Islamic Studies Shari`a (Islamic Law)
by
Andrew March
  • LAST REVIEWED: 19 May 2017
  • LAST MODIFIED: 14 December 2009
  • DOI: 10.1093/obo/9780195390155-0048

Introduction

Islamic law refers to the idea of a divine law as imagined by God (shariʿa), to Islamic moral epistemology and jurisprudence (usul al-fiqh), to doctrines of positive law as formulated by the Islamic legal schools (fiqh), and in general to the applied legal order of Muslim polities when it makes some claim to religious legitimacy (sulta, siyasa, qanun). Interest in Islamic law, always steady, has grown significantly since the early 1990s. The study of Islamic law in the academy tends to center around the following themes and issues: classical legal theory (usul al-fiqh) as a branch of Islamic religious thought, classical positive law as a source for social history, Islamic law as codified state law in the late Ottoman Empire and post-colonial Muslim countries, and (more recently) Islamic law as Islamic ethics and its evolution in the contemporary world.

General Overviews

The following are some important general overviews of Islamic law as an ideal-theoretical endeavor and some problems of studying Islamic law in practice. The works of Goldziher 1981 and Schacht 1964 represent the first few generations of modern Western (“Orientalist”) scholarship on Islamic law and theology. Their contributions have been built on, and corrected for, by others such as Wael Hallaq.

Usul Al-Fiqh (Legal Theory, Jurisprudence)

Islamic legal theory addresses issues of moral theology, moral epistemology, and hermeneutics. If Sharia is God's law as it exists in the Divine imagination, legal theory is the jurists' account of how humans can discover that law through the revelatory texts or, some might say, how laws and rules endorsed by humans in this world can be legitimated as religiously sound. Hallaq's 1997 work A History of Islamic Legal Theories represents the state of post-Schachtian scholarship on the development and main controversies within usul al-fiqh. Weiss 2006 is a shorter and less historically focused introduction to the main theological and practical concerns of Islamic legal scholars, while Kamali 2005 is a fairly thorough step-by-step introduction to the methods of Islamic legal reasoning in its various component parts (i.e., from the Qur'an and Sunna to the “purposes of the law.”)

  • Abou El Fadl, Khaled. Speaking in God's Name: Islamic Law, Authority and Women. Oxford, UK: Oneworld, 2001.

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    This book contains a number of introductory chapters on authority and interpretation in Islamic jurisprudence, which function also as an introduction to Islamic legal theory itself. The book is then largely an attack on what the author perceives as an authoritarian approach to Islamic law adopted by Wahhabi scholars originating in Saudi Arabia but operating throughout the world.

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  • Ahmad, Ahmad Atif. Structural Interrelations of Theory and Practice in Islamic Law: A Study of Six Works of Medieval Islamic Jurisprudence. Leiden, The Netherlands: Brill, 2006.

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    This volume explores the structural relationship between legal theory and practical reasoning in six classical texts of Islamic jurisprudence, centered on the concepts of human agency, responsibility, rights, legal hermeneutics, extra-textual sources of the law, and basic inquiries, such as the jurisdiction of law in Islam and the relationship between law and government and between law and theology.

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  • Hallaq, Wael B. A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh. Cambridge, UK: Cambridge University Press, 1997.

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    The best thematic and chronological introduction to Islamic jurisprudence (legal theory).

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  • Johansen, Baber. Contingency in Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. Leiden, The Netherlands: Brill, 1998.

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    This book focuses on the Hanafi school of fiqh that originated in the 8th century and is, geographically, the most widespread and, numerically, the most important representative of Muslim normativity. The core of the book is dedicated to the way in which fiqh, in the period between the 10th and the 12th centuries, adapted to changing circumstances of urban and agricultural life, and to the way in which it marked off legal from ethical norms, religious from legal status, and legal propositions from religious judgment.

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  • Kamali, Mohammed Hashim. Principles of Islamic Jurisprudence. Cambridge, UK: Islamic Texts Society, 2005.

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    Fairly comprehensive thematic and conceptual introduction to the methods of Islamic jurisprudence. This book aims at synthesizing the range of debates and disagreements on important questions in Islamic legal theory throughout the classical and modern periods, and itself promotes some modernist views, particularly on the topics of maslaha and the maqasid al-shariʿa. It has valuable chapters on all of the component parts of Islamic jurisprudence and should be consulted on all of the specific topics related to the law.

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  • Nyazee, Imran Ahsan Khan. Islamic Jurisprudence: Usul al-Fiqh. Islamabad: International Institute of Islamic Thought, Islamic Research Institute, 2000.

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    A thorough introduction to Islamic jurisprudence (legal theory).

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  • Weiss, Bernard G. The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi. Salt Lake City: University of Utah Press, 1992.

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    A monumental exposition and commentary on a work of jurisprudence (usul al-fiqh) by a 13th-century Shafiʿi legal theorist. This work is one of the most detailed expositions of Islamic moral epistemology available in English and is an invaluable resource for teaching and research.

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  • Weiss, Bernard G. The Spirit of Islamic Law. Athens, GA: University of Georgia Press, 2006.

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    A short thematic and conceptual introduction to Islamic legal theory. This book is a very accessible work that synthesizes the author's decades-long research into Islamic jurisprudence, especially his monumental The Search for God's Law.

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Qur'an as a Source of Law

God's Book is, of course, the first and most authoritative source of law. All of the books on jurisprudence mentioned in the General Overviews and Usul al-fiqh (Legal Theory, Jurisprudence) sections of course have extensive treatments of the commitment to ground all law in revelation and the hermeneutical tasks which that involves. The following represent additional resources on various modes of Qur'anic exegesis from the classical period (Hawting and Shareef 1993) to modern attempts at reconciling fidelity to the text with post-Enlightenment epistemology (Saeed 2006).

