Redefining Islamic Tradition

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In 1910, as the possibility that Morocco would fall to French control threatened to overwhelm the Muslim community, al-Mahdī al-Wazzānī, a distinguished Moroccan Islamic scholar, penned the conclusion of his massive compilation of Mālikī fatwās and named it the New Mi‘yār. This essay explores the nature and meaning of the New Mi‘yār. I argue that al-Wazzānī did not merely assemble a collection of fatwās, but deliberately formulated a text that was firmly rooted in the specific challenges and changes generated by Moroccan modernity and was designed to redefine Mālikī legal tradition to make it relevant to his time. For al-Wazzānī, redefining Mālikī tradition and thought as an effective regulator of contemporary social relations and Islamic morality was necessary to reinforce the authority of Mālikī scholarship and to ensure the moral survival of the Muslim community in the context of the dramatic transformations that characterized Moroccan modernity.

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Can the concept of law be indiscriminately extended to times and places in which it did simply not exist? Such an extension is at best useless and at worst misleading. Producing an intelligible jurisprudence of the concept of law means keeping it within the reasonable boundaries of its contemporary common-sense understanding: positive law. Parallel to Western societies in which it firstly emerged, the concept of positive law developed in many places, including countries characterized as Muslim. There, it faced other existing normativities, like customs and the Sharia. This book aims, from the Muslim world's perspective, to clarify the uses of the concept of law and the ways of studying it, to describe some of its historical developments, including the ideas of constitutional law, customary law and forensic evidence, and to describe present-day practices, including reference to law sources, rules and interpretation.
Conference Paper
While the chief concern of Muslim jurists (fuqahā’) has always been to establish principles for dealing with every event necessitating the administration of justice in society within the circumstances of the age, they perform at the same time a number of other functions.
Focusing on the Maghrib in the period between 1300 and 1500, in this 2002 book David Powers analyses the application of Islamic law through the role of the mufti. To unravel the sophistication of the law, he considers six cases which took place in the Marinid period on subjects as diverse as paternity, fornication, water rights, family endowments, the slander of the Prophet and disinheritance. The source for these disputes are fatwas issued by the muftis, which the author uses to situate each case in its historical context and to interpret the principles of Islamic law. In so doing he demonstrates that, contrary to popular stereotypes, muftis were in fact dedicated to reasoned argument, and sensitive to the manner in which law, society and culture interacted. The book represents a groundbreaking approach to a complex field. It will be read by students of Islamic law and those interested in traditional Muslim societies.
Wael B. Hallaq is regarded as one of the leading scholars in the field of Islamic law. In a path-breaking new book, the author shows how authority guaranteed both continuity and change in Islamic law. While the role of the law schools in augmenting these processes was of the essence, the author demonstrates that it was the construction of the absolutist authority of the school founder, an image which he suggests was actually developed later in history, that maintained the foundations of school methodology and hermeneutics. The defence of that methodology gave rise to an infinite variety of individual legal opinions, ultimately accommodating changes in the law. Thus the author concludes that the mechanisms of change were embedded in the very structure of Islamic law, despite its essentially conservative nature. This book will be welcomed by specialists and scholars in Islamic law for its rigour and innovation.
Essaouira was founded n 1764 by Sultan Sidi Muhammad b. Abdullah as his port for developing trade with Europe. Through a group of Jewish middlemen, it served as a link between Europe, Morocco and su-Saharan Africa. In the eighteenth and nineteenth centuries its fame rivalled Tripoli, Tunis and Algiers. Based on extensive untapped archive in Morocco, papers of Jewish merchant houses and consular records of Britain, France and the United States, this book gives an account of the city in its heyday. Essaouira was an opening to foreign penetration, but it was also important to the Moroccan government, because potentially dissident regions became tied to its commercial and political activities. The control of the sultans was undermined as foreign powers imposed liberal trade and intervened in Moroccan affairs. This study of a specific city and region throws light on the problems of traditional societies in the age of European economic imperialism.
In what ways has Islamic law discriminated against women and privileged men? What rights and power have been accorded to Muslim women, and how have they used the legal system to enhance their social and economic position? In an analysis of Islamic law through the prism of gender, Judith Tucker tackles these complex questions relating to the position of women in Islamic society, and to the ways in which the legal system impacted on the family, property rights, space and sexuality, from classical and medieval times to the present. Working with concepts drawn from feminist legal theory and by using particular cases to illustrate her arguments, the author systematically addresses questions of discrimination and expectation - what did men expect of their womenfolk - and of how the language of the law contributed to that discrimination, infecting the system and all those who participated in it.
L'A. s'attache a definir l'un des penchants traditionnalistes de la culture et de la religion islamiques qu'il appelle le paradigme isnâd, c'est-a-dire le sens de la relation que chaque nouvelle generation de musulmans entretient avec a la fois les debuts de l'Ummah constituee sous le dernier Prophete et avec toutes les generations suivantes des fideles serviteurs de Dieu qui ont prolonge les traditions et les ideaux de la communaute prophetique initiale
Muftis are literate scholars who specialise in Muslim legal-religious interpretation. They provide an example of a higher level of systematic indigenous interpretation than the common sense, everyday constructions of reality that have been discussed in anthropological accounts. I discuss the institutional form of the muftiship, and contrast it with the judgeship, with reference to indigenous ideal-types found in several categories of written Muslim social thought. This ideal form is then compared with the identities of historical and contemporary muftis in Yemen. The interpretive method employed by muftis joins a Greek-derived concept of analogy with recitation and hermeneutics. While their method is structurally similar to scriptural interpretation, muftis are worldly interpreters who address practical life problems posed by lay questioners.
