMIC LEGAL STUDIES
Series Editors:
Anver M. Emon, Clark Lombardi, and Lynn Welchman
NARRATIVES OF ISLAMIC LEGAL THEORY
OXFORD ISLAMIC LEGAL STUDIES
Series Editors:
Anver M. Emon, Clark Lombardi, and Lynn Welchman
Satisfying the growing interest in Islam and Islamic law, the Oxford Islamic
Legal Studies series speaks to both specialists and those interested in the
study of a legal tradition that shapes lives and societies across the globe.
Islamic law operates at several levels. It shapes private decision making,
binds communities, and it is also imposed by states as domestic positive law.
The series features innovative and interdisciplinary studies that explore
Islamic law as it operates at each of these levels. The series also sheds new
light on the history and jurisprudence of Islamic law and provides for a richer
understanding of the state of Islamic law in the contemporary Muslim world,
including parts of the world where Muslims are minorities.
Narratives of
Islamic Legal Theory
RUMEE AHMED
1
3
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For Ayesha,
Your love gives me meaning,
Your faith gives me purpose,
Your smile gives me peace.
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Series Editors’ Preface
In this inaugural volume in the Oxford Islamic Legal Studies series, Rumee
Ahmed challenges his readers to rethink how and why pre-modern
scholars devoted so much energy to the production of sophisticated
manuals of legal theory (uṣūl al-(cid:980)iqh). Some scholars have suggested that
they wrote these manuals as post-hoc justi(cid:976)ications of legal rulings that
had already become authoritative. According to such scholars, the legal
theory genre had little practical eff ect in the initial development of law or
the further elaboration of it. Although Ahmed recognizes this important
historical-critical research on Islamic law, he suggests that there is
more to the story. His study off ers a close analysis and interrogation of
the underlying arguments that pre-modern jurists presented in their
legal texts. The monograph focuses on two pre-modern Ḥana(cid:976)ī jurists,
al-Sarakhsī and al-Dabūsī, who might otherwise seem quite similar to
one another. Through close analysis, however, Ahmed shows that these
two jurists went beyond the theoretical justi(cid:976)ication of existing rules.
Studying and writing about legal theory thus off ered jurists an arena in
which to engage in a discourse that both explored and even challenged
politically sensitive theological ideas.
Ahmed situates his study at the intersection of law, theology, and
philosophy. His research is characterized by an innovative use of semiotic
theory and narrative theology to re-conceive the genre of legal theory
as one that provided legal, theological, social, and political meaning to
communities of jurists. Signi(cid:976)icantly, he demonstrates that pre-modern
jurists used the genre of legal theory as a medium through which to
address the relationships between God, humanity, and the natural order
of the universe. Indeed, his monograph shows that the jurists’ theoretical
arguments transcended formal jurisprudence. Ahmed explains how
legal theorists appropriated existing legal principles and used them to
construct worlds ordered by higher ethical and cosmological ideals.
Anver M. Emon
Clark Lombardi
Lynn Welchman
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Acknowledgments
There are many people to whom I owe thanks for the publication of this
book, foremost being my wife. Her unwavering belief and support made
this possible, and her personality kept us both sane as the project evolved.
In the writing of this book, she played the role of editor, nursemaid,
critic, psychologist, colleague, administrative assistant, best friend, and
cheerleader, all at the same time. My gratitude to her is unending, and my
wonder at my good fortune unceasing.
For this project I am deeply grateful for the leadership and guidance of
the editor of this series, Anver Emon. He embodies the belief that criticism
need not be destructive to be constructive, and I cannot imagine a more
dedicated and supportive editor. His comments made this manuscript
immeasurably better, and any errors found herein are my own. I was also
fortunate to have wonderful advisors on this project. In Peter Ochs I had
a wise and patient teacher, whose ability to help students understand
and feel ownership over complex philosophical concepts is inspiring.
Now a professor myself, I marvel at his repeated, often fruitless attempts
to teach me the intricacies of historical philosophical debates, most
memorably his weeks of trying to teach me the pragmaticist critique of
Kant’s transcendental dialectic. These attempts often took us into the
night, resulting in epiphanies that were sure to be forgotten a few days
later, at which point he would try yet again. Abdulaziz Sachedina gave me
the space and the tools to cultivate my own relationship with medieval
texts and the Islamic legal tradition, and pushed me to question all my
assumptions. I am grateful to Timothy Gianotti and Jorge Secada for their
comments on an early draft, which resulted in signi(cid:976)icant revisions.
The academy has provided me with colleagues who have also been
both friends and mentors, and who made the writing process enjoyable.
These include Kecia Ali, Aryeh Cohen, Elliott Colla, Farid Esack, Bob
Gibbs, Tom Greggs, Steven Kepnes, Mahan Mirza, Randi Rashkover,
Mohammed Rustom, and Laurie Zoloth. I have many people to thank
for their continued friendship despite my best eff orts; especially Sarah