  • Hawting, Gerald R. and Abdul-Kader A. Shareef, eds. Approaches to the Qur'an. London: Routledge, 1993.

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    This edited volume contains a number of very important and helpful essays on interpreting the Qur'an, including essays by Uri Rubin and John Burton on legal themes.

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  • Saeed, Abdullah. Interpreting the Qur'an: Towards a Contemporary Approach. New York: Routledge, 2006.

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    Saeed explores the current debates surrounding the interpretation of the Qur'an, and their impact on contemporary understanding of this sacred text, while adopting a modernist approach, which takes into account the historical and contemporary contexts of interpretation.

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Hadith/Sunna as a Source of Law

The speech-acts and deeds of the Prophet are regarded by Islamic legal theory as authoritative sources of law. Any treatment of Islamic legal theory or early Islamic history will involve discussion of the place of prophetic hadith in Islamic law. Of further interest are the following. Hallaq 1999 discusses the famous claims of modern Western scholars on the unreliability of hadith-reports while Melchert 2001 emphasizes the importance of hadith scholarship in the very development of Islamic law. Jackson 1993 introduces a very important later mode of classifying hadith reports, which served to give jurists considerable flexibility in their approach to the state.

  • Hallaq, Wael B. “The Authenticity of Prophetic Hadith: A Pseudo-Problem.” Studia Islamica, 89 (1999): 75–90.

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    Hallaq argues that post-Schachtian Western scholarly discussions of the authenticity of hadith rest on a mistake about what the classical hadith scholars claimed about the authenticity of most reports, namely that, in fact, they only engendered probable knowledge.

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  • Jackson, Sherman A. “From Prophetic Actions to Constitutional Theory: A Novel Chapter in Medieval Muslim Jurisprudence.” International Journal of Middle East Studies, Vol. 25, No. 1 (1993): 71–90.

    DOI: 10.1017/S0020743800058050Save Citation »Export Citation »E-mail Citation »

    Shows how a novel theory of the meaning of hadith reports was used to revise traditional conceptions of public law by the 14th-century Maliki jurist al-Qarafi.

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  • Melchert, Christopher. “Traditionist-Jurisprudents and the Framing of Islamic Law.” Islamic Law and Society, 8, 3 (2001): 383–406.

    DOI: 10.1163/156851901317230639Save Citation »Export Citation »E-mail Citation »

    Melchert argues that although some developments took place independently of them, the history of Islamic law across the 9th century cannot be written without reference to the traditionist-jurisprudents (ahl al-hadith) and their strident advocacy of hadith.

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Ijmaʿ (Consensus) as a Source of Law

Ijmaʿ (consensus) was primarily a theory of how certain knowledge could be acquired of the meaning or implications of revelatory texts through the universal agreement of the Muslim community or, for certain matters, the scholars. All of the books on jurisprudence in the General Overviews, Qur'an as a Source of Law, and Hadith/Sunna as a Source of Law sections of course have extensive treatments of the meaning and use of the concept of consensus in Islamic legal theory. The following are additional readings on the theory of the authority of consensus (Calder 1983 and Hallaq 1986) and on its potential relevance for legal change in modern jurisprudence (Freamon 1998 and Hasan 1992, in very different ways).

  • Calder, Norman. “Ikhtilaf and Ijmaʿ in Shafiʿi's Risala.Studia Islamica, No. 58 (1983): 55–81.

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    Calder argues that Shafiʿi distinguished between two types of consensus. The first is the consensus of the community and the second that of the ʿulama, the legal scholars. Only the first type, the consensus of the general community that is reached on the basis of the Qur'an and a Sunna transmitted by the generality of Muslims, can yield certain knowledge of the law decreed by God.

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  • Freamon, Bernard K. “Slavery, Freedom, and the Doctrine of Consensus in Islamic Jurisprudence.” Harvard Human Rights Journal. 11.1 (1998): 1–64.

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    Freamon attempts to argue that the jurisprudential principle of consensus is required in the modern era to reverse the traditional permissibility of slavery in Islamic law.

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  • Hallaq, Wael B. “On the Authoritativeness of Sunni Consensus.” International Journal of Middle East Studies, Vol. 18, No. 4 (1986): 427–454.

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    This article brings Western scholarship up to date on the question of what justified juridical consensus as a source of law in classical jurisprudence and whether the arguments were circular. Hallaq shows that arguments for the authoritativeness of consensus were advanced with the knowledge that the authoritativeness of consensus must, as a prerequisite, be established by the texts, and that consensus can by no means abrogate either the Qur'an or the Sunna.

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  • Hasan, Ahmad. The Doctrine of Ijmaʿ in Islam: A Study of the Juridical Principle of Consensus. Delhi: Kitab Bhavan, 1992.

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    Contains an introduction to ijmaʿ, a detailed analysis of its classical theory, competence, jurisdiction, and other related subject matter and relevant questions for its modern appropriation.

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Qiyas (Analogy) as a Source of Law

Mature legal theory attempted to restrict the free use of human reason in legal reasoning. In addition to the use of reason in textual interpretation, legal theory validated the use of reason to extend the law by applying it to new cases that shared relevant similarities with cases discussed in the texts. The books in this section discuss the meaning and use of the concept of qiyas in Islamic legal theory, as well as Shiʿite rejections of qiyas (Gleave 2002) and the relationship of qiyas to formal Greek logic (Hallaq 1990) given its historical origins (Shehaby 1982).

  • Gleave, Robert M. “Imami Shiʿi Refutations of Qiyas.” In Studies in Islamic Legal Theory. Edited by Bernard G. Weiss. Leiden, The Netherlands: Brill, 2002: 267–293.

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    Gleave discusses the Shiʿite polemics against qiyas in early “akhbar” literature (Shiʿite “hadith” that include reports from the Imams), and also how mature Shiʿite jurisprudence adopted the methods of analogical reasoning by other names.

