Studies of Islamic law’s modern history have largely focused on the outsized role of reformists. Colonial efforts to at once centralize and reduce the authority of Islamic law understandably dominate much of the literature. So too does the emergence of new generations of Muslim intellectuals calling for freeing law from the suffocating effects of legal schools (madhhabs) and their demands for imitation (taqlid). The experiences of Islamic law’s traditional arbiters, its school jurists, appear less frequently. However, among Maliki scholars there existed a rich debate over the future of the school and the role of its legists in response to the seismic changes of the nineteenth and twentieth centuries. That discussion most often returned to the nature of proof (dalil) and the methodologies permitted for obtaining it, namely tarjih and tashhir. Though each imposed different practical requirements – the former sought to produce legal opinions based on their preponderance of evidence and the latter according to their acceptance by jurists themselves – for most of their early modern history, the two as frequently doubled as indexes for the political orientations of those that employed them.
This paper explores a curious byproduct of the school’s renewed preoccupation with proof in jurisprudence: the emergence of a subgenre of abridgment (mukhtasar) and commentary (sharh) concerned less with legal dicta than the evidence that substantiated it. It focuses on the Mālikī school of late colonial Sudan, asking how various contests over dalil informed a legal community wrestling with its claim to legitimacy as the country approached independence. I do so through a study of the lives and scholarship of two author-jurists, `Uthman b. Hasanayn Barri al-Ja`ali (d. 1960) and Abu Tahir Hasan Fay al-Bijawi (d. 1984). The paper explores how their responses to pressure for reform – both from within and without – produced not only remarkably different orientations to proof in fiqh, but the very forms of abridgment and commentary from which they chose to articulate their positions. I consider how their selection of epistemological and literary terrain encouraged a particular life of their texts, revealing how it imagined a distinct audience, approach to legal education, and a notion of Maliki authority and doctrine within the rapidly changing institutions of midcentury Sudan.
History
Law
Religious Studies/Theology
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