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Whose Disputation? Which Rationality: The Purpose of 10th Century Islamic Legal Disputations
Abstract by Mr. Youcef Soufi On Session 153  (Courts, Texts, & Interpretations)

On Saturday, November 19 at 10:00 am

2016 Annual Meeting

Abstract
George Makdisi has noted that disputations (munāzarāt) were the Medieval Islamic legal schools’ method of reasoning on the law. This paper interrogates the telos or ends that the Baghdad juristic disputation sought to achieve in the period succeeding what Christopher Melchert identified as the formation of the legal schools in the 10th century under the leadership of the Shāfi‘ī Ibn Surayj (d.306/918CE) and the Ḥanafī al-Karkhī (d.370/951CE). It takes issue with Wael Hallaq and Makdisi’s claims that the disputation was a means to resolve matters of legal difference (khilāf) and determine the truth of God’s law. I contend instead that jurists’ themselves debated over the purpose of their practice. By turning away from jadal manuals and focusing instead on early uṣūl al-fiqh texts, the paper locates a rich site of disagreement among jurists about the function of their disputations. On one side of this disagreement, the Ḥanafīs and Ash‘arīs clung to the slogan that “Every jurisconsult is correct”, affirming the correctness of all legal opinions. On the other side, many Shāfi‘īs claimed that the position of juristic infallibility undercut the raison d’être of disputations. Thus, they argued that there was only one right answer and that the disputation was the means to discover it. The Ḥanafīs and Ash‘arīs legitimated their engagement in disputations by contending that its dialogical argumentation helped a jurist better weigh the evidence for different though equally valid positions. I then suggest that the reason for the scholarly failure to recognize these debates is the product of insufficiently distinguishing juristic from theological disputations. Historians have seen both as the product of the translation of Aristotle’s writings on dialectic (jadal). Debates on juristic infallibility show a virtual consensus among jurists that there could only be one true answer in disputations on matters of theology (uṣūl al-diyānāt). This view stood in stark contrast to the richness of juristic disagreement over whether or not truth was singular in matters of the law. Hence, these jurists’ debates confirm Walter Young’s recent claims that the juristic disputation was shaped by its own history rather than the Greek translation movement. I employ these debates to demonstrate that historians ought to eschew attempts at locating a single telos to the disputation and suggest they should instead follow Nietzsche’s insight that the origin and existence of a practice is disconnected from its always historically contested meaning.
Discipline
Law
Geographic Area
Iraq
Sub Area
7th-13th Centuries