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  • Hallaq, Wael B. “Logic, Formal Arguments and Formalization of Arguments in Sunni Jurisprudence.” Arabica, Tome 37, No. 3 (1990): 315–358.

    DOI: 10.1163/157005890X00032Save Citation »Export Citation »E-mail Citation »

    Examines the introduction of Greek logic into Sunni jurisprudence, and includes a lengthy translation from Ghazali's al-Mustasfa.

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  • Hasan, Ahmad. Analogical Reasoning in Islamic Jurisprudence: A Study of the Juridical Principle of Qiyas. Delhi: Adam Publishers and Distributors, 2007.

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    Important treatment of the problem of qiyas by a 20th-century Pakistani scholar that subsumes a number of earlier articles by the author in the Pakistani journal Islamic Studies.

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  • Shehaby, Nabil. “ʿIlla and Qiyas in Early Islamic Legal Theory.” Journal of the American Oriental Society, Vol. 102, No. 1 (1982): 27–46.

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    Examines two distinct conceptions of qiyas in the early legal theories of the Hanafis, Shafiʿi's, and Zahiris, primarily through the lens of al-Jassas's usul work.

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Istihsan as a Method of Legal Reasoning

Istihsan refers to a judge's or mufti's discretion in choosing between multiple possible rulings or replacing a normal or expected ruling with another one. Often referred to as “juristic preference,” it was rejected by many legal theorists as validating the arbitrary whim or reason of humans. Other legal theorists allow it as a legitimate way of selecting between compossible operative factors. John Makdisi has gone to great lengths in Makdisi 1985 and Makdisi 2002 to show that istihsan should not be understood as (arbitrary) judicial arbitration based on conceptions of “equity.”

  • Makdisi, John. “Legal Logic and Equity in Islamic Law.” The American Journal of Comparative Law, 33 (1985): 63–92.

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    Shows that istihsan should not be understood as “equity” insofar as the later term suggests some kind of arbitrary reasoning based on the judge's conception of fairness. Rather, Makdisi suggests that istihsan is comparable to the American concept of “reasoned distinction of precedent” and that istihsan thus might be called the “reasoned distinction of qiyas.

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  • Makdisi, John. “A Reality Check on Istihsan as a Method of Islamic Legal Reasoning.” Ucla Journal of Islamic and Near Eastern Law, 2 (2002): 99–127.

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    An invaluable article that, instead of focusing purely on usuli theoretical discussions of istihsan, examines thirty-seven uses of this method in the famous treatise on positive law, Bada'i' al-Sana'iʿ, written by the Hanafi jurist al-Kasani (d. AH 587 / 1191 CE). Makdisi argues that in these cases istihsan functions as “statutory interpretation,” “reasoned distinction of precedent,” or as recognizing “custom as a source of law.”

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Maslaha as a Method of Legal Reasoning

Maslaha (public interest or welfare) is treated in virtually all of the general book-length treatments of Islamic jurisprudence. It was controversial in the classical theoretical texts because it involves speculating on human interests in the absence of texts. In the contemporary period it is a very common device for justifying departures from classical rules. Opwis 2005 in particular has contributed to the understanding of the development of the concept from Ghazali to Shatibi and then its modern appropriation by reform-minded jurists.

  • Izzi Dien, Mawil. “Maslaha in Islamic Law: A Source or a Concept?” In Studies in Honour of Clifford Edmund Bosworth: Hunter of the East. Edited by Ian Richard Netton. Leiden, The Netherlands: Brill, 2000.

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    Izzi Dien argues that maslaha as a concept permeates a number of sources and methods in jurisprudence and is not itself a distinct source.

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  • Opwis, Felicitas. “Maslaha in Contemporary Islamic Legal Theory,” Islamic Law and Society, 12,2 (2005): 182–223.

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    In this very important article, Opwis first introduces the place of maslaha in the classical theories of al-Ghazali, Fakhr al-Din al-Razi, al-Qarafi, al-Tufi, and al-Shatibi, and then analyzes writings on maslaha by leading jurists from the late AH 13th / 19th CE century to the AH 1380s / 1960s CE, namely al-Qasimi, Rashid Rida, Mahmasani, ʿAllal al-Fasi, Khallaf, and al-Buti.

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Legal Maxims (Qawaʿid fiqhiyya)

Legal maxims are devices for summarizing substantive ethical and interpretive principles for legal reasoning. Just as in common law, they are very important in the actual legal reasoning and adjudication of judges. In the contemporary period they are attractive to modernist and reformist scholars who wish to emphasize general Islamic values over specific rules derived from texts. Heinrichs 2002 has contributed greatly to excavating and categorizing the classical source material on this topic, while Kamali 2006 represents the interest of a modern, engaged Islamic legal thinker in the legal maxims as a device for the pragmatic and equitable application of Islamic law.

Maqasid al-shariʿa

The “purposes of Sharia” are a theory that God revealed the law with certain general aims in mind and that legal scholars may use the knowledge of these aims in applying the law, particularly in discriminating between more and less important features of it. Understandably, the theory of the maqasid is highly popular among modernist and reformist Islamic scholars. Some of the best introductions to the theory of the “purpose of Sharia” can be found in the book-length studies of Islamic jurisprudence introducedin other subsections of Usul al-fiqh (Legal Theory, Jurisprudence). In this section are a few additional books, articles, or book chapters of note that deal explicitly with the maqasid. The essays by Johnston 2004 are very helpful and accessible introductions to the use of the maqasid for modern Islamic scholars seeking flexibility in their engagement with human rights norms, while Jackson 2006 voices a skeptical view toward the types of moral dilemmas scholars have used the maqasid to solve to date.

  • Auda, Jasser. Maqasid al-Shariah as Philosophy of Islamic Law: A Systems Approach. Herndon, VA: International Institute of Islamic Thought, 2008.

