Scholarship on Islamic law has been generally wary of approaching Islamic law from literary perspectives. Muslim tradition understands Islamic law to be composed of legal theory (usul al-fiqh) and positive law (mutun/fiqh) and modern scholarship has tended to reflect this division. In looking at the field of Islamic legal literature through a literary perspective, however, one discovers a tremendous variety of legal genres—different modalities through which to understand the law. The variety and spread of varying legal genres, a phenomenon which blossomed in the 12th and 13th centuries, raises the question of why a multiplicity of genres became attractive to legal scholars. My paper is an analysis of the function of one such genre, that of legal distinctions (al-furuq al-fiqhiyya), and looks at how this genre was used to understand and develop laws on purity (tahara) within the Hanafi legal school. I take three books as a case study for my analysis, Kitab al-Furuq by Muhammad ibn Salih al-Karabisi (d. 322), Kitab al-Furuq by As‘ad ibn Muhammad al-Karabisi (d. 570), and al-Ashbah wa-l-naza’ir by Ibrahim Ibn Nujaym al-Misri (d. 970). Muhammad al-Karabisi was the first Hanafi to author a book on legal distinctions; As‘ad al-Karabisi wrote one of the most widely circulated book on legal distinctions approximately 200 years after Muhammad al-Karabisi; and finally, Ibn Nujaym’s al-Ashbah wa-l-naza’ir was a cornerstone of legal thought throughout the Ottoman Empire and the integration of this genre into legal encyclopedic works. As such, each work represents a particular moment in the history of this genre and was an important contribution thereto. My paper will analyze the way that “distinctions-thinking” was utilized in each of these three works. A typical entry in a book of distinctions compares two apparently similar law and then discusses the distinction between these laws, the distinction that makes them different laws. I analyze the set of laws being distinguished by singling out the two laws, the similarity between them, and the distinction. In so doing, my paper will show the vibrancy and dynamism inherent in furuq writing. I show that rather than simply repeating the information contained in contemporary legal compendia (mukhtasar), the distinctions belied a sophisticated and distinct method of legal thinking. This thinking reveals added complexity and nuance that underlay Islamic legal thinking into the Ottoman period and help reveal a level of legal dynamism hindered by up-to-now traditional approaches of the law.

Literature documenting legal disagreement and dissent (fiqh al-khilaf or ikhtilaf) stands at the juncture between the theoretical jurisprudence of Islamic legal theory (usul al-fiqh) and the practical application of positive law (furu‘). Khilaf literature first appeared as a distinct genre in the 4th/10th century. To date there has been no sustained analysis of the historical emergence of this genre and how its evolution was shaped by contemporaneous developments in usul al-fiqh and furu‘. Some of the questions that are yet to be explored include: Was the development of khilāf anticipated in literature written prior to the 4th/10th century? What was the earliest theorization of legal disagreement and its relationship to positive law? What was the purpose and use of the earliest khilaf works? Why did works of legal disagreement emerge in the particular time and place that they did? To begin addressing these questions, I provide a survey of four khilaf works from the 3rd-4th/9th-10th centuries: Abu ‘AbdAllah al-Marwazi’s (d. 294/906)’s Ikhtilaf al-’Ulama’, Muhammad b. Jarir al-Tabari’s (d. 310/923)’s Ikhtilaf al-Fuqaha’, Ibn al-Mundhir (d. 318/930)’s Al-Sunan al-Awsat and Abu Ja‘far al-Tahawi’s (d. 321/933) Ikhtilaf al-Fuqaha’. My analysis focuses primarily on the chapter of the nullifiers of ablution (nawaqid al-wudu') because it contains several issues that are fairly contentious yet accessible; disagreements that have spawned extensive commentary with involved theoretical arguments and counter-arguments. My analysis of this chapter substantiates the following provisional conclusions about khilaf works: (1) In the earliest legal writings we find a recognition of the uncertain and probabilistic nature of the law, which in turn validated the complex of mutually contradictory legal positions posited by jurists; (2) Works compiling legal disagreements most often act as a systematic justification for the madhhab of their respective authors; (3) The causes of juristic disagreement are not always clear in early khilaf works, and where they are discussed, it is often in a cursory and indirect fashion. This seems to indicate that khilaf works presupposed a familiarity with the divergent approaches of legal theory, theorized in usul al-fiqh literature; (4) Finally, the way in which later scholars held up legal disagreements seems to indicate a remarkable continuity between formative and post-formative legal reasoning.

The study of Islamic law has naturally focused on aspects of pre-modern legal texts that seem most obviously legal in nature. However, in the post-classical period, new genres emerged that trouble our expectations of what is and is not legal literature. The "non-legal" materials in legal texts are often passed over in silence or dismissed as mere entertainments. Similarly, in the study of literature, the deceptive fatwas, legal puzzles (alghaz), and qadi scenes in the Maqamat of al-Hariri and his emulators have been largely ignored or treated as a curiosity. The shared social and intellectual practices between literature and law in transmitting knowledge can be witnessed on a material level from at least the 6th/12th century. However, it is in the 8th/14th century that these edifying and entertaining narrative materials become fully integrated into recognizably legal texts. This study examines a novel legal genre that reveals the crosspollinations of law, linguistics, and literature. The genre of "Similarities and Resemblances" (al-Ashbah wa-l-Naza'ir) has been described as one dealing with legal maxims (qawa'id), but even as it emerges in the 8th century, it is a complex, synthetic genre. When Taj a-Din al-Subki (d. 771/1370) used the title, he did not discuss solely legal maxims but rather discusses thematically links issues of similarity, difference, and ambiguity. For instance, his text contains stories of scholars who solve legal puzzles (alghaz) in both prose and in verse. The Hanafi Ibn Nujaym al-Misri (d. 970/1563) composed a "Similarities" work made up of seven topics (funun), including legal puzzles, legal devices (hiyal), and anecdotes (hikayat). Although Ibn Nujaym claims that al-Subki is his model, it is al-Suyuti's (d. 911/1505) work in linguistics entitled "Similarities and Resemblances in Syntax" (al-Ashbah wa-l-Naza'ir fi al-Nahw) whose structure of seven topics (funun) likely served as Ibn Nujaym's model. The last topic in both works is anecdotes, a feature not found in al-Subki's work. My paper will focus on the use of puzzles and stories in these three works to demonstrate that the new genres of legal writing reflected complex crosspollinations between linguistics, literature, and law. How were these crosspollinations productive of new ways to organize information? How did authors and readers conceive of the relationship between law, language, and narrative? What was the purpose of including narrative materials in legal texts? What methodologies might scholars use to understand how authors understood the organic links between these seemingly disparate arts?

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.