The introduction of logic into legal theory at a later stage in its life is but one instance of the process whereby a new subject matter is introduced to inform one segment of theoretical discourse or another. In fact, the history of usul al-fiqh may be said to consist of a massive body of questions (masa'il) which infiltrated the growing corpus of that theory throughout the centuries. Entirely new questions and questions stemming from older issues continued to arise and to demand theoretical attention. There is very little doubt then that the number and sheer content of the issues discussed continued to grow with the passage of time. The tradition was cumulative in the truest sense of the word.
While as a collective entity legal theory may have been cumulative, individual theorists were rather selective in their choice of the particular topics (=questions) that made up their respective theories. The choice of certain topics in preference to others was combined with another feature which added to the individualized character of each theory, namely, the emphasis and deemphasis placed upon the issues discussed. The very inclusion of one issue rather than another is quite significant and telling; but more telling is the generality or intensity of detail with which each issue is treated. Not entirely representative, but certainly an illustrative example, is the case of Shatibi. With every omission, expansion and digression, Shatibi was attempting to serve his own purpose, a purpose latently dictated by a clearly envisioned agenda. It is also in Shatibi that we observe how social and other factors determine both the form and content of legal discourse.
Now, all this means that both diachronically and synchronically legal theory was far from monolithic. Indeed, the synchronic and diachronic variations are so profound and prominent that in making terminological choices we oght to refer to the individual theories as independent and distinct contributions, although they must be considered thus within the purview of a tradition, that is, the collective and cumulative product of usul al-fiqh. Acknowledging the distinctness of each theorist's ideas is an obvious methodological necessity. No longer can one afford to speak of a fifth-/eleventh-century Juwayni and a seventh-/thirteenth-century Amidi interchangeably; nor can one afford to treat as identical the theories of contemporary authors writing in different environments.
Obviously, the most salient feature of the tradition within which all theories have been expounded is the divine source that binds them together. Yet, concomitant with this source there emerged a particular hermeneutic - constituting a common denominator in all these theories - which remained the single force that bestowed on theoretical discourse a certain unity within which interpretative variations could and did exist. No doubt this hermeneutic, which persistently defined the general character of Sunni usul al-fiqh, was a product of the sociological structure of classical and medieval Muslim societies. More precisely, this hermeneutic represented the descriptive (and later prescriptive) methodology that was dictated by the imperatives of the positive legal system in existence. When we say that no amount of interpretation could have altered the legal effects of the Quranic verse that allots the male in inheritance twice the share of the female, we mean in effect that the social structure as well as the positive legal system that was built to cater to its needs could not have allowed a different interpretation, say, an interpretation similar to that proffered by the modernists, Shahrur or Rahman. The divine source, the combination of the Quran and Sunna, was textually and hermeneutically bound, ineluctably, with the sociological and, consequently, juridical realities of classical and medieval Muslim societies. Thus, in the final analysis, the source becomes subservient to the imperatives of a particular, historically dictated, hermeneutic.
It is precisely this relationship between usul al-fiqh and the particular sociological and juridical backgrounds against which it had developed and was finely elaborated that became the locus of the modern reformist critique. Except for a minority of secularists, the great majority of modern Muslim thinkers and intellectuals insist upon the need to maintain the connection between law and the divine command. At the same time, they reject the specifically traditional connection, defined by the classical and medieval hermeneutic, as irrelevant to the modern age. Their rejection stems from two factors that are inextricably linked to each other. First, there is the wave of fundamental social, technological, economic and political changes that accompanied the military and cultural domination of the West over the Orient. With these changes, a new reality, on virtually all levels, emerged, thereby rendering the traditional system largely obsolete. The need for a substitute to the traditional system had already become obvious by the first half of the century, when European codes were introduced to the Ottoman Empire lock, stock and barrel.
The second factor that dictated and still dictates the shape of new reformist ideas is the movement of codification (based on indigenous and foreign laws) which has gained momentum in the Muslim world since the middle of the nineteenth century. With the introduction of these codes there arose the need to modify the infrastructure of the existing legal system in order to sustain these codes. In addition to the introducing of a western-styled hierarchy of courts, a new legal profession emerged. The training of modern lawyers who staffed these courts required the institutionalization of modern colleges of law, a fact which had a fundamental structural impact upon traditional class of legal scholars. The role these scholars played in the judicial system was gradually phased out, with the concomitant result that they could no longer be conceived as an integral part of the legal system. Their traditional colleges of law lost the financial support of both the state and private individuals, and the prestige of the social status of the traditional faqih thus gave way to the emerging class of modern lawyers.
The transference of "law-making" from the hands of the traditional jurists to those of the state constituted a major shift in legal theoretical discourse. The mujtahid-muqallid dichotomy which was the backbone of both the judicial system and the legal theory that accompanied it, was forced to disappear, thus creating new imperatives in the reformulation of legal theory. Individual ijtihad became, for all purposes and intents, extinct, having been replaced by state legislation committees staffed mainly by modern lawyers.