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    An ambitious statement of the maqasid as the foundation of Islamic law by a scholar working in London and North America.

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  • Jackson, Sherman. “Literalism, Empiricism, and Induction Apprehending and Concretizing Islamic Law's Maqasid Al-Shariʿah in the Modern World,” Michigan State Law Review (2006): 1469–1486.

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    Jackson suggests that one important “purpose of the law”—preserving reason (hifz al-din)—should not be limited to explaining prohibitions on alcohol, but should be mobilized generally to counter all racist and colonial constructions of subjectivity that equally serve to “corrupt the reason” of Muslims. The article also contains a very useful restatement of the difference between classical legal theory and those based on the maqasid—which he characterizes as one between “juristic empiricism” and “juristic induction.”

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  • Johnston, David. “A Turn in the Epistemology and Hermeneutics of Twentieth Century Usul al-fiqh.” Islamic Law and Society, 11,2 (2004): 233–282.

    DOI: 10.1163/156851904323178764Save Citation »Export Citation »E-mail Citation »

    Johnston argues that, whereas the theological commitments of classical jurisprudence were strictly Traditionalist or Ashʿarite, many modern legal theorists may in fact be adopting a neo-Muʿtazilite theology through their insistence on maslaha and the “purposes of the law.” These include Muhammad ʿAbduh, Muhammad Rashid Rida, ʿAbd al-Razzaq al-Sanhuri, ʿAbd al-Wahhab Khallaf, Muhammad Abu Zahra, and Muhammad Hashim Kamali.

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  • Johnston, David. “Maqasid Al-Shariʿa: Epistemology and Hermeneutics of Muslim Theologies of Human Rights.” Die Welt des Islams, 47, 2 (2007): 149–187.

    DOI: 10.1163/157006007781569936Save Citation »Export Citation »E-mail Citation »

    The “maqasidi” strategy as it is applied to human rights is monitored in three distinct currents: traditionalists (Muhammad al-Ghazali and Muhammad ʿAmara); progressive conservatives (Muhammad Talbi, Muhammad al-Mutawakkal, and Rashid al-Ghannushi); and progressives working with a postmodern epistemology (Ebrahim Moosa and Khaled Abou El Fadl).

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  • Masud, Muhammad Khalid. Shatibi's Philosophy of Islamic Law. Selangor, Malaysia: Islamic Book Trust, 2000.

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    This is a good English-language introduction to the most prestigious of the classical formulations of the theory, that of 14th-century Andalusian jurist al-Shatibi.

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Authority, ʿulama, Ijtihad

While Islam has no “church,” and religious authority in Sunni Islam is highly dispersed, there is a long tradition of restricting interpretive freedom to scholars (ʿulama) trained within one of the legal schools. The practice of “exerting oneself” in the search for God's law is referred to as “ijtihad,” which also in the modern period invokes the idea of reopening old questions or thinking creatively about new problems. Hallaq 2001 gives the best single volume historical account, while the volumes edited by Masud, et al. 1996 and 2005, represent important contributions on various specific areas of research into fatwa-giving and judicial adjudication as sources for social history. Zaman 2007 is an important introduction to the question of scholarly authority in the 20th and 21st centuries.

  • Bearman, Peri, Rudolph Peters, and Frank E. Vogel, eds. The Islamic School of Law: Evolution, Devolution, and Progress. Cambridge, MA: Harvard University Press, 2006.

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    The second volume in the new Harvard Series in Islamic Law edited by Baber Johansen, this is a collection of essays on various topics related to the Islamic legal madhhab.

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  • Fadel, Mohammad. “The Social Logic of Taqlid and the Rise of the Mukhtasar,” Islamic Law and Society, 3,2 (1996): 193–232.

    DOI: 10.1163/1568519962599122Save Citation »Export Citation »E-mail Citation »

    Fadel argues that taqlid (imitation of and loyalty to one's school's doctrines) was not derived from theological views (such as the “closing of the gate of ijtihad”) but rather features of law as a social system with needs for consistency and predictability.

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  • Hallaq, Wael B. Authority, Continuity and Change in Islamic Law. Cambridge, UK: Cambridge University Press, 2001.

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    Hallaq demonstrates how the authority of the law schools and their founders maintained school methodology and hermeneutics. It was this environment that gave rise to a variety of individual legal opinions, ultimately legitimizing changes in the law. Thus the author concludes that the mechanisms of change are embedded in the very structure of Islamic law, despite its inherent conservatism.

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  • Masud, Muhammad Khalid, Brinkley Messick, and David S. Powers, eds. Islamic Legal Interpretation: Muftis and Their Fatwas. Cambridge, MA: Harvard University Press, 1996.

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    Very important edited volume on fatwa-giving (ifita').

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  • Masud, Muhammad Khalid, Rudolph Peters, and David S. Powers, eds. Dispensing Justice in Islam: Qadis and their Judgements. Leiden, The Netherlands: Brill, 2005.

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    The twenty-second volume in the Studies in Islamic Law and Society series. This is a sourcebook of Islamic legal practice and qadi court records from the rise of Islam to modern times, drawing upon court records and qadi judgments, in addition to literary sources.

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  • Zaman, Muhammad Qasim. The Ulama in Contemporary Islam: Custodians of Change. Princeton, NJ: Princeton University Press, 2007.

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    Zaman shows how the ʿulama have appropriated and adapted medieval commentaries and authorities to the modern world, updating Islam's message to contemporary necessities. He identifies the rhetorical and social strategies they used to transmit that message effectively in the marketplace of Muslim ideas.

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History of Islamic Law

Important controversies in the historiography of Islamic law include the development of legal schools in relation to theological controversies and the relationships between legal theory, the positive law of the various schools, and social reality. The volumes by Hallaq 2005, Vikor 2006, and Zubaida 2003 are excellent introductions to the field.