On the basis of an analysis of waqfiyyas collected mainly from the sijill of the sharīʿa courts of Mandatory Palestine and Israel, I seek to clarify the identity of the initial beneficiaries of the waqf and the manner in which entitlement is transmitted to and apportioned among subseqent generations of beneficiaries. I also evaluate the motives of the founder in using the waqf as an instrument for circumventing the compulsory Islamic inheritance rules and analyze the implications of this practice on the integrity of the patrimony and structure of the family. My main conclusions are: (1) the creation of a waqf makes it possible to keep property intact and prevents its division among heirs; (2) the concentration of entitlement on the founder's male agnatic descendants (in itself a victory of custom over sharīʿa) contributes to the disintegration of the extended family.
The controversy surrounding ijtihād and Taqlīd is well-known in modern scholarship. In the present essay, I offer an alternative to the leading views on this crux by treating the issue of scope in the jurisprudential writings of Shihāb al-Dīn al-Qarāfī as a reflection of the manner and direction in which the Islamic legal tradition tended to develop subsequent to the so-called settling down of the four schools of law. At the center of this development stood the highly intricate and spirited institution of Taqlīd, and I posit a causal relationship between the emergence of this institution and Muslim jurists' increased interest in issues such as scope. I also treat the technical aspects of al-Qarāfī's theory and compare it with the theories of a number of his predecessors.
This essay examines the writings of the famous twentieth-century salafī, Rashīd Ridā, in which he discussed and reconstructed the views of Shawkānī, one of the leading thinkers of the late eighteenth- and early nineteenth-centuries, on the subject of legal analogy (qiyās). Shawkānī had opposed the introduction of new laws through qiyās on the grounds that it arrogates to humans a right to legislate which is reserved to God. Ridā, however, mistakenly implied that Shawkānī had advocated a separation between 'ibādāt and mu'āmalāt, allowing the use of qiyās in the latter case. I argue that Ridā's reconstruction of Shawkānī was driven by his desire to find Islamic models that corresponded to the European institutions of the nation state: in an age in which the powers of the nation state were increasing dramatically, a jurisdiction that covered "all aspects of life" would have seemed more appropriate to Ridā than a legal code which does not purport to exhaust all aspects of this life.
The study of the relationship between ijtihād and Taqlīd has been dominated by an approach that privileges ijtihād over Taqlīd on the assumption that the former is an intellectually superior mode of legal reasoning. By analyzing the role of Taqlīd in regulating the actions of muftīs and judges as discussed by post-6th/12th century jurists of the Mālikī school, I conclude that Taqlīd resulted from the desire to have uniform rules rather than as a result of intellectual stagnation. While ijtihād was individualistic and solipsistic, Taqlīd was the result of group interpretation that provided an objective basis upon which legal decisions and legal rulings could be described as being either substantively correct or incorrect. Viewed in this light, Taqlīd was originally a desire to limit the discretionary power of legal officials, especially those at the bottom of the legal hierarchy. The desire to possess uniform rules found its logical outcome in the legal genre of the mukhtaṣar as it emerged in the 7th/13th century. The mukhtaṣar functioned as the authoritative collection of a legal school's doctrine, and, for that reason, I argue that Islamic law in the age of mukhtaṣars is best understood as a codified Common Law.
Representations of the 'Other' are invariably associated with European or Western perceptions of Islam, Muslims and the Orient. However, as this article argues, the world of Islam was never monolithic and Muslims held widely differing views of each other. Even among 'fellow' North Africans, such as Egyptians and Maghribis, collective regional or local identities developed and furnished the material for self-identification built upon perceived differences among the 'others'. In discussing the religio-cultural bases for these differences, the author examines Malikism, Maghribi Islam as practised in the Mashriq, including Sufism, as well as varying ideas regarding urbanity and cosmopolitanism. He concludes with an analysis of how the Moroccan state and its representatives often sought legitimacy in the Mashriq despite the fact that the Sharifian Empire was a rival of the Ottomans and that Moroccan ulema often saw the Mashriqis as lax in the practice of their religion.
The Islamic system of succession is destructive of family property in that it causes its division among a great number of heirs and into uneconomic units. Succession involves a great number of participants; qur'ānic and agnatic heirs participate simultaneously (not successively)—subject, of course, to the rules of priorities and exclusions—and this increases the fragmentation of the property and the shrinking of the shares of the participants ad infinitum . Islamic law does not know the principle of primogeniture. Succession is not limited to direct descendants but includes relatives of different parentelas and different degrees of kinship to the deceased.
Historians of Muslim societies have observed that, in principle, the strict application of the Islamic rules of inheritance would result in the progressive fragmentation of capital. Although technically correct, the observation fails to take into account the fact that the Islamic inheritance rules are but part of a larger and flexible Islamic inheritance system that also includes bequests, gifts inter vivos, family endowments, dowries, fictitious sales, and other modes for the devolution of property. This larger system has served Muslims, rich and poor, for over 1,400 years, although it operates differently in different places. The most important component of the Islamic inheritance system arguably has been the family endowment, known among the Malikis as abs (popularly, habous) and elsewhere as waqf ahlī. This institution came into existence in the first Islamic century, in part because the Islamic inheritance rules proved too constraining, and soon became an integral component of the Islamic legal system. It allows a proprietor to transform immovable property such as a house or field into a perpetual endowment for one or more beneficiaries and subsequent generations of descendants; the property thereafter may not be bought, sold, or inherited. The founder designates the initial beneficiaries and defines the strategy according to which usufructory rights pass from one generation to the next. Thus, the founder may control the devolution ofendowment revenues for many generations after his or her death.
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