Thus, the traditional jurists operated within a self-sufficient system in which practice, hermeneutics, and positive legal doctrine were conjoined to produce the legal culture, which largely defined their world. Practice stood in a dialectical relationship with doctrine, informing it and by which it was informed. Practice also formed an integral part of interpretation and was by no means a mere tail-end of a process, a funnel through which justice was disposed. The legal practitioners and jurists constituted likewise an epistemic community, which was systematically engaged on a hermeneutical level. Their practice was both pragmatic and discursive and was the direct result of a legal tradition that bound them with the authoritative demands of doctrine and continuity. Their present was primarily the last moment pf a historical tradition, integral to and inseparable from it. When a qadi or a mufti adjudicated a case or a question, his engagement epitomized at once horizontal and vertical fields of synchronic and historic legal activity: it brought into play 1) the hermeneutical presuppositions of legal theory and methodology and the exegetical arsenal associated with it throughout centuries of refinement and evolution; 2) the principles of positive law, which had been constructed as part of the founders' authority, which in turn was seen as the founding principle of the school as a doctrinal entity; 3) the aggregate but diverse body of knowledge generated by the authoritative figures of the school in the interpretation of these principles; and 4) the reception of these interpretations by the community of jurists within the school, a reception determined by the extent of the interpretive applications in the social, mundane order.
The coming into play of these diachronic and synchronic elements was integrated into other parts of juristic and pedagogical experiences: The qadi or the mufti (or any legal professional for that matter) engaged himself, at one and the same time, in a tradition in which 1) he acquired legal education through the method of "closed texts," which, together with the ijaza (license) system, constituted a fundamentally different sort of training from that which the modern law school offered; 2) he was apprenticed, during and after his graduate study, in shari'a courts where doctrine met practice and where the imposing intellectualism of the law collided, but was always synthesized, with the reality of society and judicial practice; 3) the religious ethic was the sole dominating force and the final arbiter of legal legitimacy; 4) the entire juristic (doctrinal) and judicial enterprise was thoroughly supported by financially and administratively self-sufficient and independent institutions; and 5) the authority of the jurist was individualistic and exclusively personal (ijtihadic).
None of these elements continues to exist in the modern legal systems of Muslim countries, and what remains of the traditional system, as we have already said, are remnants of mutilated doctrine patched up in a disparate and methodologically deficient manner. Even if we submit that these remnants are faithful to the Islamic ethos as it stands nowadays - which we do not -they are, by virtue of their displacement and organic disconnection from the erstwhile dynamic and vibrant school tradition, incapable of further development and change, at least not so in a systematic and coherent manner; on the one hand, they have lost their methodological, hermeneutical, practice-based, and institutional connection with the Islamic legal tradition. If the name furu' (branches) is to be taken in any real sense, as it well may be, then their stem, through which they are literally nourished, no longer survives. On the other hand, they have been systematically alienated from the modernist legal system, and their disconnection from it is equally obvious.
To put our argument more plainly, in order to rejuvenate the entire traditional system - in its founding principles, axioms, hermeneutics, and financial, educational, and madhhab institutions - it would be required that Islamic law be more than a dead "branch." And this, in light of the intractable and well-nigh irreversible modernity and its imperatives, is a manifest impossibility. Since traditional shari'a can surely be said to have gone without return, the question that poses itself therefore is: Can a form of Islamic law be created from within or without the ruins of the old system?
... Can the Shari'ah be Restored?, Wael Hallaq
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