  • Gerber, Haim. Islamic Law and Culture, 1600–1840. Leiden, The Netherlands: Brill, 1999.

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    This book, based mainly on the fatwa collections of two prominent Arab jurists and one Turkish jurist from this period, re-examines the basic methodological structure of Islamic law (including its complex relations with the state) and poses the question as to whether Islamic law became increasingly closed and rigid. It was found that no such closure ever took place. Flexibility and openness remained vital, via terms such as istihsan, ijtihad, and ʿurf.

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  • Hallaq, Wael B. The Origins and Evolution of Islamic Law. Cambridge, UK: Cambridge University Press, 2005.

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    Important history of the first three centuries of Islamic law, synthesizing Western scholarship on the subject post-Schacht.

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  • Imber, Colin. Ebu's-suʿud: The Islamic Legal Tradition. Palo Alto, CA: Stanford University Press, 2008.

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    The jurist Ebu's-Suʿud (c. 1490–1574) was important for his attempt at harmonizing the secular law with the Sharia. Imber focuses on five areas of Islamic law for analysis: the sultan and legal sovereignty; land tenure and taxation; trusts in mortmain; marriage and the family; and crimes and torts.

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  • Melchert, Christopher. The Formation of the Sunni Schools of Law, 9th–10th Centuries C.E. Leiden, The Netherlands: Brill, 1997.

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    The fourth volume in the Studies in Islamic Law and Society series. Relying mainly on biographical dictionaries, this study traces the constitutive elements of the classical schools and finds that they first came together in the early 10th century.

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  • Motzki, Harald.The Origins of Islamic Jurisprudence: Meccan Fiqh Before the Classical Schools. Translated by Marion H. Katz. Leiden, The Netherlands: Brill, 2001.

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    This volume uses sources that have become available since Schacht to reconstruct the development of jurisprudence at Mecca, virtually unknown until now, from the beginnings until the middle of the second Islamic century and shows that the origins of Islamic jurisprudence can be dated much earlier than claimed by Schacht and his school.

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  • Vikor, Knut S. Between God and the Sultan: A History of Islamic Law. New York: Oxford University Press, 2006.

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    Focusing on the tension between scholarly and political authority, Vikor summarizes the main concepts of Islamic jurisprudence; discusses debates concerning the historicity of Islamic sources of dogma and the dating of early Islamic law; describes the classic practice of the law, in the formulation and elaboration of legal rules and practice in the courts; and sets out various substantive legal rules on such vital matters as the family and economic activity.

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  • Zubaida, Sami. Law and Power in the Islamic World. London: I. B. Tauris, 2003.

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    A survey history of Islamic law as a legal and political institution at different periods of history.

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Substantive Areas of Islamic Law

The entries here will focus mostly on presentations and interpretations of classical doctrine. See the section on Islamic Law as State Law in Modernity for studies of the modern application of Islamic law. Whereas usul al-fiqh refers to Islamic legal theories, or jurisprudence, fiqh refers to the efforts of jurists to elaborate the substance of Islamic legal norms and rulings. This section focuses on some of the more important areas of the law. See Bakhtiar and Reinhart 1996 for an overview of the field.

  • Bakhtiar, Laleh, and Kevin Reinhart. Encyclopedia of Islamic Law: A Compendium of the Major Schools. Chicago: Kazi Publications, 1996.

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    A very useful schematic overview in the style of “ikhtilaf” works of the rulings of the various legal schools on the standard subjects of Islamic law, both matters of ritual and worship and social interactions.

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Public Law: The State, Constitutionalism, Warfare

Islamic law was most developed in the areas where the scholars had the most authority and control: private and civil law. Nonetheless, thought on the state, public law, and warfare was rich and displayed both agile flexibility vis-à-vis political realities as well as a certain fundamental consistency. Crone 2005 is the largest and most comprehensive survey and is for that invaluable. Abou El Fadl 2008 has written the most comprehensive study of the problem of political obligation and religious rebellion, while Zaman 1997 and Jackson 1996 discuss two important moments of the religious scholars' approach to the state.

  • Abou El Fadl, Khaled. Rebellion and Violence in Islamic Law. Cambridge, UK: Cambridge University Press, 2008.

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    A study of the classical Islamic legal sources on internal rebellion and the state's response. The most comprehensive such study in print, Abou El Fadl emphasizes Islamic legal scholars' preference to reintegrate rebels who fight an Islamic ruler on doctrinal grounds (when they have a “ta'wil”), which is an important corrective to the classical view of Sunni thought as merely quietist.

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  • Crone, Patricia. God's Rule—Government and Islam: Six Centuries of Medieval Islamic Political Thought. New York: Columbia University Press, 2005.

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    Extremely important work of near encyclopedic scope on theological and juridical views on political authority in the first six centuries of Islam.

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  • Eliash, Joseph. “The Ithna ʿAshari-Shiʿi Juristic Theory of Political and Legal Authority.” Studia Islamica, 29 (1969): 17–30.

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    A study of pre-Revolutionary Shi'ite views on political obligation.

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  • Funk, David A. “Traditional Islamic Jurisprudence: Justifying Islamic Law and Government.” Southern University Law Review 20 (1993): 213–294.

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    An accessible and convenient, although somewhat dated, overview of Islamic doctrines of public law and political obligation, based largely on English-language sources.

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  • Jackson, Sherman A. Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi. Leiden, The Netherlands: Brill, 1996.

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    This book deals with an Ayyubid-Mamluk Egyptian jurist's attempt to come to terms with the potential conflict between power, represented in the state, and authority, represented in the schools of law, particularly where one school enjoys a privileged status with the state.

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  • Zaman, Muhammad Qasim. “The Caliphs, the ʿUlama, and the Law: Defining the Role and Function of the Caliph in the Early Abbasid Period,” Islamic Law and Society, 4 (1997): 1, 1–36.

