Most studies on Islamic law focus on the openness of the door of ijtihad and the availability of various reasoning tools as evidence for the flexibility of Islamic law. Examples of flexible interpretations and rulings of Islamic law, dispersed across time and geographic areas, are often provided as evidence of Islamic law adaptability. It is assumed that qadis and muftis flexibly and pragmatically utilized tools of interpretation simply because of their availability and permissibility. I argue that while the availability of tools of interpretation is necessary for Islamic law to adapt, they are not sufficient. Islamic legal change is an individual endeavor that hinges on muftis and qadis. Muftis and qadis lived within specific socio-economic and political contexts that shaped their willingness to utilize tools of ijtihad. They also operated within the boundaries of a profession and were, consequently, affected by incentives that emerged out of the structure of their professional institutions. To understand the dynamics of change in Islamic law and jurisdiction, we need to understand the motives of the agents operating the system. It is the balance sheet of incentives and motives of qadis and muftis that controlled the frequency and scale of change in Islamic law. In this paper I focus on the institutional constraints muftis and qadis faced in interpreting Islamic law in Ottoman Syria. I reconstruct the Islamic legal system in which they operated to analyze their motives to flexibly interpret and apply Islamic law. I show that the individualistic structure of Islamic judicial institutions, their lack of central organization, and the legitimization process qadis and muftis faced constrained the frequency by which they resorted to ijtihad tools. I utilize classical works on adab al-qadi and adab al-mufti to frame both professions' legitimacy criteria. I base my analysis on fatwa collections of Khayr el-Din al-Ramli, known for his flexible opinions. Secondary works on Islamic courts in Ottoman Syria and qadis' decisions are consulted. I find that while innovation was not necessarily prohibited, it was not encouraged. The legal system provided incentives to conform to what existed, rather than innovate. Innovative attempts were left individualistic and uncoordinated. The cumulative consequence limited the scale of innovative rulings, confined change to local and individual incidences, and prevented their spread.

Averroism Revisited: Does Ibn Rushd's interpretation of the Qur'an provide the basis for a modernist rereading of Islamic law When looking to reinterpret the Qur'an, Ibn Rushd is frequently singled out by modernists as a model of "reason" and anti-literalism, or by postmodernists as an apologist for interpretive license. This essay investigates the claim that Ibn Rushd's manner of interpreting the Qur'an provides a basis for rereading revelation in order to bring Islamic law into line with "reason" and changed circumstances. To be sure, the Cordoban jurist's theory of interpretation in Fasl al-maqal emphasizes the importance of philosophical training for the analogical reading of problematic passages in revelation. At the same time, in the chapter on esoteric interpretation (al-ta'wil) in Kitab al-kashf 'an manahij al-'adilla, Ibn Rushd distinguishes between the kinds of people to whom differing levels of interpretation ought to be addressed, and expresses his(never fulfilled) wish to write a thorough commentary. However, absent such a commentary, neither of the works mentioned above offer a reliable indication in practice of how to derive law from the commands and prohibitions of sacred text, or even the best way to modify such law. Rather, for legal norms we must turn to Ibn Rushd's al-Daruri fi usul al-fiqh, the neglected epitome of Ghazali's Mustasfa, which helped to introduce Aristotelian logic into the methodology of Islamic law. Through a close reading of his citations from the Qur'an in al-Daruri, it is evident that Ibn Rushd was a firm believer in the careful use of analogy in interpretation. Indeed, this Maliki jurist's classic work on differences of legal opinion, Bidayat al-Mujtahid, essentially shows how to triangulate between the opinions of the madhahib, and is if anything the work of a gradualist, not a revolutionary. Contextual evidence and Ibn Rushd's own legal writings demonstrate his commitment to the Qur'an as a source of law, and to the indispensable role of the religious and intellectual sciences in creating jurists capable of justifiable interpretations of scripture. While his basic traditionalism in law should be stressed, this essay concludes by pointing out the complementary in Ibn Rushd's legal writings between philosophical ethics derived from Aristotle and legal norms derived from the Qur'an.

The post-colonial Muslim World responded to modernism brought about by Western encroachment in various ways. It is generally believed that those educated in Islamic knowledge advocated a negative stance towards modernity while those educated in secular institutions embraced it. 'Ali al-Tantawi (1909-1999), a Syrian journalist, judge, and Islamic scholar and one of the few of his time who were educated in both secular and religious institutions, called for a conscious selection of modernist innovations by accepting and implementing those he believed were Islamically sound and leaving those he believed were not. A largely overlooked figure in Western academia, al-Tantawi's large corpus of writings for various newspapers and magazines around the Muslim World throughout the twentieth century was an attempt to reconcile Muslims' understanding of Islam with the far-reaching changes of modernity. Although this stance was taken by several Muslim scholars and reformers of the early to mid twentieth century, al-Tantawi stands out as being an independent reformer, refusing to become affiliated with any Islamic group or organization that were becoming prevalent at the time. Al-Tantawi also took a more sympathetic stance toward women, especially within marriage, and his thoughtful attitude is prominent in his writings as a journalist. His position was extended to the legal realm who, as a highly ranked judge in the Syrian court system, called for the implementation of reformist legislation. Through employing a limited ijtihad and proper taqlid by relying on all four legal schools (madhhabs) of Islamic jurisprudence rather than traditionally relying on exclusively one, al-Tantawi tried to present an Islamic law that accommodated modern concerns, and this was employed in his designing of the Syrian Personal Status Laws of 1953. Furthermore, by emphasizing Islam's broader principles such as the need for progress, and the happiness and stability of all members of the Muslim family, al-Tantawi tried to ameliorate the status of women in their marriages and encourage men to ensure their wives' happiness. Through these changes, Muslims can effectively counter Western encroachment through producing an alternative, authentic Islamic society that guarantees the stability and happiness of its members.

The early codification movement in the Middle East failed to displace Sharia (Islamic law). Old legal problems persisted after the presentation of codes patterned predominantly on the Continental law of Europe; in a community ruled historically by Sharia, the legal positivism of these early codes necessarily clashed with the religion-based indigenous law as the movement struggled to establish in the Muslim community a positive law jurisprudence independent of the religious imperatives that seemed contrary to modernity. Overcoming this clash has always been the aspiration of two legal trends in the Middle East: the Sharia codification trend and the positive law codification trend, both of which have survived until today. Taking the Ottoman Mejelle as an example of the codification of Sharia and the 1949 Egyptian Civil Code as an example of positive law codification, this paper attempts to expose some of the failures of the early codification movement. It compares the declared aspirations of both codes to their achieved realities. The Mejelle, on the one hand, aspired to reduce dense and difficult Sharia arguments into an accessible encapsulated article-form code. By dislocating Sharia's highly nuanced fatwa (legal ruling) institution, for example, the Mejelle became merely a lengthy text book on sales in the Hanafi tradition instead of a legally digested code. Meanwhile, the 1949 Egyptian Civil Code aspired to establish an independent positive law jurisprudence in a Sharia environment. To achieve its goal, the 1949 Civil Code combined the French jurisprudence of the old Egyptian civil code with Sharia into a hybrid juristic mix. The result was practically untenable; due to the lack of a supporting legal culture and grave errors in its attempted adaptation of Sharia's legal doctrines to positive legal thinking, the 1949 Civil Code remained dependent on French jurisprudence. In short, instead of making a new beginning, the Mejelle and 1949 Civil Code were ruled by the problems of the past.