The Ethical Thesis: Practical Reason in Islamic Legal Hermeneutics.

AuthorReinhart, A. Kevin
PositionBook review

The Ethical Thesis: Practical Reason in Islamic Legal Hermeneutics. By ABDESSAMAD BELHAJ. Documenta et Monographiae, vol. 8. Piliscsaba, Hungary: AVICENNA INSTITUTE OF MIDDLE EASTERN STUDIES, 2015. Pp. 199. [euro]38.80.

The Ethical Thesis is a series of essays, or as the author calls them, case studies, on usul al-fiqh. The general argument is hard to follow, in part because the work is presented entirely deductively, that is, rather than survey the material and come to a conclusion, Abdessamad Belhaj presents a thesis and then offers citations to support his argument. The driver of the argument, however, is one general insight: that fiqh ought to be flexible and responsive to particular concerns rather than having fiqh decisions read as general principles imposed universally upon all situations. In short, universals ought to be subordinated to particulars, the qawa'id must yield to takhsis.

After an introduction that presents the argument, chapter one argues for the relevance of Aristotle's concept of practical reason ([phrase omitted]) and of Gadamer's understanding that hermeneutical work is always creative and therefore provisional rather than indisputable and certain. Belhaj's second chapter asserts that al-Shafi'i's Risala was an attempt to thwart legal/linguistic "vagueness" in legal-scriptural passages. "Vagueness" is the term used to translate mujmal (although it is not just the uncertainty of a term that makes it mujmal; rather it is that there is a plurality of meanings legitimately included in a term. "Ambiguity" might be a better translation, while "vagueness" seems a better rendering of shubha). Al-Shafi'i is understood to have argued that a focus on the linguistic norms of the "Arabs" served to constrain the numerous possible meanings of an utterance and select definitively among them to provide a single, determinate, textual meaning of a given utterance. Chapter three asserts that Islamic law was shaped by ethical concerns, but that a sort of division of labor was effected in which Sufism came to be the locus of ethics while fiqh became a formalist regime in which rules and language were presented as unambiguous and uninflected by the contingencies of a given situation. (This was not the case, Belhaj recognizes, with actual legal practice and fatwa production.) Chapter four evaluates the enforcement of Islamic legal assessments and judgments drawing from two Hanbali sources, Ibn Taymiyya's renowned al-Siyasa al-shar'iyya and...

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