    DOI: 10.1163/1568519972599860Save Citation »Export Citation »E-mail Citation »

    This essay analyzes various indications in juristic and historical sources from the early ʿAbbasid period to show that the caliph continued to be recognized as a participant in the function of commenting on or resolving obscure matters of a legal import and in religious life in general, suggesting that there was no total separation between religion and politics.

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Criminal Law

Islamic criminal law includes both the mandatory, fixed “hudud” punishments as well as discretionary “taʿzir” punishments. In general, crimes can involve violation of the “rights of God” or of the “rights of [God's] servants.” Peters 2006 gives a valuable summary of criminal law, as does El-Awa 1982 from a modern perspective. The article by Fahmy 1999 is included here as a representative of some of the most creative contemporary scholarship in 19th-century social history and how it uses legal records.

Family Law

Family law includes marriage, divorce, and inheritance. It is of great interest to scholars for its bearing on gender issues, but is also a frequent subject for social historians since a large proportion of court records deal with family issues. Tucker 2008, Sonbol 1996, and Esposito 1982 are good introductions to the center of gravity in Islamic family law, as well as the ambiguities and complexities in studying the effects of their application. Badawi 1995 represents a modern, conservative apologetic defense of Islamic gender relations.

Islamic Law as State Law in Modernity

Islamic law as state law in modern Muslim countries is a complex issue primarily for two reasons: substantial parts of the legal systems of many Muslim countries are the products of colonialism and the transplantation of European legal codes, and classically Islamic law functioned as a jurists' law in a way that does not sit easily with modern rationalization and legal codification. Much of the scholarship on Islamic law in modern state systems focuses on these dilemmas of codification, adjudication, and application in new political and social contexts.

International

The entries in this section by Hallaq 2005-2006, Layish 2004, and Yilmaz 2005 are good introductions to the problem of a jurists' law being applied to a modern state order. The entries by An-Na'im 2002, Mayer 1987, and Peters 1994 are good overviews of where and when different aspects of Islamic law have been applied in modern states.

  • An-Na'im, Abdullahi, ed. Islamic Family Law in a Changing World: A Global Resource Book. New York: Zed Books, 2002.

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    Survey of doctrine and application across the Islamic world.

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  • Hallaq, Wael B. “What is Shariʿa?” Yearbook of Islamic and Middle Eastern Law, Vol. 12 (2005–2006): 151–180.

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    A lively article that focuses on the effects of colonialism and the codification of law in particular on the practice of Islamic legal reasoning among jurists. Hallaq argues that the demand to restore the Sharia as a written legal code is fundamentally incompatible with the notion of fiqh before modernity.

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  • Layish, Aharon. “The Transformation of the Shariʿa from Jurists' Law to Statutory Law in the Contemporary Muslim World.” Die Welt des Islams 44, 1 (2004): 85–113.

    DOI: 10.1163/157006004773712587Save Citation »Export Citation »E-mail Citation »

    This important article focuses on the inherent dilemma of codifying a legal system that was traditionally left in the hands of the legal scholars and their guilds.

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  • Mayer, Ann Elizabeth. “Law and Religion in the Muslim Middle East.” The American Journal of Comparative Law, Vol. 35, No. 1 (1987): 127–184.

    DOI: 10.2307/840165Save Citation »Export Citation »E-mail Citation »

    Very convenient article-length overview of the place of Islamic law in modern Middle Eastern state systems.

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  • Peters, Rudolph. “The Islamization of Criminal Law: A Comparative Analysis.” Die Welt des Islams, Vol. 34, Issue 2 (1994): 246–274.

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    A study of efforts to introduce Islamic criminal law into the legal systems of Libya, Pakistan, Iran, and Sudan.

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  • Yilmaz, Ihsan. Muslim Laws, Politics and Society in Modern Nation States: Dynamic Legal Pluralisms in England, Turkey and Pakistan. London: Ashgate Publishing, 2005.

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    This book analyzes the conflict between the assumptions of modern legal systems and plural legal realities, and also examines attempts by modern legal systems to impose official laws in the face of resistance from unofficial Muslim laws and discusses possible responses to the challenge of dynamic Muslim legal pluralism.

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Egypt

While a partially secular state with a long history of domination by a secular elite, the Egyptian legal system has become dramatically more “Islamic” over the decades and is one of the best-studied cases. Bechor 2007 gives the best book-length study of the first effort to Islamize the law, Sanhuri's famous civil code, while Lombardi 2006 is an excellent study of Islamic legal interpretation on the part of a non-traditionally trained constitutional court.

  • Abu-Odeh, Lama. “Modernizing Muslim Family Law: The Case of Egypt.” Vanderbilt Journal of Transnational Law 37 (2004): 1043–1146.

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    This law review article gives a history of modern family law in Egypt and argues that it should be fully secularized to constrain the power of conservative religious elites.

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  • Bechor, Guy. The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932 to 1949). Leiden, The Netherlands: Brill, 2007.

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    This book examines the drafting of the Egyptian Civil Code by ʿAbd al-Razzaq al-Sanhuri (1895–1971) and argues that his vision was essentially a social one: to introduce the principles of compassion, solidarity, and fairness, alongside progress and pragmatism, into polarized Egyptian society, whereby property laws acquired a social function, the laws of partnership were perceived as having an educational value, and contract law was activated as a balance favoring the weaker members of society.

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  • Bernard-Maugiron, Nathalie, and Baudouin Dupret, eds. Egypt and Its Laws. New York: Kluwer Law International, 2002.

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    Egyptian law professionals contributed to this volume by outlining each branch of law or judicial order in a synthetic way, including constitutional law, administrative law, civil law, personal status law, criminal law, commercial law, company law, tax law, labor and social law, land law, press law, procedural law, commercial arbitration, and public and private international law, as well as civil, criminal, administrative, and constitutional adjudication.

