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Arguing the Law: Unravelling the Dialectic of al-Marghīnānī’s (d. 593/1196-7) al-Hidāyah
Abstract by Mr. Sohail Hanif On Session 153  (Courts, Texts, & Interpretations)

On Saturday, November 19 at 10:00 am

2016 Annual Meeting

Abstract
What are the “principles” of Islamic law? This question has been a preoccupying interest of researchers in Islamic law. Most have searched for the answer in the genre entitled “principles of jurisprudence”, or uṣūl al-fiqh. However, these principles only help us understand the derivation of law, and even then, their role is subject to intense debate. Wolfhart Heinrichs and Intisar Rabb, among others, have directed our attention to the importance of “juristic principles”, or al-qawā‘id al-fiqhīyah, as principles that govern cases of substantive law. In recent years, there has been an interest in the “higher objectives” of Islamic law, or maqāṣid al-sharī‘ah, as a further layer of meta-principles explored for the purposes of ethically reforming the law. These studies have all furthered our understandings of how the law was to be conceived, but the question of how a jurist in training was to incorporate these layers of meanings is still not clear. A new avenue of research consists in analysing the use of dialectical reasoning in substantive legal commentaries. Walter Young has recently applied dialectical theory, or ‘ilm al-jadal, to an early work of jurisprudence to show the early use of advanced dialectical techniques to analyse and “create” the law. Thus far, there have been no sustained dialectical analyses of legal commentaries from the classical era of the madhhabs, or schools of law. This paper presents the findings of such a study, applying this analysis to the renowned legal commentary of ‘Alī b. Abī Bakr al-Marghīnānī, the Hidāyah. The paper demonstrates the role of dialectic in this legal commentary to present a colorful tapestry of uṣūl al-fiqh, al-qawā‘id al-fiqhīyah and maqāṣid al-sharī‘ah. It further uncovers an additional layer of meta-principles, the principles of fatwā, that govern the actual application of law to a particular social context. In so doing, this paper provides greater insight into what purpose curricular works of law were actually to serve in the early classical Ḥanafī school. Rather than merely supporting a largely static statement of law, as is commonly perceived, I argue that the true purpose of such works is to train the jurist in legal reasoning, whereby each case of the law serves as a window onto the multi-layered philosophy of law that upholds the individual case. The paper is a unique contribution to our understanding of classical juristic literature, juristic training and the interrelation of the many “principles” of the law.
Discipline
Religious Studies/Theology
Geographic Area
Central Asia
Sub Area
Islamic Law