A History Of Islamic Legal Theories – Wael B Hallaq (1)

This also requires a study of its growth and the surrounding elements influencing its later development In legal theory, this translates into an investigation of the variables that constitute the collectivity we call üşül al-fiqh, both diachronically and synchronically. To understand this theory, it is necessary to understand not only the constants (a perception that has long dominated the field) but also the role of the variables that give each theory its distinc­ tive color, and each theorist his unique individuality.

They are of many types and manifest themselves in multifaceted ways. Contents and arrangement o f subject matter One symptom of these variables İs the feet of the controversy over the subject matter of legal theory. It is rare to find two works of legal theory covering identical subjects. A mere glance at the subject matter of theories in one century or over a span of several centuries reveals astonishing dif­ ferences.

And many a theorist shows a deep awareness of what subjects are appropriate or inappropriate for inclusion in legal theory. GhazâE, for one, criticized those theorists who, he thought, committed excesses in treating of issues relating to theology, positive law and Arabic grammar. Shâtibl (d. 790/1388) followed suit, criticizing the inclusion of subjects that have no bearing upon the acknowledged function and purpose of legal theory, namely, the discovery of substantive legal rules.

A survey of randomly selected topics reveals that they were included in certain works but alto­ gether left out of others. One such topic is al- ‘a^jma wal-rukhsa, ‘asğma. indi­ cating the binding force of a ruling without consideration of mitigating hardship, and rukhsa representing the mitigation of a rule by substituting for it a more lenient one, due to some hardship.5 Greek logic, juridical dialectic and linguistic prepositions (buruf) are three other topics that were included in some works and excluded from others.

While these topics were excluded from certain theories for one reason or another, they found their way into a large number of other theories, influential or otherwise, so as to allow them to secure a place in the history of üşül al-fiqh. Whether or not the kalâm theory of knowledge or the juridico-linguistic prepositions were discussed in a particular work, they 1 Further on ‘atima rad rvkhfa, sec pp. 177 ff.

belcww A. history of Islamic legal theories nonetheless were present in the larger field of theoretical discourse. A jurist may have chosen to exclude from his written theoretical discourse the subject of prepositions, but he could not pretend that legal hermeneutics could possibly function without recourse to some theory of prepositions.

Wael B. Hallaq is already established as one of the most eminent scholars in the held of Islamic law. In his latest book, the author traces the history o f Islamic legal theory from its beginnings until the modern period. The analysis includes a comprehensive account of the early form ad on of the theory, focusing on its main themes and arguments and examining the synchronic and diachronic developments that gave rise to a rich variety of doctrines within that theory.

The specific relationship between socio-religious reality and the pro­ duction of legal theoretical discourse is also explored in some detail. The book concludes with a discussion of modern thinking about the theoretical foundations and methodology of Islamic law, presenting an outline of the methodological difficulties encountered by- modern reformers and some of the solutions they have offered to reformulate legal theory.

In organization, approach to the subject and critical apparatus, the book is the first of its kind, and will be an essential toot fot the understanding of the subject of Islamic legal theory’ in particular, and Islamic law in general. This, in combination with an accessibility of language and style, will guarantee a wide readership among students and scholars, and anyone interested in Islam and its evolution.

A HISTORY OF ISLAMIC LEGAL THEORIES C/?COC/5C/3C/JC/5C/5 ANT I N T R O D U C T I O N TO S U N N I UŞÜL A L -hlQ H WAEL B. HALLAQ McGUl University C a m b r id g e U N IV E R SIT Y P R E S S P U B L IS H E D BY T H E P R E S S SY N D IC A T E OF T H E U N I V E R S I T Y OF C A M B R ID G E The Pitt Building, Trumpington Street, Cambridge CB2 1RP, United Kingdom C A M B R I D G E U N IV E R S IT Y PR E SS The Edinburgh Building, Cambridge, CB2 2RU, United Kingdom 40 West 20th Street, New York, NY 10011-4211, USA 10 Stamford Road, OaHeigh, Melbourne 3166, Australia ©WaetB.

Hallaq 1997 This book is in copyright Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 1997 Printed in the United Kingdom at the University Press, Cambridge Typeset in 11/13 Monotype Garamond A catalogue record for this book is available from the British Library library of Congress Cataloguing in Publication data Hallaq, Wael B., 1955- A history of Islamic legal theories: an introduction to Sunni UŞÜI al-fiqjh / Wael B.

Hallaq. p. cm.

This is a short excerpt from the opening of “” by Unknown, quoted for review and introduction purposes. All rights belong to the copyright holders.

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