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The Form and Content of Islamic Legal History
Abstract
The terms ijtihad and taqlid have and continue to organize Western scholarship on Islamic law. In particular, the terms play an essential role in the standard narrative about the development of Islamic law. According to this narrative, early Muslim jurists had a relatively short burst of intellectual creativity when they employed ijtihad, or their own legal reasoning, to directly interpret the sources of law. After the tenth century C.E., jurists, however, employed taqlid, or followed the views of their predecessors. With the emergence of taqlid, Islamic law supposedly entered a phase marked by systematization, technical refinement detached from reality, and a lack of innovation. The terms ijtihad and taqlid, however, are not simply elements in a historical narrative about the development of Islamic law; they are also elements in a metaphysical system that informs how Muslims and Western scholars generally conceive of Islamic law. This metaphysical system divides intellectual production into form, which is variable, and content, which is stable and the most significant element in legal scholarship. The content thus functions as a stable reference point that enables the systematization of post-formative law. Although contemporary Western scholars of Islamic law have reassessed the role and function of taqlid, they have largely left in tact the metaphysical suppositions that underpin this account of the development of Islamic law. In my talk, I will examine the distinction between form and content in the works of usul al-fiqh and furu‘ al-fiqh of al-Baji, al-Shirazi, Ibn Qudama, Ibn Rushd, Ibn Hazm. Each of these jurists was an important representative of a major school of law. Although works of pre-modern law generally support the metaphysical suppositions of this narrative, the jurists whom I will examine deconstruct the distinction between form and content at different discursive levels. Furthermore, they argue that the dissonance between discursive practices destabilizes this distinction so as to legitimize the continual interpretation and intellectual production that characterizes Islamic law. In terms of this panel, these jurists offer a theoretical perspective into the possibility of and requirements for the systematization of law. Their works also reveal how they relate their intellectual production to that of past jurists. Finally, these jurists offer modern Western scholars of Islamic law a more nuanced approach for thinking about the notions of difference and repetition that ground the study of Islamic law.
Discipline
Law
Geographic Area
All Middle East
Sub Area
7th-13th Centuries