While as a collective entity legal theory may have been cumulative, individual theorists were rather selective in their choice of the particular topics (=questions) that made up their respective theories. The choice of certain topics in preference to others was combined with another feature which added to the individualized character of each theory, namely, the emphasis and deemphasis placed upon the issues discussed. The very inclusion of one issue rather than another is quite significant and telling; but more telling is the generality or intensity of detail with which each issue is treated. Not entirely representative, but certainly an illustrative example, is the case of Shatibi. With every omission, expansion and digression, Shatibi was attempting to serve his own purpose, a purpose latently dictated by a clearly envisioned agenda. It is also in Shatibi that we observe how social and other factors determine both the form and content of legal discourse.
Now, all this means that both diachronically and synchronically legal theory was far from monolithic. Indeed, the synchronic and diachronic variations are so profound and prominent that in making terminological choices we oght to refer to the individual theories as independent and distinct contributions, although they must be considered thus within the purview of a tradition, that is, the collective and cumulative product of usul al-fiqh. Acknowledging the distinctness of each theorist's ideas is an obvious methodological necessity. No longer can one afford to speak of a fifth-/eleventh-century Juwayni and a seventh-/thirteenth-century Amidi interchangeably; nor can one afford to treat as identical the theories of contemporary authors writing in different environments.
Obviously, the most salient feature of the tradition within which all theories have been expounded is the divine source that binds them together. Yet, concomitant with this source there emerged a particular hermeneutic - constituting a common denominator in all these theories - which remained the single force that bestowed on theoretical discourse a certain unity within which interpretative variations could and did exist. No doubt this hermeneutic, which persistently defined the general character of Sunni usul al-fiqh, was a product of the sociological structure of classical and medieval Muslim societies. More precisely, this hermeneutic represented the descriptive (and later prescriptive) methodology that was dictated by the imperatives of the positive legal system in existence. When we say that no amount of interpretation could have altered the legal effects of the Quranic verse that allots the male in inheritance twice the share of the female, we mean in effect that the social structure as well as the positive legal system that was built to cater to its needs could not have allowed a different interpretation, say, an interpretation similar to that proffered by the modernists, Shahrur or Rahman. The divine source, the combination of the Quran and Sunna, was textually and hermeneutically bound, ineluctably, with the sociological and, consequently, juridical realities of classical and medieval Muslim societies. Thus, in the final analysis, the source becomes subservient to the imperatives of a particular, historically dictated, hermeneutic.
It is precisely this relationship between usul al-fiqh and the particular sociological and juridical backgrounds against which it had developed and was finely elaborated that became the locus of the modern reformist critique. Except for a minority of secularists, the great majority of modern Muslim thinkers and intellectuals insist upon the need to maintain the connection between law and the divine command. At the same time, they reject the specifically traditional connection, defined by the classical and medieval hermeneutic, as irrelevant to the modern age. Their rejection stems from two factors that are inextricably linked to each other. First, there is the wave of fundamental social, technological, economic and political changes that accompanied the military and cultural domination of the West over the Orient. With these changes, a new reality, on virtually all levels, emerged, thereby rendering the traditional system largely obsolete. The need for a substitute to the traditional system had already become obvious by the first half of the century, when European codes were introduced to the Ottoman Empire lock, stock and barrel.
The second factor that dictated and still dictates the shape of new reformist ideas is the movement of codification (based on indigenous and foreign laws) which has gained momentum in the Muslim world since the middle of the nineteenth century. With the introduction of these codes there arose the need to modify the infrastructure of the existing legal system in order to sustain these codes. In addition to the introducing of a western-styled hierarchy of courts, a new legal profession emerged. The training of modern lawyers who staffed these courts required the institutionalization of modern colleges of law, a fact which had a fundamental structural impact upon traditional class of legal scholars. The role these scholars played in the judicial system was gradually phased out, with the concomitant result that they could no longer be conceived as an integral part of the legal system. Their traditional colleges of law lost the financial support of both the state and private individuals, and the prestige of the social status of the traditional faqih thus gave way to the emerging class of modern lawyers.
The transference of "law-making" from the hands of the traditional jurists to those of the state constituted a major shift in legal theoretical discourse. The mujtahid-muqallid dichotomy which was the backbone of both the judicial system and the legal theory that accompanied it, was forced to disappear, thus creating new imperatives in the reformulation of legal theory. Individual ijtihad became, for all purposes and intents, extinct, having been replaced by state legislation committees staffed mainly by modern lawyers.
... A History Of Islamic Legal Theories: An Introduction To Sunni Usul al-Fiqh, Wael B Hallaq
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