Islamic Law in Theory: Studies on Jurisprudence in Honor of Bernard Weiss. Edited by A. KEVIN REINHART and ROBERT GLEAVE. Studies on Islamic Law and Society, vol. 37. Leiden: BRILL, 2014. Pp. xx+ 370. $181, [euro]140.
This festschrift cum workshop volume (2008) begins with the editors' introduction (pp. 1-16), which links the contributions to the groundbreaking scholarship of Bernard Weiss, and follows with thirteen chapters in four main sections: Law and Reason, Law and Religion, Law and Language, and Law: Diversity and Authority. The large tome and the limited space of the review are incompatible; I therefore apologize in advance for not sharing the word count fairly among the contributors but for picking out the chapters that align the closest with my focus.
Ahmed El Shamsy's first chapter explores the question of whether Mu'tazili ethics provided conceptual tools for legal reasoning (p. 19). He examined two early tenth-century works of Shafii legal theory--al-Aqsam wa-l-khisal by the little-known Abu Bakr Ahmad b. Umar b. Yusuf al-Khaffaf and Mahasin al-sharia by al-Qaffal al-Shashi (d. 365/976). Despite the centrality of the notion that the sacred law promotes "human benefit" (maslaha), El Shamsy cautions that maslaha, which was justified by God's wisdom (hikma), had not by that time been mobilized as a practical tool of analogical reasoning (pp. 24-25). According to El Shamsy, al-Qaffal and other early Shafi is drew a distinction between the specific causes of legal rules and the overall purpose of the law. They treated legal causes as arbitrary signs that therefore could not be used in analogical reasoning (p. 28). Not until the rise of Asharism did the theory of maslaha become more practical in lawmaking. One could postulate that al-Ghazali (d. 505/1111)--whose argument in al-Mustasfa min ilm al-usul (ed. Medina, 1992, 2: 502) against the anti-maslaha opponents was that his theory was based on the Quran, Sunna, and qiyas-textualized the theory of maslaha, bringing it in conformity with Ash'arism.
Eric Chaumont follows in chapter two along the same lines, arguing that George Makdisi and Henri Laoust overestimated the influence on Sunnism of traditionalism, especially that of the Hanballs of Baghdad of the eleventh century (p. 39). The traditionalists, in his view, were no more than "an empty shell" (une coquille vide). Like salafis today, they were activists who were both intellectually and spiritually depraved (p. 40). Pace Laoust and Makdisi, Chaumont contends that Abu Ishaq al-Shirazi's (d. 476/1083) legal-theoretical work was influenced by Asharism, as well as Mutazilism, rather than traditionalism--which he calls salafisme, contra Henri Lauziere's argument (UMES 42,3 : 369-89) that salafism as a conceptual category does not emerge until the twentieth century. To sustain his claim, Chaumont argues, through an exploration of the concept of wajh al-hikma (sagesse), that al-Shirazi's kalam works clearly follow Ashari theology that it is God's will (irada) rather than maslaha that drives the law, but his usul is influenced by Mutazilism (p. 40). Al-Shirazi's interlocutors were not the "salafis," but rather the Mutazilis and anfhropomorphists. This suggests to Chaumont that the Hanbalis did not have a legal methodology (usul) (pace Scott Lucas, in ILS 13,3 : 289-324). Chaumont adds that the term wajh al-hikma is incompatible with strict Ashari voluntarism with respect to the purpose of God's law, which is an overarching, higher cause that goes beyond the legal cause ('ilia). He concludes that the development of the concept of maslaha, often wrongly attributed to al-Ghazali, has its rightful provenance in Mutazilism. In his view, the dominance of the debate over maqasid al-shara in contemporary Islamic legal theory is tout court the disguised triumph of Mutazilism over Asharism (p. 52).
Both chapters raise a number of questions that warrant further research: Was the entire tenth-century Shafii discussion merely theoretical, designed to counter anti-religious and antinomian tendencies rather than to valorize practical...