The nature and purpose of the principles of uṣūl al-fiqh have been the subject of increasing scholarly attention in recent decades. Some of those studies suggested that uṣūl al-fiqh was primarily concerned with the establishment of a formalist model of deduction of legal rules from textual sources, which created the fiction that the legal system operated independently of any subjective considerations. This paper will attempt to problematize this view by presenting a case study in which uṣūl al-fiqh’s epistemological framework structurally relied upon a notion of personal moral improvement. This argument will be made by analyzing the concept of taklīf (loosely translated as “legal capacity”) in the uṣūl al-fiqh work of the influential Mālikī-Ashʿarī judge Abū Bakr b. al-Bāqillānī (d. 1013), and by following the evolution of this concept in the writings of Imām al-Ḥaramayn al-Juwaynī (d. 1085). Unlike the highly formal conditions of legal capacity in most modern systems (such as age), the conditions for taklīf centered on matters internal to the human mind, and largely concerned the legal subject’s state of consciousness. This study will argue that the pronounced concern with the legal subject’s state of mind followed from the premise that the legal system was designed to achieve a pietistic goal, which consisted of the ideal of “rapprochement” to God (qurbā). Between the revelation of the divine moral order in spoken form (khiṭāb), and the ascription of a moral judgment (ḥukm) to actions, taklīf stood as a necessary condition for the articulation of legal knowledge production and compliance. Taklīf was largely defined as God's imposition of a normative bond (kulfa) on the actions of humans. Unlike command (amr), taklīf was a concept that pertained to the attributes of a particular person, rather than the normative state of an action. As a result, the question of taklīf in Ashʿarī jurisprudence centered on each legal subject’s mental state, and the extent to which it allowed him or her to be a bearer (mukallaf) of divinely-imposed duties. It will be shown that “bearing” a duty was understood as the ability to perform the action at a given point in time while fully conscious of its moral implications. On the basis of this analysis, the paper will conclude that the concept of taklīf ensured that the legal system was structured in a manner that aimed to satisfy its central moral purpose.

Early Western writing on “Islamic law” has tended to note that fiqh, on its classical formulation, was “a composite science of law and morality” which had “a much wider scope and purpose than a simple legal system in the Western sense of the term.” (Noel Coulson, A History of Islamic Law, 83; see also Joseph Schacht in An Introduction to Islamic Law). Despite this awareness, however, much of this early work chose to focus exclusively on the “properly legal” subject matter of fiqh, on the premise that this latter could be neatly distinguished from its “religious” or “ethical” elements. More recently, however, scholars have observed the extent to which such a distinction is indebted to a secular logic inappropriate for a juristic tradition that experienced both its formation and maturation in the pre-modern world. In response, emergent scholarship has begun to sketch out the way in which “law” and “ethics”, as currently understood, commingled in an organic manner within the sharīʿa system, itself in turn a well-integrated institution of Islamic society. For the most part, such arguments tend to highlight the capacity of legal processes, instruments and personnel to carve out room for ethical considerations within the judicial system, and in the latter’s interface with political governance. This re-framing of the issue represents a significant advance, especially inasmuch as it makes use of insights drawn from other fields like anthropology and social history. However, the resulting account, in its heavy reliance on the discretion and intervention of juristic personnel, also threatens to reaffirm two old Orientalist tropes: Islamic law as Kadijustiz, the arbitrary judgment of individual jurists haphazardly dispensing justice from under a palm tree; and Islamic law as characterized by a gap between theory and practice. My paper, in contrast, seeks to avoid these pitfalls by returning to the textual record in an effort to locate sites in which the interdependence of “law” and “ethics” is evident within written works of fiqh themselves. To do so, I trace the history of a cluster of concepts used by fiqh writers to actively cultivate virtues among the populace by linking them to legal integrity, or standing, before the court. These concepts cluster around the notion of habituating the subject to avoid sinful acts, affirming Hussein Agrama’s observation that, against the liberal insistence on freedom as the constituent ingredient for a proper ethics, authoritative constraints are in fact productive of ethical agency.

Approaches to gaining knowledge through the reports of others – known as testimony – offer a useful lens onto the epistemology and moral framework underlying the discipline of Islamic legal theory. Akhbār al-āḥād (non-recurrent reports) pose a challenge to legal theorists because they comprise the majority of practical manifestations of testimony for the Muslim community in the form of the ḥadīth, which inform everyday behavior, pietistic concerns, and legal decisions. Current scholarship in the field has argued that tradition - religious and legal - had more of an effect than rationally-derived morality on the treatment of these reports. This paper examines the work of Ḥanafī scholars of the post-formative era in mā warāʾ al-nahr (Transoxania) – specifically, Fakhr al-Islām al-Bazdawī (d. 482/1088), Shams al-Aʾimma al-Sarakhsī (d. 490/1096), and Abū ʾl-Thanāʾ al-Lāmishī (d. after 539/1144) – to elucidate how these legal theorists conceived of using akhbār al-āḥād as a legal and/or moral obligation. These treatments of akhbār al-āḥād open a window onto deeper concerns regarding the process of accepting a report as true or false, questions of belief and action based on a report, and the role of theology in shaping legal theory. In this paper, I contend that at a time of political turmoil among rival Turkic rulers in Transoxania, the Ḥanafī scholars’ approach to akhbār al-āḥād represents a unique consolidation of legal and moral concerns in the history of Islamic legal theory, in which human reason (ʿaql) is held not only to be an epistemic source working hand-in-hand with revelation (samʿ), but also to be part of God’s wisdom (ḥikma) as a form of God’s evidence (ḥujaj Allāh). This Transoxanian understanding in legal theory of a moral system informed by their theology maintains that the concept of ḥikma relies on the human mind to make moral and legal decisions about the utility and quality of akhbār al-āḥād. The human mind is the principal instrument for evaluating what preponderates of truth over falsehood in these reports. Furthermore, these Ḥanafī scholars assert that it is morally and legally obligatory to act on the akhbār al-āḥād to obtain knowledge of how to avoid harm and to gain benefit. I argue, therefore, that the Ḥanafīs’ commitment to and method of evaluating akhbār al-āḥād reveals the theological principle of ḥikma at the root of this legal theoretical concern, and the construction of a moral system that appreciated reason and will.

This paper is an inquiry into two kinds of commercial virtue and their epistemic assumptions: maximizing economic efficiency and legal abstinence from interest. These virtues and their respective epistemic domains, despite not being mutually exclusive, have come into conflict with recent neoliberal critiques of Islamic banking and finance. The former, framed in a game theoretical language of problem solving, critiques the latter as engaged in wasteful legal formalism that is bent on avoiding interest through efficiency compromising measures. Although the neoliberal critique is posited as ethically neutral and mathematically objective, I argue that it is sustained by privileging an epistemic context for the calculative techniques of neoclassical economics and its concomitant formation of pragmatic virtue. As I attempt to show here through a comparison of the often overlapping procedural protocols observed in neoliberal and Islamic financial markets, they both presuppose distinct pragmatic selves bound by normative frameworks of commerce. The efficiency standard of neoliberalism, however, reigns supreme in guiding market practices. By treating efficiency discourse as a language game that appropriates Islamic banking and finance as an object of critique within its representationalist fold, I hope to demonstrate how the latter remains entangled, but not embedded or dissolved, in financial capitalism.