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  • Hill, Enid. Mahkama! Studies in the Egyptian Legal System. London: Ithaca Press, 1979.

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    Based on years of field research in Egyptian courts, this book explores Egypt's legal hybridity as well as the law-politics nexus.

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  • Lombardi, Clark B. State Law as Islamic Law in Modern Egypt: The Incorporation of the Shariʿa into Egyptian Constitutional Law. Leiden, The Netherlands: Brill, 2006.

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    This volume begins by examining the evolution of Sunni Islamic legal theory and describes competing theories of Islamic law that co-exist in modern Egypt. The book then explores how the Supreme Constitutional Court of Egypt has developed its own approach to interpreting Sharia, one that permits the court to argue that Sharia principles are consistent with international human rights norms. The book concludes with a discussion of the public reception of the court's theory.

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Iran

Iran is the greatest case of a successful Islamic revolution, which claims as its primary mandate the task of transforming the legal system. Unfortunately, scholarship on post-revolutionary Iranian law is not as developed as it could be, but Mir-Hosseini 1993 is a widely-read study of Iranian family law and Schirazi 1997 gives a good overview of the broader legal-political system almost two decades into the revolution.

Iraq

The post-2003 Iraqi legal system is still emerging, but a few studies have already appeared discussing the place of Islamic law in the Iraqi constitution (Rabb 2008, Stilt 2004) and in civil and commercial law (Hamoudi 2008).

Malaysia

For an introduction to Islamic law in Malaysia refer to Harding 2002.

  • Harding, Andrew. “The Keris, the Crescent and the Blind Goddess: The State, Islam and the Constitution in Malaysia.” Singapore Year Book of International Law 6 (2002): 154–180.

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    An overview of Malaysia's complex federal system where Islamic law is applied at the level of federal entities.

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Nigeria

Consult Peters 2003 for Islamic law in Nigeria.

Pakistan

Like Egypt, Pakistan has been largely ruled by secular, military elites but has gradually incorporated more and more Islamic law into its legal system. Much of the law on the books, however, has not been applied consistently or at all, and much legal scholarship focuses on this question, including the Collins 1987, Kennedy 1990, Wasti 2009, and Weiss 1986. As in many countries, however, family law seems to be the easiest for an ambivalent state to enforce, and the studies of Carroll 1996 and Quraishi 1997 focus on this area.

Saudi Arabia

As (along with Iran) the Muslim country with the strongest commitment to Islamic law and the classical role of the jurist class, Saudi Arabia is an important object of study that has not received as much scholarly attention as it deserves. Vogel 2000's well-known study stands out here as the main book-length study of law and politics in Saudi Arabia.

  • Vogel, Frank E. Islamic Law and Legal System: Studies of Saudi Arabia. Leiden, The Netherlands: Brill, 2000.

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    This volume investigates the legal system of Saudi Arabia both for its own sake and as a case-study of an Islamic legal system. As a study of Saudi Arabia, it is the first extensive treatment in English of the constitution and Islamic court system of Saudi Arabia. As a study of an existing legal system in continuity with past Islamic law and practice, it sheds new light on Islamic legal doctrine, practice, and institutions, correcting for past scholarly neglect of Islamic law's application. The book develops a framework of concepts, rooted in both Islamic and western legal theory, useful for the comparative description and analysis of Islamic legal systems and applications, past and present.

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  • Walker, Jeffrey K. “The Rights of the Accused in Saudi Criminal Procedure.” Loyola of Los Angeles International and Comparative Law Journal 15 (1992): 863–884.

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    A rare study of this technical issue in the country where Islamic law is applied with the most fidelity to classical doctrine.

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Sudan

See Layish and Warburg 2002 for a study of Islamic law in Sudan under President Numayri.

  • Layish, Aharon, and Gabriel R. Warburg. The Reinstatement of Islamic Law in Sudan under Numayri: An Evaluation of a Legal Experiment in the Light of its Historical Context, Methodology, and Repercussions. Leiden, The Netherlands: Brill, 2002.

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    This book examines President Jaʿfar al-Numayri's experiment of reinstating Islamic law in the Sudan and the methods employed to this end, in the light of its historical context and sources of inspiration. The focus of attention here is the judge as an instrument for implementing the government's Islamist policy by means of expanded judicial discretion based on a synthesis of traditional Islamic and modern non-Islamic sources of law.

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English Translations of Usul Al-Fiqh

Unfortunately, there does not seem to be a full translation of a developed work of Islamic legal theory (post-10th/11th century) into English (Weiss's The Search for God's Law is perhaps the closest approximation, being a very detailed, schematic elaboration of Amidi's (d. 1233) legal theory.). Khadduri's translation of Shafiʿi's al-Risala is valuable, but this is too early of a text to give a sense of the full flowering of Islamic legal theory (al-Shafiʿi 1987). It is indicative of the strong interest many contemporary Muslims have in the potential of the theory of the maqasid al-shariʿa (purposes of law) that many of the translated works in print are on this area of legal theory (Attia 2008, Ibn ʿAshur 2006, al-Raysuni 2005).

  • Attia, Gamal Eldin. Towards Realization of the Higher Intents of Islamic Law: A Functional Approach of Maqasid al-Shariʿah. Herndon, VA: International Institute of Islamic Thought, 2008.

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    Comprehensive and ambitious treatise on Islamic legal theory based on the maqasid by an Egyptian scholar.

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  • Ibn ʿAshur, Muhammad Al-Tahir. Treatise on Maqasid al-Shariʿa. Herndon, VA: International Institute of Islamic Thought, 2006.

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    Important reformulation of the theory of the maqasid by a 20th century Tunisian scholar.

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  • al-Raysuni, Ahmad. Imam Al-Shatibi's Theory of the Higher Objectives and Intents of Islamic Law. Herndon, VA: International Institute of Islamic Thought, 2005.

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    Contemporary summary of 14th-century Andalusian Maliki legal theorist al-Shatibi's doctrine of the “purposes of law” (maqasid al-shariʿa).

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  • al-Sadr, Muhammad Baqir. The Principles of Islamic Jurisprudence: According to Shiʿi Law. London: Islamic College for Advanced Studies, 2003.

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    Short introduction to Shiʿite legal theory by a prominent 20th-century Iraqi scholar.

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  • as-Sadr, Muhammad Baqir. Lessons in Islamic Jurisprudence. Translated by Roy Parviz Mottahedeh. Oxford: Oneworld, 2005.

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    This particular work, a textbook itself, was intended to provide a clear and accessible introduction to al-Kifayah fi ʿilm al-usul, by Muhammad Kazim al-Khurasani (d. AH 1329 / 1911 CE), which gained recognition as a standard text of jurisprudence in the Twelver Shiʿite curriculum in the course of the 20th century.

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  • al-Shafiʿi, Muhammad ibn Idris. al-Risala: Treatise on the Foundations of Islamic Jurisprudence. Translated by Majid Khadduri. Cambridge: Islamic Texts Society, 1987.

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    A passable translation of the work that is often considered the first work of Islamic legal theory.

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  • al-Shahrazuri, Ibn al-Salah. An Introduction to the Science of Hadith: Kitab Maʿrifat anwaʿ ʿilm al-hadith. Translated by Eerik Dickinson. Reading, UK: Center for Muslim Contribution to Civilization; London: Garnet Publishing, 2006.

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    A 13th-century work that provides a complete overview of the science devoted to hadith, and also a guide to the terminology and techniques of the scholars of hadith, as it summarizes most of the previous work on the subject and forms the basis of almost all later activity in the field. The book enjoyed immense popularity and influenced most subsequent writing on the subject.

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  • al-Qaradawi, Yusuf. Approaching the Sunna: Comprehension and Controversy Translated by Jamil Qureshi. Herndon, VA: International Institute of Islamic Thought, 2006.

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    Translation of Qaradawi's 1990 book Kayfa nataʿamal maʿa al-Sunna.

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English Translations of Fiqh (Positive Law)

Students of Islamic law are fortunate to have a number of excellent translations of classical Islamic manuals of positive law, including Keller's translation of Ibn al-Naqib's ʿUmdat Al-Salik (Ibn al-Naqib 1997) and Nyazee's translations of Ibn Rushd's Bidayat al-mujtahid (Ibn Rushd 1994) and Marghinani's al-Hidaya (al-Marghinani 2006). There are also good translations of treatises on some specific topics of Islamic law, including Mawardi's treatise on public law (al-Mawardi 1996), Ibn Taymiyya's work on siyasa sharʿiyya (Ibn Taymiyya 1966), and Shaybani's work on the laws of war and relations with non-Muslims (al-Shaybani 1966).

  • Ibn al-Naqib, Ahmad. Reliance of the Traveller: The Classic Manual of Islamic Sacred Law Translated by Nuh Ha Mim Keller. Beltsville, MD: Amana Publications, 1997.

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    Translation of late Shafiʿi manual of positive law, with both Arabic and English texts.

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  • Ibn Rushd, Abu al-Walid Muhammad ibn Ahmad. The Distinguished Jurist's Primer: A Translation of Bidayat al-mujtahid. Translated by Imran Ahsan Khan Nyazee, 2 vols. Reading, UK: The Centre for Muslim Contribution to Civilisation, 1994.

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    Translation of Ibn Rushd's famous primer on Islamic positive law. This is an “ikhtilaf” work, meaning that it summarizes the acceptable range of disagreement and pluralism across the legal schools, with the author's own preferences.

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  • Ibn Taymiyya, Taqi al-Deen Ahmed ibn ʿAbd al-Halim. Ibn Taymiyya on Public and Private Law in Islam: Or Public Policy in Islamic Jurisprudence (trans. by Omar A. Farrukh). Beirut: Khayats, 1966.

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    This is a translation of Ibn Taymiyya's famous text al-Siyasah al-Sharʿiyya, which represents a new phase in Islamic thinking on the state and public law, one that emphasizes the importance of discretionary authority to pursue the public religious good, even at the risk of suspending the law. This rare title appears to be the only English translation. A French translation by Henri Laoust is widely available.

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  • al-Marghinani, Burhan al-Din al-Farghani. Al-Hidaya: The Guidance. Translated by Khan Nyazee, Imran Ahsan. Bristol, UK: Amal Press, 2006.

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    Classical 12th-century manual of Hanafi law that was used by the British to establish Anglo-Mohammadan law and remains a reference for Hanafi law in countries such as Pakistan and Egypt.

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  • al-Mawardi, Abu al-Hasan. The Ordinances of Government: a translation of al-Ahkam al-sultaniyya w'al-wilayat al-diniyya al-Ahkam al-Sultaniyya. Translated by Wafaa H. Wahba. Reading: Center for Muslim Contribution to Civilization; London: Garnet Publishing, 1996.

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    Classic 11th-century work of public law.

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  • al-Shaybani, Muhammad ibn al-Hasan. The Islamic Law of Nations: Shaybani's Siyar (trans. Majid Khadduri). Baltimore: The Johns Hopkins University Press, 1966.

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    This is a translation of an 8th-century Hanafi treatise on the laws of war and relations with non-Muslims. It is a good primacy source for the teaching of basic aspects of the jihad doctrine in classical Islam.

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  • al-Qaradawi, Yusuf. The Lawful and the Prohibited in Islam. New Delhi: Kitab Bhavan, 2006.

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    Very popular text by the prominent Egyptian-Qatari scholar providing an overview of Islamic legal rulings for everyday life.

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